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Legal and Policy Misandry

The purpose of this research brief is to explore and summarize the realities of gender inequality in our public policies and legal system.

There are certainly areas in which women face bias and in which the disproportionate victimization of women justify victim services that overwhelmingly support females.

But that does not require us to neglect the systematic gender inequalities that elsewhere disadvantage men. The fact that more men than women are perpetrators of crime in no way justifies public policies or legal procedures which rest on the sexist presumption that men are as a group guilty. Each individual man or woman deserves the same treatment, whether it’s an accused enjoying access to justice and to unbiased legal protections or it’s a victim requiring service and support.

The emerging sentiment among leading academics, statisticians, and government committee reports is that men are unfairly treated procedurally by police, courts and correctional services. From our criminal justice system to our family courts, incorrect myths and stereotypical over-generalizations regarding the nature of men abound.

The serious consequences have been felt across the legal sphere, which we will explore further in this review:

1. Differing sentencing rates between male and female offenders,
2. Lack of victim services for men who have encountered sexual assault, domestic abuse and violence,
3. Labour laws and ambiguous sexual harassment legal codes contributing to polarized relations between men and women
4. The Divorce Act, child custody practises and family court culture and traditions contributing to
systematic bias against fathers following family break-up.

   

Criminal Justice System

  

Criminal Sentencing  

Empirical findings:

Multiple reinforcing studies support the conclusion that gender is the most significant bias in determining whether or not someone will be charged, prosecuted, indicted or sentenced, as well as determining the severity of the sentence.

Offender gender and sentencing studies have for many years now demonstrated that women tend to be less likely than males to receive prison or jail time (see Farnworth and Teske, 1995; Ghali and Chesney-Lind, 1986; Gruhl, Welch, and Spohn, 1984; Johnson, Kennedy, and Shuman, 1987; Mustard, 2001; Nobiling, Spohn, and DeLone, 1998; Spohn, 1999; Spohn and Beichner, 2000; Spohn and Holleran, 2000; Steffensmeier, Kramer, and Streifel, 1993; Steffensmeier, Ulmer, and Kramer, 1998; Ulmer, 2000; Wooldredge, 1998).

A study published in Justice Quarterly in 1986 examined 181,197 felonies in California and found that for the same crime, being male increased the chance of incarceration by 165 percent. Being black, in comparison, increased the chance of incarceration by 19 percent.

Another study, published in Crime & Delinquency in 1989, examined non-accomplice crimes and factored together the number of charges, convicted offenses, prior felony convictions, as well as the race, age, work history and family situation of the accused. It found that gender differences, favouring women, are more often found than race differences, favouring whites. Similar conclusions were also drawn by researchers Matthew Zingraff and Randall Thompson in their study published in the International Journal of the Sociology of Law. They also concluded that being male increases sentence lengths more than any other discriminatory variable.

A 2009 University of Washington (UW) study analyzing the state’s system for imposing court fees, fines and other legal obligations found that men are given higher court fees and fines than women. The report was commenced when the Washington State Minority and Justice Commission hired UW to analyze the state’s system for imposing fees, and was undertaken by Professors Katherine Beckett and Alexes Harris, who combed through each of the 3,366 cases adjudicated by Superior Courts through the state in January and February 2004.

More recently, an assistant law professor at the University of Michigan, Sonja Starr, found that men are given much higher sentences than women convicted of the same crime in federal court. The 2012 study, Estimating Gender Disparities in Federal Criminal Cases, found that men receive sentences that are 63 per cent higher, on average, than their female counterparts. It also found that females arrested for a crime are significantly more likely to avoid charges and convictions entirely, and twice as likely to avoid incarceration if convicted.

Rebecca Kong and Kathy AuCoin’s Female Offenders in Canada government report summarizes the prevalence of crime by females, as well as the nature of their criminal behaviour. In Canada, women are arrested by police at a much lower rate than men. According to official data from nine provinces (under the Incident -based Uniform Crime Reporting Survey), females are apprehended by police for crimes against the person at a rate 5 times lower than males (see Chart 1).

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Moreover, the study shows that in the adult court system, women had their cases stayed or withdrawn more frequently than their male counterparts and were less frequently found guilty. In 2003/2004, 51% of all cases against women ended in a finding of guilt, compared to 59% for men. A further 44% were stayed or withdrawn while the same was true for 34% of cases against men. Women found guilty in adult criminal court are less likely than men to receive a prison sentence and are more likely to receive probation. Females found guilty of crimes against the person in 2003/2004 were half as likely as their male counterparts to receive a prison sentence (19% versus 38%). The same was true for crimes against property with 24% of women and 45% of men being sentenced to custody.

In comparison to men, the lower proportion of women sentenced to prison time held true regardless of the severity of the crime. For instance, in cases of major assault (assault with a weapon or assault causing bodily harm), prison sentences were handed down to one-quarter of women and nearly half of men who were found guilty (48%). Differences in sentencing were found with most other serious crimes such as robbery (62% versus 76%), break and enter (41% versus 61%) and fraud (20% versus 40%).

The bias applies to victims as well as the accused. Edward Glaeser of Harvard University and Bruce Sacerdote of Dartmouth College examined 2,800 homicide cases randomly drawn from 33 urban counties by the Bureau of Justice Statistics. They found that the victim characteristics are quite significant. Offenders who kill male victims receive much shorter sentences. Killing a female instead of a male increased sentences by 40.6 per cent. Glaeser and Sacerdote write that one interpretation of these results is that male victims are more likely to have initiated the conflict. To address this interpretation, they examined only murders where the offender was the aggressor, and in those cases the victim’s gender is still a key variable.  

Theoretical findings:

Theoretical research has been dedicated to explain the facts and figures introduced above. This plethora of research has sought to explain how and why female offenders tend to receive milder sentences. Two main theoretical strands have emerged: the chivalry thesis dating back to the 1970s and the theory that looks at judicial decision making.

The chivalry thesis is premised on cultural stereotypes about gender and posits that gendered stereotypes about men and women both influence sentencing outcomes according to the sex of the offender. Women are deemed in need of protection and not fully responsible for their actions. When these stereotypes play out in the arena of criminal justice, they will result in preferential treatment for female offenders from predominately male police officers, prosecutors and judges (Crew, 1991; Farnworth and Teske, 1995; 320 Social Science Quarterly Parisi, 1982; Rafter and Stanko, 1982).

The theory based on judicial decision making proposes that the relationship between gender and sentencing is the byproduct of human error expressed in judicial outcomes. According to this view, judges are limited on the amount of time they can spent on individual cases, and they generally receive incomplete information on cases. This time constraint and other factors mean that judges and other court players make contextual attributions about the defendant’s culpability, character and potential recidivism on three focal concerns: blameworthiness, dangerousness and practical constraints. So they may attribute certain risks to one gender more than the other. Females can be viewed as less of a risk (Albonetti, 1991) and males as more culpable (Baumer, Messner, and Felson, 2000; Steffensmeier, Ulmer, and Kramer, 1998).
 
Men & Sexual Abuse/Assault

Domestic Law:

Canadian criminal law resources acknowledge that males, both as children and adults, can be victims of sexual abuse and assault.  There is also nuance in the fact that the majority of victims of sexual assault are female. There is a significant body of research from many disciplines examining the criminal and civil justice systems and female victims of sexual violence. Meanwhile, research on male victims is much more limited. Various government publications attribute this lack of research on male victims to the smaller numbers of male victims and challenges recruiting representative samples. More often than not, male victims are less likely to report incidents in which they were sexually assaulted and abused (this problem has been best highlighted by the difference in police reported data versus self-reported data).

Tewksbury (2007) provides a summary of the reasons men chose not to report assaults, nor seek help services. These include: stigma, shame, fear, and having their sexuality questioned. While men may try to find services, they will quickly find that sexual assault/rape crisis centres may only provide services to women or that though they can access services, there are none specifically designed for men. Several years ago, Fuller and Smith (2008) undertook a scan of support services in Canada available to male survivors. At that time, there were only three organizations in the country dedicated to providing services to male survivors. The myth that men do not suffer sexual assault means that few, if any, help centres and government resources are designed for them. There is a lack of advocacy and awareness to assist and encourage these victimized men to come forward and both report the crime committed against them, as well as seek the appropriate male focused help services.

The overall lack of research on male victims of sexual abuse undermines police officers efforts and other instrumental members of the justice system in understanding and adequately responding to these cases.

The research study undertaken by Susan McDonald and Adamira Tijerino and published by the Canadian Department of Justice in 2013, examined the experiences of male survivors of both child sexual abuse and adult sexual assault via a series of interviews and other research methods. Participants of the study recommended that government and/or advocates raise awareness about the issue as they believe that professionals working in justice, education, health or child protection and the general public are still not as aware as they could be and continue to be influenced by myths regarding sexual abuse/assault of male victims. Along these lines, participants recommended training for all criminal justice professionals on the dynamics of sexual abuse/assault as well as interviewing and investigative techniques. The ease of public reporting and the perception surrounding an incident can impact whether a criminal incident becomes known to police and subsequently reported to Statistics Canada through the UCR Survey (Brennan 2012, 12).

Zooming into the legislature, we can instantaneously see how one gender is over emphasized. While it is understandable that women will be emphasized, given that they constitute the majority of victims of sexual violence, it is important that men are also acknowledged. For instance, consider the Government of Ontario’s November 19, 2015 approach to dispelling myths about sexual violence:

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Most of the myths being addressed are women centric, without a single myth dedicated to male victims of sexual abuse. The Premier of Ontario, Kathleen Wynne Ontario’s Sexual Violence Action Plan also does a poor job at including men as potential victims of violence:

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A quick benchmarking exercise brings to light a variety of ways one can address domestic violence and sexual violence to be more inclusive of men and approach the issue with the goal of improving gender relations between men, women and families. For instance, the Province of Alberta focuses on family violence in its publications and awareness fliers. It explicitly recognizes that women are largely victims of domestic abuse, but in its Framework to End Family Violence in Alberta 2013- 2018, the government also recognizes that men and boys are mandatory partners in forming a solution to domestic violence issues. As part of the Framework’s goal to “promote gender equality, respect and healthy relationships,” the Province shall “develop, promote and support a comprehensive provincial strategy to engage men and boys in family violence prevention.” Moreover, “men need to feel valued and supported to model and coach boys to respect women and girls and themselves.”

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By framing domestic violence as a problem that affects the entire family unit, the government immediately becomes more inclusive of both men and women as possible aggressors and victims.

It is emphatically not the purpose of this brief to argue that women should be less represented as victims of domestic violence, sexual abuse, and/or sexual assault in government resources and advertisements, but rather, that men who are also victimized be included in the conversation as well.

International Law:

Sexual abuse against men has gone under investigated, under prosecuted and ultimately under punished internationally as well. An article published by the Wisconsin International Law Journal in 2012 by Harvard Law Professor Dustin A. Lewis casts light on the international law aspects of a largely unrecognized occurrence in armed conflict: sexual violence against men. As with sexual violence against women, exact numbers regarding the incidence of sexual violence against men are difficult to ascertain because of underreporting and non recognition. Despite this, in one assessment, of the 5,000 male inmates at a concentration camp in Sarajevo Canton, 80 percent reported being raped.  It argues that to reduce and prevent sexual violence against men in conflict settings, international law should be interpreted, applied, and enforced in ways that delegitimize the prejudicial and discriminatory conceptions of gender, sex and homosexuality that often fuel such violence in the first place. Prof. Lewis suggests that to enhance protection, treaty drafters should explicitly recognize men as a class of victims, and a postulated jus cogens norm should be expanded to include all forms of sexual violence against men, women, and children.
  

Labour Laws and Sexual Harassment

  
The rules:
 
The Canadian Labour Code establishes “an employee’s right to employment free of sexual harassment and requires employers to take positive action to prevent sexual harassment in the workplace.

The Code defines sexual harassment as any conduct, comment, gesture, or contact of a sexual nature that is likely to cause offence or humiliation to any employee; or that might, on reasonable grounds, be perceived by that employee as placing a condition of a sexual nature on employment or on any opportunity for training or promotion.”

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The issues:

Foremost researchers into misandry, Paul Nathanson and Katherine K. Young, argue that to protect themselves, various institutions such as universities and corporations, have established quasi-legal sexual harassment codes. Aside from instituting definitions that are overly broad and ambiguous, these codes often ignore due process, which contributes to worrisome and even polarizing effect on relations between men and women. 

   

Civil Law: Legal Bias against Fathers

 
There is evidence to suggest that fathers are being treated unfairly by the legal system governing divorce, child custody, and support payments. In addition to the emotional and psychological pain typically associated with separation and divorce, the current legal system forces parents to fight one another for child custody. The judge decides on whose custody to place the child after inviting both partners to the witness stand so they may have the chance to vouch for themselves while simultaneously providing open space to produce or recount stories that detract from their partner’s character.

This litigation motivates parents to produce hurtful evidence of each other’s deficiencies, making it very hard for them to work together in the future and on the best interest of their child(ren). This procedure is rooted in the gender neutral doctrine of “the best interest of the child.” The application of the law grants judges broad discretion to consider almost any factor thought to be relevant to the custody decision and the best interest of the child, even relying on harmful gender based presumptions or stereotypes. This can be alarming for fathers considering that the judge’s assessment and decision will determine who receives custody of the child, the type of custody (whether sole or shared), visitation rights, and the child support amount that the father must pay.

Determining which parent is responsible for child support is usually based on the living arrangement of the child(ren). Parents pay child support if their children primarily reside with the other parent. According to Statistics Canada in 2011, almost two-thirds (64%) of non-resident parents reported that they were currently paying child support, most of whom were fathers (92%). On the other hand, child support was received by 41% of resident parents, and off these recipients, 93% were mothers. Child support payments are based on the “40-per-cent-rule”, meaning that if a father has the child(ren) more than 40 per cent of the time, he can seek a reduction in payments. If the mother has the child(ren) for more than 40 per cent of the time, she is entitled to full support. Fathers who seek more time with the kids are often looked at with suspicion under the presumption that they are merely interested in reducing their support payments, rather than on spending quality time with their child(ren).

According data from 2000, after separation, mothers were given custody of the children in the overwhelming proportion of cases. As we can see below, close to 80 percent of children under the age of 12 were placed in their mother’s custody under court order. One-quarter of the children visited their fathers irregularly (once a month, on holidays, or at random). Fifteen percent of children never saw their fathers (although a small number had letter or phone contact with him).

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Source: Selected Statistics on Canadian Families and Family Law: Second Edition, Prepared by the Research Unit of Family, Children and Youth Services at the Department of Justice Canada 2000 http://www.justice.gc.ca/eng/rp-pr/fl-lf/famil/stat2000/p4.html

While the courts are charged with determining the best interest of the child, they are routinely removing entirely or substantially one parent from the life of the child. Historical and recent studies show children are best served by having two active parents regularly involved in their lives.

A study undertaken by University of British Columbia Associate Professor Edward Kruk argues that one size does not fit all and that sole custody is not in fact in the best interest of the child. Kruk highlights the following research findings for support: Sole maternal custody often leads to parental alienation and father absence, and father absence is associated with negative child outcomes. 85 per cent of youth in prison are fatherless; 71 per cent of high school dropouts are fatherless; 90 per cent of runaway children are fatherless; and fatherless youth exhibit higher levels of depression and suicide, delinquency, promiscuity and teen pregnancy, behavioural problems and illicit and licit substance abuse (Statistics Canada, 2005; Crowder and Teachman, 2004; Ellis et al., 2003; Ringback Weitoft et al., 2003; Jeynes, 2001; Leonard et al., 2005; McCue Horwitz et al,, 2003; McMunn, 2001; Margolin and Craft, 1989; Blankenhorn, 1995; Popenoe, 1996; Vitz, 2000; Alexander, 2003). These studies also found that fatherless youth are more likely to be victims of exploitation and abuse, as father absence through divorce is strongly associated with diminished self-concepts in children (Parish, 1987). This research into the consequences of fatherlessness control for socio-economic condition. 

Reference Information

Note: Links to sources cited have been provided throughout the research brief.

Are female felons treated more leniently by the criminal justice system? William Wilbanks  Justice Quarterly Vol. 3, Iss. 4, 1986

Child Custody, Access and Parental Responsibility: The Search for a Just and Equitable Standard. Edward Kruk. 2008.  Commissioned by the Father Involvement Research Alliance. http://www.fira.ca/cms/documents/181/April7_Kruk.pdf

Dispelling the myths about sexual assault. Government of Ontario. Updated November 19, 2015: https://www.ontario.ca/page/dispelling-myths-about-sexual-assault

Differential sentencing of women and men in the U.S.A. Zingraff, Matthew; Thomson, Randall. International Journal of the Sociology of Law, Vol 12(4), Nov 1984, 401-413.

Effects of Sexual Assaults on Men: Physical, Mental and Sexual Consequences. Richard Tewksbury. 2007. International Journal for Men’s Health, Volume 6, Number 1.

Estimating Gender Disparities in Federal Criminal Cases. Sonja B. Starr. 2012. University of Michigan Law and Economics Research Paper, No. 12-018.

Family Violence Hurts Everyone: A Framework to End Family Violence in Alberta 2013-2018. Government of Alberta. http://preventdomesticviolence.ca/sites/default/files/Framework%20to%20End%20Family%20Violence%20in%20Alberta%202013-2018.pdf

Federal Labour Standards: Sexual Harassment. Government of Canada. Last modified 2016-01-05: http://www.esdc.gc.ca/en/reports/labour_standards/sexual_harassment.page

Female Offenders in Canada. Rebecca Kong and Kathy AuCoin. 2008. Juristat. Vol. 28, no. 1. Statistics Canada Catalogue no.85-002-X.

Gender Differences in Criminal Sentencing: Do Effects Vary Across Violent, Property, and Drug Offenses?  S. Fernando Rodriguez, Theodore R. Curry, and Gang Lee. 2006. Social Science Quarterly, Volume 87, Number 2.

It’s never okay: An Action Plan to Stop Sexual Violence Harassment. Government of Ontario. March 2015: https://www.ontario.ca/document/action-plan-stop-sexual-violence-and-harassment

Legalizing Misandry: From Public Shame to Systemic Discrimination against Men. Paul Nathanson and Katherine K. Young. 2006. Mcgill-Queens University Press

Male Survivors of SexualL Abuse And Assault: Their Experiences. Susan McDonald and Adamira Tijerino. 2013. Research and Statistics Division Department of Justice Canada

Neither Conflict Nor Labeling Nor Paternalism Will Suffice: Intersections of Race, Ethnicity, Gender, and Family in Criminal Court Decisions. Crime & Delinquency January 1989 35: 136-168

On Cash and Conviction: Monetary Sanctions as Misguided Policy.  Katherine Beckett and Alexes Harris. 2011. Criminology & Public Policy 10, 3: 505-37.

Parenting and child support after separation or divorce. Maire Sinha. Statistics Canada, Publication 89-652-X

Scan of Support Services Available to Male Survivors of Sexual Assault. Fuller, S. and N. Smith. 2008.  Atlantic Evaluation Group Inc.

The Determinants of Punishment: Deterrence, Incapacitation and Vengeance. Edward L. Glaeser and Bruce Sacerdote. 2000. Harvard Institute of Economic Research Discussion Paper #1894.

Unrecognized Victims: Sexual Violence against Men in Conflict Settings under International Law. Dustin A. Lewis. 2009. Wisconsin International Law Journal.

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