Men and women might be equal before criminal law, but not when it comes to their trial, where women are shown comparative leniency. That’s the controversial conclusion of a three-year study by two French sociologists, Maxime Lelièvre and Thomas Léonard, who monitored the treatment of, and sentences meted out to, men and women in French courts.
They reveal their findings in a book just published in France called Penser la violence des femmes [1], a collection of research essays about women’s relationship with violence.
In 2007, just 14.9% of all people charged for offences were women, and yet women represented that same year just 3.7% of all those imprisoned for offences. The question Lelièvre and Léonard set out to tackle was whether an offender’s gender influenced the outcome of a court judgment.
After studying 1,200 individual court cases (of which 48 concerned women) between 2007 and 2010, they came to the emphatic conclusion that sentences meted out to women are more lenient.
The authors underline that sentencing magistrates don’t simply hand down automatic, textbook judgments, but rather attempt to adapt their rulings with regard to the character and circumstances of the offender. When differentiating between those offenders who act to gratuitously cause problems and those who act because they suffer from problems, women are the most often deemed to be in the latter category.
However, they found that while there was a comparative lenience in the sentencing of women for crimes of violence, this was less true for theft. “Everything happens as if, in the judges eyes, women appeared credible in the role of ‘thieves’, but not in that of ‘violent’ or ‘dangerous’ offenders,” the authors note.
Under French law, crimes which are punishable up to a maximum sentence of ten years, and for which there is compelling evidence of a person’s responsibility, such as being caught in the act by police, can be judged in a fast-track system known as la comparution immediate (meaning ‘immediate appearance’). Designed to alleviate an overloaded justice system, these courts hear a case immediately after the defendant has been questioned in police custody [2].
In comparison with a regular trial held after months of preparation, sentencing magistrates on these fast-track trials dispose of little information about a defendant, and that which they do have can be uncertain. In such cases, write Lelièvre and Léonard, the magistrates employ “their own interpretations of the social world and criminal universe […] in order to fill the empty spaces”. In such interpretations, they continue, “men are seen as being generally, even naturally, more violent”.
In cases of offences where men and women are jointly accused, men are perceived as being “more probably the active initiators of acts of violence, where women would be rather the passive partners or quite simply the victims of the situation”, they continue. The sociologists conclude that a man who doesn’t work is often deemed to be useless towards his family and society, unlike a woman without employment whose role is to look after the children.
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1: Penser la violence des femmes is published (in French only) by éditions La Découverte.
2: In a previous study published in The New International Journal of Criminology, Thomas Léonard compared the treatment of French citizens and foreigners who appeared before fast-track courts, which can be found here (in French only).
'They've often lived through terrifying things'
Among the cases the authors compare, two involved physical attacks on public employees whose injuries were serious enough to necessitate the delivery of medical certificates for sick leave from work of up to seven days. In each of the two cases, the defendant was unemployed, of French nationality and had never been previously sentenced for a crime.
One was a man accused of attacking a bus driver, the other was a woman accused of attacking her daughter’s school teacher. In the case of the woman, her difficulties as a single parent, abandoned by her husband, were largely taken into account as an explanation of her act, to the point of making her a second victim in the case. While the man received a six-month suspended prison sentence, the woman received a suspended prison sentence of just one month.
Léonard says the comparative leniency shown to women is apparent at every level of the justice system. “A female criminal is always considered to be [someone who is] unwell,” he comments. “In most of the other situations in life, women suffer from this type of representation. This ‘absence of rationality’ presupposes that they are more emotional, which in normal situations disserves them. But in the justice system, the idea that they are more easily influenced, because they are unable to control themselves, plays in their favour,” he claims.
The authors carried out most of their case comparisons at the Magistrates’ Court (tribunal correctionnel) in Lille, north-west France. The local state prosecutor, the chief presiding judge and all other sentencing magistrates bar one declined to be interviewed by Mediapart about the books findings. The magistrate who did accept to be interviewed was Hélène Judes, whose position as regional representative of the magistrates’ union USM (Union syndicale des magistrats) allows her to speak publicly on the issue.
“There are far fewer women [defendants], and so one is more interested in their individual histories,” Judes said. “They have often lived through terrifying things, very hard personal experiences.” Asked whether, by implication, male defendants had easy lives, she responded: “You can also find this type of experience in male delinquency, but there is more often a choice of [entering] delinquency out of financial interest.”
Recalling cases where she had herself passed judgment upon women, she cited “poor girls who despite themselves get mixed up in impossible situations”, whose acts are a misguided proof of love to a man. She agreed there was a difference between judges’ approaches towards sentencing a man and a woman. “For a man, it would be demanded that he has an activity in order for his sentence to be lightened,” she said. “In the case of a woman who has children to bring up, she is not asked to find a job.”
While Lelièvre and Léonard refrained from drawing conclusions about the difference in approach to sentencing between male and female judges, notably because of the small number of magistrates presiding at the Lille court, Judes conceded that she herself might be more sensitive to a woman defendant’s personal history. However, she stressed that she was speaking only for herself, and that when a magistrate puts on his or her official gown “we struggle against mirror-imaging oneself”.
'Happily, courts consider a mother's situation'
Judes dismissed the book’s assertion that sentencing magistrates posted to fast-track trials, the comparutions immediates, are generally so expectant to find before them a stereotype defendant who is male and working class that they are more attentive and understanding when judging “a defendant with an unusual background”, a category which includes women and also men with more wealthy situations. Lelièvre and Léonard argue also that a defendant who is more socially integrated than the average can hope for a lighter sentence.
That conclusion is also taken to task by Cécile Montpellier, a lawyer practicing in Lille, where for two years she was a ‘coordinator’ for a fast-track trial court, a role that involves managing the distribution of cases among her fellow defence lawyers and sorting out administrative problems. Montpellier insisted that, whether the defendant is a man, middle-class or a foreigner, before a person “with the same criminal record and the same offence, the prosecutor’s office and the judges will adopt the same attitude”.
She drew issue with the conclusions of Lelièvre and Léonard because of the small number of magistrates concerned by their research. “It’s true that the court takes a mother’s situation into consideration, happily so,” she said. “But they’ll also take into consideration a man who has just become a father. There is no positive discrimination. Everything depends upon how the lawyer presents the case.”
“When magistrates see a woman before them, they are astonished,” she added. “They are attentive to the difficulties she might have in expressing herself, to the pain that can be read on her face.” Asked whether men, therefore, are impassive, she answered: “No, and the court takes [similar considerations] into account. But in any case, I don’t like statistics. The justice system is about taking each case one by one.”
Montpellier said she didn’t believe that female magistrates gave greater consideration to women defendants. “Women don’t go around making life easy for each other,” she commented. “No, what magistrates can’t stand is gratuitous, motiveless violence, in the style of ‘you gave me a bad look’. The ability of a defendant to explain their act is therefore very important. And it is possible that women are more communicative, that they explain the context better.”
Montpellier’s views are not shared by Antoine Berthe, another Lille-based lawyer. He found the sociologists’ study confirmed what he called “a feeling you have every day” that there is an imbalance in the treatment of defendants according to their gender. “Women are prosecuted less, are less placed in detention, and less sentenced,” he said. He cited cases of drug trafficking. “The drugs are placed in the glove box, the boot, the spare tyre. Inside the car is a couple. Systematically the man receives a sentence. I don’t know if the judges have an inner conviction about how roles are shared or whether it’s the client who influences the outcome. Often, the man acts as a shield, and says ‘Do as you wish but leave my wife free’.”
However, he said he sees a gradual change in the perceived leniency applied to women. “Only a short time ago women were not placed under investigation when they were money laundering their partner’s trafficking,” he said. “That’s changed.”
Asked whether lawyers used the separate treatment accorded to men and women to their advantage, he replied: “Quite the opposite. I try to be more tear-jerking with men, in order to break down the gangster image. But it’s true that I often plead for the children. What will become of them? Is it really absolutely necessary that they end up [in social care] at the ASE [Aide sociale à l’enfance]?”
But if a couple are both brought to trial, doesn’t the argument also apply for the father? “Sincerely, we sometimes see guys who know how many children they have, but when they’re asked how old they are they scratch their heads,” admitted Berthe. “Of course, in most cases of domestic violence that come before court, it’s the man who hits his wife. But when it’s one person’s word against the other’s, the guy can say what he like, he won’t get out of it. He could very well say ‘She threw herself at me, I was afraid, I took a strong hold of her wrists, that’s why she has bruises’, he will [still] be the one in the wrong. I tell my clients, ‘Don’t return a slap, you’ll be in the wrong’. If on top of that you are Arab or Black, and you slap a white French woman, there’s no getting away with it.”
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English version: Graham Tearse