License to Kill

Men and women, crime and punishment.

Late one night in August 1997, a Tacoma, Washington, woman named Brenda Lee Working called her estranged husband, Michael, and told him that her car had broken down, stranding her and their two preschool daughters in a wooded area on a military base. When Michael Working came to her aid, it turned out to be an ambush. Brenda shot him several times, hitting him in the arm and the shoulder. Then she beat him in the face with the handgun as he tried to wrench it from her hands and stalked him through the woods for hours after he managed to get away.

Brenda Working's sentence for the attempted murder of her husband: one day in jail.

Admittedly, this was not the full extent of Working's punishment: She received a separate five-year sentence for using a gun in the commission of a crime. Yet the sentencing judge, U.S. District Judge Jack Tanner, openly stated that he would have suspended that sentence too if it had not been mandatory under federal law. His reasoning was that Working had been depressed and fearful that her estranged husband would take away her children in a custody battle.

In April the U.S. Court of Appeals for the 9th Circuit overturned the sentence, ruling that Tanner had improperly departed from the sentencing guidelines without adequate reasons. The case was sent back to the lower court and reassigned to another judge. The 9th Circuit's ruling made an unusual explicit reference to gender bias, stating that Tanner "would be unlikely to set aside considerations of Working's sex."

Despite the eventual outcome, many would say the Working case illustrates a pervasive pattern in the criminal justice system of gender-based leniency toward women. This has become an article of faith among men's rights activists. In his 1993 book The Myth of Male Power, Warren Farrell asserts that "twelve distinct female-only defenses allow a woman who commits a premeditated murder to have the charges dropped or significantly reduced."

This sensational claim is seriously exaggerated. Of the 12 items listed by Farrell, only three—insanity pleas based on premenstrual syndrome or postpartum depression and self-defense or insanity pleas based on battered woman syndrome—can accurately be called "female-only defenses." (And even these defenses rarely succeed.)

The rest of Farrell's list consists of factors that contribute to more-lenient treatment of women, from stereotypes that make women less likely suspects to protective husbands standing by wives who have committed violence against them or their children.

Nonetheless, the pattern does exist. Two Justice Department studies in the late 1980s found that male offenders were more than twice as likely as women charged with similar crimes to be incarcerated for more than a year, and that even allowing for other factors, such as prior convictions, women were more likely to receive a light sentence.

The disparities are especially striking in family murders, the primary form of homicide committed by women. A Justice Department study of domestic homicides in 1988 found that 94 percent of men who were convicted of (or pled guilty to) killing their spouses received prison sentences, but only 81 percent of the women did. The average sentence was 16.5 years for husbands and a mere six years for wives.

Some of the difference was due to the fact that more of the women had been "provoked"—that is, assaulted or threatened prior to the killing. But when there had been no provocation, the average prison sentence was seven years for killer wives and 17 years for killer husbands.

Beyond the numbers, the contrast between the treatment of male and female defendants can be shocking in individual cases.

In 1995 Texas executed Jesse Dewayne Jacobs for a murder that, by the prosecutors' admission, was committed by his sister, Bobbie Jean Hogan. Hogan—who had gotten Jacobs to help her abduct her boyfriend's ex-wife and had actually pulled the trigger—served 10 years in prison.

She was convicted only of involuntary manslaughter after her lawyers managed to persuade the jury that the gun went off accidentally.

Old-fashioned chivalry undoubtedly plays a role. "Women and men do occupy separate places in the collective psyche of society," Jonathan Last wrote approvingly in The Weekly Standard in 1998, shortly after the execution of ax murderer Karla Faye Tucker. "Because society has a low tolerance for seeing them harmed, women—even criminals—have traditionally been treated differently by the justice system. Differently, but still, at least possibly, with justice."

In recent years, this chivalry has declined. Yet while it is no longer acceptable to argue that female criminals are due special consideration because they're women, many feminists' insistence on seeing women as victims of patriarchy sometimes has the same effect.

Most anti-domestic violence activists, for instance, cling to the dogma that women kill only in response to male violence. The battered women's clemency movement has obtained pardons for female murderers who, as subsequent investigations found, had very flimsy claims of abuse and probably had been driven by "masculine" motives, such as jealousy.

Other cases never go to trial. In Brooklyn in 1987, Marlene Wagshall shot her sleeping husband, Joshua, in the stomach, crippling him for life, after finding a photo of him with a scantily clad woman. Wagshall was charged with attempted murder, but on the basis of her uncorroborated assertion that her husband had beaten her, District Attorney Elizabeth Holtzman, a strong champion of women's rights, let her plead guilty to assault with a sentence of one day in jail and five years' probation.

Even when feminists do not actively defend violent women, they hardly ever speak up against inappropriate leniency toward female defendants. Mostly, they refuse to admit that such leniency exists—perhaps because it would be heresy to concede that "patriarchy" has sometimes worked in women's favor—and prefer to focus on real or mythical instances in which the justice system treats women more harshly. (Battered women's advocates have promoted the wholly fictional factoid that a woman who kills her mate is sentenced to an average of 15 to 20 years in prison, while a man gets two to six years.)

As a result, if a man commits a violent crime against a woman and gets off lightly, an outcry from women's groups often follows. If it's the other way round, the only vocal protests are likely to come from the victim's family and from prosecutors.

The Working case, like the Wagshall case, received minimal publicity. Imagine the reaction if a judge had said publicly that a man who had ambushed and shot his estranged wife should have been spared prison because he was depressed over the divorce.

There are feminists, such as Patricia Pearson, author of the 1997 book When She Was Bad: Violent Women and the Myth of Innocence, who find feminist paternalism toward women no less distasteful than the traditional kind. They argue that in the long run, excusing women's violence on the grounds of emotional problems may undercut women's ability to be seen as capable workers and leaders.

That may or may not happen. But even if women stand to lose nothing from the new double standards, any self-respecting feminist should still oppose them in the name of equal justice.