ABSTRACT
In this chapter, I argue that it is crucial for both feminist scholars and students of criminal law to engage with the issue of punishment. Although a consideration of punishment is generally omitted in undergraduate criminal law texts,1 in a text designed to encourage critical reflection premised on a feminist engagement with criminal law, it is necessary to challenge the textbook tradition’s partial construction of criminal law. Clarkson and Keating’s argument, that considering punishment and its justifications offers a key to understanding substantive criminal law issues,2 is one compelling reason for criminal texts to address the issue. A further impetus is to explore how and why criminal law’s relegation of punishment to a side issue has been replicated in feminist discourse, and how this might impact on women who are subject to punishment. Feminism’s neglect of the issue may, in part, be attributed to the failure of most literature on punishment to engage with feminist concerns.3 As a consequence, studies of punishment have remained
‘imprisoned within a masculinist theoretical stronghold’.4 In this essay, I contend that marking off the terrain of punishment from criminal doctrine and practice, as well as feminist jurisprudence, has had pernicious consequences for feminist engagements with criminal law. One result of these conceptual divisions is that feminists may fail to address the issue of punishment at all. This is highlighted by the way in which criminal law scholarship routinely effaces the normative question of how women should be punished. For instance, given the extensive feminist analysis of how the criminal justice system responds to women who kill, it is striking how little attention has centred on the question of how they should be punished or, indeed, whether they should be punished at all.5 In this, it reflects early second wave feminism, which opposed all forms of State punishment.6 A second, somewhat paradoxical, outcome of feminism’s failure to engage seriously with theories of punishment is that some feminist work adopts a heavily punitive tone. This is particularly evident in ‘zero tolerance’ campaigns over issues like sexual and racial violence,7 which uncritically embrace the concept of punishment. Lauren Snider cautions that, in common with other ‘progressive’ groups, ‘[f]eminism is at risk of emphasising the negative, adopting punishment and injury obsessed agendas, at the expense of positive, empowering, ameliorating ones’.8 The attraction of such agendas lies in their promise of neat solutions:
In my view, feminist criminal law scholars cannot afford to either ignore the question of punishment or adopt a straightforward pro-law and order perspective. Instead, I argue that attempts should be made to explore how punishment might be re-cast so as to enable feminists to engage meaningfully with it. I aim to show that addressing such issues facilitates our understanding of the gendered nature of criminal law.
