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Is “fair” a dangerous word to use about women and justice?

Penelope Gibbs
30 Aug 2016

Philip Davies MP sparked outrage a few weeks ago when his views on women’s justice hit the headlines.  “In this day and age the feminist zealots really do want women to have their cake and eat it,” he told a conference. “They fight for their version of equality on all the things that suit women – but are very quick to point out that women need special protections and treatment on other things.”  Mr Davies had been expressing these same views for years.  He is on the Commons Justice Committee and is convinced that the justice system is skewed in favour of women.

Recent research by the FrameWorks institute (and on magistrates’ views) suggests many people agree with Mr Davies and think women in the justice system should be treated no differently to men.  While campaigners know that women who commit crime have particular, distinct needs, the public finds this hard to reconcile with the drive for women’s equality.  If women are equal, people reason, they should be treated equally ie the same as men.  This means no different, “special” treatment because women have child-caring responsibilities, and no difference in sentencing.  A fair criminal justice system for the public is one where, in the Mikado’s words, the punishment fits the crime, not the criminal – which means uniform gender-blind sentencing.

Campaigners have a different concept of fairness, for women and others who commit crime.  For them it is fair for women to have access to gender specific treatment, preferably in women’s centres – given that women are more likely to be vulnerable and have mental health problems.  It is also fair that those sentencing both men and women should take into account all individual circumstances, from whether someone has a brain injury, to the negative effect of a childhood living in children’s homes.

People understand both sorts of fairness – the “eye for an eye” interpretation of fairness and the contextual version of fairness – even though they contradict.  But, unfortunately, as Philip Davies shows, the belief in “uniform” fairness often dominates.   This explains why efforts to reduce the women’s prison population have had limited success, and why tabloids are quick to criticise judges who have apparently softened a sentence because of a “sob story”.

So should we avoid using the word “fair” altogether for fear it will fuel support for uniform, punitive sentences, and diminish support for gender specific approaches? No.  Using “fair” is fine if we explain what we mean by fairness – a system which takes into account individual needs and circumstances and caters to them, both in sentencing and in the rehabilitation approaches offered.