Masculinity in the Dock: Legal Responses To Male Violence and Female Retaliation in England and Wales, 1900—1965
| DOI | 10.1177/0964663907082731 |
| Published date | 01 December 2007 |
| Date | 01 December 2007 |
| Subject Matter | Articles |
LEGAL RESPONSES TO MALE
VIOLENCE AND FEMALE
RETALIATION IN ENGLAND
AND WALES, 1900–1965
ANETTE BALLINGER
Keele University, UK
ABSTRACT
This article contributes to the debates on gender and punishment by providing an
analysis of women who were sentenced to death during the first half of the 20th
century after having killed their abusive partners, and who were subsequently
reprieved. The article argues that the frame of references within existing ‘leniency
versus harshness’ debates are inadequate and cannot provide a complete explanation
of the issues surrounding gender and punishment. Instead, in order to gain a full
understanding of the complexities of these trial outcomes it is necessary to examine
the social construction of both femininity and masculinity and the discourses through
which these constructions operated in the courtroom. The article thus demonstrates
the way in which discourses around femininity and masculinity both played crucial
roles in the final outcomes of the trials. In particular, the article emphasizes the
processes through which men as well as women were expected to conform to
dominant ideologies around gender. As such, failure to adhere to acceptable standards
of masculine behaviour could detract from the man’s status as victim while blurring
the lines between victim and perpetrator with respect to the woman who eventually
retaliated against her violent partner. The article concludes that the narrow focus of
‘leniency versus harshness’ debates masks wider issues of the role of punishment in
maintaining the dominant gendered, social order.
KEY WORDS
domestic violence; femininity; gender and punishment; masculinity; social order
SOCIAL & LEGAL STUDIES Copyright © 2007 SAGE Publications
Los Angeles, London, New Delhi and Singapore, www.sagepublications.com
0964 6639, Vol. 16(4), 459–481
DOI: 10.1177/0964663907082731
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SOCIAL & LEGAL STUDIES 16(4)
INTRODUCTION
SINCETHEemergence of second wave feminism three decades ago, debates
about the gendered nature of the criminal justice system generally and the
punishment of women in particular, have formed a thread of continuity
within academic research and writing (Smart and Smart, 1978; Carlen, 1983;
Heidensohn, 1986; Worrall, 1990; Edwards, 1996; Ballinger, 2000). It is not the
purpose of this article to provide a detailed review of this literature; however,
it is necessary to draw attention to key aspects of these debates in order to
provide theoretical context for the analysis presented below which focuses on
cases of women who were sentenced to death and subsequently reprieved after
killing their abusive partners during the first half of the 20th century.
Many of these debates have focused on the ‘leniency versus harshness’ issue
– the attempt to establish whether women receive harsher punishment than
men – or whether they are the beneficiaries of ‘chivalry’ – a concept first
developed by Pollak in 1950 – which has continued to hold currency within
‘conservative quarters ever since’ (Allen, 1987: 17). Pollak maintained that
the overwhelmingly male-dominated criminal justice personnel treated female
criminals leniently because they experienced protective feelings towards them
(Smart, 1995: 24).
Second wave gender theorists have not only provided substantive critiques
of Pollak’s thesis (Klein, 1973; Smart, 1978), they have also produced an ever
growing and increasingly sophisticated body of research as new layers of
complexities within the leniency/harshness debates continue to be exposed
(Carlen, 2002).
Early studies recognized that inconsistency in sentencing affects both sexes
(Heidensohn, 1986: 43), and that a straight comparison between men’s and
women’s punishment will always remain theoretically and methodologically
problematic because of the failure to take into account issues such as the
differential impact of law on distinct categories of women. Thus, there was
a recognition that women’s conformity, or lack thereof, to dominant ideolo-
gies around femininity play an important part in the court’s perception of
what type of woman she is (Worrall, 1981), which in turn may influence the
final trial outcome of criminal women:
. . . a woman on trial is not only on trial for her legal infraction, but also for
her compliance or variance with expected female behaviour. As a result, the
possibility of being treated leniently within the legal system is much greater for
a woman who can demonstrate that she is of ‘good intentions, moral purity and
blameless victimisation’ than a woman who is perceived to be transgressing this
stereotyped female behaviour. (Chan, 2001: 24)
Gender theorists had thus identified the ‘double standard’ against which
criminal women are judged by demonstrating that female defendants are not
only judged according to the crime they have committed, but also according
to their performance as women. In particular, discourses around motherhood,
domesticity, respectability and sexuality were identified as playing a crucial
role in the assessment of criminal women (Carlen, 1983, 1988; Naffine, 1990).
BALLINGER: MASCULINITY IN THE DOCK
461
Yet, these studies have also demonstrated awareness of the complexities
involved in this type of analysis – that it is not simply a matter of law always
serving the interests of men, while always oppressing women:
We need instead to consider the ways in which law constructs and reconstructs
masculinity and femininity, and maleness and femaleness, and contributes
routinely to common-sense perception of difference which sustains the social
and sexual practices which feminism is attempting to challenge. (Smart, 1995: 79)
In challenging the dominant discourses of femininity through which the ‘good’
woman is created and understood, criminal women and feminist academics
writing about them have thus exposed the crucial role that law plays in the
production and reproduction of the gendered subject without resorting to
biologically determined assertions involving ‘men (as a taken-for-granted bio-
logical category) make[ing] and implement[ing] laws while women (as a
taken-for-granted biological category) are oppressed by them’ (Smart, 1995:
79). Thus, women who conform to dominant expectations of femininity and
acceptable standards of womanhood may benefit from the gendered nature
of law by being treated with leniency as long as those who fail to conform
to such expectations pay the full punitive price:
Where good women may attract the sympathies of the court, a positively
censorious approach may be taken to women who are thought to be bad.
(Naffine, 1990: 142)
Overall, therefore, despite various studies which claim that women are punished
more leniently than men, the issues involved are more complex than such
research suggests, and a direct comparison between statistics regarding trial
outcomes of men and women is methodologically and theoretically inadequate
because it cannot reveal the gendered context within which the defendant
committed a crime. For example, responding to Home Office statistics which
claimed that women were almost ‘twice as likely’ to be indicted for man-
slaughter as men following spouse-killing, Susan Edwards noted that the issue
is not about ‘a crude comparison of figures’:
The debate is about whether certain facts are more or less likely to result in a
successful defence of provocation . . . Attention should have been directed
towards an analysis of any differences in the treatment of the male and female
cases according to their facts, rather than the statistical end product of these
highly problematic and discretionary processes . . . Whilst the circumstances
surrounding the killing of male spouses by women are likely to be characterised
by the abuse of the defendant over a long period, the killing of female spouses,
is by comparison, characterised by an escalating trajectory of violence by the
defendant which culminates in the killing. The two distinctly, different imprints
of circumstances surrounding the homicide are not comparable. (Edwards,
1996: 371–2)
At the same time, gender theorists have emphasized that not all of the
considerations affecting the outcomes of women’s trials are gender-specific.
For example, both female and male defendants are disadvantaged by structural
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SOCIAL & LEGAL STUDIES 16(4)
inequalities connected with race and social class (Carlen, 2002: 9). However,
the fact that some structural inequalities impact on both sexes does not
preclude gender-specific considerations also having an impact on the final
trial outcome – it merely draws further attention to the complexities involved
and the dangers of relying on statistical evidence when analysing gender and
punishment. Carlen has recently captured much of this complexity:
. . . although the majority of women are, in comparison with men, treated more
leniently by the criminal justice system, certain women – those who have been
brought up in the state’s institutional care, have transient lifestyles, have their
own children already in state guardianship, are living outwith family and male-
related domesticity, or are members of ethnic minority groups . . . – are more
likely to proceed through the criminal justice system and end up in prison.
(Carlen, 2002: 8)
Moreover, gender considerations affect sentencing ‘obliquely and eccentrically’:
obliquely . . . because conventional gender typifications are filtered through
dominant ideological strictures about the relationship between the formal and
informal social control systems, with the dominant assumption being that the
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