УДК 343.8
Tishchenko N.V.
GENDER EXAMINATION OF THE CRIMINAL LEGISLATION OF RUSSIAN FEDERATION
State Technical University, Saratov, Russia
Introduction
In 1998 Penal Code, Code of Penal Procedure and Criminal-executive Codes of the Russian Federation have been brought into accord with positions of the International and European Conventions under human rights. Articles of codes were carefully checked by experts on presence of legal guarantees and a gender neutrality for accused and prisoners. However the criminal law continues to cause censures from gender theories and, the most important thing, it didn't promote decrease in quantity of the women sentenced to imprisonment, and, on the contrary, is accompanied by growth of recidivism among women. In this part of work we will try to reveal mechanisms of gender discrimination and segregation in rhetoric of criminal law. Research is based on the discourse analysis of the domestic legislation in the field of criminal law, the supervision spent in a number of correctional facilities, and interview to chiefs of the department on an execution of the punishment.
We will try to discover typical strategies of forming the gender identity in subcultures of penitentiary institutions using the material of survey research which was made in male and female colonies. The theoretical basis for realization of the main aim will be the concept of «hegemonic masculinity» (introduced by R.Connell) which consists of certain ideal strategy of behavior in culture that determines the interrelation between sexes and recurrence of present gender procedure. R.Connell thinks that superiority and hegemony of masculinity are supported by historical coincidence and stratification of two concepts such as: «authority» and manhood [3, 73]. At first sight prison community with its strict hierarchy of subordination and domination, its great number of subcategories that are divided by very different features from ethnic characteristic up to sexual orientation, ideally correspond with conception of hegemonic masculinity. But from the opinion of R.Connell the most key factors that support the institutional hidden motive of hegemonic masculinity are the homosocial communities that are distinguished by internal solidarity, unity and confidence based on sexual identity. The distinguishing feature of prison community is a high level of distrust toward the «neighbor in prison camera», administration and society as a whole.
Substantive provisions of gender criticism of the criminal legislation
The operating Criminal-Executive Code of the Russian Federation is installed on July, 1st, 1998. From hundred ninety articles Wick the Russian Federation in 21st conditions of serving of punishment, a delay of punishment make a reservation and is conditional-early release for women. Entirely to position of the woman in correctional facilities it is devoted three articles – № 100, 177, 178. In 17 articles it is a question of «pregnant women» or «the women having juvenile children» [14]. The Penal code of the Russian Federation in 9 articles confirms special rules of punishment for women, but only for pregnant and having children under six years. Besides, in three articles of Penal code of the Russian Federation pregnancy of the woman is treated as aggravating circumstance, in a case when the woman is object of violence [13].
In the conditions of the compulsory conclusion cast and punishment measures occurs according to a following principle: «Biological» features of the woman simultaneously define characteristic features of" female crimes »and a particular treatment of punishment for women. According to ГУИД the Ministry of Internal Affairs of the Russian Federation, in 1994 was in imprisonment places of 23066 women that made 3,9 % from total number of the condemned. By 2000 the quantity of the condemned women has grown in 2,5 times that makes about 60 thousand (5 % from all condemned): 45 % of women-criminals are condemned for fulfillment of profit-motivated crimes; 20 % – for robbery and a robbery; 15 % – under article 228 connected with drugs; 16 % – for murder, including for excess of measures of necessary protection; 4 % – for drawing of heavy physical injuries. With 2000 to 2006 the quantity of the condemned women has grown on 38 % [12]. According to legal experts, the Criminal code of the Russian Federation for 35 % of crimes which, on the statistican make women, provides punishment in the form of imprisonment from 8 till 15 years that excludes reception of a delay of punishment or enough fast is conditional-early release even in the presence of juvenile children. But 65 % of the crimes made by women, don't demand according to Penal Code long-term imprisonment. Small thefts and swindle, characteristic for female criminality, carry the overwhelming majority of lawyers and jurists to a category of crimes which shouldn't be punished today by full imprisonment, and can be punished through system of partial imprisonment, the penalty, corrective works. However the domestic judicial reality shows an opposite tendency: 91 % of the women condemned by term from 1 till 5 years, completely leave the term of punishment [12].
One of important points of criticism of criminal law and criminal practice from gender theories is strategy of criminalization of women from the law: it is considered that women and minor girls become more often objects of criminal interest, than the man [7, 49-51]. If to consider imprisonment practice in the majority of the countries (excepting the states where Islam is declared by the state religion) on one woman it is necessary from 6 to 15 condemned men [10, 256-257]. However the foreign right very much willingly and flexibly uses ways of punishment alternative to imprisonment, and in this case women, really, are exposed to prosecution from the law is more often. It is connected by that many Penal Codes the foreign states mean for women-prostitutes, disseminators of drugs, small thieves punishment in a kind of the probation (as in England) or a compulsory premise in educational houses (as in Japan) whereas for the men engaged in prostitution or extending narcotics, any similar measures it is not provided [5, 118-124]. In Russia the Criminal code doesn't use similar kinds of punishments. Here it is necessary to note presence in many countries of a divergence between the legislation and real practice. In criminal codes the sex of subjects of various crimes doesn't make a reservation, but in practice these crimes make, as a rule, women, and the legislation involuntarily appears discrimination. Certainly, the vivid example of similar gender discrimination is the situation in Tajikistan. According to Penal Code of Tajikistan transportation of narcotics is punished till 25 years of imprisonment. As shows the statistican, the overwhelming majority of similar crimes is made by the women using the organism as the container for drugs.
For Russia the question of violent criminalization of women is extremely actual, it shows gender powerlessness of criminal law and jet, "catching up" character of social policy in sphere of an execution of the punishment. To find out an origin of mechanisms of replacement or distortion of concept «a social sex» from sphere of the legalized discourse, we suggest applying the discourse analysis concerning legislative base of system of an execution of the punishment. Under the discourse analysis we understand narrative and semiotics interpretation of the discourse expert, including actually rhetorical, language practice and practice not language, demonstrated in steady social and cultural preferences.
Last years analysts mark in Russia considerable growth of profit-motivated crimes among women. The quantity of illegal actions in the economic sphere, made by women, for last five years, has grown in 1,7 times, and number of similar crimes among men – in 1,2 [9, 150-156]. This fact in many respects grows out of that in the conditions of a rigid competition of developing economy female work admits even less productive and less paid, than a stability and prosperity situation. In reforming and radical transformation of economic and social statuses of the woman first of all are forced out from a labor market, them dismiss is more often, send in indefinite leaves (since the employer means that each woman is connected by certain relations with the man who is capable to contain its and all family).
Representatives of the Saratov sociological school had been conducted research of social problems and social work on an ethnographic material of social services of one of large Russian industrial cities. Concerning female employment by authors the conclusion has been drawn that for today in Russia it is a question not only «of concentration of women in this or that sector of economy, but also about their ghettoization» since the female population concentrates in low-paid sectors of economy [17, 78-83].
It is necessary to notice that growth of economic crimes among women occurs in areas, besides, low-profit and low-paid: a deceit of consumers, small swindle. It doesn't tell about higher "morally - moral" qualities of women, about them adherence to principles and honesty; it testifies that the profitable part of economy, manufacture and financial structures is still closed from women. The statistical data confirms this conclusion: to 90 % of the women who have been not occupied in the industry, work in trade, bank system, social sphere and on telecommunications agencies [11, 140].
In the same way, as the woman isn't capable to be engaged in socially significant work, it can't commit such crimes which really would threaten existence of this or that society – for the legislator this assumption is obvious to what articles Wick the Russian Federation testify. In section 4, chapter 11, article 74 at transfer of kinds of correctional facilities and types corresponding to them condemned the law accurately defines a limit of danger and threat of the crimes made by men and women, and in each correctional facility the danger proceeding from men-criminals appears 10 times more. This is the text of article 74, confirming this conclusion:
“5. In corrective colonies of a high security the men for the first time condemned to imprisonment for fulfillment especially of grave crimes serve time; at relapse of crimes and dangerous relapse of crimes if condemned earlier left imprisonment, and also the condemned women at especially dangerous relapse of crimes.
6. In corrective colonies of a particular treatment the condemned men serve time at especially dangerous relapse of the crimes, condemned to lifelong imprisonment, and also condemned with which the death penalty as pardon is replaced by imprisonment with certain term or lifelong imprisonment” [14].
Certainly, the order of punishment legalized by this article, it is possible to treat, how "humane" in relation to women-criminals whom the law tries to "save" from extremely strict punishment. However all is only ideologically defensible visibility. To women not a place in particular treatment colonies not because the legislator cares of a mental and physical condition of the woman placed in severe conditions of the maintenance that is why that the legislator again and again confirms a cultural order at which discrimination and a segregation of women is a part of effectively functioning system of relations.
To support this system of relations codes of the Russian Federation are called all without an exception. So, the Labour Code operating since 2000, through system of restriction of access of women to the trades connected with heavy physical work, and the inefficient, subsidized politician concerning motherhood, intentionally limits a choice and freedom of the woman, establishes barriers on its way to consumption of the social blessings. Socially safe society shouldn't build the policy through system of gender interdictions and admissions. Resolving or forbidding the woman to work in conditions with risk for health and life, to serve in army, to be in particular treatment colonies and so forth, the state cares, first of all, of own, corporate interests, and ignores requirements and expectations of the concrete woman.
Inexpediency of the rectilinear social policy traditional for domestic state system, is especially obvious in imprisonment places. In practice legislative initiatives concerning women, pregnant and having juvenile children, lead to a discrimination intensification to a sexual sign in correctional facilities. The concept «easier mode of the maintenance» in legislative rhetoric doesn't mean respect for the parent status of the woman, a recognition of psychophysical features and requirements of the woman, it stipulates the list of material and financial expenses which should incur correctional facilities, in whose walls "mothers" contain. In reply to the requirement of material inputs the penitentiary system answers with mental and physical violence over women: compulsory gynecologic "searches", absence of hygienic means in colonies, refusal in possibility to be near to the baby and so forth.
The gender policy in the prisons
The modern Russian legislation is the sample of an unreasoned gender policy. At first sight, it aspires to creation of an optimum social climate for existence of the woman. Wick the Russian Federation provides only three-monthly conclusion of women in a premise of chamber type for malicious infringement of an order (men for similar infringement the six-monthly conclusion expects), and women pregnant and having juvenile children are released from application of such disciplinary measures [14]. This fact doesn't say that the law hasn't left possibility of distribution of latent discrimination. During interview to employees of bodies of an execution of the punishment presence was found out from the majority of them serious negative attitude to female correctional facilities, instead of to the man's. The behavior of women in categorical terms is treated as emotionally not constrained, less controllable, women-prisoners aren't capable to make concessions each other, to a management of colonies, with them relations on an equal footing, contracts and agreements (it is meant that all it is applied in case of supervision of men) aren't possible. In the course of research in one of prisons, we have found out that as encouragement (and as a trust sign) free moving on the administrative case of prison was authorized to the men-prisoners, who were carrying out various technical commissions, but the similar measure wasn't applied to the condemned women. All it testifies that actually women enjoy smaller trust.
Acts don't consider all aspects of a problem and is declarative give the list of privileges to women-criminals pregnant and having babies. The legislation contrary to steady mistrust and suspicion from public (man's) opinion "entrusts" to the woman cultivation of the most valuable to the state – «the future generation». On this soil also there are modern experts of discrimination of the woman in the correctional facilities, more refined and more dangerous, first of all for the society in which they are applied.
The woman and its body were and remain for the power objects of gamble. The power, on the one hand, recognizes the high price of a female body, thanking its reproductive functions, on the other hand, the power subjects a body of the woman to unprecedented dangers, and in this double space of protection and violence mechanisms of control and influence on the woman are developed. The main problem consists not that certain institutes and supervision and punishment practice are dangerous to the woman, and that imperious mechanisms, is artificial generating this danger, leave to the woman unique possibility to avoid or weaken it is motherhood.
Declaring "motherhood" the most natural, natural condition of the woman, the power frankly dissembles. Reproductive ability of the woman was repeatedly used for the decision of exclusively social problems. For example, increase of the status (white) woman in the North America in 90th of a XVIII century after war for Independence is connected, first of all, with new treatment of a role of mother in a society. The ideology of Education has demanded civil responsibility of mother-republican and consequently the program of female formation and the new concept of marriage, as contract between two equal partners have been widely developed. However the ideology of Education hasn't demanded from the woman of responsibility for the sake of it, it again speculated on "motherhood" and «reproductive ability of the woman-citizen». Therefore out of educational programs there were black women and aboriginals of America – they weren't citizens, and also white women of old age – they have already settled the reproductive ability (the blessing that middle age of women in America didn't exceed XVIII centuries 44th years) [16, 72].
In the conditions of imprisonment of a privilege which are received by the pregnant and feeding woman, it agree Wick the Russian Federation, carry out the same function, as «education programs of women» in America XVIII centuries. Both strategy reduce the woman to the unique role, socially significant, but, first of all, biologically justified, motherhood roles. It is necessary to notice that this strategy actively operates not only in economic sphere or in punishment system. It defines till now development natural-science, medical, and even, a political discourse. After all the interdiction of experiences on cloning in many countries is in many respects result of strategy which is capable to represent the woman only to roles of mother (and on the contrary, mother only in roles of the woman).
Gender aspects of formation of prison subcultures
From the point of view of the majority of research workers the subculture of a condemned people has a masculine character because of quantitative superiority of condemned men above condemned women and also because of forming the hegemonic institutional masculinity in criminal world. But from our point of view it is illegal to describe the subculture of penitentiary institutions using only the masculine features. Most probably the question is about forming the specific comprehension of sexuality in conditions of compulsory deprivation of liberty. Prohibition of any method of articulation of sexual desire, prohibition of even small demonstration of sexuality (right up to cruel punishment from the side of convicts because of accidental contact) resulted in the mode of «classical» prison community. But prohibition of sexuality sanctioned by the administration and prison community is not the only proof that subcultures of penitentiary system can’t have a traditional masculine or feminine character.
Convicts very rarely refer themselves to some small groups inside a colony or prison. Each of them insists on internal independency and tends to physical loneliness, but it is hard to achieve in traditional Russian «barrack» system of keeping criminals in prison. Widely spread communities of convicts in prison, colony environment such as: families, groupings, friendly associations leave the individual a choice to make his own decisions. Interference of a small group in private life of its members is disapproved from the point of view of subcultures of penitentiary institutions. «In any way we (members of a «family») are in ourselves. I don’t bother anyone without some reason and no one disturbs me» (Alexander, 38 years, two prison terms. Interview from April, 2nd 2003). Aspiration for individualization accompanied by rejection of trusting and friendly mutual relations is much more peculiar to convicts than the aspiration for socialization and for building the multilayer social structure. That is why it is illegal to declare about the presence of a stable reproduction, translation and escalation of hegemonic masculinity by prison community.
The analysis of confidence is a very important part of analyzing the process of contextualization of subject’s activity. The concept of confidence can form not only the strategies of masculine practices but also demonstrates how the characteristics of active subject correlate with the parameters of environment in which he operates. The absence or a lack of confidence weakens the solidarity and its unarticulation puts the limitation on transformation of individual subject into collective. Such situation is very appropriate for administration, because it’s one of the main aims is the attempt to decrease the solidarity in prison and to form the collective subject which will be able to resist the discipline and control practices. In male corrections with a very low level of confidence administration managed to exclude the confidence fully from the sociocultural climate.
Empirical study
In our empirical investigation we made a survey research among the convicts in female colony (Samara region) and male colony (
Analyzing the information of survey research we can see that the research work made in male colony demonstrates extremely low level of confidence between neighbors in camera and also between convicts and administration. Only 7% of men-respondents trust the administration and 1% of men-respondents trust the neighbor in camera. The abstract norm of confidence is interpreted by man-convicts as a basis of each co-existence. The absence of such norm is perceived as a main, base defect of being in colony. The distrust is spread on the members of the family although the fraternized family is represented in the interviews of the convicts as a base of everyday life in colony. As the respondents say the regime of keeping depends not only of regime rules but of the status of the family you belong to: «I was lucky. I got into a good family. They were waiting for me. The guard didn’t disturb me, not like other men, because of a good family» (Alexander, 38 years, two prison terms. Interview from April, 2nd 2003). Our conclusions about deficiency of confidence in male penitentiary institutions are confirmed by the researches of A.Olejnik (6, 153).
A little bit different results were demonstrated during a questioning in female penitentiary institution concerning the confidence between the convicts. In female colony the coefficient of confidence inside a small prison community is 34%. Between women a smaller quantity of respondents meets with difficulties while giving a well-defined answer on the questions (7%, in male colony – 10%). In female colony 13% of respondents don’t trust anybody, in male colony – 39%. For men and women it is typical to trust the members of independent society more than it’s own direct and nearest surroundings (in female colony – 44%, in male – 41%).
Low level of confidence in male penitentiary institutions and rare mass disorders which lead to disorganization of functioning of the penitentiary institution prove that in Russian prison male sphere there is no organized collective subject. The absence of collective subject does not allow stigmatizing the subculture of penitentiaries as only masculine because within its boarders only individual strategies of survival and adaptation could be constructed. Such strategies do not have institutional strengthening and recurrence. The subculture of penitentiaries expects an extraordinary organization from the individual and as convicts say «the ability to stand for yourself». Such imperative is claimed in conditions of imprisonment and is translated by the rest of society as a symbol of hypertrophied masculine that supposedly prevail in prison sphere. R.Connell thinks that such forms of behavior as «the ability to stand for yourself» and «responsibility for yourself and your neighboring» are typical for masculine habitus (3, 79). But as for the subculture of penitentiaries this imperative is gender neutral and it is impossible to relate it with some definite sex social role. Following this imperative is the only possible strategy of survival for men and women in conditions of imprisonment.
Higher level of confidence between condemned women allows making a decision about the presence of a stable tendency towards forming the collective subject in female penitentiary institutions. Besides, prison administrations often note increased explosion-proof of a social cultural climate in female colonies. Workers of the department of execution of punishment explain that hyper conflicts in female colonies take place because of «unstable, spontaneous, hysterical character of women in whole» (Alexander, 45 years, the employee of penitentiary system. Interview №3 from July, 25th 2002). From the point of view of colony staff condemned women do not have an aspiration for cooperation and that is why any women association is not effective and short-time. Investigation of small social groups which are formed in colonies by convicts so as to make «individual», private area in conditions of total and discriminatory institutional system shows that «families», named on the agro language as «fraternized» in female colonies, can be characterized as socially unstable. They decay immediately after the main aim is achieved such as: protection of someone’s private interests, conflict with administration, accumulation of capital. Families decay also rather often in male colonies. All this happen because of a high level of distrust between the convicts (66%) and the absence or a lack of materially domestic base for building such communities. Comparing the quantity of stable «families» in male and female colonies we find out that in female colony among a group of 130 persons there are 6 stable small social groups, in male colony among a group of 130 persons there are 20 stable small social groups, i.e. 3.3 times larger.
Independently of the stable existence of «families» in male colonies their functioning is less intensive and significant than in female penitentiary institutions. For condemned men «family» - is an opportunity to distinguish them from the common social area; it is a definite reference point for differentiation of social surroundings on «one of us» and «stranger». There is no different functional duty of a family in male colony. Here we can see a tendency towards social fragmentation of closed and isolated society of convicts. Each fragment is trying to move away from the remaining society as much as possible and to get maximum freedom while making a decision. In female penitentiary colonies formation of a family have a pragmatic and functional character. The exchange of material and human resources is established between families. The construction of a family has a matrix character and each segment after completing the problem put by pass on a new level of social area. In male penitentiary institutions fragmentation and making small social groups, «families» is the only opportunity for social actors to realize the social operation in such social structure, i.e. prison, where the demonstration of free will by the convicts is strictly limited by prison regime. Accomplishment of such social action, creation of a new social structure is not appreciated by actors-convicts from the point of view of effectiveness. A.Olejnik in his research of prison subculture discusses an endless fragmentation of life in colonies. From his opinion such fragmentation appears because of convict’s aspiration to achieve simple comfort in «everyday life of a small society» (6, 184). But in his analysis of fragmentation A.Olejnik does not use gender strategies and does not mention serious differences between the origin of fragmentation processes of small male and female societies in penitentiary institutions.
In female penitentiary institutions fragmentation has a different character. First of all, fragmentation is not the only available social action for condemned women. Secondly, forming of small social groups occurs using the branched system of factors with a subjective character such as: personal sympathy, common interests and social congruence. In male colonies unification usually happens because of «independent» from the individual factors such as: friendly association of people from same area, membership of this or that grouping «at large», caste attribute in colony, nationality. In the third place social fragmentation in female colonies is always orientated on effectiveness and successful achievement of formulated aims.
Instability of small female communities mentioned by the colony staff is not the result of the absence of some self-organization in female groups; it is the result of a high level of orientation on success. The desire to achieve the formulated aims (of different kids) is the forming value appropriated to female subculture in penitentiary institutions. Such conclusion of our research is confirmed by the answers of condemned men and condemned women on the question: «What features of your character are the most important in colony». 48% of women named such features as: purposefulness, prudence, activity, the ability to contact; only 12% of women marked independency and aspiration for loneliness. On the same question 54% of men named such features as: the ability to stand for oneself, self-sufficiency, independence, ability to withdraw into oneself, ability not to pay attention on the nearby surrounding. Besides, while questioning condemned men it was cleared up that communicability is interpreted as an indicator of a high probability of denunciation from a person with such feature.
The ability of condemned women for social mobility, for forming and destructing of small social groups so as to achieve some personal aims or get some privileges demonstrate that the policy of segregation and exclusion inside the subcultures of penitentiary institutions was not successfully realized among women. But the administration of the colonies refuses to admit that women have a high level of social mobility and are able for productive social actions.
Here are the explanations of such situation:
- Administration belongs to the first level of structure (official declaration of internal, non operating rules and norms of the second level of structure disorganizes the control of the colony);
- Popularity of gender stereotypes refuses a social activity to women;
- Principle of desexualization affects on the whole modern penitentiary system.
Family in prison and family in freedom
Our analysis of the level of confidence in subcultures of penitentiary institutions will be imperfect without discussing the attitude of condemned men and women towards the family institute as a whole. Statistics say that in colonies where the research work took place only quarter of condemned men and women were married before they committed a crime, three quarters of convicts were divorced or simply lived together. So as to find out how belonging to the «family» in colony influence on convict’s level of socialization we asked respondents such a question: «Do you plan to get married and to build a family after discharge». The answers on this question convince that conceptions about fraternized-families made by individuals in external aggressive environment and families formed in an open natural society are diametrically opposite. Most of men that use to maintain «family» way of life in colony, and women that demonstrate high social mobility in colony confirm there preparedness to get married or to keep on previous connections (74% and 75% correspondingly).
The results of questioning about expectations and intentions of convicts differ from statistical data which shows that only 15% of marriages remain after the conviction and this percent reduces up to 9% if a woman was condemned (8). One of the most important facts in our research is the conclusion that condemned women are less inclined to extreme individual segregation that is peculiar to condemned men. Secluded way of life, «voluntary» segregation in conditions of deprivation of liberty - all this is not a strategy of adaptation of individual but a norm of behavior which is greeted and supported by order and regime in penitentiary institutions. The attempts of condemned women on the naive and intuitive level to resist such norm are the characteristic features of female penitentiary institutions. Suspicious and captious attitude of colony staff towards condemned women can’t be explained with the help of such cliché which administration uses speaking about condemned women: «Do you really think that beating or abuse can frighten such women? …these women in the majority of cases from childhood live in the conditions of abuse and scuffle. For them it is normal life, they got accustomed and often do not understand in a different way …» (Elena, 35 years, the employee of penitentiary system. Interview №2 from April, 4th 2003). Such appraisal demonstrates, first of all, not a real state of affairs but a discursively constructed reality where definite cultural forms of gender simulate the «real» and spread its power throughout approval of itself as a natural construct making an invisible for socium substitution of multilevel differences by pseudo-believable binary oppositions. Secondly, negative attitude of colony staff towards condemned women is the consequence of the fact that modern strategy of punishment does not consider the specific characters of gender practices. Feminine practices turned out to be outside the strategies of penitentiary institutions because: 1) Social structure where penitentiary system was formed refuses to refer sexuality to feminine practices and that is why woman in prison is not punished through the prohibition of sexuality; 2) System of punishment can not resist the inertia of condemned women toward forming the collective subject, and the internal segregation in female penitentiary institutions does not reach the necessary level on which each condemned woman is exposed to total control. Feminine practices have at least two strategies of escape from generality of penitentiary institution. That is why penitentiary culture is associated by the research workers with male, masculine practices and outside such practices this culture becomes absolutely nonsensical.
It is necessary to point out that those 53% of condemned men who want to build there own families after discharge consist of convicts with real chances in nearest future to get conditional-early release. In such manner it is very important to compare the forms of women representation by condemned men before and after the moment when they were put in penitentiary institution. Analyzing the documentation of interrogations and testimonies of accused men, we can see that in their discourse, as a rule, woman (mother, wife, mistress) is a reason of their illegal action. In this case woman’s behavior is characterized by such extremely negative appraisals as: craft, anger, envy, deception, criminal agreement. A man is a victim of such perfidious woman’s strategy. But in the appeals for pardon woman is represented as a deposit of future law abiding behavior of a criminal men. Convicts promise to look after the aged mother (the stories about her are accompanied by such ideas as: kindness, tenderness, obedience to destiny, love of son), to return to their family and wife (the same ideas about kindness, tenderness and care), to marry (the appeal is accompanied by the letters to a woman with a proposal to marry him). We analyzed 31 appeals for pardon and the materials of convict’s testimonies.
Content analysis of the evidences and the appeals for pardon allows making a decision that women representation from the point of view of condemned men has an ambivalent character. Woman is an object of sexist pretensions and performs as a guarantee of a due diligence of men’s behavior at the same time. Feminine practices are not perceived by condemned men as independent, autonomous strategies and are reproduced depending on men requirements (table 1).
Table 1
Table of content analysis
|
Representation of woman |
Types of documents |
|
|
Convict’s evidences |
Appeal for pardon |
|
|
Positive |
— |
1. Woman as a subject/object of care 75% 2. Woman as a guarantee 63% 3. Woman as a source of personality revival (emotional and cultural revival) 51% 4. Woman as positivity (woman-mother) 94% |
|
Negative |
1. Woman is an ambivalent victim (principle: it's your fault) 68% 2. Woman is an instigator (the idea of a crime was her. I was only an executor) 82% 3. Woman is a source of a conflict 62% 4. Woman as a negation («all women are bitches») 92% |
— |
Positive images:
1. Woman as a subject/object of care – condemned men is pointing on a woman who needs his care (ill mother, under age sister remained without parents, sister who takes care of ill parents, wife and daughter who need material help).
2. Woman as a guarantee – wife, sister, bride are the necessary conditions for a condemned man to come back to a worthy way of life.
3. Woman as a source of personality revival – again discovered or appeared in colony (mutual relations with the help of correspondence) feelings for a woman contributes to realization of made mistakes.
Woman as positivity – in hierarchy of women roles the image of woman-mother is surely on the first place.
Negative images:
1. Woman is an ambivalent victim; motive of deviations (violence) can be explained by her own behavior – the state of alcoholic intoxication, narcotics, prostitution, principle: «it's your fault».
2. Woman is an instigator; the initiative and the plan of a crime belong to woman (mistress, rarely wife, sister and mother).
3. Woman is a source of a conflict; appearance of a woman in masculine company provokes conflict situation.
4. Woman as an absolute negation; the final mark and explanation of the occurrence.
«Labour», «power» and «sexuality» in prison
Masculine practices in conditions of deprivation of liberty became significantly strained. The limit of sexuality that strictly fitted on the discursive level (the regime rules) and on the prediscursive area (internal norms of the subcultures of penitentiaries; living according to «concepts») deprives masculine practices of their stem and domination or in terms of Connell – hegemony. «Male habitus» which from the point of view of P.Bourdieu is realized in definite practices loses its usual stigmatization (1, 171-183.). Dissipation of hegemonic masculinity is becoming stronger because of a pointed out high level of distrust towards each other in prison sphere. Strict hierarchy of social roles in prison is not supported by masculine aspiration for domination among men. The presence of such hierarchy is the result of a serious gap between structures that organize masculine practices in modern world – labour, power and sexuality; and also the result of operations of such separate, autonomous structures in prison area. Following R.Connell and J.Butler we emphasize these three constructs of forming gender practices. Each of them thought that spreading of the roles inside these three fundamental structures determines the character of gender practices in different historical periods. For R.Connell domination of hegemonic masculinity as a cultural sample for all practices of sex without exclusions is the incontestable fact (3, 104). For J.Butler domination of each practice ends with its understanding as a simulation of reality, as a copy which proves its tolerance and domination by the way of common recurrence. When the movement of such recurrences in present discourse stops, domination of this or that gender practice also disappears (2, 31-33). With the help of these two theories and using the analysis of labour, power and sexual practices in prison we are going to demonstrate that in conditions of deprivation of liberty processes of forming and proceeding of any gender practice are distorted and in several cases are impossible because of aspiration of penitentiary system for exclusion of sexuality.
1. Labour. Labour and deprivation of liberty are crossed on two levels. On the first level, labour historically is the main feature of imprisonment which from one side locates between productive and commercialized forms of industry and from the other – between teaching and correctional strategies. On the other level, labour is corrected by the specific of any activity in prison and especially by free remuneration of labour and by the process of labour organization. Inside a prison labour of convicts has several functions. Labour benefits and becomes a source of profits for the government; insures the education and the ability of improvement with the help of employment; labour is the mechanism of control and allows organizing the daily routine and supervision of convicts.
All these good functions of labour became unrealizable in prison because of a gap between the forms of labour accepted in modern world and a prison conditions. First of all, labour did not become a prestige form of employment in prison; just as in traditional society labour is interpreted as an obligation and it is a destiny of the representatives of the lowest «caste-classes». Secondly, imprisonment distorts the meaning of labour because does not guarantee immediate and valid reward for labour. In the third place, the attitude toward work and labour motives in prison differ from attitude and motives of individuals at large. The concept «satisfaction from work» absolutely extraneous to convicts; the interest for work is often connected with such two moments as: extra earning and getting a comparative autonomy. Taking into consideration the fact that the majority of convicts have short period of imprisonment, the interest to develop the «career» in prison has a small importance for the ordinary convict. But competent professional orientation, professional consulting, additional education, serious personnel training of labour collectives are the most important satellites of modern labour activity.
Gender practices that are formed by the process of labour activity are exposed to serious transformations because of distortions of the labour activity essence in conditions of imprisonment. Labour in prison is not an area inside which the models of gender identity are formed. The highest castes of criminal subculture which in terms of Connell pretend on the status of hegemonic masculinity do not represent themselves in terms of productivity and prestige labour activity (for the highest castes of criminal subculture labour activity is forbidden by norms of internal subculture). In prison there is no need in traditional division of labour which promotes gender differentiation of manufacture and the whole labour activity. Material well-being which determines the relations between domination and submission inside one sex also does not depend in prison on the level of participation of the individual in labour activity.
In native prisons labour activity historically is put outside the social area where different social roles are distributed. In tsarist
That is why we can make a conclusion that labour (manufacture) is not included in the number of such structures inside which distribution of social roles in prison takes place, criterions of domination and submission are set between biological sexes or among one sex. Masculine claims for domination in prison lose its epistemological and sociocultural connotations because of men’s participation in prestige forms of activity and in distribution of benefit.
2. Power. The official discourse identically interprets the distribution of authoritative interrelations: completeness of power belongs to a law and its embodied official staff, the effect of punishment consists in alienation of convict’s rights to manage the situation regarding their own essence; the most strict, total punitive systems are trying to control even physiological processes in the organism of an individual. Speaking about the question of differentiation of authoritative interrelations in conditions of deprivation of liberty a paradox of unequal integration in socium appears. Unequal integration means the submission of one group of individuals to the other inside the borders of realization of definite gender practices (4, 507-544). The majority of research workers think that present-day reality represents masculine oriented social structure in which domination of men above women is found in numerous spheres. Domination inside one gender group is distributed by virtue of authority. Thus, the system of domination in penitentiary institutions must be formed in the following way: in male colonies the power of administration is supported by absolute authority based on confidence; in female colonies the authority of official staff correlates with dominating masculinity: the majority of representatives of colony administration are men and they strictly stick to masculine strategies of behavior.
The research work held in male and female colonies showed that distribution of power in penitentiary institutions and unequal integration of participators in social actions did not correspond with the idea of how they must look like. The authority of administration is not supported by the confidence of convicts and such authority has a formal, normative, unverifiable character. Polling of a convicts shows that men (92%) and women (96%) do not trust the colony staff even without discrimination from their side.
The answers on the question about the confidence towards male and female colony administration turned out to be almost the same. In both cases only one from seven respondents trusts the colony staff. Deficiency of confidence towards the officially marked dominating side provokes the paradox of unequal integration in prison: dominant group (colony administration) does not have any specific characteristics confirming its predominating status and has to use symbols and signs formed in criminal subculture for its own stigmatization. Even the first authors of the theory of criminal subculture paid their attention to the fact that prison staff had no special subculture. That fact the research workers explained by the aggressive character of criminal sphere and it was impossible to resist the total influence of such criminal sphere using legal and legitimate methods. Such interpretation of cooperation between administration and subcultures of penitentiary system is insufficient and superficial. Colony staff has to use norms and ideas of criminal subcultures because of simulation of their own authority which do not have any prediscursive basis.
Paradox of unequal integration in prison compromises not only the predominance of guard staff but also casts doubt on any effect of domination. No one from the representatives of «highest prison caste» - authority or «guardant» - pretends to complete and unconditional submission in conditions of prison or colony small society. Masculine hegemony is rather problematic in conditions of deprivation of liberty because no one from the practices of domination is realized in prison in full measure. Violence and discrimination of course happen in penitentiary institutions and they are not concentrated in hands of a certain dominating group. They are the result of permanent circulation of mobile prerogative of power execution in colony. In colony the real domination is multichannel and a-substantial, that is why in penitentiary institutions is formed such a situation which in terms of official language and prison slang can be characterized as – outrage. Outrage – is an absence or an inaccessibility of legalized, institutional methods of solving the conflict situations, a dissipation of usual strategies of behavior toward authority, violation of social and gender role’s differentiation (6, 146). Because of fictitious phenomenon of domination and submission in prison the gender network of identifications becomes distorted. In traditional, classical discourse gender is turned out to be «performative», that is why such gender is represented with the help of persistent practices of reproducing the established distinctions (2, 9). But in conditions of small isolated society gender identity loses its functionality. Condemned men and women are trying to ignore their own identification by means of gender stigmatization and prefer to use the external order of symbols instead of «perfomatively» constructed identification.
Thus, in colonies the fictitious character of authoritative interrelations destroys the network of gender identifications. Power and gender in prison are not formed, not constructed and did not pass the formation; they are concentrated in definite social community under the influence of different factors and also under the influence of such factors they are dispersed. Authoritative functions do not correlate with any concrete gender practice. Trajectories of movement of authoritative and gender strategies in conditions of deprivation of liberty are different and do not operate one through the other.
3. Sexuality. In conditions of deprivation of liberty men and women existence in usual, ordinary meaning of sociocultural reality became insufferable because of the influence of double structuring which lead to a gap between social structure (isolated society of convicts) and social action (reproduction of definite gender practices). First of all, the regime rules in places of deprivation of liberty confine the ability to use definite gender practices (the majority of research workers mark the absolute impracticality of native prisons and colonies to the needs of woman’s body; specific needs of men’s body are also ignored in regime documents). Secondly, strict internal rules of prison community reformulate the main theses of social existence of sex. According to the position of Bourdieu, in an open, free community social existence of sex is connected with specific authoritative gender interrelations. Such interrelations suppose one practices and exclude the others, their influence as a rule is interpreted as a positive compulsion (for example, suggestive pride of men and women because of their belonging to definite sexual constructions) [2, 177-183]. In the isolated prison community social existence of sex is determined by authoritative interrelations which: 1) ignore the gender mechanism of power distribution in society; 2) indifferently refer to any sexual practices; 3) are the negative compulsion which in terms of law is interpreted as a violation of the law and a free community interprets it as an amoral strategy of behavior.
According to our hypothesis, the subculture of penitentiaries does not belong to some definite masculinity among the dozens in modern social structure because the quintessence of subcultures in penitentiary institutions is an aspiration of the members of private community to avoid the gender identification. The results of convict’s answers on the question: «Who from your point of view easily endures the deprivation of liberty: man or woman» are very significant. 71% of women and 64% of men answered that it would be easier for them to serve their sentence if they belong to the different sex. So, for the majority of convicts sexual characteristic is a source of suffering and they are sure that because of specific features the different sex does not have such discomfort and problems.
As a result, interrelations inside homo-social prison community where the actors are gathered not of their free will but under compulsion are formed using the principle of ignoring and refusal of any gender identity but not with the help of cooperation with the other sex and representatives of the same sex. Using the theories of P.Bourdieu and R.Connell we can make a conclusion that in prison community the ideas of social sex undergo aberration. The term «social sex» means the definite structure of sociocultural interrelations which is connected with ordering and classification of authoritative mechanisms that affect on «extra-social», biological characteristics of the individual. In conditions of free society authoritative mechanisms are concentrated on cultivation and spreading of the legalized and preemptive gender practices. Quite the contrary, in the isolated society the authoritative mechanisms are directed on dissimilation of practices connected with sex construction. The classical subculture of the penitentiaries was based on desexualization of the subject in conditions of deprivation of liberty. The evidence of such fact is the traditional division of social roles in prison: «authority», «guardant», «goat», «passive homosexual» and «man» which excludes any sex role correlation. Sexual identification, as in case with «passive homosexual», had only negative colors and meant highest possible margin and segregation of individual because he was represented in society using the system of sex social roles, but not because «he was used like a woman». Displacement, discrimination of «passive homosexuals» in prison community and sexism in «free» society structurally are absolutely different processes. The following example is an evidence of such fact. All attempts to build the analogs of brothels from the cells with passive homosexuals for the most respected convicts were unsuccessful because they were not claimed by the authorities. Penetration of the elements of gender distribution inside modern Russian prison community leads to loss of norms and rules in subcultures of penitentiary institutions. Formerly the term «outrage» in colonies characterized the actions of administration («inability of individual to affect on the situation in which he is situated and on the choice of the rules of the game») (6, 146). Nowadays the situation of outrage covered the internal structure of subculture of penitentiary institutions and such fact is developed in overestimation of gender statuses in prison. Formerly sexual connections were applied only as a form of punishment (the most cruel in extraordinary cases), nowadays intimate connections – is a demonstration of authority preferences regarding this or that individual. Sexuality destroys the internal norms of subcultures of penitentiary institutions and makes the penitentiary system not only ineffective (the social idea speaks about the danger of deprivation of liberty from the moment when prisons of modern type appeared), but also transforms its cultural-historical and social atavism. In states where the results of sexual revolutions were fully analyzed by the society deprivation of liberty as a measure of punishment is used extremely rarely. Such countries are
In female penitentiary institutions a bit different order was formed, but the strategy of desexualization of the individual was held also systematically and purposefully. We think that in female colonies specific sex social roles were formed without any similarity with the social hierarchy in male penitentiary institutions. The main feature of female penitentiary institutions is the inversion of traditional gender identification, but not its rejection like in male penitentiary institutions.
Taking into consideration the fact that prohibition of sexuality is rather latent and the most popular form of punishment in modern penitentiary systems it become clear why the quantity of condemned women is rather smaller than condemned men though the female crime in the whole world is rising during the last two decades. Women in the majority of cases got off the punishment such as deprivation of liberty not with the help of state which admits that imprisonment destroys a woman, but because dominating masculine coordinates of culture deny the woman’s right to sexuality and that is why it is impossible and foolish to punish a woman using the prohibition of sexuality. Each time when the rhetoric of official resolutions proposes the expanded list of privileges for condemned women, gives the possibilities for a criminal woman to avoid the deprivation of liberty it does mean that authority reveals a tolerance and loyalty regarding the feminine practices. The authority formed by phallo-centric, masculine principles is not trying to make a gender neutral, gender equitable sphere. Such authority confirms the ineffectiveness of such punishment for a woman as deprivation of liberty when a total line of demarcation between woman and sexuality is made by culture and society.
The first specialized female prison was opened in penitentiary institution of
As a result of our investigation we conclude that in female penitentiary institutions specific sex social roles are formed. The construction of particular practices in female colonies was provoked by the action of mechanisms of official desexualization of condemned woman in conditions of masculine culture. The male subculture of penitentiaries was directed on minimization of the needs of men’s body, restriction of desires and strict discipline of all physical practices. The female subculture originated from the necessity of intensification of physical practices that operated contrary to and injurious to the official segregation of importance of reproductive ability of a woman’s organism.
Following J.Butler we suppose that «sexuality is created by the culture inside the present authoritative interrelations». Studying the normative sexuality, forming the identity inside the present type of authority, trying to understand the possibilities of destructing the legalized forms of sexuality all this can be made only inside the boarders of power matrix. But if we consider epistemological and real characteristics of power as some priorities we refuse to interpret a «man» as a «reason of unreducible meaning of sexuality» in modern culture (2, 14). Regarding the penitentiary system such methodological admission means that not masculine, not «male» sexuality supports gender discrimination, segregation and deprivation in female penitentiary institutions. The dynamics of authoritative interrelations inside the sexuality is not identical to the simple strengthening of the positions of phallo-centric power regimes. Inside the authoritative practices definite types of identity are constructed. These types of identity are recurrently reproduced in socium on all levels. Repetition of these identities becomes the reason of denaturalization and mobilization of gender categories. That is why one of the most widespread methods of analyzing the female penitentiary institutions is the contrasting of two gender systems where one gender system deprives and discriminates the other.
Summarizing the analysis of gender practices of the subcultures of penitentiary institutions we can cast doubt on united and integral character of sex social roles in prison sphere. In prison community two strategies of behavior are formed using the latent mechanisms of control and punishment which are connected with desexualization of condemned individual. The first one is typical for male penitentiaries and aspires to maximum rejection of gender stigmatization. The second one is accepted in female penitentiary institutions and directed on intensification and exaggeration of gender practices. These two strategies change the internal principle of three fundamental structures where the specific interrelations of sexes take place. That is why the semantic contents of gender strategies, the character of their processing in different social structures depend on mutual relation of definite social action in concrete social area and did not depend on masculine and feminine models legalized in present society.
Conclusion
During the spent analysis following conclusions are drawn:
1) Criminal legislation of the Russian Federation supports the gender asymmetric cultural order which is constructed on discrimination of certain groups of the population, in this case, women;
2) Criminal legislation of the Russian Federation is made incorrectly from the point of view of the gender theory: the male is shown to abstract, and female — to corporal. It reproduces traditional cultural division on man's and female, giving out it for "course of nature" thanks to naturalization of reproductive ability of the woman;
3) Criminal legislation of the Russian Federation ignores two important concepts: « parenthood » and "household". Penal Code uses concepts of "motherhood" and "family", which don't correspond to all set of social and cultural artifacts of the present;
4) Criminal legislation of the Russian Federation can become a source of a new wave of social instability: destroying role pluralism and feigning and criminalizing concept "motherhood".
To reduce influence the gender asymmetric policy in penitentiary system, to lower danger of a social disbalance, following practical recommendations are offered:
1) Active use of measures of punishment alternative to imprisonment for women without dependence from that, is at it children or not.
2) Formation of cardinally new structure of the social help for the condemned women. And it is very important, that social work with women started to be spent long before their clearing from correctional facility to lower effect of "shock" which is tested by all prisoners at clearing.
3) For carrying out in practice of new social policy it is necessary to prepare a package of training trainings, seminars, consultations for social service providers and the shots working in penitentiary system. Today essentially important there is a form of interaction of administration of prison with the condemned woman, societies and former concluded since the most humane and competent law is powerless when mutual enmity and discrimination divides condemned and a society.
4) Actual problem is material-financial maintenance of prisons. "The collective" or "barrack-type" form of the maintenance practiced in domestic correctional facilities with a view of economy, became a basis for formation of special subculture of the penitentiaries which do not have analogs in world penitentiary practice.
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