Sex/gender‐based decision‐making in the criminal justice system as a possible (additional) explanation for the underrepresentation of women in official criminal statistics — a review of international literature

This article represents an analysis of the literature on sex‐based selection processes in the criminal justice system. It is only since the feminist wave of the sixties that sexual discrimination has been considered as an issue of importance in the study of the criminal justice system and that female criminality has been looked at more thoroughly. The article deals with the different assumptions and hypotheses which have come forward in the debate on the possible discrimination of men and women in the criminal justice process. In the first part of the article the various theoretical models are outlined: the chivalry and evil women hypotheses, the legal or etiological model, the social control theory, the family‐based justice model, and a multifactoral model. In the second part of the article, the results of empirical research relevant to these hypotheses are presented. American, British, Belgian, Dutch and some German literature has been taken into account. The review of the literature shows that the chivalry hypothesis cannot offer an all‐embracing explanation for the possibly perceived preferential treatment of women. Similar conclusions can be drawn for the explanatory value of the legal model. Although a more lenient treatment of women can sometimes be explained by legal factors, these factors can offer no more than a partial explanation for observed sex differences in the criminal justice system. Especially in the case of pre‐trial release and sentencing, more particularly when deciding whether or not to send a defendant to prison, a noticeable sex‐effect can still be found. In the literature we find strong suggestions — although not always confirmed — that an (initially observed) more lenient treatment of women at these stages can be explained by stereotypes and expectations about the personality of women as less dangerous and the specific role which women fulfill in western society.