The feminist challenge in criminal law.

• Author: Schulhofer, Stephen J.

INTRODUCTION

Feminist criticism of criminal law and criminal justice administration has proliferated over the past decade and now touches scores of doctrinal, practical, and theoretical issues. These critiques and the associated proposals for reform are usually acknowledged to be controversial (and even "radical") by proponents and opponents alike. Yet, across a wide range of issues, the feminist position has its basis in a simple fact that cannot be considered debatable: criminal law is, from top to bottom, preoccupied with male concerns and male perspectives.

In this Article, I explain why this seemingly tendentious claim is not only accurate but uncontroversial. I then seek to show how the male orientation of existing criminal law creates both the necessity for reform and a major obstacle to doing it well.

The feminist challenge is to adapt male-oriented criminal laws and practices to the concerns of a group of victims and offenders who are normally left out of the picture. This turns out to be difficult, and not just because of a lack of empathy for the needs of women. Factoring female victims and female offenders into the criminal law equation is hard because of many conflicting concerns and commitments that most Americans share. Three conflicts in particular will be central to the discussion that follows.

First, although we want women to be treated the same as men, sometimes equality cannot be achieved by treating two groups of people the same way. We need to take differences into account. Yet drawing categorical distinctions between men and women undermines our ideals. This is the familiar debate concerning sameness versus difference. It pervades discussions of gender in other areas of the law and discussions of equal treatment for racial minorities, the handicapped, and other groups.(1) The debate plays out with some unexpected twists in criminal justice.

A second dilemma is that we want to be sensitive to the nuances of context when gender issues are at stake. But effective protection of women also requires that women have clear-cut rights protected by clear rules. This is the old debate concerning rules versus discretion. Again, it plays out with some unexpected twists in criminal justice.

A third dilemma concerns the limits of theory. We need theory to help pinpoint the problems confronting women and to help organize thinking about solutions. But theory is not up to the task. Indeed, I will argue that in criminal justice, theory can never be equal to the task.

Much of contemporary feminist discussion and scholarship center on developing new theories or on parsing the differences among theories and defending commitments to one of them or another. One theory emphasizes formally equal treatment.(2) A major competitor is a theory stressing the ways that culture and social practice subordinate women under laws that are formally neutral.(3) A third theory emphasizes context, caring, and connection in lieu of what it views as a "male" commitment to abstract rights defined without regard to context.(4) One scholar has identified seven distinct feminisms: liberal, radical, marxist, socialist, psychoanalytic, existentialist, and post-modern.(5) And that taxonomy still leaves out a few.(6) We can say, with only slight exaggeration, that feminist legal theory and feminist jurisprudence have become synonyms for feminist scholarship in law schools today.(7)

I do not attempt here to define and distinguish the many varieties of feminist theory because I wish to draw attention to a problem that is common to all of them. The difficulty, not a new one, is that broad propositions do not solve concrete cases; or they solve too many cases very poorly. The problems confronting women in criminal justice run so deep and have such complex links to the goals and structures of law that theory is inherently incapable of carrying us very far along the path toward effective solutions. The problems can be worked out only by paying close attention to particulars.

I begin this Article by describing how the criminal justice system is dominated (incontrovertibly so) by a preoccupation with men and male perspectives. I then focus on four problems that particularly concern women as potential victims or offenders--domestic violence, rape, sentencing policy, and prisons. Finally, drawing some common lessons from the four discussions, I suggest the need for a rather skeptical attitude toward high theory in the search for a feminism that can guide reform in criminal justice and, perhaps, other areas. Despite the undoubted importance of theoretical insight, the most effective tools of reform at the present juncture are likely to be eclectic and atheoretical, and the most effective feminist scholarship is likely to be one that attends to the complexities of specific institutions and procedures. What is needed, I suggest, is a feminism of particulars, a recognition that real solutions are likely to lie deeply embedded in the details.

1. WHY CRIMINAL LAW IS "MALE"

   The criminal justice system fits almost perfectly Lincoln's conception of a government of the people, by the people, and for the people. It fits perfectly, if you are willing to equate "the people" with the male half of the population. Criminal law is--and has been for centuries--a system of rules conceived and enforced by men, for men, and against men.

   There are counterexamples but not many. The law against prostitution, which might make sense as a way to protect young and poor women from sexual exploitation, is not enforced that way. It is enforced almost exclusively against women.(8) The law notices women but prosecutes those it should be protecting. In many instances law enforcement does benefit and protect women. But overwhelmingly, criminal law is designed and implemented with men in mind.

   This observation should be considered completely uncontroversial. One way for the reader to confirm its accuracy is simply to pause for a moment and attempt to picture a typical offender. What does he look like? He is inevitably the subject of the inquiry. The criminal offender is disproportionately male, overwhelmingly so. In 1983, men and boys, 49% of the U.S. population, represented 78% of all property offenders and 89% of all violent offenders.(9)

   What about victims? The Women's Movement has taught us to be far more aware of the victimization of women, and there is a widespread sense that women are disproportionately victimized by violence.(10) There is an important truth in that perception, but it is a complex truth. It is a truth that statistics seem to contradict.

   The victims of reported crime are disproportionately male, again overwhelmingly so. Justice Department statistics indicate that compared to women, men are 123% more likely to be the victims of robbery and 161% more likely to be the victims of an aggravated assault.(11)

   One's immediate reaction, given widespread perceptions of disproportionate victimization of women, is that statistics of this kind must be distorted, and in part this is true. The great majority of victims of domestic violence are female.(12) Outside of prisons and other custodial institutions, over 90% of rape victims are female.(13) Yet rape and domestic violence are vastly underreported and underprosecuted.(14)

   For other violent crimes, victimization rates are much higher for males than for females, and reporting problems cannot explain all of the difference. Household victimization surveys, a reasonably effective check on underreporting (except for domestic violence), show much higher victimization rates for men.(15) In homicide, an offense for which victimization data are extremely reliable, we find that men and boys, 49% of the population, represent 74% of homicide victims.(16) Over their lifetimes, men are about three times more likely than women to become the victims of homicide.(17) For an African-American man, the chance of becoming a homicide victim is four-and-a-half times higher than for an African-American woman, and sixteen times higher than for a white woman.(18)

   Women's disproportionate victimization is nonetheless a reality, but it is a complex one, rooted not only in raw numbers but in judgments about the vulnerability of female victims and, perhaps, an assumption of some contributory fault with regard to many of the victims on the male side: victims who provoked fights, assumed risks, or went looking for trouble. The victimization of women seems disproportionate not simply to women's share of the population but to their desert; the victimization of women seems particularly unfair. The proper complaint, therefore, is not that the victimization statistics lack "objectivity," because observations about women's disproportionate victimization involve an irreducible normative element. That perceptions about women's victimization rest in part on socially constructed value judgments does not, of course, render such perceptions invalid or unimportant.

   What the data themselves suggest is that the criminal justice system's preoccupation with male offenders and male victims is not exclusively an artifact of cultural bias in reporting and charging behavior. In part, this preoccupation reflects the nature of the underlying phenomenon of crime in our society and probably most others. Nor would we expect (or want) progress for women to increase women's participation as offenders or as homicide, robbery, and assault victims.(19) So for the foreseeable future, the raw material of criminal justice is likely to remain, to an overwhelming extent, disproportionately male in character.

   Under these circumstances women have, until very recently, remained at the margins of thought about criminal justice problems. The criminal justice system has been run by men, against men, and for the benefit of men. Not so much different from the rest of society, but more so.

   The Sections that follow consider some of what needs to be done to correct that imbalance in...