People with different backgrounds, with different experiences and heritages, bring different perspectives to the judgement of a case, impacting differently the decision-making process. How is this diversity dealt with? Human beings differ from one another by race, ethnicity, gender, sexual orientation and many more. Amongst others, stereotypical ideas of race and gender have been distilled into everyday rhetoric, in a way that shapes people’s identities on societal expectations rather than on lived experiences. Although very little is true and natural about these stereotypical constructions of boys and girls, the appropriation of these notions has led to a real damage and distortion in people’s identities.
Entrenched societal ideas and expectations play a role in justice proceedings, influencing a decision. This article will be looking specifically at the role of gender and race in the juvenile justice decision-making process and will attempt to reach a conclusion on one of the most pressing problems of our time: how can all individuals be treated equally while respecting that every individual is different?
Prior to further discussion and to avoid misunderstandings it is necessary to define some terms. While the term ‘race’ does not require a thorough definition, it is important to define gender. Unlike sex, it is not naturally attributed to an individual at birth, one’s gender is defined by society’s expectation on the behaviours, characteristics and roles that males and females must have. These assumptions categorise men and women into separate, homogenous groups, removing any space for the creation of identities that derogate from these prescribed roles.
Research has proven that both personal experiences and societal stereotypes of race and gender have influenced how judges categorise youth, how this influences the judge’s perception of the facts of a case and how this may influence how he or she decide the sanction. In particular, studies conducted in juvenile courts, where attributions involve stereotypes of dangerousness and appropriate behaviour, provide evidence to support that both race and gender influence court officials, whether this results into a more lenient or severe outcome.
Juvenile courts tend to operate under the doctrine of parens patriae, whereby decision-makers should proceed as a capable parent might. Judges can rely on legal and extra-legal considerations and, when deciding a case, age acts as a form of penalty discount and youth is handled more informally and leniently compared to adults. Yet, this vast discretionary power has resulted into the final verdict being influenced by external circumstances, such as societal pressures. Thus, as a social institution, the criminal justice system has proven to be reluctant to break away from social norms, gender and racial stereotypes in response to what is perceived as uncommon behaviour.
Within the system, minority youth continues to be overrepresented and too often receives harsher treatment due to their race and gender. Stereotyping results into what is termed as a symbolic threat, which, affecting the social and emotional perception of court officers can lead to discrepancies in a judgment. Sentencing discrepancies are particularly evident between males and females. Girls are generally favoured and tend to be treated more leniently and receive shorter sentences than boys for similar crimes; “the criminal justice system is seen as dominated by men, women are individuals who should be protected and decisions taken under this viewing are made with a degree of gender bias, and gender roles and stereotypes are rigidly enforced.” (Embry 2012).
Feminist criminologists describe this as judicial paternalism, suggesting that “official justice systems are gendered institutions with traditional patriarchal norms and will treat delinquent girls differently to delinquent boys.” (Embry 2012).
Girls are expected to commit ‘feminine crimes’ such as status offences whereas boys are expected to enter the justice system for serious criminal offences. But what happens if a girl does not remain within the boundaries of traditional gender roles and commits a serious criminal offence? Do court officials still grant the same leniency and protection?
Current research proves that at different stages in the proceedings, when girls ‘violate’ expected gender behaviour and act in an unladylike manner, they are treated more severely. Women are punished for their criminal offence and for having broken gender roles. A clear example is the treatment of black females, who receive harsher outcomes due to the combination of their race and gender. Drawing from the intersectionality perspective, Moore and Padavic (2010) assert that while “white girls are stereotyped as passive, in need of protection, non-threatening, and amenable to rehabilitation, black girls are stereotyped as independent, aggressive, loud, pushy, rude, sexual, unfeminine, deserving of violence and crime prone”: all characteristics which make court actors uneasy, uncomfortable and unable to identify with that section of youth.
In most cases, the benefit of being granted lenient treatment is limited to white heterosexual girls, to those who are considered weaker and less responsible for their crimes. How are members of the LGBTQ community treated? How are those who do not identify with traditional norms managed?
Within the juvenile justice system, just like racial minority youth, LGBTQ youth is also overrepresented. Identifying the exact number of gay and transgender youth in the system is problematic as data tends to rely on the youth disclosing their sexual orientation and gender identification, which is not as easy as often there is fear of retaliation from friends, family or officials themselves. Still, there are high rates of LGBTQ youth entering the justice system and who experience high levels of physical and psychological harassment.
Despite these rates, until recently, “the juvenile justice profession has largely denied, ignored, or dismissed the significance of this reality and its implications for policy and practice” (Wilber 2015); the whole system is not equipped to manage the unique experiences and challenges these young people face. Instead, the system does even more harm to LGBTQ youth by subjecting them to discriminatory treatment, for example by placing them in detention centres based on their biological sex. The justice system does not provide services to meet the specific needs of LGBTQ youth and it is necessary to devise adequate policies and train staff to ensure that a ‘safe space’ is guaranteed. It is important to understand that gender does make a difference and that a person’s identity should be respected regardless of their position in society and regardless of what society pushes to believe.
More research is hence required to further understand the risks, lived experiences and outcomes of LGBTQ and minority youth in justice system. It is important to consider the reasons why they enter the system, how they are treated once inside and how they behave when they are let out. In the past years, criminological theory has attempted to look separately at the effects of race and gender, however, youth’s experiences are rarely influenced by one element only: experiences are subjective and build around an intersectionality of factors – including both race and gender at the same time.
Future studies should not only compare the experiences of boys and girls but should examine how gender, sex, race and age shape these experiences cumulatively. It is time to recognise the specific needs of minority groups, looking also at how race-linked stereotypes vary by gender. “Juvenile court judges and other court personnel see the race of the youth through a lens distorted by gender. Race and gender intersect to affect juvenile court outcomes in a dynamic, fluid and multifaceted way.” (Guevara 2006).
Only by recognising the complexities in the juvenile justice decision-making process will it be possible to devise better policies and achieve equality for all youth. Future studies will benefit from measuring the official’s attitudes towards male and female offenders, so to assess the way paternalism or stereotypes are asserted. It is time to stop thinking in terms of a struggle of men and boys against women and girls, but to start thinking in terms of a struggle of all – against all inequality and oppression caused by stereotypes.
Ginevra Ossola holds a bachelor’s degree in Development Studies and Law (School of Oriental and African Studies) and is currently enrolled in a Master’s degree programme in human rights at the University College London.
Guevara, L. (2006). Gender and Juvenile Justice Decision Making: What Role Does Race Play?, Feminist Criminology, 1(4), pp.258-282.
Embry, R. and Lyons, P. (2012). Sex-Based Sentencing: Sentencing Discrepancies Between Male and Female Sex Offenders. Feminist Criminology, 7(2), pp.146-162.
Wilber, S. (2015). Lesbian, Gay, Bisexual and Transgender Youth in the Juvenile Justice System.
Spivak, A., Wagner, B., Whitmer, J. and Charish, C. (2014). Gender and Status Offending: Judicial Paternalism in Juvenile Justice Processing. Feminist Criminology, 9(3), pp.224-248.
Leiber, M. (2009). Race, Pre- and Postdetention, and Juvenile Justice Decision Making. Crime & Delinquency, 59(3), pp.396-418.