From Salem to the Old Bailey: Gender in Crime and Punishment

Article by Alexandra Machin. Edited by Liz Goodwin.

Karl Marx once wrote, “The history of all hitherto existing society is the history of class struggle”; but what about gender struggle? It appears that even in the darkest depths of criminality, and the justice system that is built to reprimand it, great injustices have been present through the difference in the treatment of male and female criminals. Within the Western world, crime and punishment has played a crucial part in the shaping of society. Even today, nations have prided themselves on their fair justice systems, or low crime rates, and even in the media, deviant, violent and prolific criminals have been plastered across newspapers as frequently as celebrities. It is safe to say, that whilst crime and punishment is a hot topic for all, few have failed to see the differences in the treatment of men and women; in terms of how, historically, they have been treated unequally in the eyes of the legal system and viewed socially.

Perhaps one of the older, yet striking, examples of gender mistreatment in the court of law can be said to have lain it’s foundations in the witch-hunt epidemic of Europe and North America. Founded on extreme moral panic and mass hysteria, the witchcraft trials were legally accepted around the 15th century, and remained punishable by law until the 18th century. Three hundred years of moralistic madness, and with the trials an attribute of the deeply Orthodox state of Western society, the “witch hunt” of Europe and North America became a misogynistic based attack on any woman that wasn’t deemed conventional enough for Christian standards. Had a woman have been too ugly, too single, too independent of man, too isolated from society or just not morally pious enough, she was deemed to have been an evil within society, and could easily have been accused of being a witch. In 1645, America experienced its first taste of the witch-hunt in Springfield, Massachusetts when young couple Hugh and Mary Parsons subsequently both accused one-another of witchcraft, and causing the death of their children. The case went to court, and whilst Hugh was acquitted, Mary suffered social isolation in her community, and further accusations of her practising witchcraft, this time of causing the fits of the local minister’s daughters. She was sentenced to be hanged, and died alone and insane in prison before her execution was carried out. Indeed, Mary Parsons is just one of a multitude of examples of middle-century women whose very social standing and lives depended on the mercy of men – men who governed the courts and passed the bills that made the Western world accept the executions of innocent women and men deemed “witches”. The crime was practising witchcraft, yet frequently the three hundred year old hysteria appeared to be criminalising femininity as well, particularly to women who were unwed mothers, adulteresses, mistresses, spinsters or did not fit in with the highly moralistic conventions of the 17th century Christian society. Though it cannot be denied that men were also accused of witchcraft throughout, it appeared less frequently, and their trials seemed a much fairer event, with a higher chance of acquittal.

Though the witch-craft trials were a clear example of isolating and victimising females, in most instances gender inequality throughout history seems to focus itself around how unfairly males have been treated in the Western courts, in comparison to their female counterparts. Between 1674 – 1913, the Old Bailey records indicate that fewer and fewer women were being tried as defendants in court as centuries progressed. From the early 1700’s, women accounted for around 40% of all defendants tried and convicted at the Old Bailey, yet this figure significantly shrank to just 9% by the 20th century. It is clear to see then, that women were being less and less associated with serious crime, whilst men in particular were unfairly being depicted as violent and aggressive by nature, and much more of a hindrance to society, than the gentle-and-mild-by-nature females. Furthermore, because men were increasingly being viewed as violent and a problem in society, they were viewed as more threatening and were more likely to be prosecuted for the crimes they were accused of. Upon this, women defendants could often play the gender card as part of their defence; whether they committed their crime because of “female hysteria” or insanity, or simply pleaded a less harsh sentence by claiming pregnancy, it was clear that unlike many parts of society, women seemed to have a favourable advantage in the court rooms. Reasons for a lack of female convictions has often been debated amongst historians, but the general consensus is, as championed by Malcolm Feeley and Deborah Little, is that because women were often excluded from the social spheres men inhabited, they could not – even if they wanted to – commit the same types of crime that men were able to. This is especially true if one considers what female convicts from the Old Bailey were usually convicted of between the 18th and 20th century; infanticide, prostitution, petty theft and adultery being the main convictions. Such convictions were clearly evident of the social spheres women were restricted to. Even when women were convicted of treason – the most heinous of crimes according to the courts – and sentenced to death, they were burnt at the stake whilst men were hung, drawn and quartered. Apparently it seemed inappropriate even when executing a woman to open her up. Even in a post-modern world, women are still looked upon in relation to their stereotypes when it comes to the issue of crime. Even in 1995, when Fred and Rose West were convicted of twelve counts of callous murder – a number of her own children included – the focus became on exactly how Rose, not Fred, could murder or be an accessory to the murder and abuse of her own children, and other women/girls. If possible, Rose, being a woman, was treated with more contempt than that of her equally evil husband, Fred, both nationally and within the courts. How was it a woman, a bringer of life with a predisposed need to care, could take away life so easily and in such a brutal manner? It seemed even in the late 1990’s, in a post-1945 society, the social consensus was to look upon criminals in relation to their sex and in doing so, treat them differently for it.

So in what way have the Western Courts been unequal in their treatment of the genders in the realms of crime & punishment? It seems sad to say that for the most part, history tells us that courts such as the Old Bailey have drawn upon both gender stereotypes and, frequently, been victimising of sexes. Whether it is in the misogynistic, conservative plight in the witch-hunts of the middle centuries, or the large gap between male and female conviction rates in the era between renaissance and modernity, male and female criminals have and are treated differently in the courts and in the punishments they receive.

In fact, it seems the only thing equal about crime and punishment in our western world is the inequality both women and men have faced because of their sex.

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