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Gender, Crime, and the Disparities in the Criminal Justice System
Alyssa Fu141

Crime rates in the United States have dropped overall, pointing to the 
efficacy of rehabilitation. When the data is separated by gender, however, 
female recidivism rates have exponentially increased. This suggests a 
failure in the criminal justice system- in fact, women may be more 
vulnerable to a cycle of crime. To resolve this issue, we must first 
understand what gender differences our system currently neglects. Studies 
have shown that women involved in crime experience greater amounts of 
psychological distress and trauma—both risk factors for recidivism. Thus, 
gender-focused programs may be necessary to properly address unique 
female pathways and experiences in crime.

Introduction

Before the United States legal system can create curated programs 
for specific groups to reduce and prevent crime, we must have an idea of 
where the key differences between groups are in our current statistical 
trends. Generalizations about pathways into crime can be difficult to 
pinpoint when individual factors vary significantly based on crime type and 
personal background. One key feature that existing research has been able to
evaluate within these findings is the role that gender plays within these 
factors. Law and criminology have previously studied several questions 
involving gender, but one remains: what are the effects of gender 
discrepancy in the United States justice system? This article will analyze 
crime statistics and criminology theories to understand and reform a 
systemic issue in United States criminal law. Based on these findings, we 
will provide potential recommendations for institutional change in order to 
better address the needs of specific genders to prevent a cycle of crime and 
allocate more attention to underserved groups.

The substantial rise in crime within the female population presents a 
juxtaposition in crime rates based on a gross disparity between the 
genders.142 Despite an increase for one group, the overall rate of crime in the

141 Brandeis University Undergraduate, Class of 2021.
142 “Crime in the United States: Five-Year Arrest Trends by Sex 2013-2017.” Federal 
Bureau of Investigation, U.S. Department of Justice (2017).

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Brandeis University Law Journal      Fall 2021, Volume 9, Issue 1

US has declined in the past few decades.143 This indicates there are factors 
causing female offenders to be left behind in many existing diversion 
programs designed to reduce crime. Initial research shows it is true that male
recidivism remains statistically higher than females.144 However, gender 
differences often begin with psychological norms and conformity to societal 
expectations. As such, criminology-related research may also help to inform 
what causes this gender disparity and how we might better address a 
frequently overlooked group. Ultimately, focusing on gender-specific 
solutions will improve the methods of reducing crime in our communities.

History of Women’s Involvement with Crime and Law

143 “U.S. Arrests Estimates, 1980-2014.” Bureau of Justice Statistics, U.S. Department of 
Justice (2019).
144 “Crime in the United States: Ten-Year Arrest Trends by Sex 2009-2018.” Federal 
Bureau of Investigation, U.S. Department of Justice (2018).

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Brandeis University Law Journal      Fall 2021, Volume 9, Issue 1

Women have historically been underrepresented in studies of crime and
rehabilitation. This may be a result of a large majority of female charges

being within the category of
property crimes or drug-related

misconduct, because most
women tend to avoid

confrontational forms of crime
as opposed to men.145 Very few
women commit violent crime,
and as of 2018, 75% of those

who had only perpetrated minor
forms of assault.146 The rate of
women committing homicides

has always been low and
has declined within the

past decade. Statistically, the
average amount of time served

for any conviction is also shorter
for females than for males who

have committed the same
offenses.147 Based on the types and degrees of crime that women are more
prone to, our institutions consider the consequences of male crime as more

threatening, and so provide these perpetrators with better services. In
general, men are found to be more often violent and more likely to have a

juvenile history or multiple convictions.148

Women in the legal system do not receive adequate rehabilitation to 
suit their needs because they only make up a small portion of arrests. As of 
2017, 27% of arrests were of women compared to 73% of men (Figure 1),149 
but the same graph shows a rise in female arrests. Some analysts argue that 
much of the initial surge in the incarceration of women is from amplified 

145  Lawrence A. Greenfeld & Tracy L. Snell. “Women Offenders.” Bureau of Justice 
Statistics Special Report, (2000): 9.
146 “Crime in the United States: Ten-Year Arrest Trends by Sex 2009-2018,” (2018).
147 Greenfeld & Snell, “Women Offenders,” (2000): 5.
148 Anonymous Prosecutor in discussion with the author, May 2021.
149 “Crime in the United States: Five-Year Arrest Trends by Sex 2013-2017,” (2017).

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Figure 1: Female arrests have increased 
while males decreased



Brandeis University Law Journal      Fall 2021, Volume 9, Issue 1

prosecution toward female perpetrators of domestic violence in the 1990s.150 
However, this justification is far too outdated to explain why many 
categories of major crime have continued to occur at an increasing rate for 
females in the past two decades.151

The tendency to focus more attention on men over women due to 
perceived higher threat is also seen in criminal law enforcement. Overall, 
men are more likely to be contacted by the police while females are more 
likely to initiate contact to report crimes, disturbance, suspicious activity, or 
other reasons for seeking help even though they usually avoid doing so.152 
For both traffic and street stops, males are more likely than females to have 
their most recent contact with authorities be initiated by the officers, 
whereas women will more often look to police as a source of security and 
assistance.153 Such findings may be compounded by the idea that women are 
often victims of crime. In 2000, a survey found that 60% of women who 
entered the realm of recidivism experienced physical or sexual abuse in the 
past, with just over 50% reporting that their aggressor was a family member 
or intimate partner.154 This percentage has only grown since, which indicates
a clear connection for female pathways to crime. In 35 states, the crime rates
for women have been consistently higher than crime rates for men in the 
past five years.155 Even though a low percentage of offenders are women, 
their involvement in crime reflects unique, gendered problems that are not 
sufficiently addressed in our justice system. A collective history of 
victimization is evidence of the need female offenders have for enhanced 
support and resources. Different life circumstances also illustrate that 
women’s motives in committing crime diverge from men. While male 
pathways are often explained as part of their inherent gendered traits, such 
as an expectation for violence, women appear to be more externally 
motivated. Some scholars claim that women involved in crime may be 

150 Greenfeld & Snell, “Women Offenders,” (2000): 3.
151 Greenfeld & Snell, “Women Offenders,” (2000): 11-12.
152 Elizabeth Davis, Anthony Whyde, & Lynn Langton. “Contacts Between Police and the 
Public, 2015.” Bureau of Justice Statistics Special Report, (2018): 11.
153 Davis, Whyde, & Langton. “Contacts Between Police and the Public, 2015,” (2018): 
27.
154 Greenfeld & Snell, “Women Offenders,” (2000).
155  Sawyer, Wendy. “The Gender Divide: Tracking Women’s State Prison Growth.” 
Prison Policy Initiative (2018).

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Brandeis University Law Journal      Fall 2021, Volume 9, Issue 1

propelled by the need to support children or other family members.156 
Numerous incarcerated women also suffer from chronic substance abuse, 
but the lack of treatment programs in certain states creates difficulty for 
those seeking recovery.157 Gender-specific challenges can be overwhelming, 
so we must determine why they exist before we can propose resolutions.

Criminology Theories: Pathways to Crime for Men and Women 
From a psychological and criminological perspective, there are 

circumstances of perceived gender biases targeting both men and women 
leading to the idea that males involved in the criminal justice system require 
more attention. In the process of implementing these male-centric programs,
the criminal justice system has neglected the perspectives of women. A 
notable issue starts with psychological beliefs about gender wherein young 
men have grown up in a society that reinforces male assertiveness and 
dominance.158 Traditional gender roles have historically shaped men to be 
controlling and aggressive, and the perspectives resulting from this are 
further exacerbated for communities of color. Such principles can create 
problematic behavior in young boys, posing a risk for societal perception of 
future criminal actions. One study examined boys between the ages of 8 and 
14, discovering that criminal offenses were more likely if the subject 
accumulated behavioral problems earlier in childhood.159 The risk for future 
violent crime was highest for those who exhibited conduct issues alongside 
aggressiveness, while failure in school combined with aggressiveness 
correlated with high risk for future property offenses.160 These findings 
indicate that the pathways to crime are influenced by reinforcement of 
outdated gender norms.

A similar criminology study found that certain childhood factors are 
reliable predictors of male crime. Stressful situations such as parent 
separation, conflict, socio-economic instability, and poor child-rearing can 
contribute to recidivism later in life because of their tendency to enable 
children to participate in delinquent behavior.161 The behaviors most 
strongly associated with higher levels of repeated offenses were reports of 

156 Abrams & Greaney, “Report of the Gender Bias Study,” (1989): 119-120.
157 Abrams & Greaney, “Report of the Gender Bias Study,” (1989): 123.
158 Lee Ellis. “A Theory Explaining Biological Correlates of Criminality.” European 
Journal of Criminology 2 no. 3 (2005): 288.
159 Ellis, “A Theory Explaining Biological Correlates of Criminality,” (2005): 292.
160 Hamalainen, Minna & Pulkkinen Lea. “Problem Behavior as a Precursor of Male 
Criminality.” Development and Psychopathology 8 no. 2 (1996): 447.

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Brandeis University Law Journal      Fall 2021, Volume 9, Issue 1

truancy and other behavioral conduct problems as well as low education 
level.162 Self-reported internal distress notably served as a sign for risk of 
future criminal activity, but these youth were given a voice through early 
assessments so appropriate measures could be taken to intervene with 
various educational programs and social skills training before they 
encountered opportunities to enter crime.163 These results contribute to our 
understanding of why many treatment programs are particularly concerned 
with male offenders since society may believe this behavior has the potential
to become a positive feedback loop. The prevalence of young males 
committing offenses that are considered more extreme and thus more 
harmful to the public also contributes to prioritizing their treatment.164

It is equally imperative to note that traditional gender roles still 
influence how women are perceived. Those who conform to the 
expectations that females ought to be submissive and avoid confrontation 
are indeed more leniently treated than male offenders.165 For example, one 
prosecutor interviewed by the author believes committing forgeries or retail 
theft are passive crimes and often result in a reduced charge for first 
offenses.166 Women who do not conform to societal gender expectations, 
however, are treated even more harshly compared to men, often with more 
severe charges and longer sentences.167 With the development of modern 
feminism, female offenders who do not conform to gender roles may be 
more common than in the past. Perhaps as a result, society perceives the 
actions of women as not so easily excused now as they once were.168

Two theories borrowed from criminology can help explain our 
society’s evolving treatment of accused females. The Chivalry Hypothesis 
suggests that a male-dominated criminal justice system will more often 
excuse women due to the dated attitude that men are obligated to protect 

161 Andre Sourander, Henrik Elonheimo, et al. “Childhood Predictors of Male Criminality:
A Prospective Population-Based Follow-up Study From Age 8 to Late Adolescence.” 
Journal of the American Academy of Child and Adolescent Psychiatry 45 no. 5 (2006): 581.
162 Sourander, et al. “Childhood Predictors of Male Criminality.” (2006): 584.
163 Sourander, et al. “Childhood Predictors of Male Criminality.” (2006): 588.
164 Anonymous Prosecutor in discussion with the author, May 2021.
165 Abrams & Greaney, “Report of the Gender Bias Study,” (1989): 129.
166 Anonymous Prosecutor in discussion with the author, May 2021.
167 Abrams & Greaney, “Report of the Gender Bias Study,” (1989): 128-129.
168 Anonymous Prosecutor in discussion with the author, May 2021.

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Brandeis University Law Journal      Fall 2021, Volume 9, Issue 1

women.169 The majority of positions for judges, law enforcement officers, 
and attorneys continue to be dominated by males, so when faced with a 
female defendant that fits their schema of how women should behave, they 
may show more compassion toward them.170 Alternatively, the theory of 
Paternalism emphasizes the “weaker sex” as incapable of committing 
serious crimes because male authorities view them as childlike, naïve, and 
therefore not fully responsible.171 Both theories can be used to reward female
offenders in traditionally submissive roles with lower charges while 
punishing those who violate gender expectations with more severe charges. 
Failing to meet a standard ideal induces additional perceived criminalization
of the conduct that conflicts with the expectation.

The Female Experience in the Criminal Justice System

169 Abrams & Greaney, “Report of the Gender Bias Study,” (1989): 128.
170 Abrams & Greaney, “Report of the Gender Bias Study,” (1989): 130.
171 Abrams & Greaney, “Report of the Gender Bias Study,” (1989): 131-132.

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Brandeis University Law Journal      Fall 2021, Volume 9, Issue 1

Although men are perceived as more aggressive and there are overall higher
numbers of male offenders,172 the socialization of these beliefs alone cannot
explain the gender disparity found in criminal arrests. The rising crime rates

for women on average
nationally suggest a
missing link that the

existing system has failed
to address adequately.173

One example found that
100% of women in a

Framingham,
Massachussetts facility
reported experiencing at

least one of these
situations during their
time in rehabilitation:

sexual or physical abuse,
rape, forced prostitution,

or separation from
children.174 Over time, treatments have rarely focused on female interests

which means that women are deprived of services to resolve traumatic
experiences in their past simply because they obtained shorter terms of

incarceration. Intentionally or not, criminal law has focused on and reflected
male interests for too long. We have only recently begun to notice the

enduring effects of this systemic flaw.
Female offenders usually lack the typical factors used to predict 

criminal activity. Instead, criminal cases often describe women as ill and 
pathological, reinforcing the stereotype that psychological hysteria explains 
all abnormal female behavior.175 The reliance of our justice system on these 
explanations reflects society’s unwillingness to address female problems as 
anything other than illness. Although some criminal cases do have a basis in 
psychological disorders and mental health can play a role, we must also 

172 Abrams & Greaney, “Report of the Gender Bias Study,” (1989): 124.

173 “Crime in the United States: Five-Year Arrest Trends by Sex 2013-2017,” (2017).
174 Abrams & Greaney, “Report of the Gender Bias Study,” (1989): 118.
175 Dorothy E. Roberts. “The Meaning of Gender Equality in Criminal Law.” Journal of 
Criminal Law and Criminology 85 no. 1 (1994): 10.

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Figure 2: Women are more prone to psychological 
distress



Brandeis University Law Journal      Fall 2021, Volume 9, Issue 1

consider the pathways that have led women into recidivism. The previously 
discussed traumatic situations many women trapped in crime face may 
explain why 66% of incarcerated women currently report a history of 
general mental unwellness.176 A larger percentage of females than males in 
both prisons and jails meet the threshold for serious psychological distress 
regardless of their crime or sentence length (Figure 2).177 As recently as 
2017, two-thirds of women in US prisons reported also suffering from 
mental disorders, and many experienced distress such as feelings of 
worthlessness or anxiety within a month preceding the survey.178 These 
statistics indicate most rehabilitation that women currently receive has been 
unsuccessful because they are often provided poorer quality support services
compared to men in the same facilities.

The root cause of increased female crime rates lies in the 
incongruent pathways to crime between men and women. Women 
experience different risk factors in entering crime compared to men,179 
especially upon receiving one conviction, because they are more susceptible 
to harm from backgrounds of instability. Mental illness, past trauma, and 
substance abuse are all capable of kindling an onset to crime and are 
subsequently worsened by incarceration.180 Victimization from abuse in 
particular is a good predictor of mental health complications which in turn 
predicts entrance into criminal activity.181 Those with severe psychological 
distress usually experience higher rates of victimization, more extensive 
histories of prior offenses, and increased probability of violent crime.182 As 
such, correctional programs should recognize the female experience of 
victimization in combination with mental health as an influence on entering 
crime. 

176 Roberts. “The Meaning of Gender Equality in Criminal Law.” (1994): 10; Jennifer 
Bronson & Marcus Berzofsky. “Indicators of Mental Health Problems Reported by 
Prisoners and Jail Inmates, 2011-12.” Bureau of Justice Statistics Special Report, (2017): 7.
177 Bronson & Berzofsky. “Indicators of Mental Health Problems.” (2017): 10-11.
178 Bronson & Berzofsky. “Indicators of Mental Health Problems.” (2017): 14.
179 Anonymous Prosecutor in a survey response to the author, May 2021.
180 Shannon M. Lynch, et al. “Women’s Pathways to Jail: Examining Mental Health, 
Trauma, and Substance Use.” Bureau of Justice Assistance Policy Brief (2013).
181 Lynch, et al. “Women’s Pathways to Jail,” (2013).
182 Lynch, et al. “Women’s Pathways to Jail,” (2013).

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Brandeis University Law Journal      Fall 2021, Volume 9, Issue 1

Suggested Upgrades in Rehabilitation Services for Women
Women face different difficulties within the criminal justice system 

because it neglects the
uniqueness of the female
gender. Thus, women’s
rehabilitation services need
to implement gender-
specific treatment to
optimize care and prevent
future recidivism.183 For
example, Women
Overcoming Recidivism
Through Hard Work
(WORTH), a program in
Connecticut, recognized
this necessity and
established a prison intended for women.184 There, incarcerated women 
created a community that fostered accountability and healing rather than 
punishment.185 The program included youth mentoring opportunities, which 

were restorative and gave them the positive outlook they needed to change 
their lifestyle.186 Given that women have significantly different experiences 
with the traditional criminal justice system and its prisons, if rehabilitation 
strategies are not gender-specific, they may not function the same way for 
women as for men. To continue reducing crime, our correctional systems 
must emphasize the importance of supporting women to prevent reentry. 

Such modifications should be applied to individual state programs to 
address the complex needs for women in the criminal justice system, such as
parent-child relationships, reunifying families, as well as unique mental and 
physical health concerns. Until recently, statistics for incarcerated women 
have been obscured by total rates. Society must work to reduce criminal 
offenses for both sexes, not exclusively males. The rate of women in federal 

183 Anonymous Prosecutor in discussion with the author, May 2021.
184 Ryan Shanahan, et al. “How Young Women are Building Promise in a Connecticut 
Prison.” Vera Institute of Justice (2018).
185 Shanahan, et al. “How Young Women are Building Promise in a Connecticut Prison.” 
(2018).
186 Shanahan, et al. “How Young Women are Building Promise in a Connecticut Prison.” 
(2018).

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Figure 3: States drive the gender disparity in 
incarceration rates



Brandeis University Law Journal      Fall 2021, Volume 9, Issue 1

prisons has remained relatively constant, but the average rate of all 50 
states’ prisons illustrates a much steeper and more rapid rise (Figure 3).187 
Since national statistics show that specific states are driving this gender 
disparity, the changes will be most effective if enacted at both state and local
levels. Some states’ efforts to reduce the population of offenders may have 
ended up benefitting men significantly more.188 Other states whom we ought
to make an example of, such as New York and California, have inverted the 
course of female incarceration with rates lower than the calculated average 
by implementing programs that cater to women.189

Proposal for Change
Ultimately, the criminal justice system should focus on treating 

female pathways to crime including mental health, past trauma, and 
substance use in lieu of criminalizing women merely because they do not 
conform to the expected gender norms. In their efforts to reduce crime, 
states can advocate for initiatives that will assist and enhance opportunities 
for former inmates. While it is true that female convicts returning from 
prison need housing, employment, and financial support, they also would 
benefit greatly from a higher availability of guided strategies to overcome 
trauma and stress that they may have experienced before and during 
incarceration.

Gender-focused programs are the best option to address the reentry 
needs of women in crime because they strive for life-changing goals such as 
family reunification and treatment for mental and physical health. Women 
can benefit from resources which focus on reconnecting them to society, 
aiding in breaking these cycles of crime. Our traditional programs place the 
larger male prison population as a priority and deny adequate services to 
women,190 but the continually rising female crime rate demonstrates that it is
necessary to shift attention toward this underrepresented group. Through 
tackling the gender disparities of incarcerated women, our criminal justice 
system could develop the appropriate tools to also address unique needs of 
non-binary, non-conforming, and transgender identities.

187 Sawyer. “The Gender Divide.” (2018).
188 Anonymous Prosecutor in discussion with the author, May 2021.
189 Sawyer. “The Gender Divide.” (2018).
190 Wendy Sawyer. “Who’s Helping the 1.9 Million Women Released from Prisons and 
Jails Each Year?” Prison Policy Initiative Report (2019).

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Brandeis University Law Journal      Fall 2021, Volume 9, Issue 1

Works Cited

Abrams, Ruth I. & Greaney, John M. “Report of the Gender Bias Study of 
The Supreme Judicial Court.” Commonwealth of Massachusetts, U.S 
Department of Justice (1989): 111-133.

Anonymous Prosecutor Interviews. Survey responses to the author, May 
2021.

Bartram, Wanda. “State-level Studies Identify Causes of the National 
‘Gender Divide’.” Prison Policy Initiative Report (2018).

Bronson, Jennifer & Berzofsky, Marcus. “Indicators of Mental Health 
Problems Reported by Prisoners and Jail Inmates, 2011-12.” Bureau of 
Justice Statistics Special Report, (2017): 1-17.

“Crime in the United States: Five-Year Arrest Trends by Sex 2013-2017.” 
Federal Bureau of Investigation, U.S. Department of Justice (2015-2018).

“Crime in the United States: Ten-Year Arrest Trends by Sex 2009-2018.” 
Federal Bureau of Investigation, U.S. Department of Justice (2015-2018).

Davis, Elizabeth, Whyde, Anthony, & Langton, Lynn. “Contacts Between 
Police and the Public, 2015.” Bureau of Justice Statistics Special Report, 
(2018): 1-33.

Ellis, Lee. “A Theory Explaining Biological Correlates of Criminality.” 
European Journal of Criminology 2 no. 3 (2005): 287-315.

Greenfeld, Lawrence A. & Snell, Tracy L. “Women Offenders.” Bureau of 
Justice Statistics Special Report, (2000): 1-14.

Hamalainen, Minna & Pulkkinen Lea. “Problem Behavior as a Precursor of 
Male Criminality.” Development and Psychopathology 8 no. 2 (1996): 443-
455.

Lynch, Shannon M.; DeHart, Dana D.; Belknap, Joanne; & Green, Bonnie 
L. “Women’s Pathways to Jail: Examining Mental Health, Trauma, and 
Substance Use.” Bureau of Justice Assistance Policy Brief (2013).

“Policing Women: Race and Gender Disparities in Police Stopes, Searches, 
and Use of Force.” Prison Policy Initiative (2019).

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Brandeis University Law Journal      Fall 2021, Volume 9, Issue 1

Roberts, Dorothy E. “The Meaning of Gender Equality in Criminal Law.” 
Journal of Criminal Law and Criminology 85 no. 1 (1994): 1-14.

Sawyer, Wendy. “The Gender Divide: Tracking Women’s State Prison 
Growth.” Prison Policy Initiative Report (2018).

Sawyer, Wendy. “Who’s Helping the 1.9 Million Women Released from 
Prisons and Jails Each Year?” Prison Policy Initiative Report (2019).

Shanahan, Ryan; Duran, Jack; Frank, Alex; & Lowen, Matthew. “How 
Young Women are Building Promise in a Connecticut Prison.” Vera 
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Sourander, Andre; Elonheimo, Henrik; Niemela, Solja; Nuutila, Ari-Matti; 
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Kumpulainen, Kirsti; Moilanen, Irma; & Almqvist, Frederik. “Childhood 
Predictors of Male Criminality: A Prospective Population-Based Follow-up 
Study From Age 8 to Late Adolescence.” Journal of the American Academy
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“U.S. Arrests Estimates, 1980-2014.” Bureau of Justice Statistics, U.S. 
Department of Justice (2019).

“Women’s Health Care in Correctional Settings.” National Commission on 
Correctional Health Care (2021).

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