Gender-based leniency in courts

In the final days of 2000, the Massachusetts Supreme Judicial Court issued a ruling which some women's advocates have hailed as a victory, but which could also be seen as a sign of a troubling tendency to infantilize women in the name of protecting their rights.

The court held that Deborah Conaghan, who confessed to beating her 5-year-old son to death and pleaded guilty to manslaughter in 1992, should be granted a psychiatric examination and possibly a new trial because she claims she suffered from battered woman syndrome. Conaghan says that her then-boyfriend, Paul Haynes, was the primary culprit in the fatal beating and forced her to take the blame—and that, while she participated in the abuse, her batterer made her do it.

To say that Haynes is no choir boy would be an understatement: He is doing time for physically and sexually abusing another woman's children. If he was involved in the death of Conaghan's son, he should be prosecuted. But what about Conaghan's own role?

In a vigorous dissent, Justice Martha Sosman points to facts contradicting her protestations of innocent victimhood. While Conaghan asserts she was too intimidated by Haynes to reveal his guilt, she testified against him in his 1994 child abuse trial, nearly three years before she attempted to withdraw her guilty plea. The only instance in which she alleges she was physically assaulted by him took place after her son's death and after her confession.

She says she began abusing the boy at Haynes's instigation—not because she feared harm from him but because he had convinced her, claiming to have consulted a child psychologist, that harsh physical discipline was the only way to handle her son's misbehavior. If a father claimed that his girlfriend made him abuse his child by presenting herself as an authority on child-rearing, would anyone accept that excuse?

In the past, feminists have been sharply divided over wrenching cases in which women failed to protect their children from their male partners' brutality or even helped cover up the crimes. Some have said that blaming the mothers is misogynistic and insensitive; others have argued that not blaming them is a paternalistic denial of their personal responsibility. Here, the implications would be especially disturbing since Conaghan was not just a passive bystander.

Consider, by contrast, a 1998 case in Virginia in which a father, Alan Lee Holmes, received an eight-year sentence for failing to stop his live-in girlfriend Alba Scarpelli from torturing his 5-year-old son—while Scarpelli got just 18 months. The judge told Holmes that, as the father, he had a "higher duty" to protect his son. Was he referring to his status as the natural parent, or as a man?

There is a deeply entrenched habit in our legal system and our culture of treating female offenders more leniently, and not just in child abuse cases. On the day the Supreme Judicial Court handed down its ruling in Commonwealth v. Conaghan, President Clinton commuted the sentences of two women, Dorothy Gaines and Kemba Smith, who were serving lengthy prison terms (19 and 24 years) for acting as couriers for their drug-dealing boyfriends.

The president did the right thing: The plight of these women typifies the barbaric follies of the drug war, in which low-level, nonviolent offenders are treated worse than murderers and rapists—while the real drug kingpins may get off easy by snitching on other dealers. But what about men languishing in prison for similar offenses—who may have been lured into the drug trade as teenagers, or may have done nothing more than accompany a buddy on a drug deal? So far, the president has turned a deaf ear to their pleas for mercy.

In New York, Governor George Pataki recently granted executive clemency to five people serving Draconian sentences for drug possession: four women and one man who suffers from advanced muscular dystrophy. Does a man have to be in a wheelchair to qualify for the same sympathy as a woman?

Gender-based leniency is explained by several factors: chivalrous protectiveness toward women, sentimental reluctance to believe that women can willfully do bad things, and readiness to assume that a woman is dominated by a man. It's unfortunate that many feminists, intent on seeing abuse of women everywhere, are essentially endorsing these sexist attitudes.

Yes, many transgressions involve mitigating circumstances, including coercion by a partner in crime. But it's about time to insist on equal accountability for women and equal compassion for men.