The sentencing principles of equality and proportionality from a feminist perspective: exploring positive gender discrimination at sentencing

Abstract

Feminism revolutionized criminology. Important issues were questioned within the feminist agenda, such as (in)equality in the criminal justice system and the disproportionate impact of imprisonment on women. In a scenario of worldwide increasing female incarceration, gender-differentiated sentencing regimes have been discussed, aiming at reducing prison sentences. In the present study, we set out to answer the following question: from a feminist criminological perspective, is it possible to reconcile the idea of a differentiated sentencing regime for women and the fundamental rights to equality and proportionality in sentencing? Building upon the feminist analytical categories of domination and patriarchy (Gerda Lerner, Catharine MacKinnon, and Sylvia Walby), our goal is to break the logic of gender neutrality/insensitivity at sentencing. Equality and proportionality cannot be the only relevant considerations in sentencing. On the contrary, positive gender discrimination is a requirement of substantive justice. The study explores some possibilities, such as introducing a mitigating circumstance due to womanhood, or when a woman offender does not pose a significant risk to society or when she is the primary caregiver of dependents, especially children. Such discussion necessarily involves empirical data from countries like Brazil, where the growth of female imprisonment has been particularly alarming, and the rights of women are often violated within the criminal justice system. More importantly, we suggest defining a new purpose for sentencing: emancipation or female empowerment. As a result, prison sentences for women should be seriously treated as ultima ratio, applicable only in exceptional cases (violent and sexual crimes).