2.4 Feminist Perspectives on Criminal Law
“difference” approach to gender focuses on gender disparities and advocates different
(protective) treatment for women.
“sameness” approach to gender advocates the same treatment for men and women
based on gender neutrality.
The path to gender equality lies in eradicating societyʼs use of gender differences to
keep women in an inferior political status.
Two features critical to the pursuit of gender equality in criminal law:
1. recognizing that race and class shape womenʼs confrontation with criminal law as
much as gender.
2. feminists should do more than simply reveal discrimination against or preferential
treatment towards women in the governmentʼs enforcement of criminal laws.
Three approaches that systematically explore the nature of patriarchal relations to
develop general theories of womenʼs oppression:
1. liberal feminism: views patriarchy primarily as operating through the unfair rules and
practices of gender stereotyping
• believe that the rules governing society are based on mistaken or outmoded ways
• do not challenge the riles themselves, but emphasize the need for reform
2. radical feminism: associate patriarchal rules directly with the interests of men
• equate patriarchy with the beneﬁts men derive from the appropriation of womenʼs
sexuality and procreative labours.
• believe that patriarchy beneﬁts men both individually and collectively and that it is
unlikely that they will relinquish privileges embodied by current institutions and the
rules of operation of those institutions.
3. socialist feminism: reject both the liberal emphasis on the cultured sphere of ideas
and the radical view of men sharing a universal interest.
• argue that we must identify the material basis for oppression of women within
• patriarchy is linked to class and embraces relations of production and reproduction.
The British North America Act of 1867 stipulated that only “persons” could vote, be
appointed Senators, or become lawyers and judges. Women were not legally
considered “persons”. The status of women as “persons” was won in the courts in
In the 1960s, during a divorce-boom, the hidden costs of women were shown.
Ownership of matrimonial property was legally interpreted as established through direct
ﬁnancial contribution. Women found that upon divorce, they were not necessarily
entitled to assets acquired during marriage.
1 With security in terms of equality that was enshrined in the Canadian Charter of Rights
and Freedoms in the 1980s, the efforts of liberal reform appear to have been successful
[legal rights for Canadian women were basically secure by the end of the 1980s].
Because the judiciary continues to be dominated by men and patriarchal attitudes about
women, the interpretation and application of even gender-neutral laws have been a
disappointing experience for Canadian women.
Our courts continue to interpret law from a white, middle-class male perspective,
thereby discriminating against women.
As a result of the declaration of marriage as an equal partnership,women with or without
children became expected to be self-sufﬁcient, so that the administration of reformed
family law has had the paradoxical effect of acting against the interests of the individual
• In 1986, a District Court judge invoked equality provisions of the Charter to strike
down the Criminal Code prohibition against incest on the grounds that it reslts in a
crime for men and not for women.
Some feminist legal scholars have argued that women should abandon abstractions of
law to focus more carefully on the actual results of law ﬁnding.
• Boyd and Sheehy (1989) called this school of thought “result equality feminism”.
• Smith (1986) maintains that all proposed legislation should be tested for its effects
before its implementation.
• radicals maintain that law itself is a masculine paradigm and male mode of action
that necessarily supports male supremacy.
• socialist feminist