ABSTRACT
The central question is one of how male and female agency is perceived: proactive or reactive; the will to shape events or the submissive nature to be controlled by them. Criminal law, through mens rea, creates subjectivity without contextualisation for men, and contextualisation without subjectivity for woman. For the male defendant, this has equated to an inquiry based upon intentionality. The female defendant, in contrast, has been subjected to a behaviourist analysis of her actions. This has meant the criminal law has excluded male motive in the context of his actions whilst, at the same time, eroding notions of female agency. Amongst this plethora of inadequacy, both men and women have found no refuge, either as victims or defendants. For the male defendant, this lack of refuge works out as ‘penalty’; for the female defendant, as ‘patronisation’:
In view of this, it is ironic that women, seen as irrational, emotive and intellectually inferior, are, in fact, much more likely to commit crimes that have rational motives. Women commit crimes against property in response to social circumstance.88 Women kill out of self-preservation borne of abusive relationships. Female crime is predominantly rational; it is the male defendant who has a much greater predisposition towards seemingly senseless violent criminal behaviour, such as rioting, football hooliganism, fights outside of public houses and domestic violence. It is such random acts of violence that, to some extent, demarcate the boundary between the male and female offender. Yet, this is not to state that there are no female crimes of a violent nature borne of less understandable motives, nor does it suggest that all men are senselessly violent. It is apparent, though, that gendered divisions exist within criminal law from the beginning of proceedings until the sentencing of defendant’s and that these divisions mirror the failing of an ethos of male rationality and female irrationality in its conception and implementation. These divisions are founded in the legal and extra-legal narratives that, through a subtle process of factual manipulation and emphasis, map out routes of ‘legal truth’ that often bare little resemblance to the actuality of the circumstances they examine.
