SEXUAL BIAS AND THE LAW: THE CASE OF PRE‐INDUSTRIAL SCOTLAND

There is commonly said to be a sexual bias within the legal system. As Anderson (1976, p.350) points out: “The notion of a justice system whose agents typically exhibit a “chivalrous” attitude towards female criminals (ie. because of their sex women are afforded more lenient treatment than men) has been set forth by several writers.” One such writer is Pollak (1950, p.151), who claims that: “Men hate to accuse women and thus indirectly to send them to their punishment, police officers dislike to arrest them, district attorneys to persecute them, judges and juries to find them guilty and so on.” Another is Cavan (1962, p.32), who writes: “…even in crime a certain degree of chivalry prevails. Some people dislike to report a woman criminal to the police and police are more likely to release women or turn a young woman over to her parents or release to a social agency than would be true for boys or men.” Others believe that there is an opposite sexual bias in the legal system. For instance, Sachs considers the various test cases in Britain on the question of whether, in law, women were to be regarded as “persons” and concludes that: