Female incarceration numbers are at record highs and climbing. Dean and Head of School of Law at Deakin University, Dr Mirko Bagaric, thinks that the undeniable differences between men and women when it comes to committing crime should be reflected in a fundamentally different approach to the sentencing of women.
When it comes to committing crimes, humans have two distinct forms. Overwhelmingly, men perform most criminal acts. And – with only a hint of exaggeration – women never commit the most heinous offences.
The numbers don’t lie
Women constitute approximately 8% of all Australian prisoners. That figure may seem small, but it should be somewhere between 0% and 1% of the total prison population.
Let me explain.
When women kill, it is usually motivated by different factors than when men kill. Women often kill against a backdrop of victimisation and hopelessness – not because they are angry or revengeful.
The most recent figures relating to offence types for which people are imprisoned show that 9% of women were in prison for homicide and related offences. The most common offences for which women are imprisoned are unlawful entry (10%), theft (8%), fraud and deception offences (8%), drug offences (17%) and offences against justice procedures (11%). By contrast, the majority of men are in prison for acts of violence or sexual offences.
Around 30% of male prisoners are classified as minimum security; whereas more than 70% of female prisoners have this classification.
What’s the impact on the community?
Women who commit the same crime as men should, in most cases, receive lighter penalties. This should be so for three reasons:
- Women re-offend less frequently than men – by a very considerable margin.
- The impact of imprisonment on women is generally more damaging than on men. Women who are imprisoned for a long time can have their right to procreate effectively negated. Women also suffer more while they are imprisoned. They are more likely to have mental health issues and be victims of sexual abuse.
- Women perform a greater portion of the caretaking roles in society than men. Removing women from society often has a devastating impact on their children, relatives and other dependants. This disruption should be minimised.
Alternatives to a prison sentence for female offenders should be developed. Other solutions for serious, such as 24/7 CCTV and electronic monitoring.
Effectively eliminating the threat of imprisonment from the female psyche will not encourage them to commit more crime. Empirical data establishes that there is no link between severe penalties and low crime. The only policing and sentencing approach that reduces crime is increasing the perception in people’s minds that if they commit a crime they will be caught.
Isn’t it sexist to treat men and women differently?
There is a difference between treating male and female criminals equally and treating them equitably. Equally is when the same punishment is handed down. Equitably is when the punishment handed down impacts the two groups to the same extent. In short: equal means ‘exactly the same’ whereas equitable means ‘fair’. It is a misguided sense of equality to suggest that female offenders should be treated the same as males.
Yes, some women in the community commit acts that seriously damage others. And yes, they require harsh treatment. But this justifies Australia having one female jail – not a dozen.
Finally, implementing changes to the sentencing system that will benefit women does not necessarily prejudice men. The opposite is the case. Reforms will prompt a reassessment of all sentencing principles for non-violent and non-sexual offenders – including men. This is the only tenable approach to dealing with Australia’s prison overcrowding crisis.
This article was adapted with the author’s permission from a piece that originally appeared on The Conversation.