Take Myra Hindley

Anyone with moderately feminist sympathies and a political turn of mind is likely to find reflecting on the history of ideas about women and crime an unsettling experience. It evokes complicated reactions: anger at injustice compounded by paternalistic hypocrisy; despair at the tenacity of stereotypes, however false or contradictory; incredulity and even hilarity at the sheer ludicrousness of some of the ideas peddled in the name of science. Successive generations of criminologists (I need hardly say, most of them male) have struggled to come to terms with what is still the single most striking feature of criminal statistics: the very small number of women, compared with men, who commit crimes. While the criminologists’ theories can be pretty clearly divided into those which espouse biological explanations and those emphasising differences in socialisation and opportunity, both camps are equally inclined either to pathologise or to infantilise women offenders. Some criminologists, with admirable scientific scepticism, even deny the validity of the statistics. In a brilliant combination of all that is worst in the history of criminology, Otto Pollak, writing in the Fifties, suggested that women’s natural capacity for deception, which he related to their capacity to fake sexual arousal, enabled them to conceal large numbers of crimes committed in the course of the domestic round. Given that this counted as academic endeavour in the mid-20th century, it not surprising that it is F. Tennyson Jesse’s novel A Pin to See the Peepshow, published in 1934, which represents the period’s most perceptive analysis of the influence of gender on the social and legal construction of crime.

In the face of its intellectual poverty, it is sometimes hard to hang onto a sense of the political importance of the history of criminology. But hang onto it we must, for, as Helena Kennedy’s Eve was framed shows, criminological ideas have material and often damaging effects on the ways in which women are treated in and around the criminal process. Until recently central questions of social justice bearing on the status and treatment of women offenders and of women who are, directly or indirectly, the victims of crime have remained in the background of political debate. Ironically, their very law-abidingness has worked against women: the small number of women prosecuted has fed the assumption that women are beneficiaries of the criminal process’s ‘chivalry’. Over the last twenty-five years, some of the most important ideas of the ‘second wave’ of the women’s movement have found their way into political consciousness and practice. Relatively late in this process, the treatment of female offenders and female victims of crime – two peculiarly powerless and, significantly, overlapping groups – has begun to claim at least a fraction of the political concern these women deserve.

Helena Kennedy uses her powerful voice to articulate some of the issues in this area, and makes a significant contribution to the political project of exposing the sexism and other distortions of our criminal process. Over the last fifteen years, research by writers like Hilary Allen, Pat Carlen, Susan Edwards and Carol Smart has begun to give us a clearer picture of how women are treated in the criminal process – by the police, by their lawyers, in court, in prison, as victims. Certain important themes stand out. Because of the very unusualness of female crime, many theories about and reactions to women’s offences are taken up with the idea that women’s crime is in some sense more of a violation, more in need of explanation, than men’s. Because women are expected to be nurturing, passive, obedient, their crimes tend to be seen as doubly deviant – as transgressing not only the legal order but also the gender order. Women’s crime is regarded as especially threatening, and, interestingly, continues to be associated with sexual deviance – with the idea that women offenders are not ‘truly’ or ‘normally’ female.

Take Myra Hindley. When she and Ian Brady were standing trial for the murder of three children, she was widely regarded as having been under the spell of Brady’s ‘magnetic’ personality. Shortly after their conviction, however, it became clear that Brady was seriously mentally ill. News of his psychological disintegration and Hindley’s controlled and eminently sane behaviour in prison gradually undermined the original view of the case, according to which she had played a horrific but recognisably feminine role. History was therefore rewritten in such a way as to represent Hindley as the quintessentially evil force behind the crimes. In the new construction of the case, Hindley has been set up as a witch-like monster who had Brady in her power. At no time have they been represented as anything approaching equal partners. This is not an accident; given prevailing ideas of masculinity and femininity, an account of that kind would not have been considered persuasive.

Another familiar move is to pathologise women offenders, to diminish the threat they pose by defining them as non-responsible or hysterical. As Hilary Allen’s research has shown, judges and magistrates are extraordinarily willing to interpret women’s crimes as products of mental illness – and correspondingly unwilling to interpret men’s crimes in this way. This reinforces a deep vein in our culture which regards women as less autonomous, less fully responsible than men. It also has the concrete effect of making women disproportionately subject to the more intrusive forms of sentence (i.e. probation and imprisonment) available to the court.

The basic shape of Helena Kennedy’s argument will be familiar to anyone acquainted with feminist scholarship on women and crime. Her distinctive contribution is to filter these ideas through her extensive first-hand experience as a barrister. A Glaswegian woman from a working-class background, she sets her analysis of the oppressive role of gender in criminal legal practice in the context of a broader study in which class and race play an equally important role in designating the powerless outsiders whose access to justice remains rhetorical rather than real. In the main part of the book, she presents a large number of case-histories and examples, structured around familiar ideas about the double standard and the influence of stereotypes: ‘Asking for it’; ‘The Unreasonable Women’; ‘She-Devils and Amazons’. The book also sketches ideas for reform in a number of areas of the law and its organisation.

The range of Eve was framed is vast, but its most fully developed aspect is its analysis of the gender bias of criminal laws and their enforcement. Helena Kennedy takes on practically every topical question in this area: the treatment of rape victims and the law of rape; standards of reasonableness, particularly in cases where provocation and self-defence are at issue; the position of black and Asian women and the interaction between sexism and racism; domestic violence and battered women’s syndrome, and so on. She ranges from the major questions (in what sense is crime or criminal law ‘male’? What does this mean and what can and should be done about it?) through to points of detail about the conduct of trials – barristers’ wigs, for example. She ties the points of detail to the issues of principle with admirable clear-sightedness.

At the core of Kennedy’s critique is the principle of the neutrality of the law, which encompasses the idea of equality before the law. There are sometimes departures from the principle of neutrality in the laws themselves – the different treatment of male and female sexuality in criminal law is one example of this. Much more often, however, the divergences lie below the surface of the law, the formal equality of which disguises its differential impact. A good example here is the mitigating principle of provocation, which, when successfully pleaded, reduces a conviction for murder to one for manslaughter. The defendant who pleads provocation must be able to persuade the jury that, having lost her self-control, she reacted to provocation as a reasonable person would have done. As in the many other areas where standards of reasonableness are relevant – offences committed because of negligence, defences such as duress or self-defence, for example – debate has raged about how an ‘objective’ standard of reasonableness is to be defined, and how many of the defendant’s own characteristics should be attributed to the hypothetical ‘reasonable man’ (sic). If we move to the idea of a reasonable ‘person’, does this merely make less visible the fact that our culturally-endorsed notions of what is reasonable have been constructed by and tend to be more appropriate to men? If, conversely, we move towards specific hypotheses about ‘reasonable men’ and ‘reasonable women’, do we invite decision-makers to apply sexual stereotypes, and do we damage the idea that criminal law, above all other forms of legal regulation, must be seen to apply the same standards to all?

These complexities do not exhaust the law’s problems in attaining gender neutrality. Like other feminist writers, Helena Kennedy points out that several of the legal requirements for provocation are ‘indirectly’ discriminatory. For example, the requirement that the provoked retaliation must follow more or less immediately upon the provoking behaviour is particularly likely to exclude from the ambit of the plea people who are significantly weaker than the person provoking them. This group will, of course, include a disproportionately high number of children and women – particularly those who have a history of abuse at the hands of the person they kill. Nor is it only in obvious cases like these that the practices of criminal justice officials subtly express and reinforce conventional notions of appropriate female behaviour. Helena Kennedy’s experience at the enforcement level confirms that women can only get decent treatment in courts, police stations and indeed the media if they are able, and willing, to represent themselves as stereotypically feminine. Women who confirm rather than challenge structures of male power and traditional ideas of femininity – witnesses like Mary Archer, defendants like Cynthia Payne – are likely to get a relatively good deal. Conversely, women who show independence, self-control, assertiveness – Sara Thornton, Sarah Tisdall – are likely to do relatively badly. The cases Kennedy cites show that, while the treatment of men and women looks even-handed, decision-making processes are full of assumptions about gender – assumptions which generally work to the detriment of women.

Helena Kennedy’s evidence makes sense of the claim that ‘crime is male’ and helps to explode the myth of criminal law’s neutrality. Contrary to the ‘chivalry hypothesis’, she shows that the cases where femaleness is a plus are rare, and that the price women pay for them is high. Attempts to tap reserves of judicial clemency for women inevitably help to reinforce paternalistic attitudes. Women who are advised by their lawyers that their best chance of getting decent treatment is to present themselves as conforming to conventional femininity are forced to submit to a system of norms over and above those of criminal law. To make matters worse, this system is one which many of them have resisted in their ordinary lives, and which has often helped to bring about their current predicament. Kennedy vividly describes the dilemmas this presents for the defence lawyer. Her pragmatic approach dictates that she advise her clients to exploit any advantages to be gained by behaving submissively in front of the judge or dressing in a feminine way. But she feels keenly the lack of respect for her clients’ autonomy and integrity inherent in this strategy.

The corollary of this book’s breadth is a lack of depth in its analysis and a confusion about its intended audience. At times it evinces a concern with the detail of professional legal culture which made me feel that the author had fellow lawyers in mind; at other points the degree of familiarity with feminist ideas which was being assumed seemed to indicate a rather different audience; at yet others, a general audience seemed to be what was envisaged. As Helena Kennedy herself asserts, the book is a polemic about law and not an academic exercise. But the general flow of her argument is muddied by some rather mixed messages about just how bad things really are. A discussion of the dangers of jury prejudice is followed by the assertion that ‘usually finer characteristics win the day’; and, towards the end of the book, in spite of the appalling case-histories which have been paraded before us, we are told that ‘the English Bar has been renowned for its high level of integrity and professional competence.’ Even the judges turn out to be, on the whole, pretty good chaps (I use the word advisedly): ‘Most of the judges sitting at the Old Bailey are fair and conscious of how people really live.’ Statements like these sit somewhat uncomfortably with the general tone of the book.

Most of Helena Kennedy’s case-histories are very persuasive at the level of anecdote, but to make something more of them (and much more can be made) it is necessary to consider in more depth some of the very difficult questions they raise. The structure of the book means that Kennedy never quite gets her teeth into those questions. This is a pity, not only because of the substantial contribution she could have made, but also because her decision to remain at the anecdotal level means that, while her examples will give useful ammunition to the converted, they may well fail to persuade the sceptics.

Is legal gender neutrality a plausible aim in a world in which hierarchy according to sex is a general feature of social practice? If not, the implication seems to be that at least in some areas reform should be gender-specific. The risk is that such reform could reinforce the very stereotypes from which we are trying to escape. These problems arise in a more or less intractable form in a number of the areas which Eve was framed tackles – notably in questions about standards of reasonableness and the possible recognition of special pleas based on ‘battered women’s syndrome’ or ‘pre-menstrual syndrome’. Helena Kennedy adverts to such problems on a number of occasions, but does not reflect on them at any length. At several points she speaks of objectivity as something which is both valuable and attainable, yet much of her analysis renders this assumption problematic. Similarly, shaping her argument around case-histories means that some important slipped stitches are never picked up. For example, in her otherwise excellent discussion of provocation, we are never given a considered analysis of the ethical and strategic dangers of extending the provocation plea, a move which could potentially be seen as legitimising revenge and which could well turn out to be more damaging to women than to men.

Whatever criticisms can be made of it, Eve was framed is a useful addition to the crucially important political debate about the treatment of women in the criminal process – an eloquent testimony to some at least of the social injustices perpetrated in the name of state justice. It also raises broader questions about the fairness of the criminal process and the competence of the legal profession to administer it. It can only be hoped that members of the current Royal Commission on Criminal Justice, judges and others who have the power to change the way in which contemporary Eves are still being framed will have the imagination and humility to reflect on the lessons to be learnt from this book.