Gender a factor in Justice systems all over the world

"This is bizarre", that is how people reacted to a recent Supreme Court judgment endorsing a bit of leniency by courts while sentencing a woman convicted of a crime.

The woman was convicted for helping her male accomplice drug, assault and rob another man of Rs 27,000 in August 2000. She was convicted in March 2003. The trial court found that she had to support three minor children, two of whom were of unsound mind. Though the law provided a punishment of up to 10 years in prison, a lenient trial court awarded just two years jail term to her.

If the trial court took one step in leniency, the high court took two. It erased the jail term and imposed a fine of Rs 30,000, to be given to the victim of robbery . The SC said in the Indian context, a bit of leniency for women convicts was acceptable. But it ruled that discretion to award lenient sentences to female convicts could not be so stark as to appear as discriminating against male convicts.

Giving an insight into Indian judicial minds, a bench of Justices A K Sikri and Ashok Bhushan said they found SC judgments which took gender as a relevant factor to determine the quantum of sentence. This was caveated with a quick clarification ­ no leniency to women committing crimes as part of terror outfits. Leniency towards women convicts is not unique to India, but is common to judges across the world, who are possibly aware that women have been fighting for gender equality in almost every sphere of life to protest against deep-rooted biases.

So, how should a judge treat a woman convict compared to a male criminal?
The UK's Equal Treatment Bench Book, 2013, which provides general guidelines on sentencing, says "fair treatment does not mean treating everyone in the same way: it means treating people equally in comparable situations".

What it aims to convey could be understood from an example. A commoner de cides to argue his case against a big industrialist represented by a seasoned senior advocate. Will it be fair for the judge to allot 30 minutes each to the commoner and the advocate to place their case before the court?

After analysing fairness, the Equal Treatment Bench Book says, "Sentencers (judges) must be made aware of the differential impact sentencing decisions have on women and men including caring responsibilities for children or elders, impact of imprisonment on mental and emotional wellbeing, and disproportionate impact that incarceration has on offenders who have caring responsibilities if they are imprisoned a long distance from house." In the US, the situation is no different from India when it comes to leniency towards women criminals.

A 2014 study, quoted by `Journalist's Resources', based at Harvard's Shorenstein Centre on Media, Politics and Public Policy, suggested that federal courts were more lenient on female defendants in general. They were less likely to incarcerate women and tended to give women shorter sentences than men.

This finding was endorsed by another study in 2015, published in the `Journal of Criminal Justice', which examined 3,593 felony (serious crime) cases in northern US and found that women were 46% less likely than men to be detained before trial; bail bond amount for women were 54% less than that demanded from men and women were 58% less likely to be sentenced to prison.

But the alarming part of the study indicated a trait of racial discrimination in the subconscious judicial minds. It said, "Black female defendants were, in some ways, treated differently than white female defendants. Black women were assigned higher bond amounts and were more likely to be sent to prison than white women. Women of both races were equally likely to be released prior to trial."

In India, such studies are rare. But one submitted by Asha Bhandari two years ago to National Law University, Jodhpur, talked about women convicts in central jails of Rajasthan. It said, "The law talks about equality between the two sexes. When women commit crime they would be punished equally like men. The social reality, on the other hand, is full of inequality .

"Profile and background of women in prison and reasons for their imprisonment are different from those for men. Existing prison facilities and programmes for women inmates had all been developed initially for men, who historically accounted for an overwhelming proportion of prison population.Therefore, gender perspective must be seriously considered while catering to needs of women in criminal justice system in general and prisons in particular."

The SC in its recent judgment struck the middle path of `a bit of leniency' for women by quoting renowned UKbased criminology professor Eugene McLaughlin, who had said "paper justice" would mean similar sentence for similar offences.

He was of the view that elements of consequences of a sentence on the convict, depending on the criminal's gender, had to be taken into account if a judge wanted to do "real justice". Real justice would consider the likelihood that a child might suffer more from a mother's imprisonment than that of his father's, he said.

In conclusion, a question if a man gets convicted of a serious crime, would he get a lenient sentence if he had three motherless minor children to look after?