Criminal laws are the legal basis for highly disproportionately punishing men. A leading scholar of legal history has emphasized the social construction of crime:

There is no real answer to the question, What is crime? There are popular ideas about crime: crime is bad behavior, antisocial behavior, blameworthy acts, and the like. But in a very basic sense, crime is a legal concept: what makes some conduct criminal, and other conduct not, is the fact that some, but not others, are “against the law.” …

We repeat: crime is a legal concept. … The law, in a sense, “creates” the crime it punishes; but what creates criminal law? Behind the law, and above it, enveloping it, is society; before the law made the crime a crime, some aspect of social reality transformed the behavior, culturally speaking, into a crime; and it is the social context that gives the act, and the legal responses, their real meaning.^

A variety of social contexts – the disciplinary circumstances under which legal scholars write, the neighbors among which legal scholars live, the social and political groups to which legal scholars belong – shape legal culture and law. Not a realm of reason separate from deliberative democracy^, legal scholars’ work exemplifies how human social reality and intensely competitive public deliberation affects the definition of crime and fosters highly disproportionate punishment of men.

In considering the sex composition of prisoners, leading legal scholars have emphasized women. In his highly regarded U.S. history of crime and punishment, the leading scholar of legal history purported to uncover a natural constant:

the weak showing of women, particularly in crimes of violence, is constant, throughout American history; every study of the subject shows it, as does every state, city, or region that has figures for arrests, trials, and convictions.

… The percentage may vary a bit up and down; but women never have their “fair share”; and the more serious the crime, the less likely it is that women commit it. …To this day, {women} make a rather feeble contribution to the criminal nation. …No serious student of crime or criminal justice has the slightest doubt that women, in general, just do not go in for serious crimes, especially crimes of bodily harm, of violence, of bloodshed.^

Note the mock-chivalric invocation of “weak showing”, the wry references to “fair share” and to “feeble contribution,” the professorial reference to “serious student,” and the authoritative, naturalized category “serious crimes.” The author of this text is a male legal professor holding a named professorial chair at Stanford University Law School. He has been president of the American Society for Legal History and president of the Law and Society Association, was a finalist for a Pulitzer Prize in history and has won the American Bar Association’s Silver Gavel Award. His text is an example of a high-status male displaying his resources, in this case verbal and conceptual skills, to females and inferior males. Among humans and other primates, such displays serve to display position in a male dominance hierarchy and solicit mating opportunities from females. As a rule, such displays show no concern for the welfare of inferior males. That’s particularly true for penal punishment of inferior males.

A related case further illustrates the rule. A different male legal scholar studied historical statistics concerning the sex of persons involved in the criminal justice system. He displayed his knowledge in a series of scholarly articles. The first two of these articles were entitled “The Vanishing Female: The Decline of Women in the Criminal Process, 1687-1912” and “The Decline of Women in the Criminal Process: A Comparative History.”^ ^ The “vanishing female” and “the decline of women” are phrases that direct attention and concern to women. To appreciate the value of those phrases, consider substantially equivalent phrases, e.g. “the increasing criminalization of men relative to women.” All the statistics in the second article, and almost all in the first, indicate “percent women.” Despite the use of the phrase “decline of women,” neither article presents any relevant statistics concerning the absolute number of women. The primary claim of this scholarship, carried across two decades of scholarly work, is that women comprised a larger share of persons caught up in the criminal justice system in the past than in the present. That claim hasn’t prompted any concern about the criminalization of men in the present.

Focusing on women’s declining share in persons subject to criminal justice action apparently served two purposes. First, it challenged the leading male legal historian. That alpha-male legal historian claimed that “the weak showing of women {in crime statistics} … is constant {throughout history}.” The challenger, in contrast, asserted that women had their “fair share” {of criminal punishment} in the past, but don’t now. Pushing for a position of disciplinary leadership, the challenging male scholar called for allocating more scholarly attention to women:

This pattern is significant; it should form the foundation for sustained inquiry into the extent and nature of general transformation of the role of women in the criminal process, and perhaps even the changing role of women in society.^

Scholars expressing concern for women in the criminal justice system righteously incant that penal scholarship, policy, and practice has focused on men.^ ^ That’s a misunderstanding. Scholarship, policy, practice concerning incarceration is largely about unsexed prisoners, not men prisoners. Concern for men isn’t publicly valued. Not surprisingly, the deliberative challenger’s conclusions display his promise to provide resources to women. Such behavior is highly correlated with success in legal scholarship and public deliberation more generally. The challenger now holds a named professorship of law at the University of California, Berkeley. He was elected president of the Law & Society Association in 2005.

Another rule in legal scholar’s deliberative competition is that patriarchy is always a successful explanation. The legal scholar concerned about the decline of women in the criminal process exploited this rule with considerable skill:

The data considered in this paper {from 1650 to about 1900 in Europe and North America}, however, covers the period of the intensification of private patriarchy. What I propose is an analysis that focuses on social controls, especially patriarchal controls, to account for female conformity and criminality.^

Rather than merely invoking patriarchy to explain, among other facts, the increase in the number of men in prison per woman in prison, this scholar used “the intensification of private patriarchy” and the emphatic “patriarchal controls.” These terms highlight the male author’s willingness to confront that other group of males who have controlled the females by criminalizing a greater number of men per woman. Even better, this analysis conceptually expands patriarchy:

The “patriarchal control theory” suggested here draws from traditional control theorists, but expands their notion by looking at patriarchy as a concrete and historically variable phenomenon.^

Thus patriarchy, more precisely specified as “the intensification of private patriarchy,” expands into a concrete and historically variable phenomenon that explains the rise in the number of men in prison per woman in prison from 1650 to about 1900. The male author immediately continues with uncanny subtlety:

It looks both at female participation in various structures (reproduction, sexuality, economy), and at the type and intensity of male controls within these structures at different historical moments. Therefore, it asks, how does this theory help us account for the decline in female participation in crime, particularly property crime, during the eighteenth and nineteenth centuries?^

Read again that last “it asks”: the male author has transformed himself into an asexual “it”. That “it”, being asexual, cannot be part of the patriarchy that has controlled women by criminalizing a much higher share of men.

While showing that women accounted for a larger share of crime prior to nineteenth century, the legal scholar is careful not to discredit progress toward women’s liberation. To avoid any possible confusion, the author explains:

I do not wish to be interpreted as arguing that women in the eighteenth century were “emancipated,” for surely they were not. The fact that they were relatively uninvolved in violent crimes throughout the eighteenth and nineteenth century – and almost all the data that addresses this issue point to this conclusion – may be one measure of this.^

Some readers may be confused about how violent crimes indicate emancipation. Taking a rather different perspective on patriarchal controls and violence, a recent collection of feminist scholars’ writings on women, crime, and deviance emphasized:

Women could not be ignored or kept down, but rather, they themselves reacted to situations to effect positive change whether by trading illegally or by murdering their children.^

Truly emancipated women would organize massive women-on-women violence. That would make them free and equal, for men have killed and been killed in men-on-men wars throughout history.

Legal scholarship on judicial review of democratically enacted legislation focuses on systematic malfunctions of legislative politics. While the meaning of “systematic malfunctions of legislative politics” has attracted considerable attention in legal scholarship, the distinction between legal scholarship and legislative politics tends to be based on a rigid, formalistic interpretation of status markers.^ Legal scholars have increasingly emphasized the sort of rhetorical work that legal scholars do:

Punishment is about authority in the first instance and about law, dispassion, and disinterestedness only in certain contexts. Once we realize this, we have to study punishment as “a practice of constructing authority” and not as “the practice of applying laws disinterestedly.”^

Legal scholarship is like punishment. Legal scholars construct themselves as authorities. Concern with creating, maintaining, and reinforcing authoritative representations in communication among non-kin is a common structural feature of legal deliberation, legislative politics, and public discourse in general.

Obviously well-meaning, collegial legal scholarship has identified “democratic breakdown as the cause of mass incarceration.” This scholarship has emphasized encouraging “two underlying anti-carceral forces”:

1. improved use of criminal justice expertise;
2. the promotion of empathy for excluded groups and marginalized persons.^

Legal scholarship shares with other fields of public deliberation little expressed concern about the preponderance of men disposed through the criminal justice system. Deliberative failure among legal scholars and criminal justice experts contributes to the problem of mass incarceration.

Criminalization differs greatly from victimization. Federal criminal law has expanded enormously in recent decades. The expansion of federal criminal law has created crimes that many persons don’t know exist and regularly commit.^ These criminal acts almost always don’t have identifiable personal victims. Across wide bounds, prosecutorial discretion controls who is actually charged with crimes. Formal criminalization of everyone raises risks of lawlessness and bias in the exercise of prosecutorial discretion. Making everyone subject to criminal charges separates criminalization from commonly recognized victimization.

Domestic violence law functions much like federal criminal law, but with greater criminal effect. Like federal criminal statutes and the federal criminal law, new domestic violence statutes are regularly added to state criminal codes. Since domestic violence is defined very broadly under domestic violence law, everyone who lives with someone else or has had an intimate relation with someone else is likely to have committed domestic violence. For example, under New Jersey criminal law, a persons who “makes, or causes to be made, a communication … in offensively coarse language, or any other manner likely to cause annoyance or alarm” to a boyfriend or girlfriend, or to an ex-girlfriend or boyfriend, has committed domestic violence. Compared to federal criminal law, state domestic violence law has much greater effect on criminalization because it draws, in aggregate, on a much larger set of state police, prosecutorial, and judicial resources. Expansive criminalization of domestic violence has been central to the development of the extraordinarily high level of incarceration in the U.S..

Criminalization also differs greatly from victimization for commonly understood violent acts. Consider serious injuries from violence in the U.S. in 2010. Police-identified victims suffering serious injuries from violence amounted to only 14% of hospital emergency department visits attributed to injuries from inter-personal violence. Most violent acts that produce serious injury to another person are not brought into the criminal justice system.

Criminalization of violence is biased toward violence against women. Obscured in sensational media reporting of particular violent crimes, the mundane reality is that 95% of police-reported violent victimizations do not involve serious physical injury. Measured in hospital emergency departments visits due to violent injuries, men suffer 59% more violence than do women. In police reports, by contrast, men comprise 28% fewer victims of violence than do women. That comparison doesn’t hold constant the extent of physical injury. Men are more likely to suffer serious physical injury from violence or death from violence than are women. Measuring violent injury not producing serious physical injury requires special survey instruments prone to large non-sampling biases. The relative shares of men and women victims of domestic violence has been a matter of bitter scholarly dispute. But across all circumstances, not just domestic circumstances, men suffer not just more serious physical injuries from violence, but also more physical injuries in general from violence. That sex difference in violent injury is reversed in police-reported violent victimizations.

The selection of acts brought into the criminal justice system is gender-biased against men. The criminal justice system addresses only a very small share of the acts that criminal law criminalizes. Police-identified victims of violence are disproportionately women. Domestic violence law gender-profiles men for arrest. The rapidly expanding federal criminal justice system shows greater anti-men gender bias over time and across the criminal justice system funnel from arrest to being in prison. What men do and what women experience, apart from any objective measure of victimization, is more likely to be the focus for criminal arrest and punishment.

Within circumstances of extraordinarily high incarceration that is highly disproportionately imposed on men, U.S. official, expert national surveys of rape victimization have been systematically gender-biased against men. If men made to penetrate sexually is counted as real rape, then the best quality U.S. survey found that about 1.3 million rapes of men occur per year. That number is about equal to the findings of rapes of women per year. More generally, rape of men has been greatly under-reported. Rape of women has been inflated over time by victimization survey redesigns. Like anti-men gender bias in discussing and addressing domestic violence, anti-men gender bias in considering rape is deeply embedded in public discourse.

Until 2008, official victimization surveys didn’t cover victimization of inmates. Sexual victimization occurs at a rate about 500 times higher for inmates than for non-inmates. About ten times more men than women are held as inmates. The average number of sexual victimizations per inmate is about equal for male and female inmates. Hence, among inmates in total, men suffer about ten times more sexual victimizations than women do. Not including inmates in rape surveys greatly under-reports rape of men. That under-reporting obscures the reality that reducing incarceration can reduce rape.

Victimization surveys have explicitly or implicitly excluded rape of men. From its inception in 1930 until 2012, U.S. Federal Bureau of Investigation (FBI) national statistical reporting of rape excluded rapes of males.^ Three U.S. Department of Justice’s reports on trends in criminal victimization published up to 1994 reported only female rape victimization trends.^ ^ ^ The Department of Justice reports were based on the most prominent U.S. national survey of criminal victimization, the annual National Crime Victimization Survey (NCVS). NCVS, like the FBI reports, focuses the definition of rape on the act of penetration. The FBI and NCVS fail to recognize a significant number of men made to penetrate sexually another person. The 2010 National Intimate Partner and Sexual Violence Survey (NISVS) estimated that 1.3 million men were made to penetrate sexually other persons. That is equal to the NISVS estimate of women raped (defined as “completed forced penetration, attempted forced penetration, and completed alcohol or drug facilitated penetration”).^ Consistently with gender victimization equality in a non-gender-biased concept of rape, average sexual victimizations per inmate for men and women inmates are roughly equal. Informative reporting of sexual victimization surveys would recognize roughly equal sexual victimization of men and women. But official, expert, national data collections have largely ignored sexual victimization of men.

The most prominent U.S. national survey of criminal victimization has changed its reporting of sexual victimization over decades in ways that obscure its definitions of sexual victimization. Through 1992, the U.S. Department of Justice’s annual NCVS summary reports listed sexual victimization using one heading, “rape.” In 1993, the NCVS report changed the headline category in the main offense table to “rape/sexual assault.” That reform added sub-categories as follows:

Rape/Sexual Assault

Rape/Attempted rape

Rape

Attempted rape (n1: includes verbal threats of rape)

Sexual assault ( n2: includes threats)

The new “rape/sexual assault” heading didn’t include men made to penetrate sexually another person. In the 2002 report, an new summary table, presented first in the report (Table 1), listed just the heading “rape/sexual assault.” The subsequent Table 2 provided the above categorical breakdown of “rape/sexual assault.” In the 2006 report, the second table detailing categorizes of “rape/sexual assault” was eliminated from the main report and pushed to a second report containing just statistical tables. In the 2009 report, an inconsistent higher level heading “serious violent crime” was added encompassing “rape/sexual assault,” reported without the above sub-category detail. Threats of sexual assault, which are distinguished from verbal threats of rape, were thus implicitly included within “serious violent crime.” The supplementary publication of statistical tables, which had previously included the rape/sexual assault sub-categories, was eliminated. In 2011, the headings of Table 1 were changed to have both the headings “violent crime” and “serious violent crime.” The heading “rape/sexual assault” was shifted to the former heading, and the new heading “serious domestic violence” was added to the latter heading. Domestic violence includes rape/sexual assault of persons defined as relevant to domestic violence.

Variance in Official U.S. Rape Figures, Benchmarked to 1992

Official rape figures vary by about a factor of 200. The year 1992 provides the best opportunity to compare different estimates. A revision to NCVS about 1992 produced a published figure for “rape/sexual assault” more than four times higher than the previously published figures for “rape.” Another revision of NCVS about the year 2010 roughly doubled the figure for rape/sexual assault recalculated for about 1992. The 2010 NISVS figure reported for “rape,” scaled to 1992 using the NCVS rape/sexual assault yearly figures, is 32 times higher than the original NCVS figure for rape. The NISVS rape figure scaled to 1992 is 206 times higher than the number of felony convictions for rape in state courts in 1992. None of these figures include within rape or rape/sexual assault men made to penetrate sexually another person. If such sexual vicimization were included, the figure for rapes would roughly double.

Belief that the number of men convicted of rape is too low has been common in public discourse. Official surveys of criminal victimization have worked to support that belief. While maintaining deep anti-men gender-bias, those surveys have been continually redesigned in ways that have produced bigger figures for rapes of women. In reporting rape, official criminal victimization surveys have furthered the criminalization of men.

Crime victimization surveys attempt to measure sexual victimization that is criminal. Sexual victimization can be a deeply personal feeling. Sex crimes, in contrast, are defined and judged under public criminal law. Measuring sexual victimization isn’t a straight-forward, objective statistical exercise of measuring unreported crimes. Crime victimization surveys both reshape victims’ perceptions of sexual victimization and independently judge sex crimes.

Understanding what sexual victimization surveys report requires detailed understanding of survey officials’ crime codes and judging procedures. Crime victimization surveys establish crime definitions and conventions for coding incidents that respondents recall in response to a variety of probing questions. Survey officials judge crime based on the incident report that field interviewers submit for the victim’s responses. What counts as particular crimes depends on survey officials’ criminal judgments. Those judgments can differ greatly from how the victim would judge her or his victimization, or how an actual judge would judge the case if presiding over a trial for the incident in question.

Survey officials’ judgments of sex crimes have great quantitative importance for rape victimization statistics. In a survey of sexual victimization of college women in 1997, the surveyed subject did not regard as rape 49% on the incidents that survey officials categorized as completed rape.^ The criminal justice system likewise declares far fewer convictions for rape than the number of rape victimizations that crime victimization surveys report. In 1992, state courts made 21,655 rape convictions. A major crime victimization survey reported 607,000 rape/sexual assault victimizations. Reported trends in rape from victimization surveys don’t even parallel trends in rape convictions and rapes known to the police. From 1992 to 2006, rape convictions, rapes known to the police, and rapes in victimization surveys increased 53%, -13%, and -69%, respectively.

Obscure aspects of survey design and administrative procedures greatly affect rape statistics that crime victimization surveys report. Consider the U.S. National Crime Victimization Survey (NCVS). It’s a large, ongoing victimization survey that the U.S. Department of Justice manages. NCVS categorizes “sex-related crimes” into four categories: rape, attempted rape, sexual assault, and unwanted sexual contact. Each of these categories are associated with survey questions asking about acts, attempted acts, and threats to act.^ The NCVS Field Manual defines rape as follows:

For the NCVS, rape is defined as forced sexual intercourse including both psychological coercion, as well as physical force. Forced sexual intercourse means vaginal, anal, or oral penetration by the offender(s). This category also includes incidents where the penetration is from a foreign object, such as a bottle. A rape victim can be either female or male and the rape can be heterosexual or homosexual.^

In NCVS, forced sexual intercourse doesn’t include men being made to penetrate. That’s a quantitatively significant form of rape. According to a U.S. official, national victimization survey, 1.3 million men per year are made to penetrate another sexually.^ Being made to penetrate another sexually is reasonably regarded as real rape. The NCVC survey instrument differentiates sexual assault from rape and attempted rape:

Enter Precode (13) {sexual assault} when the respondent was sexually assaulted in some way other than rape or attempted rape; that is, the sexual assault did not involve forced or coerced sexual intercourse or attempted sexual intercourse (for example, fondling the respondent’s breasts against her will).^

The NCVS Field Manual defines unwanted sexual contact without force thus:

Enter Precode (16), Unwanted sexual contact without force (grabbing, fondling, etc.), if the offender made some type of unwanted sexual contact without the use of force. For example, during the incident, the offender may have embraced, fondled, or touched the respondent against his/her will, but did not grab, push, or restrain the respondent in any way.^

Identifying rapes, attempted rapes, and sexual assaults requires classifying threats, including psychological coercion. Threats can constitute attempted rape or sexual assault. The NCVS requires field workers to interpret victims’ responses using a narrow definition of threats:

Only accept threats that are verbal, face-to-face threats to physically harm the respondent. Do not accept threats that an offender makes over the telephone, in a letter, FAX, or electronic message. Also unacceptable are threats or warnings delivered by another person for the offender, as well as a respondent saying that he/she just felt threatened.^

An NCVS screening question that probes for sex-related crime encompasses “unwanted sex”:

Incidents involving forced or unwanted sexual acts are often difficult to talk about. Other than any incidents already mentioned, have you been forced or coerced to engage in unwanted sexual activity by —

– Someone you didn’t know -
– A casual acquaintance -
OR
– Someone you know well?

Unwanted sexual activity does not necessarily imply a sex crime. For example, a man may have sex with his wife when he doesn’t want to have sex, but she does. NCVS officials identify within unwanted sexual activities those incidents that NCVS declares to be sex crimes. Both field workers and NCVS officials processing field workers’ reports make those judgments. Emphasizing the importance of NCVS officials’ crime judgments, the NCVS Field Manual advises field workers:

Since sex-related crimes are rare compared to other types of crimes, include as many details as the respondent is willing to provide. This is important so that we can classify any sex-related crimes into the correct category– rape, attempted rape, sexual assault, or unwanted sexual contact.

Avoid using phrases like “made sexually explicit comments,” “unwanted sexual contact,” or “unwanted sexual advances.” These phrases do not provide us with enough information to determine what actually happened. We need to know what was actually said, what parts of the body were touched, whether or not force was used, and so on.^

NCVS classifies as violent crimes victimizations that NCVS categorizes as attempted or completed rape, sexual assault, or verbal threats of rape or sexual assault.^ In its annual report Criminal Victimization, the NCVS reports under the heading “violent crime” the category “rape/sexual assault.” The category “rape/sexual assault” thus groups together a wide range of behaviors. Survey officials judge across that wide range of sexual behavior what behavior is unwanted sexual contact, sexual assault, attempted rape, or rape. While sex is common behavior, most persons have no clear understanding of the difference between the crimes of unwanted sexual contact, sexual assault, attempted rape, and rape.

Rape involves deep conceptual difficulties in surveying criminal victimization. Both the relevant case law concerning rape and perceptions of rape victimization vary widely across relatively common behavior. Consider the following statement/threat:

If you don’t have sex with me, I’ll stop going out with you.

That doesn’t count as a threat under the NCVS definition of threats. But persons receiving that threat and acquiescing to sex might well feel victimized. They might feel that they were forced to have unwanted sex via psychological coercion. Such incidents appear to meet the NCVS definition of rape. A leading work on unwanted sex that considers in detail the legal meaning of consent argues that such coercion should not imply the crime of rape.^ However, if the NCVS ignores such incidents, it may ignore deeply felt feelings of sexual victimization.

Recognizing emotional harm to be often the primary harm in sexual victimization implies recognizing broad possibilities for unwanted sex forced via psychological coercion. Suppose Abby’s intimate would feel deeply hurt if Abby had sex with Bill. Abby’s intimate also thinks that Abby having sex with Bill would be emotionally harmful for Abby herself. Suppose Abby said to her intimate:

If you don’t have sex with me, I’ll have sex with Bill.

Abby’s intimate may feel forced to have unwanted sex with Abby. If Abby’s intimate doesn’t have sex with Abby, Abby may feel forced to have unwanted sex with Bill. Do these circumstances imply that either Abby’s intimate will be raped, or Abby will be raped. Could Abbey’s statement/threat cause both Abbey and her intimate to be raped? Drawing force from both self-concern and other-regarding concern, Abby’s statement/threat is highly potent psychological coercion. Emotional harm is difficult to judge objectively. Perceptions of such harm can vary widely across intimately related persons. Statements interpreted as including a threat of emotional harm to multiple parties are likely to be relatively common means of sexual coercion.

Survey design, survey crime codes, and survey officials’ judgments appear to be much more significant than sampling error in rape victimization surveys. Beginning in 2008, NCVS reported standard errors for its annual rape estimates. The standard errors from 2008 to 2010 were about 20% of the estimated figures. NCVS annual rape estimates are based on a small number of incidents (36 to 57 from 2008 to 2010). The standard error accounts for sample size. The standard error doesn’t account for ambiguous categorization. Particular administrative decisions in judging the sexual crime for just ten incidents would cover roughly a quarter of the incidents that determine the NCVS annual national estimate of rape/sexual assault. Redesigns of NCVS have produced sevenfold increases in rape figures. Survey officials’ choices in defining and judging rape are much more important than standard errors in evaluating NCVS rape estimates. Those crucial crime definitions and crime judgments are publicly opaque.

NCVS has obscured in technical expertise fundamental challenges in surveying sexual victimization. The annual NCVS report for 1992, Criminal Victimization 1992, estimated 141,000 rape victimizations in 1992. Criminal Victimization 1993 estimated 607,000 rape/sexual assault victimizations in 1992, based on 1992 data from the redesigned NCVS. Criminal Victimization 1993 didn’t publish simple comparative figures showing the effect of the redesign on total estimated sexual crimes.^ It described the redesign as a matter of technical expertise:

the NCVS underwent a thorough, decade-long redesign to improve the survey’s ability to measure victimization in general and certain difficult-to-measure crimes, such as rape, sexual assault, and domestic violence, in particular.

A consortium of experts in criminology, survey design, and statistics performed extensive study and testing to update the questionnaire as well as survey procedures. Among the changes was the addition of sexual assault to expand the types of sexual crimes counted. Direct questions about these crimes were added to encourage victims to report to interviewers incidents that may have been committed by someone known to them.^

The large increases in rape reported by redesign in 1992 and 2010 aren’t merely a technical matter of better measurement. NCVS rape figures involve significant administrative judgments about sexual crimes. If NCVS doesn’t make those judgments transparently and reasonably, NCVS rape (or rape/sexual assault) figures aren’t objective, credible data.

A key survey administrative decision is how to treat men being made to penetrate sexually another person. Victimization surveys commonly haven’t even asked men if they have been sexually victimized by being made to penetrate. Major U.S. national surveys that have asked about sexual victimization in a gender-neutral way have found the prevalence of sexual victimization of men to be similarly to the prevalence of sexual victimization of women.^ If rape victimization is defined as nonconsensual sex, then being made to penetrate is real rape.

The public judgment of crime in a law-governed society differs from personally perceived victimization. The National Crime Victimization Survey tends to collapses the distinction between publicly defined crime and personally perceived victimization. Victimization of women attracts highly disproportionate public concern. The criminal justice system highly disproportionately incarcerates men. Because of its emotional potency, mis-information about sexual victimization is particularly pernicious in public discourse. Public discussion of sexual victimization, like public discussion of domestic violence, is deeply connected to disproportionate incarceration of men and mass incarceration.

Like the general category violent victimization, sexual victimization is highly prevalent and largely not punished through the criminal justice system. If evaluated without gender bias, sexual victimization is roughly equally balanced between women and men. Sexual criminalization, in contrast, is highly skewed toward men. In the U.S., massively increasing sex-crime punishment would greatly raise the already extraordinarily high incarceration prevalence and make even more unequal the already highly disproportionate incarceration of men.

Most victims of sexual victimization are not currently receiving justice through the criminal justice system. According to a prominent national survey, 21% of women in U.S. colleges in 1997 had been raped or suffered an attempted rape prior to the start of the 1996 school year. The report estimated that 4.9% of college women experienced rape or attempted rape in the prior calendar year.^ That survey of sexual victimization didn’t survey college men. Another prominent national survey declared in a pull quote that “nearly 1 in 5 women and 1 in 71 men in the U.S. have been raped at some time in their lives.”^ That figure for men doesn’t include as rape men being made to penetrate another sexually. Less prominently reported estimates indicate that about 6% of women and 5% of men in the U.S. suffer sexual violence each year.^ Those percentages amount to nearly 15 million persons per year. Victimization surveys thus provide enormous scope for expanding punishment for sex crimes.

Demand for much more extensive sex-crime punishment exists in the U.S. within an already extraordinarily punitive and gender-biased criminal justice system. The U.S has the highest prevalence of incarceration among countries around the world. The prevalence of incarceration in the U.S. is more than seven time greater than that in France and Germany. Moreover, the sex composition of prisoners is highly unequal: in the U.S., about ten men are incarcerated per women incarcerated. Currently the U.S. criminal justice system convicts about 32 men for rape or sexual assault for every woman convicted of those crimes.^ At least in part because men receive longer prison sentences than women do, about 80 men are in prison for rape or sexual assault for every woman in prison for those crimes. More extensive sex-crime punishment would raise the prevalence of imprisonment and increase the number of men in prison per women in prison.

Estimating the effects of more extensive sex-crime punishment depends on the deterrence effect of imprisonment. General deliberation about the deterrence effect of imprisonment has for decades been wide-ranging, contentious, and inconclusive. Surveys of sexual victimization typically find that most offenders are family members, friends, and other persons regularly known to the victim. Criminal penalties are likely to be less salient for sexual victimization in intimate or familial contexts than in other contexts perceived to be more publicly regulated. Much of the rape literature attributes the cause of rape to patriarchy, male dominance, or male attempts to affirm male control. The number of men in prison seems to have little relevance to these explanations. Such theories thus suggest that imprisoning more men isn’t likely to reduce sex crimes.

Consider the percent reduction in rape per additional million persons in jail or prison. Currently the U.S. holds in prisons about 1.6 million persons. What would be the effect on sex crimes of having another million persons in prison? No effect is a relatively common view in ongoing public discussion of deterrence. No one reasonably believes that incarcerating another million persons would nearly eliminate sexual victimization. A reasonable supposition is that having another million persons incarcerated would reduce rape by 10%.

Having additional persons incarcerated would make more persons subject to the relatively high prevalence of rape in prisons. Reported rape/sexual assault is roughly 500 times more prevalent in prisons and jails than outside. Sexual victimization of inmates occurs both as sexual activity with prison staff and in forced sexual activity between inmates. Reported inmate sexual victimization (sexual activity) with staff is about a third greater than reported inmate-on-inmate sexual victimization.^ The deterrence effect of incarceration estimated for non-prisoners has little relation to deterrence of inmate-on-inmate sexual victimization. Moreover, punishment for inmate-on-inmate rape typically doesn’t occur through normal criminal justice system procedures. Hence expanding incarceration for sex crimes is likely to have a much lower deterrence effect for sex crimes among persons already incarcerated. A plausible estimate is zero deterrence.

Greatly increasing penal punishment for rape implies massively increasing the prison population and a large but not unprecedented rise in the ratio of males to females in prison. Among persons convicted of rape or sexual assault, 82% of the men and 43% of the women are sentenced to incarceration. Suppose that the criminal justice system convicted of rape yearly as many sex-crime offenders as prominent estimates of rape victimization suggest. That would imply an additional 1.1 million men and 23 thousand women incarcerated per year. Men and women incarcerated for rape/sexual assault spend on average 5.5 and 3.8 years, respectively, in prison. Under the 10% deterrence parameter, the number of persons in prison would rise from 1.6 million to 6.9 million in five years. The ratio of men to women in prison would rise from 13.3 to 24.1. The prison sex ratio doesn’t rise to nearer the current rape conviction ratio of 32 men per woman in part because prison-staff sex crime is much less sex-skewed than rape convictions are. Prominent estimates of rape/sexual assault victimization do not include men made to penetrate another sexually. If such victimization were recognized as real rape, the projected increase in prison population would be much greater and much less biased toward men.

Under reasonable model definitions and parameters, massively increasing penal punishment for rape would reduce sexual victimization of women, but increase sexual victimization of men. Given the proportionate 10% deterrence parameter, the model shows that total rape assault would be 34% lower with a prison population of 6.9 million persons. Rape of women (inmates and non-inmates) would decline 35%. However, rape of men would increase 71% because of the much larger number of men in prison. Even with the projected increase in incarceration to 6.9 million persons, rape victimization would be about a million persons per year. Further increases in incarceration would be needed to deter further rape victimization.

Sexual criminalization should be considered in relation to the overall functioning of the criminal justice system. While sexual victimization is roughly balanced across sexes, most persons convicted for rape or sexual assault are men. Estimates of rape victimization are on the order of two hundred times greater than current felony convictions for rape and sexual assault. Estimates of sexual victimization potentially imply major increases in the scope of the criminal justice system and in the criminalization of men. These fundamental facts are important for reasonable public consideration of how to best reform the way the criminal justice system punishes sexual victimization.

A law review article published in 2005 proposed defining a new crime: “reckless sexual conduct.” The article’s authors are Ian Ayres, William K. Townsend Professor at the Yale Law School, and Katharine K. Baker, Professor of Law and Associate Dean, Chicago-Kent College of Law. Professors Ayres and Baker are, in short, eminent professors at leading U.S. law schools. Their article appeared in the prestigious University of Chicago Law Review. Their article explicitly thanked for comments a roster of important law professors and institutions:

Jennifer Brown, John Donohue, Steve Heyman, Christine Hurt, Christine Jolls, Edward Kaplan, Barry Nalebuff, Kate Stith, Richard Storrow, and seminar participants at Dickinson, Harvard, Iowa, University of Missouri-Kansas City, and Yale law schools (as well as the Yale Epidemiology and Public Health Department)

The article was written with the assistance of at least six acknowledged subordinate research workers (two women and four men). The article apparently is a weighty work of legal scholarship. It suggests that the criminalization of men is of little concern in legal scholarship concerning criminal law.

The article’s proposed criminal statute formally obscures that it effectively further criminalizes men. The proposed criminal statute is headed “Reckless Sexual Conduct.” Its first clause:

(1) A person is guilty of reckless sexual conduct when the person intentionally engages in unprotected sexual activity with a person other than his or her spouse and these two people had not on an occasion previous to the occasion of the crime {the new crime defined in the proposed statute} engaged in sexual activity.

Subsequent statutory text defines “sexual activity” as “penile penetration of a vagina or anus accomplished with a male or female” and “unprotected sexual activity” as sex without using a condom.^ The authors explained that this is “purposefully, a very limited definition of sexual activity.” Their purpose is to “try to maximize legitimacy and therefore enforcement.”^ Focusing criminalization on penises maximizes legitimacy in a legal culture that isn’t concerned about the criminalization of men.

The proposed new crime effectively allocates to men criminal responsibility for having first-time sex without a condom. The proposed statute uses sex-neutral terms “person” and “his or her.” However, the proposed statute’s definition of sexual activity is penis-focused. What would be the balance of risks of criminal punishment under the proposed statute if a man and woman engaged in first-time, consensual, non-condom-impeded sex? Pondering complex issues of interpreting the somewhat ambiguous proposed statute really isn’t necessary. Until 2012, the FBI limiting reported rape to rapes of females. Official reports on sexual victimization commonly exclude “made to penetrate” from statistics on rape and sexual assault. Domestic violence law and policies gender profile men for arrest. Imprisonment is imposed highly disproportionately on men. The balance of risks of criminal punishment for a man and woman engaged in first-time, consensual, non-condom-impeded sex under the proposed statute surely would tilt overwhelmingly toward criminalizing men.

The authors designed the proposed law to obscure its substantial discrimination. The authors noted that they rejected “giving women a per se defense against prosecution”:

Our deeper concerns are prudential. We worry that the social meaning of this de jure disparate treatment against men might undermine the effectiveness of the statute. … The appearance of unfairness is important. … one can imagine pathological circumstances (gun-to-the-head scenarios) in which a woman would in fact be prosecutable.^

This attempt to manage the “appearance of unfairness” is formally shrewd and communicatively effective. The article as a whole effectively conveys the understanding that men should be criminally responsible for having consensual, first-time, non-condom-impeded sex with women. At the same time, the formal statute obscures that effect and provides arguable formal deniability.

The proposed new crime of reckless sexual conduct would apply to sexual activity of about three million men in the U.S. per year about the year 2002. Roughly 13 million unmarried men ages 15-44 have sex with a new partner in the U.S. in a given year. In its cost-benefit analysis of the proposed new crime, the article uses 10% to 100% as figures for the share of the share of first-time sexual encounters in which the couple uses a condom.^ Among U.S. men ages 15 to 44 in 2002 who first had sexual intercourse from 1995-2002, 32% had sex without a condom in their first sexual intercourse.^ A reasonable estimate is that 25% of men who have sex with a new partner in a given year have that sex without using a condom. Hence roughly three million men a year would be subject to prosecution under the newly defined crime.

While the proposal to criminalize men for first-time sex without a condom emphasizes improving communication among first-time sexual partners, the proposal obscured communication within the criminal justice system. How would information that a man has engaged in first-time sex without a condom be generated within the criminal justice system? If a rapist did not use a condom in first-time sexual intercourse with a rape victim, the rape victim could report first-time sex without a condom, but surely the legal system should encourage rape victims to report rape. If a couple engaged in first-time sex without a condom, but the penis-penetrated partner did not want the penis-baring partner to suffer punishment, the crime of first-time sex without a condom would go unreported. Without totalitarian relationship-tracking and video surveillance systems, police cannot police first-time sexual encounters, or even identify first-time sexual encounters. Criminalizing men who engage in first-time sex without a condom would create a crime that could not be generally enforced. The criminal justice system could detect that proposed crime only when a man is accused of rape, or when the penis-penetrated partner (or a physician with whom the penis-penetrated partner confides) wants the man to suffer punishment. The proposed crime is not substantially a new rule of law. It is substantially an additional instrument for punishing men.

While the article provided a model statute for criminalizing men who engage in first-time sex without a condom, the article did not discuss the proposed statute’s sidestepping of U.S. criminal procedure and trial by jury. By the Sixth and Fourteenth Amendments of the U.S. Constitution, as interpreted by U.S. courts, persons accused of a crime that carries a prison sentence of six months or more are entitled to trial by jury and other constitutional rights of the accused. Persons accused of rape or sexual assault thus are typically entitled to trial by jury and other constitutional rights. Trial by jury engages ordinary citizens in the administration of criminal justice. Trial by jury fosters public communication about the actual practice of criminal justice administration. For men who engage in first-time sex without a condom, the article proposed the punishment “imprisonment in the state prison for up to three months, or a fine.”^ While state prisons normally hold persons sentenced to imprisonment of a year or longer, the proposed shorter prison sentence shrewdly places adjudication of this new sex crime outside of the constitutional protections of public criminal trials. The proposed crime would be adjudicated more tightly within legal culture and more distantly from communication with ordinary citizens. The proposal apparently doesn’t value general public deliberation about the criminalization of men.

Underscoring its lack of concern about criminalization of men, the article presented outdated rape statistics and engaged in no critical analysis of those statistics. The article, which includes references dated through February 2005, stated:

crime victim survey data from the mid- 1990s suggest that each year an estimated 500,000 women are victims of some form of rape or sexual assault.^

That cited statistic is based on National Crime Victimization Survey (NCVS) data from 1992 and 1993. NCVS rape/sexual assault statistics have major conceptual and statistical weaknesses. By the early 2000s, the NCVS was estimating about half as many rape/sexual assault victimizations per year as in 1992 and 1993. Criminalization of sexual victimization has important implications for incarceration. Concern about mass incarceration should motivate citing the best, most current statistics on rape/sexual assault, not the highest ones. Concern about highly disproportionate imprisonment of men should be relevant for legal scholars’ thinking about further criminalization of men.

The article’s discussion of false rape accusations underscores lack of concern for the highly disproportionate imprisonment of men. Regarding false accusations of rape, the article stated:

Current research suggests that the propensity of women to make false reports of acquaintance rape is extremely low. {footnote omitted} As Bryden and Lengnick summarize, “The conventional wisdom now is that the proportion of false reports is negligible, perhaps as low as 2%, a figure said to be comparable to that for most other major crimes.” ^

This “social science research” plays a key role in the article’s arguments.^ However, the article did not fairly cite its source. Immediately following the above quotation, the source continued with these sentences:

This new orthodoxy may well be correct, but, like the contrary opinions of Hale and Wigmore, it derives more from intuition than from common experience or scientific evidence. Although many have tried, no one has succeeded, either deductively or empirically, in demonstrating that the proportion of false rape reports is either low or high.^

The claim that “false reports account for only about 2 percent of rape complaints” had become by the end of the 1990s regularly asserted and widely accepted among legal academics. Nonetheless, an independent scholar’s research, published in the year 2000 in a low-ranking law review, showed that all examined instances of that assertion could be traced back to a highly normative work that offered an “interpretation of some data, now a quarter-century old, of unknown provenance from a single police department unit.”^ Evidence on reported inmate sexual victimizations indicates that 30% of rape allegations are false. An additional 50% of rape allegations lack sufficient evidence for substantiation.

The proposed crime of first-time sex without a condom encodes lack of concern about false accusations. The proposed criminal statute specifies that a person (man) accused of having sex without a condom has the legal burden of affirmatively showing unequivocal consent to first-time sex without a condom.^ A man facing a false accusation of not gaining consent for not using a condom surely couldn’t meet the burden of demonstrating unequivocal consent. The article’s proposed crime would criminalize about three million men per year in the U.S. about the year 2002. Even a false accusation share as low as 2% implies, under existing behavior and ideal enforcement, about 60,000 men per year imprisoned on false accusations. For comparison, U.S. courts sent 34,320 women to state prisons in 2002 on new commitments for any crime. By this metric, the article’s proposed crime implies a relatively large number of men being imprisoned on false accusations.

The article preemptively attacked any man who would express concern about false rape accusations. The article declared:

The kind of man who does not particularly care about the quality of a woman’s consent may be the same kind of man who will find the risk of this new crime to be most salient. This is because men who hold women in low esteem are likely to overestimate the risk of being falsely accused. This “irrational” fear of false rape accusations is well established in the literature. {footnote omitted} The statute {criminalizing men for first-time sex without a condom} harnesses this misogynist bias^

Being characterized as a man “who does not particularly care about the quality of a woman’ consent,” “who hold{s} women in low esteem,” and who is a misogynist is likely to be emotionally and professionally damaging. The harm is likely to be particularly severe when that characterization carries the authority of leading law professors writing in a scholarly article published in a leading law review. In response to the threat of personal harm, a reasonable man might decide that he has no alternative but to remain silent about the risks of the proposed new crime.

Successful law professors consider carefully the career costs and benefits of scholarly arguments. They generally avoid criticism that might lead to “accusations of ‘non-collegiality’ that are easily dispersed by the gelatinous sob brotherhood of the legal academy.”^ Male law professors should fear the anger of the legal academy’s sob sisterhood even more than that of its sob brotherhood.

Law scholars’ responses to the proposed new crime illustrate results of intellectual, emotional, and professional constraints and interests. The article proposing the new crime of reckless sexual conduct has been cited about 25 times in scholarly law literature. Only one of those citing articles contains any substantial criticism. That unique article provided detailed legal analysis leading to a highly negative evaluation:

The proposal, however, is deeply flawed. As a public health regulation, this proposed statute is highly problematic. It is overinclusive, thereby punishing the morally innocent. Moreover, its conception of consent as an affirmative defense fundamentally misunderstands criminal responsibility. … this proposal is morally objectionable and constitutionally impermissible: it punishes the innocent and improperly allocates the burden of proving consent to the defendant.^

The author of this critique was Kimberly Kessler Ferzan, a law professor at Rutgers School of Law. Her critique was published in the University of California Davis Law Review. In the legal academy’s status hierarchy, her review ranks far below the critiqued article’s explicit associations with Yale, Harvard, and Chicago. In accordance with the legal academy’s norms of deliberative cartelization, Ferzan arranged for pre-publication review of her arguments by the authors of the article she critiqued:

For comments on drafts of this manuscript, I thank Ian Ayres, Katharine Baker, Michael Dorff, Doug Husak, Jay Feinman, Dennis Patterson, and Ray Solomon.

Ferzan’s primary concerns in her published critique are the legality of public health measures and gynocentric rape reform. More generally, the proposal for extraordinary further criminalization of men didn’t prompt in the legal literature any responding review discussing the prison population’s enormous sex disparity and criminalization of men. Those profound legal and human issues appear to be largely undiscussable within legal scholarship. Legal scholarship favors work such as lengthy analysis supporting greater criminalization of men self-deluded about their presumed actual guilt of date rape.^ Legal scholarship lack of concern for imprisoning men points to highly significant failure in public discourse.

The highly unequal prisoner sex ratio has generated historically only sporadic concern about sex inequality in the administration of criminal justice. In the nineteenth-century U.S., a few outspoken advocates of sex equality condemned the disparate treatment of men and women. For example, in 1835, a member of the Pennsylvania House of Representative vehemently criticized legal advantages arising from wealth, family, and powerful social connections. He vigorously challenged those with “respectable connexions” who “rush in a mass to rescue one of their number.” He associated with such injustices special privileges for women:

though women are frequently the principals as well as accessories to crime, courts and juries rack their ingenuity and strain their consciences in order to acquit them of the consequences of guilt ^

The legislator forcefully condemned sex bias in the administration of criminal justice:

sex or condition should not sanctify crime. The crime alone should be taken into the consideration of courts and juries – not the sex or circumstances of the criminal. … it must be a morbid sensibility of the dispensers of the law which can induce them to licence offences in the one sex, which they scrupulously punish in the other; a sensibility seriously detrimental to the best interests of society.^

Members of the Prison Association of New York in 1863 expressed similar concern:

The committee feel impelled, at this point, to remark that the whole spirit of the administration of penal law concerning women, or rather the application of criminal law to women, requires reform. The country swarms with female thieves, pickpockets, shoplifters, swindlers, pimps, seducers of poor girls, &c., &c. Yet, we hear of few women being tried and fewer still being convicted, upon the principle, degrading to the character of the woman, that she is less responsible, and therefore less punishable, than the man.^

Equally responsible individuals are central to ideals of active liberty and self-government. The idea that the crime, rather than the sex of the criminal, should determine punishment is consistent with ideals of democratic equality and equal justice under law.

Throughout history, criminal justice systems in practice have treated men and women unequally. A scholar who studied criminal verdicts and sentences in England about 1780 to 1820 concluded, with due respect for contemporary scholarly decorum (note reference to “complex contradictions of patriarchy”), men received much harsher punishment:

what seems clear is that somewhere within the complex contradictions of patriarchy, the interaction of various forces meant that female offenders accused of crimes in the major courts of late eighteenth- and early nineteenth-century England frequently succeeded in obtaining much more lenient treatment than their male counterparts.^

Another scholar recently found that in late nineteenth-century and early twentieth-century U.S. women used battering, romantic rejection, alcoholism, and temporary insanity much more successfully as defenses against charges of intimate homicide than did men:

Based on close analysis of New York and Colorado intimate homicide cases, this article suggests that in such cases, lenient treatment of female defendants and harsher treatment of their male counterparts constituted a typical pattern in both the eastern and the western United States between 1880 and 1920. Both men and women faced murder charges. However, while prosecutorial zeal to convict male defendants accorded with public opinion, {all-male} juries showed their aversion to the severe punishment of women, many of whom had been seduced, physically abused, or trapped in dire economic circumstances.^

How many of the male defendants were trapped in dire economic circumstances, physically abused, or seduced isn’t a concern. In 1919, the Chicago Daily Tribune noted that over the past twelve years in the county encompassing Chicago (Cook County), twenty-nine women had been tried for acting alone to kill a man. Twenty-six of those had been freed.^ In a subsequent (1922) sardonic article, the Tribune reported:

The Chicago man and the wife who hid under his bed with a horsewhip in a St. Louis hotel and administered a sound beating to him and to the girl who entered the room with him are reported to be reconciled.

That was an old fashioned wife. A thoroughly modern one would have shot either the husband or the girl, or both. Then probably she would have been acquitted by a jury and given a running start toward theatrical stardom. But she would have been subjected to some unpleasantness and expense, and certainly would have lost a husband. This one merely chastised the spouse and girl whom she suspected of irregularities, and now all appears to be well.

It is not a modern method of triangular settlements, but it has its advantages. We recommend it to the gun women in lieu of shooting. So far as the records show, no murdered husband has ever been successfully restored to his wife or family.^

The situation remained unchanged in 1935, when a Chicago journalist provided a lengthy investigative report:

A woman still can commit murder in Cook County and stand a better than even chance of escaping punishment, especially if she chooses her husband as the victim, more especially if she is young and attractive. The statement is borne out by records of the Criminal court, which show that only two out of every nine women tried for murder in Cook County since 1906 have paid any penalty. The greater number of these women killed their husbands. The few who were sentenced to prison were either old, unattractive, or both.^

These and other contemporary newspaper accounts indicate widespread recognition that men were treated more harshly in the criminal justice system. Justifications for this disparity included (1) “basic instinct for the preservation of the species”; (2) “well-grounded custom”; and (3) “women’s rights” and “men’s wrongs,” e.g. emphasizing that men regard women as “property,” that women are “just realizing that they are free and are demanding humane, decent treatment,” that men try to settle arguments with women using “brute force”, that women kill men as a matter of “self-preservation”; and that “women are far from political, social, or economic equality with men.”^ These justifications, put forward in letters to the Chicago Tribune in 1923, probably were common currency in public discourse even earlier. They draw on deeply rooted gender stereotypes and rhetorical appeals still effective today.^ By 1980, they had been elevated to a claim that blurs the boundaries between misandry and misogyny: “The story of women who kill {men} is the story of women.”^

Criminal justice is a core function of the state. Deprivation of personal liberty through incarceration is a highly significant state action. The U.S. has extraordinarily high prevalence of incarceration. The sex ratio of incarcerated persons is strongly skewed toward men. Highly sex-disparate incarceration has attracted little public concern. Anti-men gender bias in criminal justice is not merely a justice system problem. It’s also a more general problem of public communication.

Criminal justice sentencing is not sex-neutral in practice. A high-quality empirical study of U.S. federal criminal cases concluded:

Conditional on arrest offense, criminal history, and other pre-charge observables, men receive 63% longer sentences on average than women do. Women are also significantly likelier to avoid charges and convictions, and twice as likely to avoid incarceration if convicted.^

Other studies have found similar results.^ ^ Sex bias in criminal justice system action is simply apparent in comparing sex ratios of commitments to prisons and jails to sex ratios of persons held in prisons and jails. Because the criminal justice system tends to hold men for longer, the ratio of men to women in prison or jails is about 50% higher than the ratio of men to women committed to prisons or jails. Publications of the U.S. Bureau of Justice Statistics obscure this sex disparity.

Under a 1984 sentencing reform act, the U.S. Sentencing Commission was formed and directed to “assure that {sentencing} guidelines and policy statements are entirely neutral as to the race, sex, national origin, creed, and socio-economic status of offenders.”^ Leading authorities associated with the Commission recognized sex disparities in sentencing, e.g. “female bank robbers are likely to serve six months less than their similarly situated male counterparts.”^ Lack of sex neutrality in administering justice is a serious injustice.

The U.S. Sentencing Commission’s directive that sentencing guidelines be “entirely neutral” with respect to sex did little to address disparate treatment in sentencing. In its 2004 report, Fifteen Years of Guideline Sentencing, the Sentencing Commission noted:

Unlike race and ethnic discrimination, the evidence is more consistent that similar offenders are sometimes treated differently based on their gender. Gender effects are found in both drug and non-drug offenses and greatly exceed the race and ethnic effects discussed above. The typical male drug offender has twice the odds of going to prison as a similar female offender. Sentence lengths for men are typically 25 to 30 percent longer for all types of cases. Additional analyses show that the effects are present every year.^ ^

The report found that the sex disparity in sentencing was larger in 2001 than in 1984.^ Covering this high-profile sentencing report, The Wall Street Journal issued a news article entitled “Commission Finds Racial Disparity in Jail Sentences.” The article did not mention gender disparities.^ The New York Times titled its news article, “Sentencing Guideline Study Finds Continuing Disparities.” That article reported:

The panel {conducted by the U.S. Sentencing Commission} examined how well the guidelines had brought uniformity to punishments, and found that while sentencing had become “more certain and predictable,” disparities still existed among races and regions of the country, with blacks generally receiving harsher punishment than whites.^

A syndicated version of the article was entitled, “Study examines sentencing rules; Racial disparities persist, despite guidelines.”^ Neither article mentioned gender disparities. The Sentencing Commission’s finding that men generally receive longer prison sentences than women apparently wasn’t newsworthy. Perhaps everyone knows that’s true and no one cares.

Men are invisible in legal deliberation about bias in the criminal justice system. In 2003, in an influential speech to the annual meeting of the American Bar Association (ABA), a high-ranking U.S. judicial official raised fundamental questions about the fairness of the criminal justice system. He noted:

We must confront another reality. Nationwide, more than 40% of the prison population consists of African-American inmates. About 10% of African-American men in their mid-to-late 20s are behind bars. In some cities more than 50% of young African-American men are under the supervision of the criminal justice system.^

The ABA President promptly organized an ABA commission to examine the criminal justice system. The ABA Commission considered:

Why more than 60 percent of our 2.1 million prison population are people of color and more than 20 percent are Hispanic.^

The ABA Commission did not consider why about ten men were in prison per woman in prison. It focused on racial and ethnic bias, detached from any reference to men. Thus, in accordance with the ABA Commission’s recommendations, the ABA resolved:

That the American Bar Association urges states, territories and the federal government to strive to eliminate actual and perceived racial and ethnic bias in the criminal justice system. By enacting measures that would:

(1) Establish Criminal Justice Racial and Ethnic Task Forces ….

(2) Require law enforcement agencies to develop and implement policies and procedures to combat racial and ethnic profiling…

(3) Require legislatures to conduct racial and ethnic disparity impact analyses to evaluate the potential disparate effects on racial and ethnic groups of existing statutes and proposed legislation; …propose legislative alternatives intended to eliminate predicted racial and ethnic disparity at each stage of the criminal justice process.^

Does the highly disproportionate imprisonment of men not matter? Are men of color not men?

Legal deliberation that addresses gender disparities in the criminal justice system often emphasizes differences that would be illegal or highly impolitic to emphasize in other policy discussions. A typical argument is that women’s care for their children is more important than men’s care for their children, and that the separation of women from their children hurts children more than the separation of men from their children. That would be a highly contentious assertion in considering daycare policy or employment discrimination.^ Yet in deliberation about the criminal justice system, such arguments pass as accepted wisdom. A high-ranking judge in the English legal system recently noted:

Many years ago, when training as a baby judge, I heard a very experienced judge comment that he was reluctant to send a woman to prison because she was usually the more useful member of the family.^

An employer who offered such an explanation for not sending female business executives on out-of-town trips could face a massive employment discrimination lawsuit. A leading legal historian addressed sex discrimination in sentencing with an anecdote:

One judge in the Washington, D.C. area, who allowed he was, in fact, more lenient to women, could not explain why, except to say that “I love my mother very much.”^

Sex bias in sentencing can be considered using systematic empirical evidence, but such evidence has attracted relatively little attention. Responses not otherwise tolerable apparently suffice for addressing the large sex disparity among persons in prison.

Scholarly discussions of gender and criminal justice center on arguments that the criminal justice system should discriminate more so as to imprison fewer women. Women’s crime is different from men’s crime. Women offenders are victims, while men offenders are offenders. Women experience prison differently from men (women suffer more in prison, while men have been taught to take it like a man). Women prisoners have special needs, while men are regularly disposed in prison (or in death or in exile), or alternatively, in military service. All these assertions of difference are deeply rooted in gender stereotypes. Scholarly discussion of gender and criminal justice typically has not challenged these gender stereotypes, but rather has exploited them and re-enforceed them.^ ^ ^ ^ ^ ^

Consider, for example, an article entitled, “Gender, crime, and the criminal justice system.” The Principal Research Officer in the U.K. Home Office Research and Planning Unit authored this article. It was published in 1995. About twenty-five men were then in prison in England and Wales for every woman in prison there. The article set out to consider “whether there is any research or statistical evidence to support the view that women and girls are discriminated against in the criminal justice system.” Frustrating its framework of inquiry, the article concluded that “women appear to receive less severe sentences than men.” The article then suggested that existing research evidence indicates that the sentencing bias against men is a “legitimate reflection” of various (unaccounted for) circumstances, but also that the evidence “is equivocal.” As is conventional for authors interested in doing research, the author concluded, “more large-scale studies which control for a wide range of legal and social factors are required.”^ The suicides of six female prisoners in 2003-2003 subsequently generated many studies putting forward proposals that would raise the ratio of men in prison per woman in prison.

Men leaders have designed prisons primarily for men, who make up the vast majority of prisoners. Men’s leadership in imprisoning men is unremarkable. A recent scholarly article noted, “As the unmarked gender category, men are ‘the norm,’ the universal nongendered offender.” But rather than exploring possibilities for lowering the ratio of men in prison to women in prison, the article suggests

we might imagine a form of gender neutrality that is female-normed, and we might fashion an equal treatment punishment scheme in which women, not men, are the standard.^

An “awkwardly simple” alternative is to reduce greatly the number of men in prison, so as to make men prisoners much less numerically prominent.^ That alternative seems unutterable within public deliberation about criminal justice.