Gender, Race

1
Gender, Race Criminal Law

• Professor Meloy

2
Gender, Race and Case Law

• Legal decisions are often reached by using gender
  (or racial) expectations of what is appropriate
  for both men and women (e.g., woman should not be
  allowed to practice law because of the belief it
  is mans work African Americans are an inferior
  race no citizenship)
• Legal decisions are not only reached relying on
  gender stereotypes they also serve to REINFORCE
  them (e.g., it is natural and right for women
  to pursue domestic duties limits opportunities
  for women outside of the home)

3
Gender Law

• Traditionally law has been defined in male
  terms/experiences. Has this changed?
• Examples of gender-neutral laws?
• Examples of gendered laws?

4
Our Class Mission

• Analyze how gender/race works in law and how law
  works to produce gender in sex-based criminal
  statues, the role of gender in criminal
  sentencing and criminal punishment, and
  punishment based on womens reproductive
  capacities.

5
Disproportionate Treatment and the Law At a
Glance

• Women who commit misdemeanor offenses receive
  more lenient sentences than men
• Women who commit felony offenses or engage in
  unfeminine crimes receive more severe sentences

• Black women are treated more harshly by the CJS
  than White women
• War on Drugs legislation is primarily
  responsible for the incarceration of Black
  Americans especially Black Women

6
Law Social ControlAdvantages to Some
Disadvantage to Others through Case Law
7
Dred Scott v. Sandford (1857)

• Ruled that native-born Blacks could NEVER be
  citizens
• The question before us is, whether the class of
  persons described in the plea in abatement
  (African Americas) compose a portion of this
  people, and are constituent members of this
  sovereignty? We think they are not and that they
  are not included, and were not intended, under
  the word citizens in the Constitution

8
Bradwell v. Illinois (1873) Upheld exclusion of
women from legal practice

• The law, as well as nature itself, has always
  recognized spheres and destines of man and women.
  Man is, or should be, womans protector and
  defender. The natural and proper timidity and
  delicacy which belongs to the female sex
  evidently unfits it for many of the occupations
  of public life. The domestic sphere properly
  belongs to the domain of womanhood The family
  institution is repugnant to the idea of a woman
  adopting a distinct and independent career from
  that of her husband.

9
Minor v. Happersett (1875)

• Ruled that the 14th amendment did not grant women
  the right to vote
• Being unanimously of the opinion that the
  Constitution of the United States does not confer
  the right of suffrage upon any one, and that the
  constitutions and laws of the States which commit
  that important trust to men alone are not
  necessarily void

10
Plessy v. Ferguson (1896)

• Set forth doctrine of separate but equal
• Legislation is powerless to eradicate racial
  instincts or to abolish distinctions based upon
  physical differences, and the attempt to do so
  can only result in accentuating the difficulties
  of the present situationIf one race be inferior
  to the other socially, the Constitution cannot
  put them upon the same plan.

11
Muller v. Oregon (1908)

• Permitted sex discrimination in employment
• The two sexes differ in structure of body, in
  the functions to be performed by each, in
  physical strength, the self-reliance which
  enables one to assert full rights, and in the
  capacity to maintain the struggle for
  subsistence. This difference justifies a
  difference in legislation