Feminism and Structural Bias: The Law as a Sexist Institution
VERVE readers should be well aware that one of the most frustrating feminist experiences is engaging with people who don’t really believe what you’re saying is a big deal. I’m not even talking about those who deny gender inequality outright. More like the ones who say they are feminists, are happy for women to wear whatever they want, but then smirk when you move onto issues that challenge institutionalised aspects of inequality - gendered, racialised and otherwise.
Structural biases are inequalities that are written into the fabric of our society, and that we can experience daily through our laws, our technology, even our education. Because here’s the thing: if the law is written overwhelmingly by men, it will assume that its subject will walk through the world, and experience it, as a man. And while many dismiss these concerns as feminist killjoy fantasies, the implications of these biases are in fact scarily literal.
Consider the definitions of murder and manslaughter, which are distinguished by the presence or lack of premeditation. Simply, if you planned to kill you are liable for murder; if your irresponsible behaviour lead to a person’s death, manslaughter. Now consider the position of women who, as a way to escape situations of domestic abuse and intimate violence, kill their partners.
A woman experiencing domestic abuse will often have less opportunity to leave her partner, whether through fear, lack of financial independence or any other reason. She would likely be physically overpowered by her partner, making a spur of the moment physical reaction to abuse impossible. A woman in this situation will likely have to plan her escape, and thus her partner’s death, making her crime murder and liable for a much harsher sentence. The law has assumed its subject has certain freedoms, strengths and abilities and has therefore defined ‘murder’ and ‘manslaughter’ as such - but those freedoms largely align themselves with a male experience and therefore can result in more harshly punitive judgements for women.
In stark contrast, the conviction of manslaughter has repeatedly been given for so-called ‘crimes of passion’, minimising a man’s punishment for killing his partner and/or their lover by arguing for their ‘loss of control’. This happened in the UK for example in 2009 when William Crawston was cleared of his wife and best friend’s murder and instead convicted of manslaughter, and in 2012 when a judge overturned Jon-Jacques Clinton’s original life sentence, and ordered a re-trail to include evidence about the victim’s infidelity as possible cause for provocation.
If we are talking about structural gender bias, we must also consider structural racial bias. Similarly to the issue of gender, if the law is written overwhelmingly by white people, it will of course also assume that any subject will walk through the world, and experience it, as a white person. In 2015 the Metropolitan Police acknowledged that there was justification to the claim that the police force is racist, and numerous reports such as the Stephen Lawrence Inquiry (Macpherson Report) have made similar criticisms. The Lammy Review of 2016 which investigated the racism of the UK’s criminal justice system disturbingly found that POC were more likely to be jailed than white people for criminal offences, with 227 black women being handed prison terms for every 100 white women handed custodial sentences in the case of drug offences.
People assume that the law is a neutral regulator that can be relied upon to ensure justice, a set of principles and rules that can be applied to any situation and that will align right and wrong. What many fail to recognise is that the law has been written by people, and is administered by people, and is therefore built upon assumptions that cater to very specific subjects and make the existence of other experiences or identities challenging for the law to comprehend. The law and those who administer it do not exist in their own vacuum: the law is subject to all manner of prejudices that may themselves be hidden, but that produce alarmingly tangible and discriminatory consequences.
Interested in reading more? Try The Law as a Sexist Institution Pt.II: International Law, Conflict and Peace.
Article by Mairi Lubelska