What do we know about lesbians and criminal justice? Nothing.

In March 2023 The Lesbian Project was launched. I had the honour of being one of the speakers for their inaugural event: Putting Lesbians Back in Focus. I used the occasion to find out what we know about lesbians and criminal justice. In the blog below, I write up that presentation.

Lesbians, justice and equality

Democracy and the rule of law go hand in hand. Two principles of democracy are that no one is above the law and everyone is treated equally before the law. Yet we know that in societies structured by profound social inequalities – materially based class, sex and race inequalities, culturally based ethnic and religious inequalities, inequalities related to age and ability to name but a few – modern democratic societies seldom live up to its ideals. To put it another way, instead of us all having equal access to the law, equal protection by the law and equal treatment in the eyes of the law, we see discrimination.

We know that there are still 67 countries that criminalise same-sex sexual activities between men and 41 that criminalise same-sex sexual activities between women. The fight for justice in these countries must be to decriminalise same-sex sexual activities so that lesbians can enjoy their lives free from harassment and without the fear of criminal justice sanction. In the UK, it has been over half a century since the Wolfenden Report recommended decriminalisation of sex between men. Lesbian sex was never illegal in the UK not because it was somehow ‘overlooked’ but because the Criminal Law Amendment Act 1921 was never passed. That Act would have made sex between women an offence of ‘gross indecency’. Fast forward nearly a century and the Equality Act 2010 made overt discrimination against lesbians, on the basis of their sexual orientation unlawful. With its passing, lesbians in the UK have formal legal equality. Formal legal equality is vital but it is not to be confused with substantive equality or justice.

Where it comes to criminal justice, criminologists and other social scientific researchers have developed ways of tracing discrimination in the administration of criminal justice. Tracing this requires data. To show discrimination or injustice we collect data at all points of contact with the criminal justice system and unpick the decision-making of those involved. We then ask questions like: are a disproportionate number of [insert social group] arrested? If arrested, charged? If charged convicted? If convicted what sort of sentence? If sentenced, how severe? We then this data with other groups to show discriminatory outcomes.

Doubly Deviant, Doubly Damned

Feminist criminology has long since pointed out that the discriminatory treatment of women in the criminal justice system is complex. Women are far more law-abiding than men making up only about 15% of those in conflict with the law. Comparing men and women’s flow through the criminal justice system gives us some indication that discrimination or sexist treatment might be happening: like the fact that more female first-time offenders get sentenced to prison. The better insights about discrimination though come from sentencing studies. These studies usually interview sentencers and other decision-makers to unpick the logic of their decisions. Many were done during the heyday of feminist criminology in the 80s and 90s. From these studies, we see that how women are treated within the criminal justice system depends on decision-makers’ assessments of them as good wives, good mothers, good women, good daughters. It was from these studies that the argument came that women offenders are doubly deviant and doubly damned. They are deviant because they are bad citizens who broke the law and they are deviant because they are women (a rarity) in the CJS. They are damned on both counts.  

Anecdotally, most criminologists recognise that there is a disproportionate number of lesbians in prisons. There is also evidence to back this claim up. The Chief Inspector of Prisons Annual Report 2020 published the results of its survey of prisoners, which included a demographics and background section. Just over 6000 male prisoners and just short of 700 female prisoners responded. They were asked whether they were homosexual, bisexual or other sexual orientation. 5% of male prisoners said they were compared to a whopping 22% of female prisoners. The National Census 2021 indicates that around 1.5% of the female population are lesbians. So this figure of 22% is astonishing.

But what does it mean?

That 22% of the respondents to the Chief Inspector of Prisons Annual Report 2020 claimed that they were homosexual, bisexual or other is a puzzling statistic. We know that the percentage of women in prison who have come from backgrounds of extreme male violence is exceptionally high (between 60-80% with some studies claiming that over 90% of women in prison have had significant brain injuries caused by their intimate partners i.e. men). We know from feminist activists in the area and from some studies done in the 90s that there is a paradox of incarcerating victimised women. Their prison time may be the first time in their lives when they are free of male violence and experience friendship and companionship with other women. Is the disproportionate number of women claiming to be homosexual, bisexual or other an artifice of this (i.e. ‘gay for the stay’?) Or, do lesbians commit more crime than other women? Is there some funneling mechanism that means that lesbians face the burden of being ‘triply damned’ in the eyes of decision-makers (deviant citizens, deviant women and sexually deviant)? It is impossible to say because there have been no studies in this area. None.

Absence of knowledge

When I stumbled upon that statistic, it sent off alarm bells. As someone immersed in the literature and research on women and crime, I realised that I could not recall a single study on lesbians in the criminal justice system. Over the 26 years since I started, I lost count of the books, articles, chapters, conference papers that studied women’s experiences of criminal justice and where lesbians appear as a subset. Or, from my knowledge of the research that looks at the treatment of LGBTQI people in justice system, I knew that there was no research that disaggregated the ‘L’ from the ‘G’ from the ‘B’ much less from the forced marriage with the TQi. So I started to do what any good academic would do: a literature search.

For those who are not academics, we do literature searches to find out what is already known. Knowledge in criminology is not about counting things (those are facts and figures): it is about accounting for things i.e. careful specification of social problems and issues in the realm of criminal justice and robust arguments that draw on appropriate evidence (not just facts and figures but testimonials, experiences and so on). I dated my google scholar literature search from the turn of the 21^st century (2000) and included the following terms: lesbians, crime, policing, justice, prison, sentencing, criminal justice, and probation. I then turned to the prestigious journals in the field and did a content search on each one.

What did I find?

The google scholar search netted me nothing. There were a few articles about lesbians and custody arrangements. There were a handful of horrendous articles outlining the treatment of lesbians in South Africa that focused on the practice of ‘corrective rape’. There was nothing of note regarding criminal justice in England, Wales, Scotland or Northern Ireland that did not subsume lesbians into the wider category LGBTQI or women.

The journal searches were equally depressing. The image below tells that depressing tale better than I can in words.

So what?

It is profoundly disturbing that we know nothing about lesbians and criminal justice in the UK. In the ideal world, criminal justice policies and practices would be based on evidence and knowledge. We use it to create regimes in prison, programmes of rehabilitation for those on probation, guidance to sentencers and police and all other professionals and practitioners. Without even the most basic data or research, we have no basis on which to create lesbian-appropriate policies or interventions - or even to know whether such things are necessary.

There is an even more disturbing implication. It has been 13 years since the Equality Act 2010 granted lesbians the category of ‘protected status’ and made discrimination against us unlawful. The Ministry of Justice and His Majesty’s Prisons and Probation Service are responsible for collecting equalities data on the functioning of the criminal justice system and our prisons. They publish statistics on Women and Criminal Justice and Race and Criminal Justice every year. HMPPS publishes its Equality Report every year which outlines equality issues. Nowhere in any of these publications are lesbians as offenders or prisoners mentioned.

We have good cause to *think* that lesbians are probably denied equal access to the law and equal protection by the law, but we have no evidence to show this. We do not know what lesbians’ experiences of the criminal justice system are any more than we know how a woman’s sexuality might influence sentencers and other decision makers. The most disturbing implication is that despite discrimination against us based on our sexuality being unlawful, we cannot say whether lesbians are or are not suffering discrimination in criminal justice. I can think of no other protected category where absolutely nothing so basic and so important is known.