Why the England and Wales criminal justice system should treat women differently than men, and what the government has done about it.
This guest blog is written by Andrew Lika, a recent law graduate at St John’s College, University of Cambridge, UK. Andrew is an advocate for victims and survivors of domestic abuse. He enjoys writing about social justice issues and is applying for postgraduate study in Criminology. You can contact Andrew at: andrewlika00@gmail.com.
The Labour government’s commissioning of the Corston Report was a direct response to the tragic suicides of six women in HMP Styal (Gelsthorpe & Russell, 2018). This tragedy highlighted the devastating impact custody can have on women, who often arrive at prison with a host of complex needs (Hogarth, 2017). These include but are not limited to unemployment, mental health, substance abuse (Burgess & Flynn, 2013), experiences of physical and sexual abuse (Prison Reform Trust, 2023), and childcare duties (Kincaid et al., 2019; Baldwin, 2015). Mental health continues to be a particular concern for women in prison. In 2021, 350 female prisoners per 1,000 prisoners self-harmed, compared with 135 per 1,000 for males. The Ministry of Justice has reported that the number of instances of self-harm per self-harming person was also higher for women (Ministry of Justice, 2022). Additionally, 46% of female prisoners have attempted suicide at some point, compared with 21% of male prisoners (Light et al., 2013).
In their 2019 report, Gilbert and O’Dowd shed light on the impact of domestic abuse, a gender-based crime against women (Women’s Aid et al., 2021), and its disproportionate effect on women. O’Dowd’s personal experience of domestic abuse provides a moving insight into the failings of the CJS in protecting women. O’Dowd encountered the CJS after a desperate attempt to flee her abusive relationship led her to commit a crime. She suggests that a lack of support from professional and statutory organisations contributed to prolonged suffering at the hands of her abuser. O’Dowd is not alone in this experience; Williams and Earle (2017) argue that domestic abuse can strongly influence criminal behaviour. The government’s 2018 Female Offender Strategy reported that almost 60% of female offenders supervised in the community or in custody, who have an assessment, have experienced domestic abuse. This shows how prevalent the issue is and the need for a trauma-informed approach. A further specific need, highlighted in the Corston Report, is women as carers for children. The 2021 ONS Census reported that women take on the burden of the majority of childcare, and the MOJ estimated in 2015 that between 24% and 31% of women offenders have one or more child dependents. Imprisoning a mother can have lasting, intergenerational effects (Minson et al., 2015). Our criminal justice system was initially created by men for men, and it has long been clear that it must adapt to women’s unique needs (Gelsthorpe, 2007). It is these needs that the government’s Female Offender Strategy (FOS) attempted to address.
The Corston Report (2007)
Baroness Corston’s landmark review of the treatment of women in the criminal justice system concluded that a radical shift was required. Among other things, Baroness Corston highlighted the importance of recognising many women’s roles as a family’s primary caregiver. She argued that judges must consider the impact on children of their mother going into custody during sentencing decisions. Baroness Corston wrote at length about how her ambitious plans could come to fruition:
“A national framework must do more than set aspirational standards; it must monitor progress, have assured, long-term ring-fenced funding and clear lines of accountability (Corston Report, 2007: section 4.8).”
The government accepted Baroness Corston’s 43 recommendations, and progress on more straightforward recommendations was almost instant. For example, in response to recommendation 14, the routine strip-search of women prisoners came to an end in April 2009 (Women in Prison, 2012). Longer-term aims, such as expanding the Together Women Programme, gradually received less funding. Six years after the Corston Report was published, the government established a cross-departmental Advisory Board for Female Offenders (“ABFO”) and published its Strategic Objectives for Female Offenders (2013). This policy report outlined vague objectives without committing to specific, measurable targets or funding commitments. A decade after the Corston Report, Women in Prison (2017) found that the government’s response to the Coston report had not resulted in significant progress. Women in Prison identified several areas of concern, including the government’s failure to implement Baroness Corston’s recommendation to replace women’s prisons with women’s centres. The Government’s FOS thus followed longstanding concerns that women’s needs were unmet in the CJS.
Three key priorities formed the core of the FOS: (1) earlier intervention, (2) an emphasis on community-based solutions, and (3) making custody as effective and decent as possible for women who have to be there. The government’s framework for implementation insisted upon interventions that were “locally-led”, “partnership-focused”, and “evidence-based”. Sadly, the government’s FOS outcomes have not met its laudable aims.
Problems measuring and defining success in the Female Offender Strategy
Baroness Corston advised of the importance of a robust framework in the CJS for implementing policies addressing women’s needs. The MOJ did not heed this advice, which failed in the FOS to put forward concrete aims and to create accountability mechanisms to ensure that those aims and objectives were met (National Audit Office, 2022). Therefore, it is not easy to accurately measure the success of the FOS when there are few clear benchmarks against which to evaluate success. The MOJ accepted its deficiencies, stating that the FOS had “not been tightly governed” (The Committee of Public Accounts, 2022). The ABFO presented a missed opportunity for the government to subject itself to scrutiny. No matter how well-intentioned the objectives of the FOS were, its success would always have depended on clear, measurable aims and clear lines of accountability, as stated in 2007 by Baroness Corston. Therefore, the absence of such a framework limits the success of the FOS.
At present, gaps in data mean it is challenging for the government to monitor women’s progression through the CJS accurately. For example, the MOJ does not understand how Romany women flow through the CJS (National Audit Office, 2022). They are currently categorised as Gypsy/Traveller, but Romany women face an additional language barrier that others in the same category may not face. For the government to make justice work for all women, they must know who these women are and their specific needs. In failing to acknowledge the existence of this data gap, it is impossible to address the success of the FOS for all women.
A key aim of the government’s FOS was its Concordat on Women in or at risk of contact with the Criminal Justice System (2020), which set out how the government and other partners should work at national and local levels to identify and respond to the needs of women. The Concordat was published two years too late. Despite cross-party agreement on the Concordat, the FOS programme team could not incentivise other government departments to invest in areas that would not directly benefit their department (National Audit Office, 2022). This issue mainly affected the development of Whole Systems Approaches, to which the FOS gave great importance. Whole system approaches also featured as a critical objective in the 2013 Strategic Objectives for Female Offenders, and the MOJ published a separate document alongside the FOS dedicated to making a case for whole systems approaches (Ministry of Justice, 2018). Joined-up working across governmental departments is vital to the success of Whole Systems Approaches. The FOS programme team needs to do more to incentivise departments to participate in this aim.
It is essential to acknowledge that the current literature and the government’s attention to the needs of cisgender women may not wholly address the specific needs of transgender women. The FOS does not consider the needs of trans women. Evaluating the success of the FOS for trans women is, therefore, practically impossible. Within the custody context, transgender prisoners are more likely to face difficulties than any other prison population (Gorden et al., 2017). Transgender people arrive at prison with existing mental health issues, which are often exacerbated in prison by violence, poor care, and withdrawal from hormone treatment (Ministry of Justice, 2019). From a Scottish perspective, Maycock (2020) illuminates the pains of being isolated from the trans community. Transphobia amongst prison staff is a crucial concern, presenting as misgendering and misnaming trans inmates (Maycock, 2022). These issues must be addressed to ensure that trans women in prison receive the care, respect, and safety they deserve. It is crucial to expand research and policies to consider and include trans women.
For a more in-depth analysis of the Ministry of Justice’s recent attempts to address women’s needs in our criminal justice system, see this blog post: 13-Dec-23 Evaluating the MOJ 2018 Female Offender Strategy
Looking forward: The Female Offender Strategy Delivery Plan 2022-25
The Female Offender Strategy Delivery Plan 2022-25 was created in response to criticisms of the FOS. To address the progress of their FOS commitments, the government produced a matrix with a traffic light system to signal if a commitment has been completed or is still in progress, broadly replicating the Prison Reform Trust’s 2021 Matrix. The Delivery Plan’s Impact Assessment effectively sets out specific, measurable targets. One target, aimed at addressing early intervention and diversion (priority one), states that a grant competition of up to £15.5m will provide funding to support vital community services for women. Such targets present a step in the right direction. However, there is still ambiguity in the wording “up to”. Sadly, as the MOJ began the grants competition late in the first year of three, the total amount of funding will not be granted as the MOJ cannot award funding retrospectively. Once again, a well-intentioned objective is let down by inefficient planning. The MOJ must do more to provide stable, secure, long-term funding for women’s services.
Promisingly, the government selected the Preston-based charity Sahara to receive up to £250,000 in grant funding (Home Office, 2023). The funding will be used to provide a bilingual and all-inclusive support service for black and minority ethnic background women who are victims of domestic abuse. It is commendable to see the government directly financing charities that support BAME women, as many of these charities have financial constraints to compete in grants competitions.
Conclusion
Women in our criminal justice system should be treated differently than men. Women experience mental health issues in prison more acutely than men. Women are often victims of gender-based crimes, which can be connected to an increased likelihood of offending. Women’s unique needs require a unique response from our criminal justice system. The government has recognised and acknowledged this for many years now. Progress has been too slow. Government policy is not being supported by adequate funding and resources. Without these, the government’s objectives will never be realised, and women’s needs will continue to be neglected by our criminal justice system.
This guest blog is the intellectual property of © Andrew Lika.
The blog site is © Natasha Mulvihill and Criminology Tales, 2023.
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