This article is written by Anjali Baskar, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.

Introduction

Though criminology has existed since the 18th century, criminologists based their descriptions and studies of offenders mostly on cisgendered men. They differentiated between a normal woman and an abnormal one, the latter being less feminine. Some theorised that job opportunities allowed women to engage in more deviant behaviour. Feminist criminology evolved in the 1960s and 70s in the midst of second-wave feminism. They critiqued criminologist theories for excluding or stereotyping women and other minorities. Though there is (albeit less) Western literature studying domestic violence from a feminist criminology perspective, there is no research done in the Indian discourse. There has been much discussion regarding the need for a gender-neutral law for domestic violence in India. The controversial judgment Horsara v. Horsara deleted the words “adult male” from Section 2(q) of the Protection of Women from Domestic Violence Act, 2005, essentially that women can be respondents, but men still cannot be victims. This paper focuses on women as perpetrators of domestic violence, the rationale behind the abuse, and their connection with the criminal justice systems currently in place. 

Evolution of theories of feminist criminology

Earlier criminologists did not look at why women commit crimes exploratively and simply formed their own surface-level conclusions. They felt that women who desired money and freedom wanted to destroy mankind. They also claimed that the reason for female deviant behaviour was because of their differing physiology and psychological traits. In 1903, Cesaro Lombroso published a book titled “The Female Offender” claiming that women who looked more masculine, had moles on their faces, and kept their hair short were stronger, and thus they would be more susceptible to becoming offenders. W. Thomas, an American criminologist, stated that delinquent women, akin to “femme fatales”, engaged in sexual behaviour to con men into giving them what they want. He believed women were growing tired of monogamy, so this pent-up energy led to sexual deviancy. 

Sigmund Freud stated that the reason why some women acted out arose out of these women longing to be as superior as men. Deviant women have also been romanticised in popular culture as hypersexual and dominating, but ultimately not threatening to men. This culminates in not getting female offenders the mental rehabilitation they need. Katherine Davis wrote in her 1922 report that deviant girls were more likely to be prostitutes as they were sexually promiscuous, came from poverty, and grew up in abusive homes. Otto Polak, a criminologist from the 1950s, stated that deviant women would enter into professions that require caretaking in order to carry out their vengeful and cold plans without being caught. All the above theories were discredited by feminist scholars as they were largely male, and made assumptions about the “nature of women” without any evidence. 

Criminologist Robert Agnew was one of the first ones to actually conduct a study, after which he formed the “General Strain Theory.” He looked at the difference between how men and women react after being subjected to financial or emotional distress. While the latter dealt with it by expressing more outward emotions like anger and rebelling by committing violence against people and property, women often kept the emotions inside them, leading to self-destruction by abuse of drugs and alcohol. 

As the feminist movement formed due to years of oppression, exclusion, and discrimination, leaders like Dorie Klein claimed social and economic causes as the reason for this criminality. They claimed that women were largely looked through the male gaze of desirability and stereotyped, rather than being looked at like an actual person. As theories like the Emancipation Theory developed in 1975, Freda Adler and Rita Simon felt that the women’s liberation movement in France and the rest of Europe let women step out of the home and find job opportunities for themselves, which made them aware of the idea of equality, which led to rebellion and more deviant behaviour. Criminologists like Lisa Pasko and Meda Chesney-Lind also observed that women would be less likely to commit white-collar crimes, which contradicts Agnew’s theory of women being less aggressive, to an extent. The idea of chivalry thesis was also floated around, wherein the criminal justice system treats women leniently in some cases, but harsher than men in other cases because they are placed on a pedestal. 

John Hagan’s Power Control Theory is still considered to be relevant today, where it states that because of the difference in upbringing between girls and boys due to patriarchy, girls are likely to be more restrained and exercise self-control, which leads to them committing lesser crimes. Women are arguably more likely to be victimised and infantilised under Paternalism Theory, with the belief that they could not have committed these crimes with a malafide intention as they are not smart or competent enough. The Evil Women hypothesis states that female offenders should not be treated at par with male criminals, not because of their equality but because of the fact that they violated gender roles in place. Later on, feminist criminology expanded beyond the idea of looking at female criminals in only two rules: i.e. as victims or perpetrators of violence. Soon, participation in discussions about women’s safety in prison, abuse faced while being incarcerated, security, risk, relationships between women in detention centers began.

Why do women commit domestic violence?

Arguably, women are largely victims of domestic abuse rather than themselves being the abusers. The author argues that being a victim or abuser is sometimes not binary, because when two people get into a physical or even mental scuffle, the victim can disproportionately react and cause more harm to the initial perpetrator. It is hard to pinpoint where domestic disputes begin and end at times, especially from a legal perspective. Women have largely been excluded from studies which analyse why human beings commit crimes. Earlier criminologists fathomed that the only cause for a woman committing a crime would be because they are trying to compete with other women for men’s affections, which was later proven false. When it comes to the methods women use to commit abuse or murder, it is usually by poisoning, shooting, bludgeoning, suffocation, stabbing, and drowning. 

The most common reasons for women committing crimes are money, control, enjoyment, sex, drugs, or feeling of inadequacy, as observed by the FBI in 1970. Rita Simon under the Opportunity Theory stated that there were many layers to female criminality, as the type of crime and criminal, jail as a corrective institution, and the criminal justice system. She felt that men and women are equally immoral and the biological characteristics of a woman do not play a factor in deviancy. 

Others argued that the belief that men and women have equally deviant thoughts results in larger, disproportionate violence against women. As women become more economically independent, they have the courage to fight back against their intimate partners or family members. Female abusers are more likely to use their fists and feet whereas men usually use a weapon, but knives are equally used by both. Besides women being abusers themselves, there are also ways in way women themselves have been complacent towards domestic violence against women. For example, employing women as defence counsels of men accused of violence is used as a strategy.

Criminal justice systems have long overlooked why women commit domestic violence. It is observed that conventionally attractive or “feminine” female convicts face lesser abuse at the hands of prison authorities. In India, the courts have also exercised gender bias while awarding punishments to women, like being lenient towards women who are biologically petite, more passive, or emotional. When they look at women offenders, they claim they are emulating men, implying that women are not inherently criminal. For example: the Dalit husband of upper-caste Kausalya was murdered by her family members. While her mother was equally involved in the conspiracy of the honor killing incident, she was given a lenient punishment as compared to the male relatives because of her emotional portrayal as a well-intentioned mother. The courts tend to sympathise with female criminals less than men unless they have gone through an exceptional amount of abuse and snapped in response, like a woman murdering her husband after countless years of torture and extra-marital affairs. The standard is thus lower for men, as the norm for women is expected to be conformity, rather than being anarchists.

Women who do not fit the “ideal women” stereotype are usually given less recourse, like rape victims with previous sexual experience despite the prohibition of character assassination under the Indian Evidence Act. Family courts in India would rather award a woman who emotionally abuses her husband and kids with sole parental custody than a man doing the same. Nirmala Devi was given less punishment than as prescribed by law for women by the Indian Supreme Court, as she had to take care of “familial duties”. Even though there are penal provisions like Section 498A of the Indian Penal Code, 1860, the Indian government also enacted separate legislation for domestic violence titled the Prevention of Women from Domestic Violence Act, 2005, which excludes men as victims. The current position is that women can be considered respondents, but this usually refers to women who are husband’s relatives inflicting abuse on his wife, rather than a woman abusing a man. 

As per the National Crime Records Bureau, the most common crime committed by Indian women is homicide, whereas one of the major reasons for their abuse is related to dowry or cruelty by their husbands and in-laws. Patriarchy has often percolated into men being abused at the hands of women if they do not fit gender roles and display characteristics like vulnerability and pacifism. Practically, many Indian women cannot physically fight with a man who is twice their size or a man who is physically fit. Women often resort to verbal, emotional, mental abuse towards their partners or male relatives, which silences male victims because they are in fear of retaliation or escalation of the matter. The police system isn’t of much help either when the abuse is psychological. There have been instances reported that when a man approaches police officials, they laugh and say he was “caught” by his wife. 

This is largely stemming from the assumption that complaining is a feminine characteristic, which is misogynistic in itself. Some men fear that they will lose their social respect if they speak out, and others bear the abuse for the sake of their children, as family courts are biased against men. Practically, this is a very big issue because lawyers have faced many cases where men have suffered domestic violence at the hands of women where they were not able to speak, not able/allowed to move. Even if a man gathers the courage to testify against his wife in a trial, as soon as he sees his wife in district court, he gets scared and doesn’t want to continue with the case anymore.

Women are often the sacrificing partner in relationships due to psychological and social factors of a male-dominated society, so when they rebel, it can often turn into abuse. Women can showcase significant anger management issues due to excessive consumption of alcohol. They might also want to spend more so they abuse men despite their budgetary constraints. The concept of the nuclear family is a factor to be considered when it comes to legal terrorism. If a man files for divorce, the wife sometimes files for a false cruelty/dowry harassment case against him. Female partners also threaten to commit suicide often which amounts to mental torture, even though statistically, men have higher rates of suicide. One major reason why women commit domestic violence towards their partners is the battered women effect. 

Alison Young has stated that most women perpetrators have been a victim of domestic violence at the hands of another partner, so they pass on or repeat this violence in a vicious cycle. California law states that one of the defences against domestic violence is that the offender did it in self-defence. In developing countries such as the UK, women abusers have started to be punished by the law for hurting their male partners, but it still requires a bigger standard of proof for prosecutors than when men commit domestic abuse. There are also instances of deviant behavior exercised by women who take advantage of the protectionist laws in place, like putting underage men into the juvenile system for rape even for a consensual relationship with an underage girl.

Female domestic offenders in the criminal justice system

Feminist criminology remains incomplete without focusing on the problems faced by female offenders within jails and the criminal justice system. Female offenders usually are arrested for crimes that range from theft charges like larceny or shoplifting to assault-related acts. One major criticism by feminists such as  Smart and Cain is that factors such as abuse due to victimization and survival are ignored, even though this typifies the imbalance in power dynamics between men and women. A report by the World Health Organisation stated that 35% of violence committed against women was at the hands of their partners. Some argue that women are punished more seriously for crimes related to morality. For example: in some Islamic countries, women are not allowed to show even their shoulders or ankles. If they do not follow these protocols, they will be punished severely and treated as criminals, even though the majority of the world does not consider this a crime. Post-modern feminist criminologists have also criticized the fact that female convicts with mental illness do not have access to rehabilitation facilities as compared to men, and prison reform discussions also exclude female offenders. When it comes to female juveniles, they are put into the system at a young age under the protection of the law because of the sexual abuse they often have to face. The idea of “sexual purity” is entrenched into their minds, which is  harmful in the long run, as it leads to anger and a thirst for rebellion. Girls who engaged in willful sexual encounters were punished, whereas nothing happen to their male partners, which also might have resulted in them becoming abusive towards their partners as an act of retaliation, as they could not object to these authorities.

Conclusion : the future of feminist criminology

This paper has not been written to justify female domestic violence abusers, but to look more deeply into the causation or rationale behind them committing these crimes. The contemporary feminist movement appreciates female offenders to an extent as a “role-reversal” or a “revenge fantasy” after centuries of one-sided abuse at the hands of men, but BIPOC feminists argue that this often applies to only richer, prettier, whiter women. Though crimes committed by women are steadily on the rise, they are not at par with statistics of male abusers. The suggestion to make the PWDVA, 2005 a gender-neutral law has been opposed by feminists because of the fact that physical domestic violence is still much more at the hands of men in India and thus can be misused by men also filing fake domestic abuse cases on trivial and casually sexist grounds like “nagging”. When it comes to queer and racial sub-sets of feminist criminology, they deal with intersectional factors as the reason why LGBTQ+ people (like transwomen) and/or women who are not white commit domestic violence. The criminal justice system in India and even developed countries have not evolved enough to take violence seriously especially in relationships between two women.

Heterosexual cisgendered women are likely to get away with violence more than their LGBTQ+ counterparts, mainly because of the entrenched “moral panic” and homophobia in people’s minds. A large part of the world still perceives transwomen as threatening and considers them to be prone to being criminals because of their “masculine” identity assigned at birth, even though they are much more likely to be victims of violence at the hands of cis-gendered heterosexual men. It has been shown that defence counsels use tactics to defend upper-caste women abusers as more “educated” and “angelic”, invoking the courts’ hidden casteist beliefs. Dalit women are subjected to more violence at the hands of State institutions, which have largely been considered as “male-dominated.” 

Overall, female offenders commit domestic violence financially, emotionally, or physically, but there is not much-documented literature on sexual abuse by women towards their male intimate partners. Thus, the author concludes that one of the major factors for women being abusive is because they were victims of sexual or physical abuse or a lack of bodily autonomy in their life. Other allied factors can be a lack of a good family structure or economic stability. In India, there are more specific cultural factors as women are subjected to immense moral policing and gender roles, which are ignored by Western feminist criminologists. Thus, these women commit domestic violence out of an act of desperation or self-defence against years of abuse inflicted upon them by their partners. Other times, it can be due to emotional or financial factors. They tend to emotionally manipulate and isolate their partners from their families, rather than using physical force, but there are exceptions, especially in urban areas where women constitute a large part of the workforce. There should be a balance between complete gender-neutrality and gender bias. Example: When police are searching for a domestic violence victim, they don’t have to assume the victim to be “female”. At the same time, just because the offender is a woman, they should not assume the reasons behind the crime and not treat them differently based on gender stereotypes or on their physical features. In the author’s opinion, feminist criminology needs to evolve more in four ways: in the specificity of the crime (such as intimate partner violence), data collection on female perpetrators (instead of mostly victims), and in the formulation of the causation theories of female criminals in the 21^st century, intersectionality, trends of glorification of female offenders as a symbol of women empowerment in the recent era.

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