Inspired by Misjustice: How British Law is Failing Women, Helena Kennedy (Chapter 2 – The Good Wife and Mother).
For as long as there has been a legal system to breed preconceived notions of what it means to be a woman, that is exactly what has happened. The role of a woman did not come about by chance but by calculated interference from those capable of wielding power and influence over their presumed inferiors. This standard that women are expected to meet has been used by judges throughout history as a benchmark for the respect that a woman may receive and has impacted on judicial decisions for centuries.
Occurring as an unwritten phenomenon within the English legal system, the idea of a ‘good woman’ has played an important role within practically all cases involving women. Was she a good mother? Did she show her children adequate attention and love? Was her house clean and tidy? Was dinner ready when her husband got home each night? – these are all criteria used to assess the innate value of a woman. If a woman lived up to these ideals, then she was far more likely to receive a lighter sentence, and maybe even avoid imprisonment altogether. However, should a woman have no children, no husband, a messy home, or perhaps just a general lack of stereotypically feminine traits, unfortunately she could expect to have the law come down on her a lot harder. These women are seen as ‘other’, and not ‘women’ as our society ought to know them. Subsequently, her position as a defendant is more dangerous.
Judges have sought explanations to justify why some women are just not ‘good women’. It appears unfathomable that a woman could commit a crime without some greater reason as to her behaviour. The law attempts to medicalise female criminal activity via the notion that women can be subject to their hormones.
The defence of infanticide was brought in to defend women who killed new-born children, the justification being that no sane woman would do such a thing and thus, there must have been some greater, presumably hormonal or psychiatric, power at play. The case of Rachel Tunstill is one in which the judge concluded there was no other way of knowing why such a crime would occur. Women have often been depicted as incapable of rational behaviour in the face of their physiology, which has placed them in an entirely different position to men when facing the law. In another case, Suzanne Holdsworth was convicted of murdering a toddler in her care, despite there being evidence of her having a brain disorder (amongst other possible explanations). It wasn’t until three life-changing years later, which Holdsworth spent in prison, that these other possibilities were investigated and Suzanne was set free.
This goes to show that the scrutiny and medicalisation of women’s behaviour in law can be incredibly dangerous. Additionally, it also backfires on men as they are often viewed and labelled as inherently violent or deceitful, and as having more questionable desires that cause them to commit crimes. This, much like how the idea of women being ‘slaves to hormones’, is a misconception that does more harm than good.
The consequences of such notions of a ‘good and honest woman’ are often most severely felt during sentencing. Those seen as acceptable women within society may find themselves with a community sentence or a fine, something which allows them to continue their role as mother and housewife. It is not that this side of the issue is necessarily wrong - Judges ought to consider the social realities that imposing prison sentences on defendants may have, particularly for women as they are more often than not primary caregivers but also for men who find themselves with others in their direct care. The idea that women without such childcare responsibilities or who don’t meet societal expectations require imprisonment ‘for their own good’ is misplaced and suggests that these women need to be fundamentally fixed.
The good news is that the legal system is not completely ignorant to this issue. It is known that a robust and comprehensive community-based sentencing regime is needed to deal with the realities of placing women in prison. At the time of Kennedy’s book being published, there were plans for increased attention to be given to the true needs of women who find themselves before the law. Four years later, some of these plans have been put into practice. The NHS have enacted a Liaison and Diversion Service to help identify mental illness, substance abuse issues, and other vulnerabilities within defendants as soon as they enter the criminal system. This has helped to create fairer trials as women can be assessed with accurate information as to their current state, as opposed to being blanketed with misconceptions as to their hormonal tolerances.
Scotland have taken this idea further by introducing Therapeutic Communities. These are houses which female offenders are sent to instead of prisons. The focus is on establishing the true route of their offending, offering support for substance misuse, employability, childcare, and plenty more. This provides female offenders with the necessary support to be able to change their lives for the better and allow them to find their own place within society.
In essence, the law needs to wake up to the realities of the women coming before it, and realise that the idea of what makes a ‘good woman’ is old-fashioned and prejudicial in a way that does not serve the law or our society in any positive way. Due to the unique positions many offending women find themselves in, there need to be more suitable methods of retribution and rehabilitation. We are beginning to see some promising work being done, but there is still plenty of room for improvement to amend the legal system and give women the justice they deserve.