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Men have traditionally born the majority of criminal convictions in the United Kingdom, but recent data shows this is changing. “The number of women convicted of domestic violence has tripled in the last decade… 1,850 women were convicted of perpetrating the offence in 2006, a figure which rose to 5,641 in 2015.”[1] More interesting perhaps is that the Crime Survey of England and Wales found that 8.2 per cent of women and 4 per cent of men tell researchers they have experienced an incident which falls under the legal definition of domestic abuse. Mark Brooks, Chair of the ManKind Initiative, believes that this data shows that the UK judiciary has “woken up” to the idea of women as perpetrators of domestic abuse[2] Historically providing more financial privilege and political  power to men, the United Kingdom has seen major shifts to incorporate litigation which promotes gender equality since the 1928 Representation of the People Act granted voting power to women over the age of 21.  These recent trends in crime must beg the question, as the United Kingdom moves towards the ideal of a more equal society will this also mean equal opportunity to be put behind bars.

Thesis Paragraph: The idea that men and women posses innately distinct characteristics is treated with skepticism in the 21st century. Similarly the idea of Separate Spheres where “men went out to work, and women stayed home”[3] has been aggressively rejected by historical feminist movements. Although there have been marked changes in the way UK perceives gender roles, gentler courtroom treatment of women is nothing new. Modern courtroom bias which treats women as innately non-criminal is rooted in 19th century UK common law which assumed women lacked agency, and therefor responsibility for their own actions. Gender biases are as much alive today as ever, and while gender politics may wear a different face than in the 19th century, it’s legal treatment of men and women remains  much the same.

Legal documents of the Old Bailey Courthouse provide us an opportunity to peer into past ideas of justice, agency, and responsibility. Some 197,745 criminal trials of ordinary peoples were documented between the periods of 1674 and 1913. The case of Michael Lynch  and his wife Mary Lynch in 1816 details the theft by Mary of “two handkerchiefs, value 8s. one neckcloth, value 2s. two pairs of earrings, value 40s. one snuff box, value 5s. one brooch, value 2s. eighty three silver buttons, value 30s. nine pieces of foreign gold coin, value 3l. 12s. twelve pieces of foreign silver coin, value 40s. and a two-pound bank note.” Michael when asked about the stolen goods said “he knew nothing about the property, but offered to lend…a pound.”[4] Despite the evidence found in this case against Mary, and Michael’s seeming obliviousness, Mary Lynch made a  plea of coverture and was acquitted, while Michael received punishment of life in prison[5] What role, one then must ask, did gender play during convictions in 17th century UK courtrooms, and how do our perceptions of others effect our willingness to protect them, or punish them.

This trial hinged upon an artifact of United Kingdom common law know as Feme Covert or Coverture, whereby “the husband and wife are one person in law…under the protection and influence of her husband… her condition during her marriage is called her coverture” Furthermore “The husband is bound to provide his wife with necessaries by law, as much as himself; and, if she contracts debts for them, he is obliged to pay them…neither can she be sued without making the husband a defendant.”[6] While this interpretation of common law by attorney William Blackstone was written in 1765, Michael Lynch and Mary Lynch demonstrate the law of Feme Covert was in use throughout the beginning of 19th century, and likely as late as 1870 when new laws governing women and property would come into effect. We may conclude that the  general attitude towards men and women in the 17th and 18th century United Kingdom was one where married women deprived of their own person hood, were simultaneously rendered incapable of wrongdoing by this lack of of perceived agency. In the case of Michael and Mary Lynch this seems to have worked to the benefit of Mrs. Lynch. William Blackstone also viewed these laws as being biased in the favor of women, remarking that  “even the disabilities which the wife lies under are for the most part intended for her protection and benefit: so great a favourite is the female sex of the laws of England.” [7] Whether viewed as favoritism as Blackstone purports, or viewed as fitting a narrative of the patriarchal oppression of women, it is safe to either way to recognize this as an example of unequal handling of the sexes.

For the most part 18th and 19th century UK law did not explicitly create separate standards for the sexes, however “in practice the limited evidence available suggests that violent female offenders received relatively lenient treatment.”[8] There were some crimes which were gender specific, for example men could not be convicted for infanticide and women for rape or sodomy, but generally this lack of explicit gender conviction standards creates difficulty in isolating examples of separate treatment. Fortunately there exists a great bulk of court records from 1780 to 1820 preserved from the Old Bailey, Surrey, and Lancashire courthouses of England from which we may draw statistical observations. Examining the Lancashire records we find that “in Lancashire females accused of murder were six times less likely to be convicted and hanged than their male counterparts”[9] in the Surrey records “75 per cent of the female accused [of homicide] were either discharged by the grand jury or acquitted by the trial jury, compared to half [50 per cent] of the male accused”[9] and at the Old Bailey the record shows that no female was ever successfully convicted of murder. The lack of murder conviction gender parity in particular during this period may by partially explained by unwillingness of the courts to see women put to death, but further investigation reveals that women were both accused and convicted with less frequency in all areas of crime. Looking over individual cases Radojka Startup found that “judges and jurists persistently defined victims of domestic violence as ‘unfortunate women’, rape victims as ‘imprudent’, and women who poisoned as perversions of femininity.”[10] Murder cases with female perpetrators despite their seeming rarity were featured heavily in the media when they occurred, and in the increasingly popular true crime novels of the nineteenth century[11]. This fascination with women who kill can be attributed to its representing a perversion of the idealized role of women as wives and mothers.

Surely it is the case that the beginning of the end of simplistic and dated views of separate spheres and innate gender differences in England was the suffragist movement, with bold suffragettes fighting against overwhelming odds to claim the  vote and educate a chauvinist male patriarchy. While this version of the story of suffrage is easily consumed, with its obvious themes of good vs evil, the historical reality of suffrage was rather different. The universal slogan of women’s suffrage was “votes for women” but looking at the historical context of this slogan we find it to be less clear cut than it appears. Prior to the 1832 Reform Act only wealthy land owning men, accounting for approximately 2% of the population, in the UK had the vote[12] Politicians of the nineteenth century were also not particularly opposed to the idea of suffrage for women, with attempts made by male politicians to extend the political power of women occurring in 1832, 1867, 1869, 1870, 1888, 1894, and 1902, many of these attempts successful[13]. The obstacle that suffrage was unable to overcome was ironically, its own sexism, by choosing to campaign for “votes for women” rather than “votes for all” they created a political deadlock. It was impossible for legislators to grant universal female suffrage, while continuing to deny voting rights to working class men without creating apoplectic civil unrest and backlash. The militant tactics of the Women’s Social and Political Union (WSPU) only served to amplify this problem. WSPU leaders Christabel Pankhurst and Emmeline Pankhurst “were at best indifferent to working-class support and by 1912 increasingly opposed to it” and “In 1907 the WSPU had changed its stated aim from ‘Votes for Women on the same terms as it may be granted to men’ to ‘Tax-paying women are entitled to the parliamentary vote’.”[14] Christabel in her 1913 work “the scourge” also famously said “that men were little more than carriers of venereal disease.” Looking at this evidence it seems that the suffrage movements of the UK worked almost more against their own aims than for them, such that when universal suffrage did finally pass in 1918 it is questionable whether it was a response to women’s suffrage movements, or simply a way of thanking the countless working class men who had just returned from World War II.

The passing of the 1918 Representation of the People Act paved the way for the 1970 Equal Pay Act, the 1975 Sex Discrimination Act, the 1976 Race Relations Act, the 1995 Disability Discrimination Act, and in 2010 the combining of all of these into the 2010 Equality Act. Harriet Harman, Minister for Women and Equality states “Equality…means everyone having the same chances to do what they can [but] some people may need extra help to get the same chances.”[15] A glance through Government Equalities Office pamphlet on The Equality Act makes it clear that one of the groups Harriet Harman has identified as needing extra help is women. This may seem like an logical stance for Harriet to take, one that speaks to a gut feeling of rightness for many, but does the data actually support this claim of positive action for women? Data from the Organization of National Statics (ONS)  seems to contradict Harriet’s proclamation:  in 2014 the ONS found that male unemployment has consistently exceeded female unemployment in all age groups [16], in 2016 they reported that men were the victims of 95% of all workplace  fatalities [17], in 2013/2014  8.5% of women and 4.5% of men experienced domestic abuse, whereas 65% of all homicide victims were male [18]. Interestingly while women make up around 65% of all domestic abuse victims and men make up around 35% , the UK has  over 400 publicly funded refuges for abused women and their children, but none for abused men and their children [19]

Looking at modern courtroom outcomes we find that trends much the same as  in the 19th century exist today just as they did then. ONS data from 2015 reveals shorter sentences are the norm  for female criminals,  stating that “The higher proportion of short sentences for female offenders means that by comparison, sentences of 12 months and over account for a greater share of sentences for male offenders compared with females”[20] The report goes on to reveal that somewhat counter intuitively while “violence against the person accounted for 34% of male arrests and 38% of female arrests”[21], meaning more women than men are arrested, “Males are noticeably more likely than females to be prosecuted for…violence against the person offences “. This trend of granting lighter sentences to women, and disinclination to convict female accused is noticeably similar to trends observed  at the Old Bailey, Surrey, and Lancashire courthouses from 1780 to 1820. Feme Covert may no longer be a practice of common law, but looking through Equal Treatment Bench Book  which provides sentencing guidelines for UK judges, we find hints and suggestions that judges should perhaps “go easy” on female offenders. The  bench book recommends “Women remain disadvantaged…as judges, we can go some way to ensuring that women have confidence in the justice process and that their interests are properly and appropriately protected.”[22] The bench book goes on to explicitly recommend lighter sentencing for women, stating that ” Indirect discrimination recognizes the need to make an adjustment for individuals who are disadvantaged because of characteristics associated with their gender the aim being to put men and women on an equal footing.”[23]

Our perceptions of people and the actions they take are greatly effected by gender. Kurt Gray and Daniel M. Wegner’s work on Moral Typecasting theory sheds light on this subject. It is now widely accepted that men are perceived as having more moral agency than women, agency being one’s ability to act independently or to be an actor as it were. Inversely we may view women as possessing moral patiency, the inability to act, or the one who is acted upon. Gray and Wegner found that “Across a range of targets and situations moral agents were perceived to be less vulnerable to having good and evil done to them…Moral patients in turn, were perceived as less capable of performing good or evil actions. Moral typecasting stems from the dyadic nature of morality and explains curious effects such as people’s willingness to inflict greater pain on those who do good than those who do nothing”[24] When viewed through the framework of moral typecasting the slanted courts of the 19th century are not so different a picture from the slanted public policy of the 21st century. While nineteenth century ideologies viewed women as inherently weak, emotional, and reliant on their husbands, 21st century ideologies view women as being held down by men in the form of the patriarchy and needing the charity of positive action to have a chance of competing. Both of these ideologies reflect our inability as humans to look past the typecasting of women as victims, and men as heroes and villains.

[1] Fenton, Siobhan, “Number of women convicted of domestic violence at record high“, London (UK): Independent Digital News & Media, September 20, 2016 (accessed January 23 2017).

[2] London (UK): Independent Digital News & Media, September 20, 2016.

[3] Kuersten, Ashlyn, “Women and the law: leaders, cases, and documents (Santa Barbara, Calif: ABC-CLIO, 2003), 16–17

[4] MICHAEL LYNCH and MARY LYNCH,”Sixth Session: 1816“, Proceedings of the Old Bailey, 10th July 1816

[5] Proceedings of the Old Bailey, 10th July 1816

[6] William Blackstone, “Commentaries on the Laws of England Vol 1 1765“, (Philadelphia: J.B. Lippincott, 1893), pp

[7] Blackstone, “Commentaries on the Laws of England Vol 1 1765″, pp

[8] Margaret L. Arnot , “Gender and Crime in Modern Europe“, (London, US: Routledge, 2002), 55

[9] Arnot , “Gender and Crime in Modern Europe“, 55

[10] Radojka Startup, “Damaging Females: Representations of women as victims and perpetrators of crime in the mid nineteenth century“, (London: University of London, 2000), 10

[11] Startup, “Damaging Females: Representations of women as victims and perpetrators of crime in the mid nineteenth century“, 246

[12] Steve Moxon, “The Woman Racket“, (Imprint Academic, 2008), 164

[13] Sean Lang, “Parliamentary Reform 17851928“, (Florence, US: Routledge, 2005), 153

[14] Lang, “Parliamentary Reform 17851928“,  156

[15] “Easy Read: The Equality Act – making equality real.“, (Eastgate, Leeds: Government Equalities Office, 2011)

[16] “Statistical bulletin: UK Labour Market, September 2014“, (UK Office for National Statistics, 2014)

[17] “Reporting of Injuries, Diseases and Dangerous Occurrences“, (UK Office for National Statistics, 2016)

[18] “Crime Statistics, Focus on Violent Crime and Sexual Offences, 2013/14“, (UK Office for National Statistics, 2014)

[19] “Male Victims of Domestic Abuse“, Parity-UK (Accessed March 19, 2017)

[20] “Women and Criminal Justice System“, ( Westminster, London: Ministry of Justice and UK Office of National Statistics, 2015), 85

[21] “Women and Criminal Justice System“, 48

[22] “Equal Treatment Bench Book“,( Petty France, London: Judicial Studies Board, 2015), 11-1

[23] “Equal Treatment Bench Book“, 11-2

[24] Kurt Gray and Daniel M. Wegner, “Moral Typecasting: Divergent Perceptions of Moral Agents and Moral Patients“, Journal of personality and social psychology 96, no. 3 (2009): 1

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Geographic focus: United Kingdom

Search terms: Crime, Male, Female, United Kingdom, Conviction,  wom?n, domestic violence, sex, feme covert, coverture, Old Bailey, Blackstone, Equal Treatment, crime, criminal, justice, gender, moral typecasting, social cognition theory, suffrage, parliamentary reform, victims, perpetrators, europe

Primary Source Database: Harvard University Library Microform, Google Books, Judiciary.Gov.uk, WSU libraries

Date Limiter: 1816 to 2015.

Historical Research Questions: How do we define and interpret privilege? How does modern culture bias our interpretation of historical gender roles? What are the advantages and disadvantages of moral typecasting? How does modern courtroom gender bias compare to historical courtroom bias?

RCI Course themes: Expose roots of inequality by investigating perceptions of gender