Analyzing Gender's Influence on Sentencing and Sanctions in Australia

This essay examines the influence of gender on sentencing practices within the Australian criminal justice system. It explores the historical context of female crime, the evolution of gender studies in criminology, and the impact of gender stereotypes on judicial decisions. The paper analyzes specific policies and acts in Australia, such as the ACT Women’s Plan and Victoria’s Better Pathways framework, to understand how they aim to address gender disparities. The essay delves into the complexities of how gender roles, socialization, and societal expectations affect the treatment of female offenders, including the potential for both harsher and more lenient sentencing outcomes. The author discusses how factors like appearance, marital status, and perceived sexuality can influence jurors' perceptions, as well as the impact of criminal intent on sentencing. The analysis highlights the ongoing efforts to develop gender-responsive correctional services and the persistent challenges of addressing gender bias in the courtroom. The essay concludes by emphasizing the need for further research to better understand the intricacies of gender and sentencing in Australia.

Sentencing Disparities and Gender
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Introduction
In modern society, there has been a deep rethinking of the place and role of women in
various fields of social activity, which is why a gender approach is used in solving many
scientific and practical problems. The gender approach suggests that differences in the behavior
and perception of men and women are determined not only by psychophysiological
characteristics, but also by the specifics of their social behavior. Until now, criminology, being
“androcentric,” like other social sciences, has mainly analyzed the forms and patterns of
universal “male” crime, since for a long time it was believed that female crime causes little harm,
and in this regard, it was characterized as a kind of exception to general crime. Currently, female
crime is seen as an independent problem. The clearest contrast between the fate of men and
women does not appear in political or public order trials, but in cases of crimes against property
and, in particular, violent crimes. Even with regard to the sentences imposed, women convicted
of crimes benefit from lighter sentences than men. The law says all accused of the same offense
were to receive the same sentence. Victoria State of Australia has come up with many
regulations, policies and acts to provide milder sentencing terms for women. ACT Women’s
Plan 2004–2009, for example, requires the criminal justice agencies to handle women issues
comprehensively and emphasises the multidisciplinary approaches1 Using Australian criminal
justice system, the paper intends to explore how gender influencing sentencing and sanctions.
Analysis
Analyzing existing studies on female crime, we can conclude that both quantitative and
qualitative changes in female crime are currently observed, in particular, with the priority of
mercenary attacks, violent crime of women significantly increases, aggression and cruelty in
1 ACT Government 2010b. Corrections management (reception and management of female prisoners) policy 2010.
Notifiable instrument NI2010-448. Canberra: ACT Government

their behavior are manifested. Modern women are increasingly committing traditionally “male”
assaults: terror-act of terrorism, hostage-taking, kidnapping, banditry, unlawful seizure of a car,
crimes related to arms trafficking. Female crime takes on organized forms; there has been an
increase in the recidivism of women. The question of the differences between female and male
crime was raised even before the emergence of gender studies in criminology. So, A. Ketle
explained the lesser crime of women not only by their physical weakness, but also by their
detachment from public life, isolation from family responsibilities. Lorana Bartels and Antonette
Gaffney body and character, the nature of the woman, her “biological underdevelopment”. All
subsequent development of science showed that priority still belongs to circumstances that are
forming in the conditions of social life, although biological factors should not be completely
denied.
Recent development in Australia’s criminal justice system such as development of ACT
Corrections Management (Reception and Management of Female Prisoners) Policy 2010, the
ACT Women’s Plan 2004–2009, Victoria’s Better Pathways in Practice: The Women’s
Correctional Services Framework and Victoria’s Better Pathways: An Integrated Response to
Women’s Offending and Reoffending2 clearly shows that Australia is constantly striving to come
up with laws that makes women sentencing relatively milder than male.
There is a closer connection between stereotypes and negative behavioral labels. Control
theory argues that women are more socialized and their behavior shows more affection. The
hypothesis of equal rights and opportunities of the sexes connects the growth of female crime
with the success of the women's movement for gender equality, as well as with the fact that
social changes in the transformation of social institutions, aimed, in particular, at the separation
2Corrections Victoria 2010. The healing path—Marrmak Integrated Mental Health Unit poster. Melbourne:
Department of Justice.

of the main social institutions (for example, marriage, education, employment ), gave rise to a
more accessible opportunity for women to participate in criminal activities. Recently, there have
been developments according to which differences in gender roles can explain the existence of a
gender gap in crime rates, the traditional female role is incompatible with criminal behavior, and
masculine self-identification should increase the likelihood of delinquency, while feminine
should decrease The main merit of multiple gender studies of crime can be considered the use of
the data obtained in the development of programs for female offenders. Thus, some jurors surely
judged women more severely than men, while others based their verdicts on an evaluation of the
evidence without taking into account the sex of the accused3.
Victoria’s Better Pathways in Practice: The Women’s Correctional Services Framework
(Corrections Victoria 2007) advocate for gender responsive correctional services. Besides, of
course, the weight of the evidence, one may wonder why the jurors applied the law in all its rigor
to some women and not to others. More research on the criminal courts is needed to more surely
tackle this question which will always remain, fundamentally, elusive. But among the elements
likely to have influenced the juries, one can cite more particularly the physical and dress
appearance of the accused, their poverty, the perception by the jurors of their supposed excessive
or immoral sexuality, their status (married or single woman) . Some of these characteristics are
elusive and are part of the essential mystery of the courtroom. Thus, the external appearance of
the accused must have played a role in criminal trials. Here, as on other scenes. In the courtroom,
the question of the appearance of the accused certainly added to the question of her
"respectability"4.
3 Lorana Bartels and Antonette Gaffney. Good practice in women’s prisons: A literature review. (Australian Institute
of Criminology 2011)
4 Corrections Victoria 2009a. Statistical profile of the Victorian prison system 2004–05 to 2008–09. Melbourne:
Department of Justice

Queensland’s Improving Outcomes for Women Offenders: Women Offenders Policy and
Action Plan 2008–2012 (QCS 2008b) also has provisions for milder women treatment. In
addition, the sex lives of women were more frequently examined by correctional jurisdictions
than by criminal courts. Evidently, criminology remains one of the most thoroughly
masculinized of all social science fields. According to Carlen and Worrall, such stereotypes have
traditionally been based on three basic conceptions: first, the notion that criminal behavior is
primarily an activity of men, so that women who commit crimes are doubly diverted: they violate
the law criminal and femininity; They are bad citizens and bad women. Second, the tendency to
"pathologize" and "medicalize" women deprived of liberty, who are usually seen as less robust,
physically and especially mentally, than men. Third, a social anxiety about the role of women in
the family and society, and the belief that prisons, and other social control institutions (such as
asylum, reformatories, convents and the family itself), through of its rules, regimes and
programs.
Gender stratification
The identification of female and male crime as independent species is associated, first of
all, with the gender stratification of society. It should be recognized that women and men have
significant sociocultural differences, respectively, the structure, causal complex of male and
female crime, the identity of the male criminal and female criminal have significant differences.
In addition, female crime, due to gender differences again, has a specific effect on the moral and
psychological climate of society and on other components of crime, in particular, juvenile
delinquency. The problem of gender inequality is also acute, which can be considered as one of
the reasons for the existence and growth of female crime. Understanding the characteristics of
female and male crime is impossible without an analysis of the existing gender stereotypes in

society, that is, simplified, schematized ideas about the behavior of a man or woman. It is
proposed to divide the existing gender stereotypes into three groups. The first includes
stereotypes associated with normative ideas about the biological, mental, and behavioral
characteristics of women and men. These are representations of activity, aggressiveness,
competence, independence, logical men and, accordingly, passivity, dependence, emotionality,
caring, tenderness of women.
There are several theories explaining the mechanisms and forms of socialization and
assimilation of the sexual role, and no clear conclusions have yet been made about the content of
female and male socialization. At the same time, all theories agree that the most important
mechanisms of socialization include identification — a child’s imitation of the behavior of adult
representatives of his gender, and typing — the formation of “correct” ideas about his gender as
a result of the active influence of parents: name selection, differences in clothing and toys,
rewards and punishments. The most famous are the psychoanalytic theory, emphasizing the great
importance of the biological factor and the influence of parents on the process of sexual
socialization; the theory of social learning, which attaches great importance to the typification
mechanism, according to which the differentiation of sexual roles occurs through observation,
reward, punishment; the theory of cognitive development, according to which the child's idea of
sexual roles arises as a result of the child’s active and creative structuring of his own experience;
a new psychology of sex, according to which the social expectations of society are of primary
importance in the formation of the mental sex and sexual role5.
Gendered theory could also explain what is happening in Australia. Socialization
perspective could help us in gauging why gender bias exist during criminal justice. Lorana
5 Lorana Bartels and Antonette Gaffney. Good practice in women’s prisons: A literature review. (Australian Institute
of Criminology 2011)

Bartels and Antonette Gaffney indicates, positivist (and androcentric) criminology has
constructed two types of arguments, biological and socialization, to explain the limited presence
of women before criminal courts and in prisons: on the one hand, several criminological theories
argue that women are genetically less inclined to display aggressive behaviors, and therefore to
commit crimes, because by nature they are protective and providers. On the other hand, women
are socialized to conform to social norms, through the internalization of the expectations
generated by their gender role; From a young age they are taught what it means to be a woman in
a certain society and the behavior that is expected of them accordingly. This causes women to
have a lower tendency to get into trouble with the law. In addition, when they reach adulthood,
women have fewer opportunities to commit crimes because they must take care of their homes
and their children. If they fail to deal with these responsibilities, the most common is that they
seek medical or psychiatric help, instead of engaging in deviant behavior. The apparent
invisibility of women prisoners and their double-deviant nature have led to much more rigorous
and discriminatory disciplinary treatment and control vis-à-vis women, who are also
disproportionate to the seriousness of the behaviors committed and the social risk they represent.
If the prison space is a gray area conducive to the suspension of the rule of law and the
deployment of disciplinary technologies, it is even more so in the case of women, subject to the
one-dimensional discourse on the feminine that labels them as doubly diverted and in need of a
firm hand, as if it were girls or the mentally incapacitated, to regain their femininity. In this
fundamental aspect its penitentiary treatment is centered6.
Some jurors may have wished to spare women the physical suffering associated with the
harshest penalties. This trend, which stems from a vision of women as being more fragile than
6 Lorana Bartels and Antonette Gaffney. Good practice in women’s prisons: A literature review. (Australian Institute
of Criminology 2011)

men, may help explain why jurors less often found them guilty of the most serious crimes - in
particular, those who resulted in capital punishment. In addition, there was a well-known male
bias that women were more likely to give in to their primary instincts, and to be guided by their
passions rather than reason (a supposedly male attribute). One can rightly imagine that this
perception of women was shared by many male jurors, especially since the new laws compelled
jurors to take into account the question of "criminal intent"7. Revolutionary jurisprudence placed
the evaluation of this intention explicitly at the heart of the responsibilities of jurors. Without an
intention to commit a crime, there was, legally, no crime. And even when jurors decided that the
accused had acted with criminal intent, their assessment of the degree of premeditation often had
consequences for the accused. In the case of homicide, for example, the sentence depended on
their decision in this regard: if the jury declared that the crime was premeditated, the death
penalty was pronounced. Likewise, the types of theft that required preparation - burglary for
example - resulted in heavier penalties than petty theft committed as a temporary temptation,
such as shoplifting or theft in a field. The penal philosophy of the Revolution therefore allowed
jurors to acquit an accused by ruling that he had not really intended to commit a crime, or to
actually reduce his sentence by deciding that his offense was carried out more a moment of
weakness as a plan. Thus the idea that women are irrational beings, inclined to impulsive or
spontaneous acts, may have worked in their favor.
In short, faced with exclusively male juries, women who were desperately seeking
acquittal or a reduced sentence could, paradoxically, hope to benefit from certain a priori men
who were otherwise unfavorable or restrictive: the dependent woman and at best partially
responsible, the fragile woman, the woman devoted to her impulses and often incapable of
rational conduct. Furthermore, historian Michelle Perrot argued that judges in later periods were
7 Belknap, Joanne. The invisible woman: Gender, crime, and criminal justice. (Belmont, CA: Wadsworth 2015).

"attentive to the family responsibilities of women" In fact, it seems very likely that the juries of
the revolutionary period could have hesitated to convict mothers of young children, given the
consequences of such a decision on the life of their families8. We have already seen that in
political cases the rates of convictions and acquittals were almost identical for women and men.
Although the hypothesis is very difficult to prove, we can assume that the sex of the accused had
influence even more variable in political trials - often to the detriment of women. Even in cases
of theft and violence, less harsh treatment of them was a general trend and not a constant rule.
Feminist criminology theory
Despite the fact that previous criticisms of the women's detention regime today seem
obvious, until before the 1980s criminology and criminal discourse were dominated by a
masculine vision that ignored the gender perspective. Even progressive positions were not
sensitive to the situation of women in prison and what it implied. But since the 1980s, driven by
the vigorous feminist trend, studies of women who commit crimes and who are imprisoned are
much more abundant and critical of the forms of social control exercised over women, especially
those that are labeled as criminals, and that are different from those exercised on men9.
Lorana Bartels and Antonette Gaffney point out that these types of studies made five
major contributions to the understanding of the meanings of women's imprisonment. First, that
crimes committed by women occur in circumstances other than those committed by men, which
denote deeper forms of discrimination and oppression, including aspects such as race and social
class. Second, that the profile of imprisoned women is different from that of their male
counterpart; For example, fewer women than men tend to have some type of job or trade before
8 Belknap, Joanne. The invisible woman: Gender, crime, and criminal justice. (Belmont, CA: Wadsworth 2015).
9 Belknap, Joanne. The invisible woman: Gender, crime, and criminal justice. (Belmont, CA: Wadsworth 2015).

being incarcerated; many of them have suffered different forms of physical and sexual violence
before going to prison10.
From the criticisms that feminism makes about the social control of women through
prison, as well as the speeches that legitimize it, several feminist authors have proposed a
feminist criminology and penology, sensitive to the needs and particularities of women. In this
regard, it should be sought that the criminal regulation of women is a last resort that does not
further increase their oppression. And, concomitantly, the criminal regulation of men should not
brutalize them and make them even more violent and oppressive of women.
Special emphasis should be placed on the criminal regulation of women as a last resort.
Since studies consistently show that women often have shorter and less serious criminal careers
than men, as well as lower recidivism rates, it should not be necessary to increase the number of
women who go to prison. Public safety will not be affected by a greater and more imaginative
use of alternative prison sentences that also address social justice factors (housing, income,
health, education and employment) that disproportionately affect women who fall into the
networks of the penal and penitentiary system. But apart from these structural factors, women
who have violated the criminal law should receive help to feel that they are valuable people.
Stigmatization
Considering the reasons for repeated crimes by girls and women, the phenomenon of
stigmatization is also noteworthy. A peculiar gender inequality is observed in the attitude of
society towards the deviant behavior of underage boys and girls. So, smoking, drinking, marital
infidelity, a large number of sexual partners for young men and men acquires the status of a
10 Anti-Discrimination Commission Queensland (ADCQ) 2006. Women in prison: A report by the Anti-Discrimination
Commission Queensland. http://www.adcq.qld.gov.au/Project-WIP/WIPreport_contents.htm

norm and is a kind of “initiation”, initiation to adulthood, with respect to women, it is strictly
condemned by social norms. Society condemns a stumbled girl much more strictly than a young
man, and social stigmatization, due to gender characteristics, is more persistent and destructive
for her. An important area is the study of the identity of juvenile delinquents in terms of their
victimization in the past. This is necessary to understand the peculiarities of the mechanism of
individual criminal behavior and develop measures aimed at ensuring the personal and property
safety of potential victims of crimes committed by teenage girls11. Beyond the general
criminological discourses that attempt to account for female criminality, women's prison
experience involves identifying and analyzing those differential aspects that characterize it, as
well as its relationship with the general male prison experience. In this sense, the question asked
is whether the penitentiary experience of men and women is different. And, if this is the case
what these differential factors are and how they can be identified. In this section we will try to
briefly outline the main answers to the previous questions, with special emphasis on those
studies that deal with finding it in the subjective experience of prison suffering by women
deprived of liberty12.
As in the criminological literature, the appearance of women in studies on the world of
confinement is a relatively recent issue. Indeed, the experience of women in prison was not
reflected with sufficient intensity in studies that address the issue of internal prison social order.
The classic foundational stories about the world of confinement developed in total male
institutions. The concern that promoted this type of work was focused on defining the prevailing
social system in maximum security establishments13.
11 Belknap, Joanne. The invisible woman: Gender, crime, and criminal justice. (Belmont, CA: Wadsworth 2015).
12 Belknap, Joanne. The invisible woman: Gender, crime, and criminal justice. (Belmont, CA: Wadsworth 2015).
13 Belknap, Joanne. The invisible woman: Gender, crime, and criminal justice. (Belmont, CA: Wadsworth 2015).

Conclusion
Without diminishing the importance of penitentiary suffering experienced by women
prisoners understood as maternal and family suffering, it is necessary to point out the
problematic nature of an excessive emphasis on these aspects. On the one hand, because of the
simple fact that not all women deprived of liberty are mothers or have stable family ties with the
outside world. Identifying the female penitentiary experience with the penitentiary experience of
the woman deprived of liberty who is a mother reduces the complexity of the matter, preventing
her from understanding the differential character of female confinement beyond the maternal.
Second, because it tends to idealize the discourse of motherhood as the key language for
understanding the experience of women in jail, losing sight of the uses of this resource and its
effects on the general understanding of the phenomenon of female confinement.

Bibliography
Lorana Bartels and Antonette Gaffney. Good practice in women’s prisons: A literature review.
(Australian Institute of Criminology 2011)
Corrections Victoria 2010. The healing path—Marrmak Integrated Mental Health Unit poster.
(Melbourne: Department of Justice 2010).
http://www.justice.vic.gov.au/wps/wcm/connect/justlib/doj+internet/home/prisons/prisoners/
release/justice+-+the+healing+path+-+marrmak+integrated+mental+health+unit+poster+(pdf)
Corrections Victoria 2009a. Statistical profile of the Victorian prison system 2004–05 to 2008–
09. (Melbourne: Department of Justice 2009)
http://www.justice.vic.gov.au/wps/wcm/connect/0d26b600404a9d609074fbf5f2791d4a/
Statistical_Profile_Victorian _Prison_System_2004-05_to_2008-09.pdf?MOD=AJPERES
ACT Government 2010b. Corrections management (reception and management of female
prisoners) policy 2010. Notifiable instrument NI2010-448. Canberra: ACT Government
Anti-Discrimination Commission Queensland (ADCQ) 2006. Women in prison: A report by the
Anti-Discrimination Commission Queensland.
http://www.adcq.qld.gov.au/Project-WIP/WIPreport_contents.htm
Belknap, Joanne. The invisible woman: Gender, crime, and criminal justice. (Belmont, CA:
Wadsworth 2015).