Advertisement

Res Publica

, Volume 2, Issue 1, pp 3–30 | Cite as

A feminist perspective on children who kill

  • Claire McDiarmid
Article

Keywords

Feminist Perspective 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

Preview

Unable to display preview. Download preview PDF.

Unable to display preview. Download preview PDF.

References

  1. 1.
    See, for example, M. Minow,Making All the Difference: Inclusion, Exclusion and American Law (Ithaca: Cornell University Press, 1990), 50–53, quoted in T.B. Dawson, ed.,Women, Law and Social Change: Core Readings and Current Issues, Second Edition, (North York, Ont.: Captus Press, 1993). 39–40. One specific example would be the use of masculine forms of language to convey gender-neutral ideas, on which point, see K. Busby, “The Maleness of Legal Language”,Manitoba Law Journal 18/1 (1989), 191–212; K. de Jong, “On Equality and Language”,Canadian Journal of Women and the Law 1 (1985), 119, quoted in Dawson,supra, at 74–75 and L. Finley, “Laying Down the Master's Tools: A Feminist Revision of Torts”, in Dawson,supra, at 89–90.Google Scholar
  2. 2.
    See, for example, C. Boyle, “The Battered Wife Syndrome and Self-Defence: Lavallee v. R”,Canadian Journal of Family Law 9 (1990), 171–79; and H. Kennedy,Eve was Framed: Women and British Justice (London: Chatto & Windus, 1992), 200–201, on the male-orientated presumptions incorporated into the law of self-defence in some jurisdictions.Google Scholar
  3. 3.
    See, for example, A. Jones,Women Who Kill (London: Victor Gollancz Ltd., 1991); Kennedy,supra n.2; S.M. Edwards,Women on Trial: A Study of the Female Female Suspect, Defendant and Offender in the Criminal Law and Criminal Justice System (Manchester: Manchester University Press, 1984); C. Docherty, “Female Offenders”, in S.A.M. McLean and N. Burrows, eds.,The Legal Relevance of Gender: Some Aspects of Sex-Based Discrimination (Basingstoke: Macmillan, 1987), 170–194, especially at 185–86; A. Lloyd,Doubly Deviant, Doubly Damned: Society's Treatment of Violent Women (Harmondsworth: Penguin Books, 1995); and E.B. Leonard,Women, Crime and Society: A Critique of Theoretical Criminology (New York and London: Longman, 1982).Google Scholar
  4. 4.
    supra See, for example,. p. 3.Google Scholar
  5. 5.
    See Jones,supra n.3 See, for example, ; Kennedy,supra n.2 H. Kennedy,Eve was Framed: Women and British Justice (London: Chatto & Windus, 1992), 200–201, on the male-orientated presumptions incorporated into the law of self-defence in some jurisdictions. S. M. Edwards,Women on Trial: A Study of the Female Suspect, Defendant and Offender in the Criminal Law and Criminal Justice System (Manchester: Manchester University Press, 1984); C. Docherty, “Female Offenders”, in S.A.M. McLean and N. Burrows, eds.,The Legal Relevance of Gender: Some Aspects of Sex-Based Discrimination (Basingstoke: Macmillan, 1987), 170–194, especially at 185–86; A. Lloyd,Doubly Deviant, Doubly Damned: Society's Treatment of Violent Women (Harmondsworth: Penguin Books, 1995); and E.B. Leonard,Women, Crime and Society: A Critique of Theoretical Criminology (New York and London: Longman, 1982). at xv. Also Helen Birch, “Introduction”, in Helen Birch, ed.,Moving Targets: Women, Murder and Representation, (London: Virago, 1993), 1 at 1.Google Scholar
  6. 6.
    Jones,supra n.3 See, for example, Kennedy,supra n.2. H. Kennedy,Eve was Framed: Women and Birtish Justice (London: Chatto & Windus, 1992), 200–201, on the male-orientated presumptions incoprotated into the law of self-defence in some jurisdictions. S. M. Edwards,Women on Trial: A Study of the Female Suspect, Defendant and Offender in the Criminal Law and Criminal Justice System (Manchester: Manchester University Press, 1984)Google Scholar
  7. 7.
    Kennedy,supra n.2.Google Scholar
  8. 8.
    Edwards,supra n.3 ; at 1.Google Scholar
  9. 9.
    Jones,supra n.3 ; at 70.Google Scholar
  10. 10.
    C.A. MacKinnon, “Feminism, Marxism, Method and the State: An Agenda for Theory”,Sings 7 (1981–82), 515–544, at 530.Google Scholar
  11. 11.
    See P.N. Stearns, “Girls, Boys and Emotions: Redefinitions and Historical Change”,The Journal of American History 80/1 (June 1993), 36–74, which includes a discussion of the development of the role through Victorian literature and advice manuals.Google Scholar
  12. 12.
    See Kennedy's comments on Myra Hindley's treatment by the courts, the media and the public,post, text accompanying n.17.Google Scholar
  13. 13.
    These cases are included as an example of the practical application of the theory of double vilification, in an attempt to explain that theory clearly, rather than as evidence for the existence of the phenomenon in the first place, since that is already fairly well documented in its own right. See material citedsupra n.3 See, for example,.Google Scholar
  14. 14.
    Kennedy,supra n.2. at 242–43 and 245–49.Google Scholar
  15. 15.
    Kennedy,supra n.2. at 203–204 and 206.Google Scholar
  16. 16.
    The Herald, 25th April 1995, at 7.Google Scholar
  17. 17.
    Kennedy,supra n.2. at 24–25.Google Scholar
  18. 18.
    At the best of times, sentencing is not an exact science and, to a large extent, each case has to turn on its own facts. Nonetheless, it is submitted that these two cases are at least comparable, as crimes against violent members of the offender's household.Google Scholar
  19. 19.
    Edwards,supra n.3 ; at 1.Google Scholar
  20. 20.
    S. Cohen,Folk Devils and Moral Panics: The Creation of Mods and Rockers (Oxford: Basil Blackwell, 1980).Google Scholar
  21. 21.
    Cohen,supra n.20. at 16.Google Scholar
  22. 22.
    As Helena Kennedy points out, however, it is questionable whether the view that there is, or has been, a moral panic with respect to the murder of abusive male partners can be sustained in the U.K.Google Scholar
  23. 23.
    Jones,supra n.3, at 310–311.Google Scholar
  24. 24.
    See G. Sereny,The Case of Mary Bell: A Portrait of A Child Who Murdered (London: Pimlico, 1995) [hereinafterMary Bell]; and P. Wilson,Children Who Kill (London: Michael Joseph, 1973).Google Scholar
  25. 25.
    See G. Sereny, “Re-examining the Evidence”,The Independent on Sunday, 6th February 1994, review section, 4–10 [hereinafter “Re-examining the evidence”]; G. Sereny, “Approaching the Truth”,The Independent on Sunday, 13th February 1994, review section 4–11 [hereinafter “Approaching the Truth”]; and D.J. Smith,The Sleep of Reason (London: Arrow Books Limited, 1994).Google Scholar
  26. 28.
    Wilson,supra n.24.Google Scholar
  27. 29.
    P. Parsloe, “Social Work and the Justice Model”,British Journal of Social Work 6 (1976), 71–89.Google Scholar
  28. 30.
    A. Bainham (with S. Cretney),Children: The Modern Law (London: Family Law, 1993), at 497.Google Scholar
  29. 31.
    See, for example, T. Hirschi and M. Gottfredson, “Rethinking the Juvenile Justice System”, in T. Booth, ed.,Juvenile Justice in the New Europe (Sheffield: Social Services Monographs: Research in Practice, 1991), 46–55. They argue that all crime is caused by a lack of self-control, regardless of the age of the criminal and that, consequently, the adult and juvenile systems should be combined on the model of the latter.Google Scholar
  30. 32.
    N. Walker, “Childhood and Madness: History and Theory”, in A. Morris and H. Giller, eds.,Providing Criminal Justice for Children (London: Edward Arnold, 1983), 19–35, at 22.Google Scholar
  31. 33.
    Parsloe,supra n.29.Google Scholar
  32. 34.
    Walker,supra n.32, at 32.Google Scholar
  33. 35.
    February 23rd 1993, at 4.Google Scholar
  34. 36.
    P.C. Friday, “Delinquency Prevention and Social Policy”, in Morris and Giller,supra n.32 N. Walker, “Childhood and Madness: History and Theory”, in, 36–51, at 40–1.Google Scholar
  35. 37.
    S. Emerson, “Beast that Hides in the Infant Breast”,The Times, 18th February 1993, at 12.Google Scholar
  36. 38.
    M. Harris, “Are Children Getting Worse?”,Sydney Morning Herald, 10th September 1994, Spectrum Section, 8A.Google Scholar
  37. 39.
    B. Watterson,Homicidal Psycho Jungle Cat: A Calvin and Hobbes Collection (London: Warner Books, 1994).Google Scholar
  38. 40.
    SeeThe Herald, 19th October 1994, at 4; andLe Monde, 21st October 1994, at 10.Google Scholar
  39. 41.
    The Herald, 19th October 1994, at 4.Google Scholar
  40. 42.
    This case has been included because it clearly exemplifies the practical application of theories on criminal responsibility. It should also be borne in mind, however, that there may well be a cultural element in the treatment of children by the criminal law — and Scandinavia is recognised as a particularly child-centred society. See, for example, Penelope Leach,Children First: What our Society Must Do — and is not Doing — for our Children Today (London: Michael Joseph, 1994), esp. at 98–101.Google Scholar
  41. 43.
    See below at. This case has been included because it clearly exemplifies the practical application of theories on criminal responsibility. It should also be borne in mind, however, that there may well be a cultural element in the treatment of children by the criminal law — and Scnadinavia is recognised as a particularly child-centred society. See, for example, Penelope Leach,Children First: What our Society Must Do — and is not Doing — for our Children Today (London: Michael Joseph, 1994), pp. 19–20.Google Scholar
  42. 44.
    See, for example, Emerson,supra n.37. S. Emerson, “Beast that Hides in the Infant Breast”,The Times, 18th February 1993, at 12.Google Scholar
  43. 45.
    February 23rd 1993, at 2.Google Scholar
  44. 46.
    February 25th 1993, at 5.Google Scholar
  45. 47.
    “Re-examining the Evidence”,supra n. 25, See G. Sereny, “Re-examining the Evidence”,The Independent on Sunday, 6th February 1994, review section, 4–10 [hereinafter “Re-examining the evidence”]; G. Sereny, “Approaching the Truth”,The Independent on Sunday, 13th February 1994, review section, 4–11 [hereinafter “Approaching the Truth”]; and D.J. Smith,The Sleep of Reason (London: Arrow Books Limited, 1994). at 4–6.Google Scholar
  46. 48.
    For the reasons expressed above, it is denied that the child's socially-constructed role — the position which s/he is expected by society to hold — incorporates the child as “little devil”. Consequently, children who are so categorised by the media and/or society are to be viewed as outside their social role and in a similar position to women who have killed partners or children.Google Scholar
  47. 49.
    Harris,supra n.38, M. Harris, “Are Children Getting Worse?”,Sydney Morning Herald, 10th September 1994, Spectrum Section, at 8A.Google Scholar
  48. 50.
    Le Monde, 20th December, 1968, at 9.Google Scholar
  49. 51.
    “Re-examining the Evidence”,supra n.25, See G. Sereny, “Re-examining the Evidence”,The Independent on Sunday, 6th February 1994, review section, 4–10 [hereinafter “Re-examining the evidence”]; G. Sereny, “Approaching the Truth”,The Independent on Sundary, 13th February 1994, review section, 4–11 [hereinafter “Approaching the Truth”]; and D.J. Smith,The Sleep of Reason (London: Arrow Books Limited, 1994), at 6.Google Scholar
  50. 52.
    F. Gale, R. Bailey-Harris and J. Wundersitz,Aboriginal Youth and the Criminal Justice System: The Injustice of Justice? (Cambridge: Cambridge University Press, 1990), at 7 (quoting M.M. Feeley,The Process is the Punishment: Handling Cases in a Lower Criminal Court (New York: Russell Sage Foundation, 1979)).Google Scholar
  51. 53.
    Smith,supra n.25, See G. Sereny, “Re-examining the Evidence”,The Independent on Sunday, 6th February 1994, review section, 4–10 [hereinafter “Re-examining the evidence”]; G. Sereny, “Approaching the Truth”,The Independent on Sundary, 13th February 1994, review section, 4–11 [hereinafter “Approaching the Truth”]; and D.J. Smith,The Sleep of Reason (London: Arrow Books Limited, 1994).Google Scholar
  52. 54.
    Mary Bell, supra n.24 See at 76.Google Scholar
  53. 55.
    Children and Young Persons Act 1933, s.53.Google Scholar
  54. 56.
    Mary Ellen Cairns v.H.M.A. (1973) S.C.C.R. Supp. 44.Google Scholar
  55. 57.
    See N. Bruce and J. Spencer, “Children's Hearings and the Scottish Courts: Some Lessons from the Case of Mary Cairns”,The Yearbook of Social Policy in Britain (1973), 221–233. Also B. Kearney,Children's Hearings and the Sheriff Court (London and Edinburgh: Butterworths, 1987), at 20.Google Scholar
  56. 58.
    The Times, 19th September 1973, at 1; 20th September 1973, at 1 and 19; 24th September 1973, at 15; and 6th October 1973, at 2.Google Scholar
  57. 59.
    See the report of the appeal,supra n. 56.Mary Ellen Cairns v.H.M.A. (1973) S.C.C.R. Supp. 44Google Scholar
  58. 60.
    Smith, supra n.25, See G. Sereny, “Re-examining the Evidence”,The Independent on Sunday, 6th February 1994, review section, 4–10 [hereinafter “Re-examining the evidence”]; G. Sereny, “Approaching the Truth”,The Independent on Sundary, 13th February 1994, review section, 4–11 [hereinafter “Approaching the Truth”]; and D.J. Smith,The Sleep of Reason (London: Arrow Books Limited, 1994). at 244.Google Scholar
  59. 61.
    James Frazer (1992) Cr.App.R.(S) 705.Google Scholar
  60. 62.
    Attorney-General's Reference No. 24 of 1991 (Mark Andrew Willocks) (1992) 13 Cr.App.R. (S) 724.Google Scholar
  61. 63.
    Jermaine Bell (1989) 11 Cr.App.R. (S) 472.Google Scholar
  62. 64.
    See Appendix for details.Google Scholar
  63. 65.
    Some feminist studies which reveal discrimination in this area have been carried out. From the historical point of view see, for example, Mary Odem, “Single Mothers, Delinquent Daughters and the Juvenile Court in Early Twentieth Century Los Angeles”,Journal of Social History 25 (Fall 1991), 27–43, which shows how laws designed to ameliorate the prevalent problem of venereal disease amongst young “delinquents” operated particularly harshly against girls and young women as compared with their male counterparts.Google Scholar
  64. 66.
    Although this is not to lose sight of the fact that it is possible that a child of eleven may herself be a mother. In that case, it is submitted that society is more likely to express its disapproval of her breach of the child's social role than its sanction of the mothering role into which she has fallen.Google Scholar
  65. 67.
    This is the opinion of, among others, MacKinnon,supra n. 10, at 530.Google Scholar
  66. 68.
    Kiranjit Aluwahlia, Myra Hindley and Mary Bell, for example, all received life sentences. Since Mary Bell's was imposed partly on the basis of the psychopathic personality disorder from which it was found that she was suffering, it seems quite likely that a boy of eleven in similar circumstances would have received a like sentence.Google Scholar
  67. 69.
    See Wilson,supra n.24. at 80; and G. Sereny, “A Child Murdered by Children”,The Independent on Sunday, 23rd April 1995, review section, 8–12.Google Scholar
  68. 70.
    It occurred during a period when the few reported cases on children who kill seem to exhibit a distaste for subjecting children to the full rigours of the law where this would have been the death sentence. Nonetheless, the punishments which were imposed instead are fairly severe in their own right. See, for example,R. v.William Wild (1835) 1 Mood C.C. 452, where a boy who was a few days short of his fourteenth birthday was found guilty of the murder by drowning of two much younger children but the sentence of death was commuted to transportation for life. AlsoR. v.Vamplew (1862) 3 F&F 520, where a thirteen year old girl who killed a baby by administering a poison known as Battle's Vermin Killer to it was convicted of manslaughter and sentenced to twelve years' penal servitude. See also Parsloe,supra n.29 at 76 with regard to the less serious offences then committed by children.Google Scholar
  69. 71.
    Wilson,supra n.24,. at 80.Google Scholar
  70. 72.
    Smith,supra n.25, See G. Sereny, “Re-examining the Evidence”,The Independent on Sunday, 6th February 1994, review section, 4–10 [hereinafter “Re-examining the evidence”]; G. Sereny, “Approaching the Truth”,The Independent on Sunday, 13th February 1994, review section, 4–11 [hereinafter “Approaching the Truth”]; and D.J. Smith,The Sleep of Reason (London: Arrow Books Limited, 1994). at 226–27.Google Scholar
  71. 73.
    Robert Thompson and Jon Venables are, of course, too young to be imprisoned. They are held in separate secure units which ought, as far as possible, to cater for their needs, so that, in this respect at least, welfare principles are not abandoned. But the minimum sentence decided upon by the Home Secretary is such that they will have to spend some time in an adult prison.Google Scholar
  72. 74.
    Bainham,supra n.30, at 497.Google Scholar
  73. 75.
    Bainham,supra n.30, at 474.Google Scholar
  74. 76.
    Supra, text accompanying n.35. February 23rd 1993, at 4.Google Scholar
  75. 77.
    K. Alderson, “Rebuilding Young Lives Shattered by Neglect”,The Times, 23rd February 1993, at 4.Google Scholar
  76. 78.
    Smith,supra n.24, at 233.Google Scholar

Copyright information

© Deborah Charles Publications 1996

Authors and Affiliations

  • Claire McDiarmid
    • 1
  1. 1.School of Law, University of GlasgowGlassgowUK

Personalised recommendations