Crime and punishment too: Son of accountability gap - HBR Talk 19
Last week on HBR Talk we began a discussion on the gender disparity in accountability for criminal acts. We went over several points that were highlighted by two researchers in two separate reports: Jill K. Doerner’s 2009 doctoral thesis, “Explaining the Gender Gap in Sentencing Outcomes: An Investigation of Differential Treatment in U.S. Federal Courts,” and Sonja B. Starr’s 2012 report, “Estimating Gender Disparities in Federal Criminal Cases.”

Both reports highlighted an inability to explain away the criminal justice accountability gap as a result of differences in criminal behavior or the perpetrator’s life circumstances. In fact, some areas of disparity indicate that family circumstances which elicit prosecutorial and judicial sympathy for women appear to lead instead to greater umbrage when the defendant is a man. 

Consideration of that, and of and the increased gender disparity in outcomes in drug and gun cases, where there is also a racial disparity, ties the gap in part directly to authorities’ association of obligatory conscientiousness and culpability for one’s actions with overtly stereotypical masculinity. 

This is further evidenced in two areas: One is is in financial obligations imposed on noncustodial parents and ex-spouses, which leads to several egregious abuses to which we will be dedicating next week’s discussion. The other is the impact of gendered intimate partner and sexual violence law on the gap in criminal outcomes when abuse is reported.  

U.S. federal domestic violence law, lobbied for extensively by feminists, has written into it the presumption of male-perpetrated, female-experienced abuse. The law funds research on violence through that specific filter, to be done at facilities that only serve women. It mandates that law-enforcement, prosecutorial, and judicial response also use that filter, and establishes tracking of statistics based on those responses. It uses dispensation of funding to mandate harsh penalties for men and boys convicted under its edicts. It is, essentially, a confirmation-bias machine with teeth designed to only bite into accused men and boys, and only on behalf of accusing women and girls.

In our discussion, we touched on the way this shelters female perpetrators of intimate partner and sexual violence from criminal culpability and censure. Emily M. Douglas and Denise A. Hines stated in their report, “The Helpseeking Experiences of Men Who Sustain Intimate Partner Violence: An Overlooked Population and Implications for Practice” that men abused by female partners face several barriers to justice, including 

  • Failure of police to respond to criminal complaints
  • Ridicule instead of assistance when police do respond
  • Response ending in non-arrest of a demonstrably violent partner 
  • Being treated as the perpetrator, rather than protected from their perpetrator

VAWA’s gendering of criminal culpability for intimate partner violence has led to areas of abuse which almost exclusively affect male defendants at the behest of female accusers. One is restraining order abuse, the act of requesting an unmerited restraining order against an individual, and in some cases the misuse of that order for any sort harassment, malicious mischief against the subject, or personal gain for the holder, rather than its intended purpose of protection. Another is malicious prosecution, the act of commencing a civil or criminal proceeding against an individual without probable cause and for a purpose other than that of bringing the alleged offender to justice. 

Both behaviors are facilitated by a combination of stipulations in the Violence Against Women act and social attitudes impacting authority responses to complaints made by female accusers. These, when combined with mandates that authorities automatically attribute credibility to female accusers, lead to false arrest, wrongful conviction, and wrongful sentencing, and even in the absence of criminal conviction, transfer of property from accused to accuser, and the accused suffering loss or prohibition of child custody. Douglas and Hines noted this use of false accusations as a tool in custody battles. According to their report,

“Within the judicial system, some men who sustained IPV reported experiencing gender-stereotyped treatment. Even with apparent corroborating evidence that their female partners were violent and that the helpseekers were not, they reportedly lost custody of their children, were blocked from seeing their children, and were falsely accused by their partners of IPV and abusing their children. According to some, the burden of proof for male IPV victims may be especially high.”

The culpability gap extends throughout the entire process. Intimate Partner and Sexual Violence cases have as a unique characteristic a practice of exempting from criminal culpability female accusers who commit certain crimes in their pursuit of a conviction of a male defendant:  

  • filing false criminal complaints
  • lying to police during investigations
  • perjuring themselves
  • acting in contempt of court
  • any criminal abuse they engage in directly against the accused and his witnesses, such as stalking or harassment 

These exemptions do not extend to male accusers when the defendant is female. 

This gap manifests in odd corruptions where criminal law intersects with divorce and custody battles, wherein imposing expectations of good character and responsible parenting may actually be viewed by the court as a form of abuse:  A father can be treated as an aggressor in court for reporting a mother’s exposure of the couple’s children to conditions that would have led to removal children from the home by child protective services had the state discovered them independently of the custody dispute. 

The combination of misplaced inculpation of men and wrongful exemption for women has led to a phenomenon of men being subjected to tangled, protracted ordeals of malicious prosecution, sometimes lasting several years, as the mothers of their children abuse the criminal court system as the dirty bomb of custody battles… often dramatically and permanently impacting not only their target (the children’s father) but his close friends and family and ultimately the children themselves, and usually with legal impunity for the attacking mother.

Criminal law supposedly exists to establish and enforce a fair and just balance between the individual’s personal liberty and personal boundaries, the liberty and boundaries of his neighbors, and the ability of the population within a society to manage risks and needs which occur specifically because of our choice to live in communities. These are human rights considerations. Arbitration of them is impacted by government authority considerations. The enforcement system is expected to deal fairly between citizens when there is a conflict or an infringement. Instead, it establishes and enforces a gross, cumbersome double standard in accountability and human rights considerations. This brings back some of the same uncomfortable questions we asked last week, which bear repeating, along with a few more:

Once again, are we, as a society, responding to criminal offense in the most productive way we can, or are we using the criminal justice system as a vehicle for the perpetuation of our species’ tribalism?

Do we value women so much more than everyone else that we are willing to accept the sacrifice of whole families’ welfare to satisfy the interests of the female side of a conflicted couple?

Or, once again, does society think women less possessed than men are of the self-control necessary to keep their behavior within the bounds of the law? Isn’t having less culpability an indication of less capability? And wouldn’t that indicate justification for restricting women’s freedoms as one would those of children, in order to prevent serious, life-impacting errors? How does that fit in with human rights considerations?

If we do not want to go back to treating women like privileged children under the law, perhaps we should move in the opposite direction: De-gender all areas of law, and limit government mediation of custody and property disputes in divorce cases to instances where no agreement can be reached or the usual enforcement is merited after a contract is signed and then violated. Why should we expect government entities to be the primary arbiter of citizens’ welfare or interests, and more, why should consideration for one sex’s welfare and interests take precedence over that of the other? 

After all, isn’t an imbalance in human rights considerations evidence of an imbalanced outlook on humanity? Isn’t a gender-based exemption from capable adult standards for accountability and obligation evidence of a gender-based imbalance in expected competence as a mature adult?

And in light of that, why aren’t more women viewing the existing gap as an attack on both men’s human rights, and the perception of women’s acumen and fortitude? Where is the massive female protest against this egregious set of prejudices? 

Oh, wait… they were busy protesting for government handouts and defamation of the male gender as deadbeats, abusers, and predators because they were traumatized by an accurate statement on gold-diggers.

That kinda gives the pussy hat a whole other connotation, doesn’t it?

Where I've written about this previously: