Home Law International Handbook of Juvenile Justice
DIFFERENCES IN TREATMENT OF BOYS AND GIRLS
The police decision to charge: Canadian research on the charging of apprehended youth under the Young Offenders Act (1984) and the Youth Criminal Justice Act (2003) found only minimal differences by gender and no substantial evidence of gender discrimination. Multiple regression analysis of charge data for 1992 and 1993 from the Uniform Crime Reporting (UCR) Survey found that when the type of crime and other factors were controlled, boys who were apprehended
Table 5.2. Police disposition of apprehended youth, by gender and “morals” offense, Canada (parts), 1992-1993
Note: Prepared by the authors using custom tabulations provided by Statistics Canada for Carrington (1998)
were slightly (4 %) more likely to be charged (Carrington 1998: 16-17). This difference was not necessarily due to gender per se: it could have been due to factors omitted from the analyses, such as the youth’s prior record or demeanor (Carrington 1998: 18), both of which have been found to have significant effects, in Canada, on the police decision to charge (Carrington & Schulenberg 2003).
Follow-up studies by Carrington and Schulenberg (2003, 2004) supplemented statistical analysis of 2001 UCR Survey data for six provinces with interviews with a nationally representative sample of more than 200 Canadian police officers. Only 1 % of police respondents said they considered the youth’s gender when deciding whether to lay a charge (Carrington & Schulenberg 2003: 240). This was corroborated by the statistical analysis, which found that although apprehended male youths were 9 % more likely to be charged, this difference was reduced to 2 % when other factors such as the type of offense and age of the youth were controlled. This 2 % difference “could well be due to other factors” that were not statistically controlled, such as the youth’s “demeanor” (Carrington & Schulenberg 2003: 231-232).
Several writers have noted that girls are disproportionately likely to be charged with certain offenses, such as “soliciting for the purposes of prostitution” and assaulting a police officer (Bell 2015: 397), and have taken this as evidence of paternalistic differential treatment of girls by Canadian police. Reanalysis of Carrington’s (1998; see above) UCR data for 1992-1993 is illuminating. Table 5.2 shows the proportions of apprehended boys and girls who were charged, broken down by whether or not they were accused of a “morals” offense. As noted above, boys and girls implicated in offenses other than morals offenses were charged in practically equal proportions: 59 % of boys and 60 % of girls. Among boys who were implicated in morals offenses, the same proportion was charged (59 %); however, every girl but one—99 %—of the girls implicated in morals offenses was charged. This is strong prima facie evidence of differential treatment by gender. Whether such charging practices exist in the rest of Canada, and whether they have persisted under the YCJA, is not known.
Pretrial detention and release: Youths who are charged may be arrested and then released by police, or they may be held for the court to decide upon release or continued detention before and during the processing of their charges. Release by the police or the court is usually accompanied by conditions.
There is very little data available on police decision-making with respect to detention and release in Canada: it is largely a “hidden” decision. Carrington, Moyer, and Kopelman (1988), and Moyer et al. (1986a, 1986b) performed multivariate statistical analyses of the decision to detain at arrest in five large Canadian cities, when the JDA was in force. They found that gender was a factor in the decision in four of the five cities but was an independent factor (“main effect”) in only one city (Toronto), where “females were detained more than males regardless of other factors” (Carrington et al. 1988: 471). In the other three cities, the roles of other factors varied according to the youth’s gender. None of the police officers interviewed by Carrington and Schulenberg (2003) in 2002 cited the youth’s gender as a factor considered when deciding to detain or release a youth. A very small number (3 %) said they would detain in order to remove the youth from prostitution—which would presumably mean in most cases the youth was a female.
Concerning the decisions by the court to release from detention (“bail decisions”), Carrington et al. (1988) found that—unlike the police decision to detain—the juvenile court’s bail decisions were not affected either directly or indirectly by the youth’s gender and were “quite legalistic” (1988: 474). Recent research by Sprott and Doob (2009) has found that bail conditions are used paternalistically by youth courts to impose social control on girls and their sexual behavior in particular: in effect, as a substitute for the status offenses of “immorality” and “incorrigibility” that are no longer available and that girls disproportionately receive the rehabilitative condition to “attend a treatment program” (Sprott & Doob 2010).
Sentencing: Several writers (reviewed in Bala & Anand 2012: 76) have pointed out that the sentencing of female young offenders in Canada tends to be more lenient than that of males, when the seriousness of the offense and the prior record are taken into account. However, girls tend to receive more severe sentences for certain offenses, such as administration of justice offenses (like breach of terms of bail), mischief, and disturbing the peace, suggesting a paternalistic sentencing orientation (Bell 2015: 331, 397). Sprott and Doob (2009), Sprott and Doob (2010), and Sprott (2012) have pointed out that the apparently excessive use of conditions of bail and probation with girls “sets them up” for breaches, which in turn result in custodial sentences. Thus, the greater leniency—in practice, the greater use of probation rather than prison—of the sentencing of girls found guilty of crimes against property or the person may eventually result in greater severity, as they are sentenced to prison for breaching conditions of probation (Sprott & Doob 2009: 91).
Analysis of the most recent national statistics of sentencing in youth justice court in fiscal 2013/2014 (Table 5.3) confirms some, but not all, of the previously
Table 5.3. Custodial sentences by gender and selected offenses, Canada, 2013/2014
Note: Prepared by the authors using data from CANSIM Table 252-0067 (Statistics Canada 2015b)
aThe great majority of charges under the Youth Criminal Justice Act are for failing to comply with a community disposition, i.e., breaching the conditions of a probation order reported findings on gender differentials. Overall, boys received a considerably higher proportion of custodial sentences: 16.3 % versus 10.9 % for girls: the “sex ratio” is 1.5 (16.3 %/10.9 %). However, this difference may be partly explained by boys’ greater prior records, which were not available in the published sentencing statistics. The greater severity of sentences received by boys is even more evident in both offenses against the person (“violent” offenses, with a sex ratio of 2.0) and against property (with a sex ratio of 1.9). In striking contrast, girls found guilty of mischief (property damage) received custodial sentences in the same proportions as boys—7.8 %. Breakdowns by age group showed that younger female mischief offenders were treated slightly more severely than their male peers: 6.8 % of 12-15-year-old female mischief offenders, versus 5.3 % of 12-15-year-old boys, received a custodial sentence. There were so few youth found guilty of prostitution-related offenses (two boys and one girl) that no conclusion can be drawn about differential sentencing for this offense. However, the trivial numbers of girls and boys found guilty of these offenses, and the fact that there were more boys than girls, suggest that if there is any differential treatment in the youth justice system related to prostitution, it is confined to the areas of charging and pretrial detention. Numbers of boys and girls found guilty of disturbing the peace were also very small and show no evidence of harsher treatment of girls: on the contrary, no girls found guilty of this offense were sentenced to custody.
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