CRIMINAL LAW (FROM WOMEN'S RIGHTS AND THE LAW - THE IMPACT OF THE ERA (EQUAL RIGHTS AMENDMENT) ON STATE LAWS 1977 BY B A BROWN, A E FREEDMAN, H N KATZ, AND A M PRICE)

• NCJ Number: 45123
• Author(s): B A BROWN; A E FREEDMAN; H N KATZ; A M PRICE
• Date Published: 1977
• Length: 52 pages
• Corporate Author: Praeger Publishers
• Publication Format: Document
• Language: English
• Country: United States of America

Annotation

SEX DISCRIMINATION IN THE CRIMINAL JUSTICE SYSTEM IS EXAMINED, MAJOR PROBLEM AREAS AND POSSIBLE DIRECTIONS OF CHANGE ARE DISCUSSED, AND REFORMS THAT HAVE ALREADY TAKEN PLACE ARE EVALUATED.

Abstract

MOST RAPE LAWS, AS OF 1977, ARE EXPLICITY SEX-BASED. THEY PROTECT ONLY WOMEN, YET ENFORCEMENT PRACTICES OFTEN DISCRIMINATE AGAINST THE FEMALE VICTIM. IF RAPE LAWS WERE WRITTEN USING ONLY SEX-NEUTRAL CONSIDERATIONS, SUCH AS DEGREE OF FORCE, NATURE OF CONTACT, AND AGE AND MENTAL CAPACITY OF THE VICTIM, PROTECTION OF WOMEN WOULD NOT BE JEOPARDIZED; RATHER, PROTECTION WOULD BE EXTENDED TO ALL. SUCH LAWS WOULD ENCOURAGE THE REFORM OF STRICT EVIDENTIARY RULES PECULIAR TO RAPE CASES, WHICH DERIVE FROM SEX STEREOTYPING. THOSE REFORMS WHICH HAVE BEEN ENACTED TO TRY TO REMOVE SEX BIAS USUALLY INVOLVE REWORKING STATUTORY DEFINITIONS OF RAPE AND EVIDENTIARY STANDARDS FOR RAPE PROSECUTIONS. MANY STATES HAVE AMENDED THEIR DEFINITIONS USING SEX-NEUTRAL PHRASEOLOGY, THUS TREATING SEXUAL AGGRESSION BY AND AGAINST BOTH MALES AND FEMALES UNIFORMLY. A MODEL RAPE STATUTE IS LAID OUT, BASED ON THE 1975 MICHIGAN RAPE LAW REFORMS, WITH SOME RECOMMENDED CHANGES. MOST EXISTING PROSTITUTION LAWS DISCRIMINATE AGAINST WOMEN, AS THE OFFENSE IS TRADITIONALLY DEFINED AS AN ACT THAT CAN BE COMMITTED ONLY BY WOMEN, WHILE MEN WHO PAY OR ARE PAID FOR SEXUAL ACTIVITY ARE NOT PENALIZED. STATE REFORM EFFORTS HAVE CENTERED ON SEX-NEUTRALIZING THE DEFINITION OF PROSTITUTION AND CRIMINALIZING THE ACTIVITIES OF PATRONS. A MODEL PROSTITUTION LAW BASED ON CONNECTICUT'S 1975 AMENDMENTS IS DETAILED; IT IS CONSIDERED TO BE THE BEST LAW SHORT OF THE RECOMMENDED DECRIMINALIZATION. SENTENCING PRACTICES OFTEN SHOW EVIDENCE OF SEX BIAS BY JUDGES. SOME STATUTES ACTUALLY MANDATE DIFFERENT TREATMENT, REQUIRING INDETERMINATE SENTENCES FOR WOMEN BUT SETTING MINIMUM AND MAXIMUM TERMS FOR MEN, OR CONSIDERING MALES AS ADULTS AT A YOUNGER AGE FOR THE PURPOSES OF CRIMINAL SANCTIONS. THE EQUAL RIGHTS AMENDMENT (ERA) WOULD REQUIRE THAT MEN AND WOMEN BE SUBJECT TO THE SAME SENTENCING (AND PAROLE) PROVISIONS. IT IS RECOMMENDED THAT STATES PROMULGATE LISTS OF NON-SEX-BASED FACTORS TO BE CONSIDERED IN MAKING SENTENCING DECISIONS. IN THE PRISON SYSTEMS, MANY DISPARITIES EXIST IN THE TREATMENT OF MEN AND WOMEN. THE VERY SMALL NUMBER OF INCARCERATED WOMEN AND THEIR RIGID SEGREGATION INTO SINGLE-SEX INSTITUTIONS HAVE RESULTED IN MORE WOMEN BEING INCARCERATED FARTHER FROM HOME WITH LIMITED WORK, JOB TRAINING, AND EDUCATION OPPORTUNITIES. THE ERA WOULD END DISTINCTIONS IN TREATMENT AND HOUSING ON THE BASIS OF SEX; WOMEN WOULD BE ASSURED EQUAL ACCESS TO AVAILABLE BENEFITS WITHOUT JEOPARDIZING THEIR SAFETY OR PRIVACY RIGHTS. STATE REFORM EFFORTS HAVE BEEN MINIMAL. MANY OF THE SAME PROBLEMS APPLY TO THE JUVENILE JUSTICE SYSTEM. THE ERA WOULD PROHIBIT, AMONG OTHER THINGS, STATUTORY AGE DIFFERENTIALS BASED ON SEX. TABLES ARE GIVEN OUTLINING STATE RAPE AND PROSTITUTION LAW REFORMS.