Gender, crime, and the criminal law defenses.

• Author: Denno, Deborah W.
• Position: Symposium: Gender Issues and the Criminal Law

1. Introduction

   Gender is among the strongest predictors of crime,(1) particularly violent crime.(2) Arrest, self report, and victimization data consistently show that men and boys commit significantly more crime, both serious and not, than women and girls.(3) This pattern persists despite data indicating that crimes committed by females may be rising.(4) Evidence also suggests that males are generally more aggressive than females,(5) even before the preschool years.(6) Yet most theories and explanations of crime are gender blind. They either bypass the gender issue entirely or focus solely on why females fail to resemble males in their behavior.(7) These theories also ignore the possibility that explanations for the gender disparity in crime may help account for the underlying correlates of crime in general.(8)

   This Article attempts to explain some of this gender disparity by analyzing the results of the "Biosocial Study," one of this country's largest longitudinal(9) studies of biological, psychological, and sociological predictors of crime.(10) The Biosocial Study followed nearly 1000 Philadelphia residents from birth through early adulthood and examined numerous variables. The individuals came from families who participated in the Philadelphia Collaborative Perinatal Project at Pennsylvania Hospital between 1959 and 1966. Pennsylvania Hospital was one of twelve medical centers the National Institute of Neurological Diseases and Stroke included in an unprecedented, nationwide study of biological and environmental influences upon the pregnancies of 60,000 women, as well as the physical, neurological, and psychological development of their children.(11)

   The Biosocial Study and its data are unique in this country. Few researchers have conducted longitudinal studies of crime and behavioral disorders,(12) and no one has been able to intensively analyze a large sample of individuals both before and after the start of their criminal careers. Moreover, many studies examine only males or do not focus on gender differences when they include both males and females.(13)

   As this Article discusses, the results of the Biosocial Study confirmed past research which had demonstrated gender differences in the prevalence of crime. Males engaged in more crime and violence than females, and they were more likely to repeat their crimes. However, the Biosocial Study also corresponded with some research and theory which had indicated gender differences in the prediction of crime. With some exceptions, biological factors were found to be more predictive of crime among females, whereas environmental factors were found to be more predictive of crime among males.(14) Also, more factors overall were correlated with crime among females than males. This Article considers the consequences of these results with respect to whether there should be a gender-based standard for punishment or defenses.

   This Article uses loose definitions of the terms "biological" and "environmental" or "sociological," because of their close association with related terms, and with one another. Generally, "biological" factors are "nonsocial, nonbehavioral measures of . . . constitution and functioning,"(15) such as neurological abnormalities. "Environmental" factors include measures without a biological base, such as family income. Factors comprising "behaviorally-defined characteristics," like cognitive or intellectual ability and achievement, may have a partial biological base,(16) which a certain environment could perpetuate or alter. The term "sex" refers to the chromosomal constitution of an individual; the term "gender" refers to the sociological, psychological, and cultural constructions of male and female differences.(17) Lastly, the term "defenses" includes three types: (1) "complete" defenses, such as insanity, which may result in total acquittal; (2) "partial" defenses, such as provocation; and (3) mitigating factors, such as mental impairment. These latter two defenses may reduce either the charge (e.g., from murder to manslaughter) or the sentence (e.g., from life imprisonment to twenty years).

   Section II analyzes the literature and research on gender differences in crime. Section III describes the Biosocial Study and its results, noting the gender differences in the prevalence and prediction of crime and the inability of any one factor to be a strong predictor of crime. Relying on the Biosocial Study's results, this Article proposes a new gender-based defense which incorporates the finding of gender variations among predictors of crime. This "gender-variant" defense recognizes that crime among females may be more strongly linked to certain biological factors, such as neurological abnormalities, whereas crime among males may be more strongly linked to certain environmental factors, such as lead poisoning. Such results suggest that gender is a factor in determining whether any particular condition renders individuals less culpable for their behavior.

   Section IV considers whether gender differences warrant disparate types of punishment or treatment within the criminal justice system by analyzing the gender-variant defense within a continuum of four gender-based defenses. This continuum ranges from biologically-based defenses to socially or culturally constructed ones: (1) gender-specific (e.g., post partum depression); (2) gender-dominant (e.g., high testosterone); (3) gender-variant (e.g., neurological factors or lead poisoning); and (4) gender-cultural (e.g., battered woman syndrome). Commentators have rarely examined or compared these defenses in the aggregate since they typically focus on just one. Yet, looking at these defenses together, and more broadly, provides a perspective on how the criminal justice system views gender and gender-stereotyping. These defenses have not been widely-used, but they are rapidly gaining popularity. This Article questions whether they should be accepted.

   Next, this section discusses and critiques the tendency for the criminal law to view the more biologically-based defenses as manifestations of gender stereotypes and to explain the more culturally-constructed defenses in terms of supposed biological or psychological gender differences. Even though defendants use stereotypes to make their defenses more persuasive to a jury, they are frequently irrelevant and have no basis in fact. Thus, courts should render them inadmissible. Moreover, gender-stereotyping stifles the criminal justice system's "greater" goal of gender neutrality.(18) For example, a gender-stereo-typed defense may appear to win an acquittal, but other factors, such as severity of the crime, are actually far more influential on case outcomes. Further, gender-stereotyping can result in personal stigmatization, or harm men or women as a group.(19) If poorly used, it can ease conviction.(20) For these reasons, this section concludes that the potential harm of gender-stereotyping outweighs any perceived benefit.

   Section V concludes that gender differences in prevalence and prediction should not be considered in sentencing. Sentencing decisions based upon generalizations about immutable individual characteristics such as gender offend society's notions of justice. This constitutes the worst form of stereotyping.

   In sum, gender differences in prevalence or prediction or gender-stereotyping should not justify either mitigations in punishment or the underlying rationales for criminal law defenses, unless the defenses are appropriately factually-based. It is beyond the scope of this Article to discuss the evidentiary issues involved in such a fact-based determination. At the same time, this Article's account of the Biosocial Study and its critique of gender-based defenses illustrate ways to make one. Lastly, this Article questions whether differential treatment is warranted for distinguishing among biological factors other than gender, given the results of the Biosocial Study and the dubious rationale that the criminal law offers for some biological defenses, but not others.

2. The Nature and Prevalence of Gender Differences in Crime

   Males comprised eighty-eight percent of those persons arrested for violent crime in 1992(21) and approximately ninety-five percent of new court commitments for violent offenses in 1991.(22) Most conventional theories of crime do not sufficiently explain the overwhelming domination of males in violent crime.(23) Yet, because crime and violence are associated with maleness, society deems women who engage in crime to be "doubly deviant " -- defying both the law and their gender role.(24) As the following sections show, this perspective toward female criminals has remained constant.

   1. A historical view of female crime

      Historically, commentators have explained women's lesser involvement in crime as an "underachievement"(25) attributable to their biology or sexuality.(26) Moreover, they have often confused sex with gender, characterizing crime among females as masculine or malelike, a perspective that remains in current research on female crime.27

      Cesare Lombroso, an Italian physician, was the first to explain female crime in this manner.28 Near the turn of the twentieth century, Lombroso espoused his belief that criminals possess an innate and "atavistic" predisposition toward crime.29 Lombroso and William Ferrero attributed women's lower crime rate to their "piety, maternity, want of passion, sexual coldness, weakness, and undeveloped intelligence."30 Women criminals, however, were deficient in such typical feminine characteristics. Instead, they exhibited "strong passions and intensely erotic tendencies," as well as high intelligence and physical strength.31 Still, society believed that women criminals were capable only of a lower level of criminality because, as women, they lacked the "combination of intellectual functions" required of more demanding (i.e., masculine) crimes, such as highway robbery, murder, and...