Like in England and Wales and in Scotland, the ratio of males to females in prison in Australia rose sharply across the mid-twentieth century. Reasonably good yearly statistics for the daily average number of prisoners in Australia are available from 1858. From 1858 to 1890, the ratio of male prisoners to female prisoners averaged 5.6. Australia during this period had 21% more male residents than female residents. Adjusting for this difference in the populations at risk of imprisonment, the ratio of male to females prisoners was 4.7. From 1890 to 1915, the prisoner sex ratio rose to 10. Australian punishment sex ratios, which become available in 1876, parallel these movements in the prisoner sex ratio. A sex ratio of 10 or less males per female in punishment was not unusual internationally prior to the era of intensified concern about gender equality.
The sex disparity in the Australian prison population began increasing sharply about 1920. The ratio of males to females in prison climbed to 33 by 1939. During WWII, that ratio dropped sharply. That’s consistent with a large body of historical evidence indicating that disposal of men in military service substitutes for disposal of men through punishment. From a trough of 13 in 1943, the ratio of male prisoners to female prisoner shot up, reaching 35 by 1960. The peak in the sex disparity in prisoners was about 1975, with an aggregate sex ratio of 42 across 1974 to 1976. Relative to available historical statistics for punishment, that was an extraordinarily high level of disproportionate punishment of men.
Only about three years after that peak in the ratio of men to women in prison, the Australia Institute of Criminology convened a seminar on “Women and Crime.” The introduction to a published volume of papers prepared especially for this seminar observed:
During the 1970s, interest in the study of crimes by women gathered momentum in several countries, a significant result of which was the publication of a number of books and articles on the subject. … While their fundamental impact was welcome in that a grossly and unjustifiably ignored area received the deserved attention, there were some unwelcome results as well; that is, several researchers used the opportunity to present a misconstrued relationship between various women’s movements and crimes by women. … The papers in this volume dispute with cold hard fact the substance of the claim that ‘women’s liberation’ is turning more women to crime.^
The opening article, by the volume’s co-editor, is entitled “Sexism in Criminal Law.”^ It provides a tendentious, misleading, and now conventional discussion of Blackstone’s famous statement and the law of coverture. The article discusses the crimes of domestic violence (imprison more men), rape (imprison more men), and infanticide (imprison fewer women). Men’s liberation, in the direct, factual sense of liberation from highly disproportionate imprisonment, was completely ignored in this volume’s emphasis on disputing myths about women’s liberation.
Despite subsequent, large changes in the prisoner sex ratio, subsequent scholarly literature on Australian prisoners naturalized prisoners as being “almost exclusively male.” The sex ratio among Australian prisoners declined from its peak of 42 men per woman in the mid-1970s to 15 men per woman in prison about 2000. Fifteen men per woman is nearly three times as high as the 5.6 men per woman sex ratio that prevailed on average in Australia from 1858 to 1890. With no definition or justification for “modern,” a 1999 study of sentencing reform and penal change in Australia declared that about 95% of prisoners being male is “modern levels” of sex inequality in punishment.^ Obscuring the historical variation in the sex ratio of prisoners, a 2000 study focusing on female prisoners in Australia began thus:
One of the most fundamental characteristics of incarcerated populations is that they are almost exclusively male. … The reason for this overwhelming preponderance of males over females in prison is fairly straightforward. Crime is predominately committed by young males. Male involvement in criminality of all types is much greater than female involvement, and this tendency is more pronounced for more serious forms of criminality.^
This “explanation” naturalizes men as criminals, obscures the historical variation in the sex ratio of prisoners, and justifies without reason stereotyping criminals as “almost exclusively male.” It ignores the reality that history and politics shape the social construction of criminal acts, the criminal seriousness of particular acts, and imprisonment sentences. With only some light paraphrasing, this introductory criminalization of men was copied into the introduction for a 2003 scholarly paper entitled, “Women in prison – Why is the rate of incarceration increasing?”^ That’s a peculiar scholarly concern in circumstances of 15 men in prison per woman in prison.
The criminological literature has worked to legitimize a highly unequal ratio of men in prison to women in prison. Focusing on females, a study found explanations for the ratio of males to females in prison increasing from 5 to 10 from about 1885 to 1915, but found puzzling the ratio of males to females in prison decreasing from 40 to 17 from about 1975 to 1997:
It is fairly clear that the reduction in female imprisonment in the late 19th and early 20th century was in large part the result of changes in the way that good order offences (especially drunkenness, vagrancy and prostitution) were dealt with. … The increase in female imprisonment since the 1970s has proven rather more difficult to account for.^
The Sentencing Advisory Council of the Australian state of Victoria published in 2010 a study, Gender Differences in Sentencing Outcomes. That study forthrightly recognized inequalities in sentencing:
In the Magistrates’ Court of Victoria, women are less likely to receive a sentence of imprisonment for all of the offence categories examined. For most of the offence types, women receive a shorter term of imprisonment than do men.
The study then justified categorical sex differences with “a constellation of factors that can validly reduce the length of a sentence.” What are the stars in this constellation? One wondrous star unblinkingly reflects effects of historical sex disparity in sentencing, blurred with vague references to seriousness of offenses and “more complex personal histories and situations”:
Women prisoners have less serious criminal histories than do men, with fewer prior convictions and less serious previous and current offending in terms of the type of offences for which they have been imprisoned. They also tend to be sent to prison for shorter periods, likely a reflection of their less serious offending and their more complex personal histories and situations.
The claim that men have less complex personal histories and situations than women do sheds light not on the reality of men’s lives, but on lack of social interest in men’s lives. The reflective reference to shorter sentences leads to women’s more complex personal histories and situations. That leads to extensively discussed, emotive factors:
The biographies of female offenders vary systematically from those of men. Contributing to their blurred status as both victims and offenders, women are more likely than men to have a history of factors that are often causally interrelated, such as mental illness, physical or sexual victimization in childhood or early adulthood, and substance abuse. Women are also more likely than men to have primary caregiver status.
Women being more likely to have primary caregiver status, which does not justify employment discrimination, here is used to justify discriminatory sentencing to prison. The Executive Summary for this study, which was issued by the Sentencing Advisory Council of the Australian state of Victoria, ends with a filigreed justification for sex inequality in imprisonment:
The effect of gender on sentencing is not direct, but travels via two distinct paths: via gender differences in offending behaviour; and via the individual biographies of women that see a greater proportion of women coming before the court with a constellation of characteristics that creates legitimate mitigating circumstances. It is these mitigating factors that lead to disparities in sentencing outcomes for men and women in the criminal courts, disparities that appear warranted and that are not immediately indicative of any pervasive ‘bias’.
Thus the disparities seen in sentencing outcomes for men and women are a reflection of legitimate but gender-linked characteristics: differences are evident because of factors associated with being female, not because of gender per se.^
If there were 3 times as many men as women in prison, or 5 times as many men, one might consider this analysis seriously. But the historical reality is that in that late 1970s, there were about 30 times as many men as women in Australia prisons. Australian scholars then began expressing concern about the number of women in prison. In 2011, Australian prisons held 13 times as many men as women. Scholars straining to justify that level of sex inequality for prisoners in societies formally committed to gender equality indicates not just pervasive anti-men sex bias in punishment. Such scholarly work also indicates pervasive anti-men sex bias in public deliberation.