Gendered Justice in China: Victim–Offender Mediation as the “Different Voice” of Female Judges

• DOI: 10.1177/0306624X20936202
• Date: 01 March 2021
• Published date: 01 March 2021
• Subject Matter: Articles

https://doi.org/10.1177/0306624X20936202

International Journal of

Offender Therapy and

Comparative Criminology

2021, Vol. 65(4) 346 –372

© The Author(s) 2020

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DOI: 10.1177/0306624X20936202

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Article

Gendered Justice in China:

Victim–Offender Mediation

as the “Different Voice” of

Female Judges

Shuai Wei1

Abstract

Attempts to uncover the “different voice” of female judges through testing the

statistical significance of judges’ gender in decision making have offered inconsistent

results. Meanwhile, a proliferation of research suggests that such “voice” might be

detected through qualitative analysis. Existing findings indicate that when female

judges have discretionary power regarding case management, they will typically

foster a process of settlement. Based on this information, I conducted eight months

of fieldwork in China and observed 68 victim–offender mediations in four district

courts. I found that the criminal division is widely perceived as a masculine setting,

and female judges are accustomed to employing mediation as a preferred dispute

resolution method to facilitate reconciliation between the two parties and seek civil

compensation for victims. Such judicial behavior is a result of propaganda from the

Supreme People’s Court and a reflection of female judges’ life and work experience.

By contrast, a neglect of mediation among male judges can be identified in the same

workplace. The belief that mediation is feminine and time-consuming contributes to

this neglect. In addition, rape lawsuits are an exception for mediation. This explorative

research not only represents one of the first efforts to reveal a “different voice” in

the Chinese criminal justice system but points out a direction of research for studying

the judicial behaviors of female judges worldwide.

Keywords

victim–offender mediation, judges, gender, propaganda

1University of Cambridge, UK

Corresponding Author:

Shuai Wei, Centre for Gender Studies, University of Cambridge, Alison Richard Building, 7 West Road,

Cambridge CB3 9DT, UK.

Email: sw725@cam.ac.uk

936202IJOXXX10.1177/0306624X20936202International Journal of Offender Therapy and Comparative CriminologyWei

research-article2020

Wei 347

In Shakespeare’s The Merchant of Venice, Portia, disguised as a man (which is the

only way she can argue the law), assumes the role of a lawyer’s apprentice and elo-

quently pleads for the life of Antonio before a judge. Portia is perhaps one of the first

female “lawyers” to be named in Western culture, but her story indicates that the early

legal society was built as a mostly male field, macho, and hierarchical. It is true that

the legal profession historically has been homogeneous in gender1 and ethnic make-

up, greatly impacting the resulting power structure (Brockman, 2001; Kronman,

1995). In such institutional settings, many sentencing statutes and judges in the

United States make gender distinctions that are transmitted into disparate sentences

for male and female offenders found guilty of the same offense (Armstrong, 1977).

Nearly three decades ago, the 1995 Beijing Declaration and Platform for Action (arti-

cle 142, page 58) specified that government should “ensure that women have the

same right as men to be judges, advocates, or other officers of courts, as well as police

officers and prison and detention officers, among other things.” Even in the 21st cen-

tury, it is still easy to imagine a time when bringing a dispute before a court would

certainly mean a white male judge sitting on the bench and determining the outcome

of the litigation. Over the years, feminist legal scholars have continuously challenged

the “rationality” of laws and legal systems (Fineman & Thomadsen, 2013). They

understand maleness as a social and political concept, not a biological attribute

(Littleton, 1986). It is men who define objectivity and neutrality, pushing women to

see reality in those terms. MacKinnon (1983) thus argued that “justice will require

change, not reflection” (p. 658).

Feminist legal scholars have also campaigned for gender equality and diversity in a

judiciary which has long been perceived as “pale and male” (Rackley, 2012, p. 7).

Research has revealed that women may be able to engage in agenda-setting for wom-

en’s equality and rights when they constitute a critical mass in political bodies (Bratton,

2005). As a result, a rich body of international literature arguing for a strong role for

women in the administration of justice has been produced (Schultz & Shaw, 2013).

The scope of these research outputs not only covers the methods of selecting judges in

many parts of the world, but also touches on the advancement of judicial careers for

female judges. One line of this inquiry examines the role of gender in the application

of the law, and scholars have wondered whether women can bring something different

to the adjudication process based on their life and work experience. The suggestion

that female judges rule “differently” from their male colleagues is typically tied to the

work of Gilligan (1982). In her book In a Different Voice, Gilligan identified two dis-

tinct “voices,” or reasoning processes, corresponding (in her research subjects) to men

and women. She argued that the woman’s voice is not deficient (as was assumed by

dominant psychological theories of the time), but is merely different from the main-

stream (masculine) voice. Soon after the publication of Gilligan’s book, her work was

heavily criticized on methodological grounds because of her extremely small, selec-

tive sample (Auerbach et al., 1985). Given the complexity of social reality, other crit-

ics also argued that one should be careful not to attribute too much influence to gender

alone in decision making, but rather explore a combination of variables such as profes-

sional training and the prevailing political regime along with personal attributes, such