THE MORAL CASE AGAINST EQUALITY BEFORE THE LAW

Feminists do not want the law to treat women equally to men. No sane or compassionate person would want men and women to be treated the equally before the law. Thankfully, our legal system does not practise equality before the law and hopefully it never will.

I know this sounds offensively absurd, but bear with me. You will agree with me.  In the 2007 the Labour Peer, Baroness Cortson wrote the Cortson Report[1] which made the case for maintaining and expanding the unequal status of women before the law.  In it she recognised that women have “vulnerabilities.. which fall into three categories. First, domestic circumstances and problems such as domestic violence, child-care issues, being a single-parent; second, personal circumstances such as mental illness, low self-esteem, eating disorders, substance misuse; and third, socio-economic factors such as poverty, isolation and unemployment. When women are experiencing a combination of factors from each of these three types of vulnerabilities, it is likely to lead to a crisis point that ultimately results in prison.” She goes on to argue that women must be punished less severely than men for the same crime because, “The biological difference between men and women has different social and personal consequences.” 

For the sake of argument, please join Baroness Cortson in ignoring the fact that men can also be equally damaged by the exactly the same three “vulnerabilities” that noted that women have. Instead, let’s follow the implications of Cortson’s conclusions. If the biology and social circumstances of women gives them “vulnerabilities” that men do not have, men must also have corresponding greater strengths and abilities. For example, on average, men tend to be stronger than women. This means that they are able to inflict greater physical harm than women can when they are violent. This also gives them a greater responsibility not to abuse that strength advantage over women. This is one reason why the law reflects a man’s greater moral accountability by punishing him more severely than a woman who uses violence. Even when physical strength is irrelevant, as when a man or a woman use a gun to murder someone, the law will still punish the a man more severely than a woman for the shooting.  

Cortson acknowledges this.  She observes that, “Prison is disproportionably [sic] harsher for women because prisons and the practices within them have for the most part been designed for men.”  (This may be why between 2006 and 2016 the number of males self-harming has increased by 109% while the number of women self-harming has decreased by 8%.[2]).

Strict equality before the law is inherently immoral,which is why it is never practised. Strict equality before the law would require each individual to be treated as an equally responsible moral agent, regardless of his or her sex, age or mental capacity. It would demand that  the same law to be applied in the same way to each individual, meaning that the same punishment would have to applied fairly and equally to each individual for breaking the same law.

It would be wrong to assume that every individual is an equally responsible moral agent because they are not. Children, together with brain damaged adults and adults with severe mental illnesses, are all recognised as having lesser moral responsibility before the law. Because of this, juvenile offenders, the criminally insane and the mentally incapacitated all receive a lesser sentence than a man would for committing the same crime. For the law to be moral, it must recognise that all people are not equal. It must be applied in proportion to the moral responsibility of the individual. It would be immoral for a juvenile offender, a criminally insane or mentally incapacitated adult receive an equal sentence as a man for committing exactly the same crime. None of these classes of people are equal to each other and so the law treats them less harshly due to their inherent limitations.

For every woman who is tried, convicted and sentenced for her crimes, three or four men who are. Based on this ratio, if men and women were sentenced equally by the law, men would make up 66 to 75% of the prison population and 25 to 33% of women would go to jail. Instead, the law recognises the greater responsibility that man bare for their actions. This is why men make up 95% of the prison population and why women make up the remaining 5%. This is despite the fact that  women prisoners are subject to between 20% and 50% more prison disciplinary actions per 100 prisoners than men serving time. Women also need to be disciplined for acts of violence more frequently than male prisoners.[3] This is also why women are also fined less by the courts for the same crime. They given shorter sentences in prison, and they enjoy greater freedoms, more privileges, more visiting rights, and better facilities while they are there. As an extra bonus on top of their already shorter sentences, women also get serve shorter portion of their sentence than men have to. For example, if a man was sentenced to 10 years in prison and was released after serving 7 years to serve the remaining 3 years on probation, a woman who committed exactly the same crime may only be sentenced to 7 years, serve 3 years and be released to serve the remaining 4 years on probation. This is not equality.

Should this inequality be extended to other groups as well? Should lesser sentences and better conditions be given to people based on their race, religion, sexuality or poverty? Only if they can make the case that being black or Muslim or gay or significantly diminishes their moral agency and made them less responsible for their actions. They are welcome to try.

Very few men (and even fewer women) think that it is unjust for women should be punished less than men for the same crime . This could be based on irrational prejudice. If it is, no feminist will admit it. Nor are there any feminist campaigns for women to be given equal sentences as men. Somehow, we instinctively know that women shouldn’t be punished as severely as men are for their crimes. Most people would be happy to say this in public. If there was ever a proposal to change the law to make women face the same level of punishment as men for the same crime, most people would fully back the feminist-led campaign that would arise to protest it. This almost universal intuitive instinct would conveniently make it unnecessary to give  a rational moral defence for opposing this. After all, any open discussion of why raises too many uncomfortable questions and implications.

For example, feminists are going to be highly motivated to avoid raising the issue in case people draw the conclusion that women should punished less than men because they are less responsible for their crimes due to their inferior moral agency. If asked, perhaps feminists will blame the patriarchy. They may argue that the reason why women are punished less than men for the same crimes is because men have colluded to gain unwanted power over women in order to gain positions of political leadership, moral authority, social privilege and that men have used these things to perpetuate the suppression of women. Patriarchy is why the male dominated legal system is so biased against men and is so unduly lenient towards women. Perhaps they could also argue that even though men and women have an equal capacity for moral agency, men still deserve to be punished more woman for the same crime because they are more evil. Maybe men need to spend longer in prison because women need to be protected from male criminals. (Even though both men and women can be the victims of female criminals.) Since any argument they may use justify this inequality will draw attention to the inequality, they will ignore it. However, thanks to the almost universal intuitive instinct for treating women more compassionately than men, feminists don’t have to justify it. All they have to do is benefit from it.

Let me leave you with three questions. If men must pay a higher price for their crimes, why should men not be paid more for their labour? If a man must pay a greater penalty than a woman for committing the exactly the same crime as a woman, why should a woman be paid the same as a man for doing exactly the same job? If you think it is right that a woman should have to pay a lower price for her crime, why do you also think it is wrong for her to be paid a lower price for her labour?

Notes

[1]       http://webarchive.nationalarchives.gov.uk/20130206102659/http://www.justice.gov.uk/publications/docs/corston-report-march-2007.pdf

[2]    UK Prison Population Statistics. Alan & Watson. House of Commons Library. 20 April 2017.

[3]    Statistics on Women and the Criminal Justice System. Ministry of Justice. November 2010.