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Conference Proceedings Crime, Justice and Social Democracy: An International Conference

ISBN: 978-0-9871533-2-6 Copyright: Authors Email address for correspondence: juan.tauri@qut.edu.au

Key Words Courts, eco-justice, environmental crimes, global justice, governance and ethics, human rights, Indigenous justice, penal policy, policing, sex and gender, social justice

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Introduction With great pride and pleasure, I introduce to you this volume of refereed papers presented at the Crime, Justice & Social Democracy International Conference, held at Queensland University Technology, 26-28 September 2011.

Concerns about the politics of crime control underscored the idea for this interdisciplinary international conference. Critical scholars in the social sciences from a range of disciplines sociology, law, criminology, politics and history - have long been attuned to the dangers that lurk within the power to criminalise and responses to crime control shaped by punitive populism. Criminal justice and penal systems have increased dramatically in size, reach and punitiveness over the past two decades, a period dominated by neo-liberalism and retrenchment of social welfare across the UK, US, parts of Europe and Australia.

The distinctive aim of this conference was to reinvigorate the intellectual and policy debates about the link between social justice, social democracy and the reduction of harm, crime and victimisation through the alleviation of inequalities and building of more socially just and inclusive societies. The papers presented at the conference, 22 of which are published in these proceedings, offer a timely reflection on the neo-liberal epoch of crime control, particularly in light of the growing demand for social democracy sweeping parts of the globe, the impact of the global financial crisis and the surprising return to more democratic penal policies in parts of the globe.

The conference was divided into the eight themes described below. The refereed papers are organised in these proceedings according to the theme under which they were presented.

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Global Justice, Transborder Crimes and Human Rights Widespread human rights abuses, transnational crime and violent conflict present significant challenges for domestic governments and international organisations. Responses have traditionally focused on the threat posed to national security and regional stability, often overlooking inherent social and political injustices. Papers presented in this theme explored emerging human rights and human security conceptualisations of global justice.

Policing, Investigation and Intelligence in Social Democracies Confidence in the integrity, independence and professionalism of criminal justice and investigative agencies is an essential feature of the modern social democratic state. With the rising threat of terrorism, despotism, the decline of social democracy in parts of the world, and the elevation of national security concerns growing tensions between the protection of human rights and the national security of the population have plagued the contemporary climate of policy-making in law enforcement. Papers presented under this theme explore how social democratic countries might best address these problems.

Penal Policy and Punishment in the Global Era Prisons and punishment, the way we respond to crime and incidents of social harm, the effectiveness (or otherwise) of penal policy and correctional interventions; all are issues of concern to academics, policy makers and citizens in all contemporary social democracies. Papers in this part present and discuss the wide range of issues pertinent to these issues. They consider broader questions about the role of penal policy within social democratic narratives, and examine the operation and role of the criminal justice system in social democracies. They explore the continued use of prisons as a primary 'site of punishment', the globalisation of crime control and penal policy, including the privatisation of penal processes, recent trends in alternatives to imprisonment and contemporary theorising on punishment.
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Indigenous Justice Since the early 1980s, the over-representation of Indigenous peoples in the criminal justice system has been a major issue in the 'big four' neo-colonial jurisdictions of Canada, Australia, New Zealand and the US. Papers presented in this theme of the conference focused on a range of issues important to the Indigenous perspective, including the role played by the discipline of criminology in the development of neo-colonial crime control policy, the contemporary focus on ‘culture’ as a response to Indigenous critique of the formal justice systems engagement with First Nations, and the ‘gendered nature’ of the Indigenous experience of crime control policy.

Eco-Justice and Environmental Crimes Challenges arising from human impact on the environment are among the greatest of our generation, and the links between that human impact (climate change, oil spills, waste, deforestation) and human rights are evident. From threats to livelihoods to rising sea levels, species loss, mass migration to reduced food supplies, environmental change and the impact of our exploitation of natural resources threatens the enjoyment of human rights by individuals and communities. Drawing upon a human rights and eco-criminological framework, papers in this part examined the causes and impact of, as well as approaching and managing, environmental changes and challenges. In particular, chapters in this section will consider the often hidden or unexpected harms of the exploitation of natural resources on individuals and communities.

Sex, Gender and Justice One of the most prominent and enduring patterns in the criminal justice system relates to sex and gender. Maleness has been one of the strongest predictors of criminality - however the gender gap has been narrowing in social democratic countries over the last 50 years as female
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crimes rates (especially among young women) increase. Same sex violence, sexual violence and crimes related to homophobia represent a continuing albeit much neglected concern. Papers presented under this section of the conference explored the large scale shifts in sex, sexuality and gender often over-looked or marginalised in the criminal justice policy, practice and scholarship.

Social Justice, Governance and Ethics Drawing on social democratic narratives, papers in this section consider what our society could become (through ideas of sustainability and social democracy), and what our society currently is. They explore the current links between social exclusion and criminal justice, the impact of 'social inclusion' policies on attempts to govern crime and deviance within the justice system and beyond. Questions about social justice, governance and ethical practice are inextricably linked to crime control and criminal justice practice. The clearest manifestation of this link is the over-representation of socially marginal populations within the criminal justice system.

Courts, Law & Social Justice Courts, tribunals and other juristic institutions are inevitably shaped and influenced by social, political and economic factors and ideologies. The tension between neo-liberal and social democratic values is therefore manifest in the structure and operation of the courts, and reflected in a diversity of legal developments and innovations. Some legal innovations, such as the rise of the problem solving courts and attempts to increase public participation in law and policy formation, hint at greater democratisation and greater social capital. But other trends, such as high levels of public punitiveness and the denial of substantive access to justice for some groups and individuals reflects a regression to a self-focused, less inclusive

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liberal worldview. Papers presented in this theme explored the relationship between our evolving juristic institutions and changing social, political and cultural worldviews. I would like to acknowledge the editorial assistance of Justine Hotten. Finally I would also like to thank the panel of internationally distinguished scholars who participated in the Review Panel. Professor Kerry Carrington, Head of School, School of Justice, Faculty of Law, QUT.

Review Panel Professor Larrisa Berhendt, UTS Professor Judith Bessant, RMIT Professor David Brown, UNSW Professor Simon Bronitt, Griffith University Professor Walter DeKeserdy, University of Ontario Institute of Technology Assistant Professor Molly Dragiewicz, University of Ontario Institute of Technology Professor Pat Carlen, University of Kent Professor Elliot Currie, University of California Associate Professor Russell Hogg, UNE Professor Susan Karstedt, University of Leeds Professor Jo Phoenix, University of Durham Professor Scott Poynting, Manchester Metropolitan University Professor John Pratt, Victoria University of Wellington Professor Phil Stenning, Griffith University Professor Reece Walters, QUT Dr Leanne Weber, Monash University

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Table of Contents
Introduction
Kerry Carrington

iii Global Justice, Transborder Crimes and Human Rights

Misuse of Diplomatic Passports
Antje Deckert

11 27 43

How do Human Rights Prosecutions Improve Human Rights after Transition?
Hun Joon Kim

Vulnerable and Invisible: Depictions of Trafficking Victims in Public Awareness campaigns
Erin O’Brien and Sarida McLeod

Society is Entitled to But One Satisfaction: Ne bis in idem and Jurisdiction Questions in the Gabe Watson Case
Melanie O’Brien

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Policing, Investigation and Intelligence in Social Democracies Educating Police Recruits for Democratic Policing
Christine Jennett, Mir Rabiul Islam, David Bull and Rosemary Woolston

80 100 118 133

Image Work(s): “Simulating Policing” and the New Police (Popularity) Culture
Murray Lee and Alyce McGovern

Policing Unlawful Squatting: The Case of South Africa
Angel Mabudusha

Developments in Gang Policy and Policing in the UK: Who are labelled and why does it matter
Rob Ralphs, Hannah Smithson and Patrick Williams

Vietnamese Communities, Crime Prevention and Drug Trafficking in Victoria
James Scambury and Prof Denise Meredyth

157 172

The Penumbra of the Policing Mandate: The Case of the South African Police Service
Rika Snyman

Penal Policy and Punishment in a Global Era Public Attitudes to Punishment and the Democratisation of Sentencing Policy
Dr David Indermaur

191 211 228

Principles Relevant to the Sentencing of Individuals for Terrorism Offences
Nicola McGarrity

Explaining Prison Populations: A Review of International Evidence
Hilde Tubex

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S. Battered Women’s Movement Dr Molly Dragiewicz ‘Just stupid drama queens’: How Police Constrain.Indigenous Justice Indigeneity and Non-Custodial Orders: Comparing Different Sentencing Outcomes in Queensland’s Higher Courts Christine E W Bond and Samantha Jeffries 249 Eco-Justice and Environmental Crime Human Rights and Environmental Wrongs: Achieving Environmental Justice through Human Rights Law Bridget Lewis 265 Sex. Law and Social Democracy Courts and Social Change: Women in the Australian Judiciary Sharyn Roach Anleu and Kathy Mack 389 ix     . Present and Future Walter S DeKeseredy 280 299 319 Tactics of Antifeminist Backlash against the U. Gender and Justice Understanding Woman Abuse in Canada: Past. and Punish the Visibilities of Sexual/Gender Diversity as Out of Place Angela Dwyer Invalidation and Gendered Violence across the Lifespan Michael Salter 337 Social Justice. Governance and Ethics Social Justice Impacts of the Resource Boom Kerry Carrington and Margaret Pereira 357 371 Inside the Preventive State Tamara Tulich Courts. Regulate.

Global Justice. Transborder Crimes and Human Rights .

however several real-life examples prove that genuine diplomatic passports can be obtained from a number of African and Pacific countries and are being used to claim diplomatic immunity even though passport holders have not been officially accredited as diplomats in a host country. Auckland. it analyses the evidentiary value such a passport holds under international diplomatic law.Misuse of Diplomatic Passports Antje Deckert AUT University. and whether the misuse of genuine diplomatic passports constitutes a new form of white-collar crime. and diplomatic immunity. diplomatic immunity – meaning exemption from lawsuits and prosecution – shall be granted to accredited diplomats only. tax relief. Secondly. Clients are promised increased status. Under the Vienna Convention on Diplomatic Relations 1961. It explores how Article 40 of the Vienna Convention on Diplomatic Relations 1961 enables ‘fake diplomats’ to successfully claim diplomatic immunity. 11     . especially in regards to proving the passport holder’s right to claim diplomatic immunity. This paper firstly describes how a genuine diplomatic passport is obtained. New Zealand Conference sub-theme: Global Justice. Transborder Crimes and Human Rights Abstract A number of internet consultancies advertise their highly-priced intermediary services for obtaining a genuine diplomatic passport. despite the passport holder’s lack of accreditation.

These privileges enable diplomats to safely execute their occupational tasks. 2003).. Wagner et al. Other members of diplomatic staff may be freely appointed by the sending state. Wagner et al. maintaining and intensifying communication and co-operation between their sending state and the host state (Bolewski. However the sending state must notify the receiving state of staff appointments. the sending state must make certain that the receiving state has given its agrément for the person whom the sending state proposes to accredit (Article 4 VCDR).Background The wider public generally considers diplomats to be members of an exclusive. 1980). 2004. arrivals. Before appointing the head of a mission. and final departures (Article 7 VCDR). whose regulations developed into international customary law over time (Bolewski. prestigious and somewhat mysterious circle (Burton.g. The VCDR declares that states take up diplomatic relations by mutual consent. The privileged status of diplomats was eventually captured in The Vienna Convention on Diplomatic Relations 1961 (VCDR). 1968). 2007) and is considered customary international law (Bolewski. facilitating. which provides them with extensive benefits and immunities not granted to ordinary citizens. "a caricature of pinstriped men gliding their way around a never-ending global cocktail party" (Gyngell & Wesley. At first. Diplomacy (including diplomatic immunity) is a long-standing tradition. 1988. ICJ Reports. Indeed. 2007). Brown. e. and generally thereafter establish permanent diplomatic missions.. This 12     . diplomatic relations were established through bilateral and multilateral agreements. which has been signed by over 150 states (Denza 1998. An agrément is the formal consent of the receiving state for the appointment of an individual as head of a diplomatic mission (Denza. 2004). 1998. 2007). a privileged status is afforded to diplomats through international law. The first envoys were exchanged between Greek city states in the 5th Century BC.

Responding to demand. However. www. and www. 1988).ptclub. Wagner et al. The Master Plan Because diplomatic privileges and immunities provide many advantages. detention.. and expect that advertisers would not deliver what they promise after receiving the initial non-refundable referral fee of around 5.com. One may suspect these offers of being nothing more than internet scams. enjoy the privileges and immunities specified in the VCDR (Denza.000 Euro. 2005). prosecution. diplomatic passports are desirable objects for individuals who do not belong to the diplomatic corps. Diplomatic passports are issued by the sending state. in other words. Only diplomats. 1998. 2009). Diplomatic ID cards are issued by most receiving states through their ministry of foreign affairs (Brown.com. 2007). Petrocelli. as outlined in Article 31 VCDR. 1988. further indicators suggest that they might not be 13     .ptshamrock. a number of internet consultancies (for example www.. Wagner et al. Diplomatic immunity. or subpoena as witnesses (Bolewski.000 Euro. arrest. Clients are promised not only increased societal status and tax relief. Consultancy fees range from 25. Diplomats are not subject to its jurisdiction. 2007). 2009). guarantees diplomats safe passage. whose appointment has been duly accredited or notified. search. 2004. but also diplomatic immunity (Deckert. 1998.000 to 125.freebooter.com) promote themselves as intermediary service providers who can obtain genuine diplomatic passports from foreign jurisdictions. Diplomats usually claim diplomatic immunity by presenting a diplomatic passport or diplomatic ID card to the law enforcement agencies of the host state. Protection is provided by the receiving state.notification system enables the host state to identify diplomatic agents (Brown. Deckert. ensuring intra-governmental communication even during periods of conflict (Bolewski. they are not susceptible to lawsuits. 2004. Denza.

who presented a Tongan diplomatic passport – including a diplomatic visa issued by the Australian High Commission in Fiji – when he was arrested in Australia. preparing for the Tongan King’s visit to countries throughout Asia and the Pacific. Then. or obtaining a diplomatic passport directly from government agencies in another country. born in Canada and a former US citizen. Reading like a ‘master plan’. The latter strategy is subsequently described in detail. Brown (1988) describes the example of Meier. The magistrate wrongly ruled that Meier was to be granted diplomatic immunity.acting in bad faith. During negotiations. referring to the VCDR. Furthermore. Cotter proposes two ways to obtain diplomatic status without resorting to a “dismal office job at the embassy” (1998): by either employing a consultant. 1998. offering financial or material assistance to support government programmes. he or she is advised to stress that aid may be provided faster and more easily if the benefactor was issued a diplomatic passport. Von Braunfels. the author first describes how diplomatic status and privileges are officially achieved. At least two publications (Cotter. 2003) explain how a genuine diplomatic passport can be obtained without using expensive consultancy services. The King of Tonga himself recalled the passport after being interviewed about the incident. He or she shall argue that such a document would allow the benefactor to travel freely and accomplish 14     . The prospective passport holder is advised to contact representatives of a (preferably poor) state. He claimed to be on a diplomatic mission. Identical wordings and misspellings in both publications suggest that the author is one person. The two known publications that explain how a genuine diplomatic passport can be directly obtained from a foreign country are Der Vertrauliche Diplomatenreport (The Confidential Diplomatic Report) by Charles Cotter and Gentlemen’s Digest by York von Braunfels (both only available in German). several real-life examples of ‘fake diplomats’ claiming diplomatic immunity using a genuine diplomatic passport are known through court cases and the media. using different pseudonyms.

Since the VCDR does not specify how diplomatic staff should prove their rights to diplomatic immunity. Regardless. 2009). because immunity provides the individual with advantages (Deckert. regulations on the cogency of proof provided by a diplomatic passport 15     . This raises questions: Does a genuine diplomatic passport by itself provide sufficient proof for claims of diplomatic immunity? Do law enforcement agencies grant diplomatic immunity based on a diplomatic passport alone? (The example by Brown cited above indicates that this might well be the case. However. It is claimed that the passport holder will be able to avoid arrest. it is certainly not just another manifestation of the widespread use of fraudulent (non-diplomatic) passports in the context of irregular migration. Cotter. speeding fines.their mission more efficiently. 2003. meaning that no receiving state will be notified of his or her ‘appointment’. Although it cannot be specified how prevalent this practice is.) Does this behaviour constitute a white-collar crime? Cogency of Proof: Diplomatic Passport and Diplomatic Immunity Common legal principle suggests that the burden of proof rests with the individual claiming diplomatic immunity. If the head of state or the ministry of foreign affairs (depending on domestic laws) is successfully convinced. the passport holder will not be deployed to an embassy. the ‘master plan’ assures readers that they will be granted diplomatic immunity when presenting the passport to law enforcement agencies in their own or another country. house searches. 1998). This is an entirely different phenomenon as diplomatic passports are knowingly issued to business people by governments that should reasonably expect that passport holders engage in shady business dealings or forms of organised crime. they will issue the benefactor with a genuine diplomatic passport. and drink driving charges (Von Braunfels.

2010). ‘transit states’ often accept diplomatic passports as conclusive evidence for the right to claim diplomatic immunity. diplomatic passports are often considered only indicative to the passport holder’s exceptional position (Brown. Deckert. law enforcement agencies may only grant immunity when a diplomatic ID card issued by the Department of State is provided. In many Western jurisdictions.S. 1998. are deemed inconclusive. the diplomat is not registered in the transit country. or returning to his or her own country. for example. Department of State. nor has he or she been issued with a diplomatic ID card. only diplomatic ID cards issued by the receiving state are determinative of immunity status. In light of Article 40 VCDR and the sensitivity of diplomatic relations. while proceeding to take up (or to return to) his or her post. Other documents. Rudd. Deckert. 2010. 2009. Brown (1988) describes the case of an Algerian diplomat who passed through the 16     .S. It especially ignores Article 40 VCDR. the practice of entirely disregarding diplomatic passports as evidence for diplomatic immunity ignores a number of valid situations. For example. in the United States. A diplomatic passport only proves that the issuing state wishes the passport holder to fulfil a diplomatic function (Deckert. Confirmation of diplomatic status can take up to 24 hours. which is not expedient in most transit situations (Deckert. Department of State. In cases where a diplomatic ID card cannot be presented and immediate confirmation of an individual’s status is required. 2008).. 2009). 2009).S. law enforcement officers are expected to verify immunity status by contacting the U.vary from country to country (Wagner et al. including diplomatic passports. In these cases. However. Hence. when diplomats have recently joined a diplomatic mission and have not yet received a diplomatic ID card (U. which guarantees diplomatic immunity to diplomats passing through the territory of a third state. State Department on a 24-hour hotline (U. 2007). 2009).

However. When he handed over his red Employee ID – which looked similar to a diplomatic passport – the arresting police officer granted him diplomatic immunity and let him go. a large number of weapons were confiscated from him. as signalled by the use of the word ‘may’ in the ministerial guidelines.Netherlands on his way to Brazil. such doubt cannot arise. Ministerial instructions require German law enforcement agencies to carefully evaluate all possible evidence when faced with an individual claiming diplomatic immunity through a foreign diplomatic passport. if police officers in Berlin. The mistake was only revealed when the German Foreign Office received the accident report (Schnedelbach & Kopietz. who are thought to have regular contact with state 17     . or if doubt about the person’s exceptional position is not expressed. such an enquiry must be justified. In Amsterdam. In Berlin/Germany. Hence. The dark figure of similar incidents can only be estimated. Therefore ‘fake diplomats’ with genuine diplomatic passports may successfully claim diplomatic immunity in jurisdictions which accept diplomatic passports as conclusive evidence (Deckert. Only in urgent cases may authorities enquire with the German Foreign Office or directly with the relevant embassy. However. and facts that militate against the individual’s alleged status as a diplomat must be provided (Gemeinsames Minsterialblatt. enquiries are omitted if there is no emergency situation. but the diplomat was allowed to continue his journey. 1993). a Greek member of the European Patent Office caused a car accident at three o’clock in the morning. The driver did not even claim to be a diplomat. Even in emergency situations. 2005). an enquiry with the German Foreign Office is not required. Because the ‘master plan’ approach provides individuals with genuine diplomatic passports. Even a ‘fake diplomat’ without a diplomatic passport has been known to be granted diplomatic immunity. 2009). The only conceivable indicator that an individual is not entitled to diplomatic immunity is doubt about the passport’s authenticity.

shall be punished with imprisonment for not more than one year or with a fine. In order to establish comparability between diplomats from different countries. In light of this section. and an international rank. Minister. Third Secretary. Section 132a states that whoever uses domestic or foreign designations of office or government service. grant diplomatic immunity in view of any red passport (and diplomatic passports are not necessarily red) then the actions of law enforcement officers further removed from diplomatic hubs (such as capital cities) are highly questionable. diplomatic titles. Bolewski (2003) considers the illegitimate use of diplomatic titles to be a criminal offence in Germany. Referring to Section 132a of the German Criminal Code. Markel. or public honours without authorisation. Second Secretary. Attaché. and Assistant Attaché. in this case. International ranks are generally assigned by the sending 18     .officials. this supports the view that diplomatic passports are desirable objects in criminal circles. 1998. careful examination is required to identify those who have the right to authorise the use of foreign designations of office or government service – including. Misuse of Diplomatic Passports a Crime? Only a few months ago. However if diplomatic passports are issued to the passport holder by foreign state officials. Accredited diplomats use two different types of diplomatic titles: their domestic diplomatic designation. 1951). four Nepalese state officials were accused of making their diplomatic passports available to forgers (The Kathmandu Post. Minister-Counselor. titles. the Congress of Vienna of 1815 established a system of diplomatic ranks which has been formalised internationally (Denza. Counselor. not forged. as recommended by the ‘master plan’. 2011). First Secretary. then the document is technically genuine. Forging a diplomatic passport is considered a criminal activity in most jurisdictions. The international ranks are: Ambassador.

an authorisation process has not taken place.” He further reflects on the effects 19     . the use of such titles cannot be considered fraud or false certification since the diplomatic designation has been officially issued to the passport holder (Deckert.. However. the use of such designations abroad cannot constitute a criminal offence.] have recently started issuing German nationals with diplomatic passports of their state – presumably for financial consideration – or giving them blank passports. most receiving states have reserved the right to approve the rank (Kahle. diplomats’ bags are exempt from being opened or searched. If a receiving state has reserved the right to approve the international rank of a diplomat. the sole act of claiming nonexistent diplomatic immunity is not criminalised in any jurisdiction. This raises the question of whether it should be criminalised. The examples above illustrate that diplomatic immunity is indeed granted to ’fake diplomats’. therefore the diplomatic title recorded in any diplomatic passport is assigned by the issuing state. the passport holder’s claims to diplomatic immunity serve the purpose of concealing other offences. However. criminal organisations that work across borders may find the advantages of a genuine diplomatic passport appealing. 2009).state. foreign diplomatic titles are not subject to approval by domestic jurisdictions. it must be considered the authorising agency in accordance with Section 132a of the German Criminal Code. Also. If diplomatic immunity is granted in situations where rigorous law enforcement should usually occur. Because the exclusive authorisation of foreign diplomatic titles rests with the issuing state. 1995). if a diplomat is not accredited in any country. As far as is known to the author. Criminological and Legal Considerations Bolewski (2003) informs that some “diplomatic missions in Germany [. according to Article 27 VCDR. and hence remains a foreign designation.. Under international law. Considering that.

” Diplomatic passports are used to ‘prove’ claims to diplomatic immunity in order to conceal white-collar offences (Bolewski.. diplomatic conventions.. 20     . some government representatives have the opportunity to issue genuine diplomatic passports without accrediting passport holders as diplomats in other jurisdictions. as well as claiming nonexistent diplomatic immunity. At the scene.that such misuse of diplomatic passports has on national and transnational criminal activities: “These holders of foreign diplomatic passports [. knowledge about the VCDR. A reasonable amount of insider knowledge is required in order to exhibit the behaviours described in the fifty-three page long ‘master plan’.] or to provide “official” support for visa applications by third parties to German missions abroad.] use these documents and titles in business transactions and in their dealings with authorities in order to appear particularly trustworthy or to prove their entitlement to privileges and immunities [. 2003). This involves the abuse of trust inherent in the occupational role as international customary law expects only authentic diplomatic agents to be issued with diplomatic documents (Wagner et al. and local law enforcement guidelines is required so that the passport holder can behave in an appropriate manner when claiming diplomatic immunity. 2007). the passport holder appears to act legitimately in claiming diplomatic immunity when presenting the genuine diplomatic passport to law enforcement agencies. whereas the acts of issuing the passport... have attributes of white-collar crime as described by Newburn (2007) and Croall (2001): As part of their occupational role. Occasionally such persons use their links with foreign diplomatic missions to procure diplomatic passports for other non-entitled persons in return for financial consideration.. In addition.

. this occurs long after the incident. cases of ‘fake diplomats’ are often only revealed by ministries of foreign affairs through documentation forwarded by law enforcement agencies. states enjoy great autonomy in issuing national documents. Claiming diplomatic immunity despite a lack of entitlement does not pose an immediate physical threat to anyone.Often there is no complaint made. The act of claiming diplomatic immunity when being pursued by law enforcement agencies for another offence can be viewed as an execution of the offender’s legal right to avoid self-incrimination (Deckert. Establishing responsibility is problematic as government representatives should not issue passport holders with documents in the first place (Wagner et al. respecting nation states’ autonomy. The considerable amount of money required to obtain a genuine diplomatic passport. 21     . 2007). The situation has an ambiguous legal status because the VCDR. as law enforcement agencies often do not realise that they have granted diplomatic immunity to a ‘fake diplomat’. be it from government officials directly or through a consultant. does not explicitly forbid governments from issuing diplomatic passports to people who are not accredited in another jurisdiction. which white-collar offenders typically have. limits this behaviour to an ‘elite’ subset of people with already high social status. On the other hand. Strict regulations and law enforcement regarding proof of entitlement to diplomatic immunity could possibly prevent ‘fake diplomats’ from successfully claiming diplomatic immunity. Hence domestic legal administration and law enforcement agencies could be held responsible. 2009). If a complaint is laid.

as with most white-collar offences (Newburn. the lack of an international database to allow law enforcement agencies immediate access to information on accredited diplomats worldwide. avoiding prosecution and subsequent incarceration or fines. When authentic diplomats.S. like the U. as opposed to most white-collar criminal behaviour (Newburn.. who can only present a diplomatic passport. a seasoned diplomat 22     .However. On one hand. and the fragility of diplomatic relationships. are held by law enforcement agencies of the receiving state for an inappropriately long time. the misuse of diplomatic passports is self-regulated through diplomatic negotiations. Bolewski (2004) explains that diplomatic immunity is a sensitive issue. improved law enforcement guidelines. 2007). The only possible outcome achieved is the non-pursuit of other offences by law enforcement agencies. Thus. i. and education of law enforcement officers could be sufficient to prevent the success of false claims to diplomatic immunity. Currently. Although false claims to diplomatic immunity exhibit most of the key characteristics of white-collar crime. any financial effect attributable to the non-pursued offences would be indirect through revenue obtained by secondary criminality. have strict guidelines in place for law enforcement officers that prevent that ‘fake diplomats’ from successfully claiming diplomatic immunity. international information exchange about accredited diplomats.e. On the other hand. there are a number of obstacles that avert rigorous law enforcement: the transit regulation of Article 40 VCDR as described above. Bolewski. 2007). claiming diplomatic immunity has no direct financial impact on any victim. 2009). the sending state may apply the diplomatic principle of reciprocity to diplomatic agents stationed in its jurisdiction (Deckert. and disturbances may taint diplomatic relations with the sending state. it could be argued that many countries.

. Considering that the ‘diplomatic bag’. which enjoys diplomatic immunity from search or seizure.. non-criminal harms are posed to diplomatic security. potential harms include drug and arms dealing and human trafficking. in order to convince foreign institutions or persons to respect the law in Germany. The effect of such communications depends on the wrongdoer’s willingness to admit to acting improperly and to take corrective action. In a recent case. also covers shipping containers sheds light on possible dimensions of secondary criminality.] posts are involved. international political relationships. Furthermore. this fruitful dialogue led to an embassy [. stressing that such actions are contrary to good morals [. the standard forms of diplomatic dialogue may be employed. In compliance with the VCDR. Governmental sovereignty also covers the right to ensure that foreign diplomatic passports are only used in accordance with international regulations. national legislators are free to regulate the use of diplomatic passports through law enforcement policies or statutory law..himself. The German Foreign Office sends “a written warning to the person concerned.” Conclusion As long as international law or bilateral agreements do not limit governmental sovereignty in this regard. cites a number of measures that the German Foreign Office has undertaken in the past in order to discontinue such conduct (2003).]. national authorities are free to issue diplomatic passports to anybody. If foreign diplomatic [. As with fraudulent passports. The misuse of diplomatic passports for purposes of shady business dealings and secondary criminality is not dissimilar to the use of fraudulent passports... The misuse of diplomatic 23     .. also vis-à-vis the relevant foreign ministries.] cancelling the diplomatic passport it had issued to an unauthorised person. and the very institution of diplomatic immunity.

24     . Bolewski W (2004) Diplomatic privileges in practice. Bolewski W (2007) Diplomacy and international law in globalized relations. Brown J (1988) Diplomatic immunity: state practice under the Vienna Convention on Diplomatic Relations. diplomacy and rules. Berlin: Springer. Burton J W (1968) Systems. states. Göttingen: Cuvillier Verlag. Buckingham: Open University Press. secondary criminality for which the passport is intentionally used may well victimise a number of individuals. Cambridge: Cambridge University Press.pdf. Although it has no direct financial impact on any victim. Australian Law Journal 78(12): 788797. Oxford: Clarendon Press. Deckert A (2009) Strafwürdigkeit und Strafgesetzgebung – dargestellt am Beispiel des Vortäuschens diplomatischer Immuität. References Bolewski W (2003) Misuse and protection of diplomatic and consular titles. Available at: http://the-emotionexperts. Croall H (2001) Understanding white collar crime.com/Nach_dem_Tod/dervertraulichediplomatenreport. Australian Law Journal 77(11): 750-756.passports fits the accepted notions of white-collar crime. Denza E (1998) Diplomatic law. Cotter C (1998) Der vertrauliche Diplomatenreport. International and Comparative Law Quarterly 37(1): 53-88.

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Second. In a previous study. but also high-profile symbolic events that communicate norms. 0961226. 27     . In this paper. but social scientists still don’t understand well the causal mechanisms through which such prosecutions work. Brisbane Conference sub-theme: Global Justice. we further explore this important question by focusing on why and how human rights prosecutions improve human rights conditions. Transborder Crimes and Human Rights Abstract Human rights prosecutions are one of the main policy innovations that transitional regimes use to prevent future human rights violations. we found that human rights prosecutions after transition lead to improvements in human rights protection and that human rights prosecutions have a deterrence impact beyond the confines of the single country. so it may be difficult to separate the deterrent impact of punishment from the normative impact of socialization.How Do Human Rights Prosecutions Improve Human Rights after Transition?1 Hun Joon Kim Griffith Asia Institute. findings. Any opinions. Griffith University. Human rights trials are not only instances of punishment or enforcement. Hypotheses derived from deterrence theory and norms and socialization theory will be tested by using the more refined and enhanced data we collected with the Transitional Justice Database Project. We first test these hypotheses by exploring the possible divergent impact of convictions by themselves as compared to the impact of the entire prosecution process.                                                                                                                         1 This material is based upon work supported by the National Science Foundation under Grant No. and conclusions or recommendations expressed in this material are those of the author(s) and do not necessarily reflect the views of the National Science Foundation. we examine the possible divergent effects between prosecutions of high and low ranking government officials.

2003. in some circumstances. Kim and Sikkink.” In our previous study (Kim and Sikkink. we addressed this problem by examining whether human rights prosecutions deter future violations of human rights in transitional countries. recent empirical studies have not been able to resolve a decade-long debate over the effects of human rights prosecutions on repression (Snyder and Vinjamuri. Two state-of-the-field essays confirm the unsatisfactory level of accumulated knowledge. we further explore this important question by studying the causal mechanisms through which human rights prosecutions deter repression. We test various hypotheses derived from deterrence theory and norms and socialisation theory by using more refined and enhanced data we recently collected. 2010).Introduction Human rights prosecutions are one of the main policy innovations transitional regimes use to prevent future human rights violations. 2010). We first test these hypotheses by comparing the impact of prosecutions that result in convictions to the impact of a different prosecution 28     . Mendeloff (2004: 358) finds many claims about the positive or negative effects of transitional justice but relatively little solid evidence to support these claims. Many scholars argue that human rights prosecutions prevent future violations while others believe that such prosecutions will not deter future violations and that. We collected new data on human rights prosecutions in transitional – both from authoritarian regimes and civil wars – countries between 1980 and 2004 and tested various hypotheses linking human rights prosecutions to repression. Ron and Paris (2009: 23). However. 2010.. Thoms. they only exacerbate the situation by provoking still powerful old elites. Olsen et al. conclude: “Empirical evidence of positive or negative effects is still insufficient to support strong claims. We found that transitional countries with human rights prosecutions are less repressive than countries without such prosecutions. In this paper. after reviewing one hundred recent empirical studies.

who actually carry out human rights violations. which focuses on how prosecution and punishment inhibit individual criminal activity (Matsueda et al. Second. but the process of high-level prosecutions in and of itself did not have a statistically significant effect. research on domestic crime rates has not shown that 29     .. 2002. 2001). 1995. Akhaven. Reviews of the deterrence literature from domestic legal systems now conclude that there is much firmer evidence for a substantial deterrent effect than there was two decades ago (Nagin. 1997. In other words. Second. have a strong deterrence effect. Of particular relevance to our paper is the finding that an increase in the likelihood of arrest and punishment has a greater deterrent effect than an increase in the severity of punishment (McCarthy. How Do Human Rights Prosecutions Improve Human Rights? The Deterrence Hypothesis The most common hypothesis on the impact of human rights prosecutions involves the belief in the deterrence effect of criminal prosecutions (Orentlicher. High-level human rights prosecutions that ended in convictions are associated with improvements in human rights. on the other hand. Mendes. We found that not only those prosecutions that resulted in conviction but also prosecution processes themselves have a deterrence effect on future human rights violations. 1995. 1998). both the prosecutions and convictions of low-level state officials. including prosecutions that don’t result in convictions. Becker.measure that recorded the process of prosecution. Prosecutions of high-level state officials. Bueno de Mesquita. The debate over transitional justice is related to an important literature on deterrence in domestic systems. we examine the possible divergent effects between prosecutions of high and low ranking government officials. 1968). had divergent effects. 2006).

we strongly believe the entire “process of prosecution. In order to respond to scholars who stress the importance of verdicts. it leads to the following predictions: 30     . Some scholars believe that only human rights prosecutions that end in verdicts or convictions could have an effect (Olsen et al. we have now collected additional information for our entire data base to record those prosecutions that resulted in convictions. Human rights prosecutions impose costs and sanctions on former state officials and carry the possibility of punishment. and of Slobodan Milosevic in the ICTY did not result in convictions because both died before the completion of their trials. extradition. the main mechanism through which prosecutions lead to improvements in human rights practices is by increasing the costs of repression for state officials. Prosecutions lead to sanctions of various sorts (arrest.more severe punishment. impose costs on the accused even the prosecutions have not yet resulted in verdicts or convictions.. Our data set thus records judicial activity that forms this process of human rights prosecutions. We anticipate that the entire process of prosecution can produce deterrence effects. their indictments. but it does indicate that an increase in the likelihood of sanctions is associated with deterrence. such as the death penalty. however. Although neither was convicted. For example. detentions. the prosecutions of Augusto Pinochet in the United Kingdom and in Chile.” including indictments. deters crime. incarceration. and trials. detention. but that actual convictions impose the greatest costs on perpetrators. preventive detention. However. For this approach. and trials were very costly to them. If deterrence theory is correct that a greater likelihood of punishment deters future crimes. 2010). or loss of income or prestige) that may increase the perceived costs of repression.

not only to state officials. Norm theories stress that state officials also care about the social costs imposed by trials. or countries where prosecutions have not resulted in convictions. But we should be clear that the norms literature does not say that stronger enforcement is counterproductive for compliance.Hypothesis 1: Countries that have held human rights prosecutions will see greater improvements in human rights practices than those countries that have not held human rights prosecutions. Hypothesis 2: Countries that have held human rights prosecutions that ended in convictions will see greater improvements in human rights practices than those countries that have not held such human rights prosecutions. including judicial institutions. but also to broader publics. esteem. Norms and Socialisation Hypothesis The alternative to the deterrence hypothesis is the argument that sometimes compliance occurs for normative or managerial reasons even in the absence of strong enforcement (Chayes and Chayes. 1993). 1999). in communicating those norms. and are attentive to the general norms of society and the role of institutions. just that strong enforcement may not be necessary in all circumstances and that behavioral change is possible in the absence of strong enforcement 31     . human rights prosecutions are part of a process of socialisation through which the norms of domestic and international society are communicated and reinforced. and legitimacy are at stake in human rights debates.. Since issues of state and individual reputation. In this approach. the processes of the mobilisation of shame through advocacy networks and international organisations could lead to behavioral change without stronger enforcement (Risse et al.

such as aid cut-offs or other sanctions (Risse et al. Thus. Democratisation refers to a situation where a state changes from a repressive and closed regime such as a military. if human rights prosecutions exercise influence primarily through processes of social communications of norms. Weissbrodt and Bartolomei. Thus. Usually. 1991). one-party. we used our new dataset on human rights prosecutions in 71 countries that had undergone democratisation between 1980 and 2006. 2001: 13.. the evident indicator of democratic transition is a free. Human rights prosecutions of high-profile state officials draw more social and media attention to their processes and outcomes than do prosecutions of lower level officials such as police officers and prison guards. 2007. they would tend to agree that the greater enforcement of human rights norms through prosecutions will complement and enhance the processes of “naming and shaming” that have long been a staple of the human rights movement. Cardenas. 32     . we would expect to see that high-level prosecutions have a greater impact than low-level prosecutions. Many legal scholars and political science norms theorists who write on human rights believe that human rights change is usually the result of both normative and coercive factors. 1999. dictatorial. authoritarian.mechanisms. Research Design To test these hypotheses. This would leads to the following predictions: Hypothesis 3: Countries that have held high-level human rights prosecutions will see greater improvements in human rights practices than those countries that have held low-level human rights prosecutions. or communist regime to an open and decentralised government. Akhaven.

and direct national election for major government offices. 2002.fair. While information is readily available on the relatively small number of international trials. 2006. following established practice in the quantitative literature (Poe et al. We operationalised it using the physical integrity rights index from the Cingranelli-Richards (2004) human rights database (CIRI). To address this problem. we created a new database of human rights prosecutions by coding from the State Department reports. The Dependent Variable We explore the impact that human rights prosecutions have on a core set of human rights violations – torture. summary execution. 1991: 7).. Olsen et al. including head of state (Huntington. Mansfield and Snyder. We determined transitional countries using the dataset from the Polity IV Project following the established practice in the field (Epstein et al.. Human rights prosecutions mainly address these types of human rights violations. secret. 33     . so we should look for impact on a dependent variable that is a measure of these physical integrity rights. disappearances and political imprisonment – which we refer to as repression.. which are generally considered to be a reliable source of information on states’ human rights practices. 1999). Domestic human rights prosecutions are those conducted in a single country for human rights abuses committed in that country. the data on domestic prosecutions is dispersed and difficult to quantify. 2010). Independent Variables A human rights prosecution is the criminal prosecution of former state officials for human rights violations while in office.

Prosecutions are high-level if the accused falls under any of the following categories: presidents or other heads of state. Guided by previous studies. police officers. Models The basic structure of the data is an unbalanced time-series cross-sectional data. eight control variables – democracy. Low-level prosecutions would include those of soldiers.t . ei .t −1 + β 2 X i .In order to test our hypotheses regarding the mechanisms of human rights prosecutions.t is a error term. 34     . A set of control variables is included to isolate the net effect of human rights prosecutions from all other factors that might affect the level of repression. Second. international wars. and X i . as well as military officers or states officials below the levels of head of state. We anticipate that factors that were proven to be important in the previous studies will continue to be important. and heads/directors of security and intelligence agencies. we used pooled ordinary least squares (OLS) regression with panel corrected standard errors (PCSE) and a lagged dependent variable.t represents our measure of repression.t + ei . minister.t is the respective measure of prosecution. In line with our previous work. we created three additional variables to measure the differences in the prosecution process. and population growth – were included. treaty ratification.t −1 is a one year lag of the dependent variable.t is a vector of control variables. we further collected information from our data base on whether the prosecution led to a conviction in the court of law in the country. civil wars.t = β 0 + β1Yi .t + γZ i . economic standing. Z i . First. ministers. we created two variables that measure the human rights prosecutions of high-profile and low-profile state officials. The basic PCSE model is: Yi . where (1) Yi . and prison guards. or head of security sectors. admirals. population size. economic growth. generals. admiral. defined by the rank of the accused. Yi . general.

The variable measuring convictions turned out to be statistically significant. Although we adjusted our sample to countries with democratic transition and expanded for a longer period (1980-2006). In sum. Human rights prosecutions have a strong and statistically significant impact on decreasing the level of repression. convictions) but also the likelihood of punishment in the course of the entire process of prosecution has a deterrence effect on future violations.Findings Table 1 reports the results of estimating the effect of human rights prosecutions using PCSE models. This supports the general findings from the deterrence literature. When controlled for all other relevant factors. While the process of prosecution contributes to improvements in human rights practices. However. Not only the certainty of punishment (i. 35     .e. Model 2 reports the result of estimating the effect of human rights prosecutions that ended in convictions. This suggests that the process of prosecution itself may have a deterrence effect because people anticipate it will lead to a conviction. Model 1 is a replication of our previous model to our new sample. when such prosecutions result in convictions they have a greater impact. the level of repression in countries with prosecutions is significantly lower than that of countries without prosecutions. our finding are consistent with our previous study (Kim and Sikkink. The result from Table 1 strongly supports our assumption that not only human rights prosecution that ended in convictions but also the process of prosecution including trials that that did not lead to convictions have a deterrence effect on future violations of human rights. the difference in the magnitude of the prosecution variable in Model 1 and 2 suggest that the deterrence effect is stronger for those prosecutions ending in convictions. 2010). the result from Table 1 strongly supports the deterrence hypothesis.

940*** -0.310** -1. ** p < 0.149*** (0.050) (0.027) (0.132) Commitment to human rights treaties 0.008) Population (logged) 0.Table 1.1/SE.016) International conflict 0. * p < 0.073*** -0.703 0.480*** (0.279*** (0.146) (0.253) (0.072 (0.148*** -0.144) Asia -0.191*** 1. Impact of Human Rights Prosecution on Repression Model 1 Prosecution Human rights prosecution Conviction Controls Repression (lagged) -0.704 Chi square 2943 2977 Note: Table entries are OLS regression estimates corrected for panel-specific autocorrelation using Stata 11.059) (0.011 -0. Overall.033) *** Population change (%) -0.516) Observations 1007 1007 Number of states 69 69 R square 0.128** (0.007 (0.138) Year 0.279** (0. Most actual human rights violations are 36     .214* (0. *** p < 0.139) (0.008) (0.883*** (0.236* -0.200** (0.131) Model 2 0.916*** (0. low-level prosecutions and convictions turned out to be statistically significant in deterring future violations as shown in Model 3b and 4b.073*** (0.050) Africa -0.132) (0. Panel corrected standard errors are included in the parentheses.016) (0.074 0.284*** 0.126) (0.044) (0.518) (0.194*** (0.033) (0.05.044) Annual GDP growth rate (%) -0.123) Europe -0.360** -0.253) Civil conflict 1.351** (0.101) -0.027) Democracy -0.249** (0.059) GDP per capita (logged) -0.881*** 0.129 -0.01 Table 2 reports the result of estimating the effect of high-level and low-level human rights prosecutions (Model 3a and 3b) and convictions (Model 4a and 4b) on repression.007 0.480*** 0.008) Constant -1.010 (0.008) (0.10.

the accused with not be punished.carried out by low-level state officials such as police officers. secret service agents. the impact of high-level prosecutions and convictions diverges as shown in Model 3a and 3a. prosecutions proceed in absentia (e. and foot soldiers. However. This suggests once again that convictions have a stronger deterrence effect than the process of prosecution. they may be seen as revealing 37     . human rights prosecutions that did not end in convictions turn out not to be statistically significant. in Models 3a. although the orders may come from higher level state officials. In some cases. Another possible interpretation of these findings is that prosecutions of high level state officials that fail to conclude or result in dismissals or acquittals. In line with the low-level convictions. are communicating a different set of norms and expectations. prison guards.g. the fact that prosecutions of low-level state officials have a strong deterrence effect is of great interest. often symbolic and performative. Because of this. The uncertainty associated with high-level prosecutions also could diminish the deterrence effect of these prosecutions. Ethiopia) which also decreases the credibility of the court and diminishes the effect of these high-profile cases because even if convicted. High-level convictions have a greater deterrence effect compared to the convictions of low-profile officials. human rights prosecutions of high-profile state officials that ended in conviction have a statistically significant effect on repression. often lead to acquittal or dismissal of the case. They may be seen as communicating norms about impunity. However. or about the political and legal privileges of high level officials. It may also be true that the high-level prosecutions are highly political and thus uncertain in nature. This could suggest that the deterrence hypothesis is stronger than the norm and socialisation hypothesis in explaining the effect of human rights prosecutions. High-level prosecutions. Rather than evidence of due process or rule of law.

481*** (0.033) (0.331** -0.154*** -0. * p < 0.197 -0.139) (0.072 (0.284*** 0.139) (0.123) (0.144) -0.136*** -0.016) *** *** *** International conflict 0.132) (0. Impact of Human Rights Prosecutions on Repression by Levels of the Accused Model 3a Prosecution High-level prosecution Low-level prosecution High-level conviction Low-level conviction Controls Repression (lagged) -0.016) (0.010 -0. ** p < 0.that high level officials are not bound by the law.188*** 1.144) Asia -0.127** (0.008) (0.027) (0.033) (0.920 -0.206* (0.027) Democracy -0. Panel corrected standard errors are included in the parentheses.703 0.044) Annual GDP growth rate (%) -0.007 0. communicate the norm that even high level officials are not above the law.044) (0.016) (0.008) (0.703 0.073*** -0.278** -1.072 0.357** -0.253) (0.281*** 0.873 0.877 0.059) (0.481*** 0.481*** 0.008) Population (logged) 0.253) Civil conflict 1.913*** (0.074*** (0. however.1/SE.027) (0.921 -0.008) (0.073 0. The cases with convictions.073*** -0.044) (0.059) (0.516) (0.137) Model 3b Model 4a Model 4b 0.044) (0.195 -0.01 38     .297** (0.189*** 1.122) *** *** *** Europe -0. Table 2.125) (0.138) Year 0.008) (0.247** (0.351** (0.227* -0.007 0.280*** 0.033) Population change (%) -0.702 0.068 0.10.016) (0.059) (0.033) (0.132) Commitment to human rights treaties 0.050) (0.008) (0.253) (0.128** -0.008) Constant -1.515) Observations 1007 1007 1007 1007 Number of states 69 69 69 69 R square 0.323** -0.279*** (0.135*** -0.703 Chi square 2929 2945 2929 2954 Note: Table entries are OLS regression estimates corrected for panel-specific autocorrelation using Stata 11.027) (0.376* (0.168 (0.132) (0.191*** 1.210* (0.147*** -0.008) (0.073*** -0.108) -0.05.216) -0.194*** (0.519) (0.050) (0.007 (0.152*** -0.138) (0.144) (0.482*** 0.148*** (0. *** p < 0.145) (0.143) (0.254) (0.295** -1.050) Africa -0.011 -0.122) (0.515) (0.932 -0.007 0.010 (0.010 -0.864 0.132) (0.870*** (0.059) GDP per capita (logged) -0.244** -1.050) (0.

It provides more evidence for those conclusions by including a longer time period. and when it becomes clear that a judicial process will not result in punishment. Although the entire process of prosecution and not just verdicts or convictions is associated with improvements in human rights. The fact that some prosecutions result in dismissals or acquittals for lack of evidence will not necessarily undermine the deterrence effect. we now see that while the whole “process of prosecution” contributes to the deterrence effect of human rights prosecutions. This suggests that if a country were carrying out only a pro forma exercise in human rights trials that never resulted in convictions. and thus adjust their behavior accordingly. they could not expect such trials to lead to improvements in human rights. and the general narrative about effectiveness as reported in The Justice Cascade: How Human Rights Prosecutions are Changing World Politics (Sikkink. Second. Theoretically. First. prosecutions that result in convictions have a stronger effect.Conclusions The results of the current round of analysis support the findings of our earlier research (Kim and Sikkink. prosecutions of high level officials that result in dismissals or acquittals have a statistically insignificant effect on human rights practices. But it could also imply that a prosecution that results in an acquittal 39     . It also offers some additional theoretical and policy insights that are not present in the earlier work. we are finding more support for a rational choice deterrence argument than we are for the normative communication or expressive argument. 2010). 2011). it does not have an impact. those prosecutions that result in convictions have a greater effect than those that do not. but a sustained failure to convict could diminish the belief in the likelihood of punishment. This could imply that the process of prosecution had an impact because people anticipate that it will result in a conviction. This suggests that only punishment or the possibility of punishment matters.

References Akhaven P (2001) Beyond impunity: Can international criminal justice prevent atrocities? American Journal of International Law 95: 7-31. 40     . In terms of policy implications. If. however. other state officials may conclude both that the norm of impunity is intact and that the risk of punishment is not great. The Journal of Political Economy 76: 169-217. we cannot yet fully explain the processes through which they work. If prosecutions against high level officials are routinely dismissed or lead to acquittals. Backer D (2009) Cross-national comparative analysis. such research may imply that observers are able to distinguish “sincere” prosecutions from insincere ones. In: Chapman A R. Because trials are complex phenomena. DC: United States Institute of Peace Press. Becker G (1968) Crime and punishment: An economic approach. Van der Merwe H and Baxter V (eds) Assessing the impact of transitional justice: Challenges for empirical research. accountability norms are reinforced and the anticipation of a likelihood of punishment could prevent future human rights violations. Washington. but this research confirms once again the both the likelihood and the certainty of punishment appear to be important parts of the explanation for improving the human rights situation in transitional countries using prosecutions. human rights prosecutions reveal a higher probability of conviction for both high and low levels officials.communicates norms about impunity and the inability of rule of law to constrain powerful individuals.

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Vulnerable and Invisible: Depictions of Trafficking Victims in Public Awareness Campaigns Erin O’Brien School of Justice. 43     . this research argues that some of these campaigns perpetuate an understanding of a hierarchy of victimisation of trafficking. and renders invisible the male and female victims of trafficking for other forms of labour. Campaigns such as the Blue Blindfold Campaign in the UK. In particular. This concern and panic has both spawned and been fuelled by an array of public awareness campaigns that aim to educate the public about this crime. A public focus on sex trafficking often results in the conflation of prostitution and trafficking. This research explores these and other government and non-government campaigns aimed at raising public awareness of human trafficking. and the worldwide Body Shop campaign have contributed to the public’s awareness and. Faculty of Law. to an extent. Queensland University of Technology Sarida McLeod School of Justice. Queensland University of Technology Conference sub-theme: Global Justice. understanding of the phenomenon of human trafficking. call to action and impact of these efforts. Transborder Crimes and Human Rights Abstract Public concern about the crime of human trafficking has dramatically risen over the last two decades. It questions the rationale. Faculty of Law. the UN-driven Blue Heart Campaign. and analyses the depiction of trafficking victims in these campaigns.

female victims of trafficking to the exclusion of adult male victims. It is argued that a persistent focus on sex trafficking by these campaigns contributes to the belief that trafficking for sex is a more significant problem than trafficking for other forms of labour. men and children lured from their homes with the promises of a better life. as well as the United Nations Organisation on Drugs and Crime (UNODC) toolkit to combat trafficking in persons. corporations and the general public for the last two decades.Introduction The crime of human trafficking has captivated the attention of governments. 44     . international bodies. only to be forced into a form of modern day slavery. These themes include a focus on trafficking for sexual exploitation versus trafficking for other forms of labour. awareness campaigns have been recognised as an important part of the fight against human trafficking. as well as the persistent depiction of young. Sensational news reports. bestseller books and blockbuster films have fuelled a fascination with the stories of women. This paper examines the existing research on awareness campaigns. and outlines a new direction for an examination of awareness raising activities. as well as women who may have chosen to work in the sex industry but have nonetheless been exploited. activists organisations. charities. Indeed. The campaigns are then examined for key themes in the narratives they establish. a plethora of awareness campaigns has emerged. documentaries. Amidst a panic focused on stopping the trade in people. warranting inclusion in the United Nations Protocol to Prevent. these campaigns render invisible male victims of trafficking. It is also argued by favouring imagery depicting vulnerable young women and girls. These campaigns have the capacity to contribute to the public’s understanding of the nature of human trafficking and this research analyses several campaigns in order to explore how they contribute to the construction of human trafficking narrative. Suppress and Punish Trafficking in Persons.

Existing Research To date. mention of awareness campaigns (Samarasinghe and Burton 2007. Musto 2008. particularly in relation to trafficking policies in nation-states and during the negotiations leading to the establishment of the UN Trafficking Protocol in 2000 (Weitzer 2007. Shinkle 2007. 2008b. Existing research analyzing anti-trafficking programs also make minimal. This critique is reflected in the wider field of human trafficking literature. or no. However. 2008c. the existing research on human trafficking awareness campaigns offers several key criticisms of their contribution to public awareness. research has primarily focused on how those human trafficking narratives have influenced political decision-making. Sutherland 2007. demarcate the limits within which women can be imaged as active agents’ (2007: 26). Tzvetkova 2002. Pickup 1998. Segrave and Milivojevic 2004). 2007. Stolz 2005). Andrijasevic provides an in-depth critique of the International Organisation of Migration’s European anti-trafficking awareness campaigns during the 1990s. While some literature has investigated how the discourses and policy responses surrounding human trafficking have served to shape a human trafficking ‘narrative’ (O’Connell Davidson 2006. 2009). and with Anderson 2008. Andrijasevic’s research on awareness campaigns criticizes them for the objectification of female victims (2010. Segrave 2004). very few have focused on how this narrative has been transmitted to the public. 2004. arguing that many of the images utilised in those awareness-raising posters ‘contribute[d] to the objectification of women as they capture women’s bodies within stereotypical representations of femininity and hence. as well as their impact. there has been little research into how awareness campaigns have contributed to the shaping of attitudes and understandings of human trafficking among their audience. with many scholars arguing that the entire discourse of human trafficking further victimises victims by conceiving of them as 45     . Augustin 2008a. Doezema 2000. Instead.

In doing so. 2008c. trafficking and illegal migration. the threat of deportation may be evidence of a forced labour relation as characterized by posters encouraging the public to spot ‘signs of trafficking’. O’Connell Davidson 2006). shore up nationalized consciousness of space and home and criminalize those rendered illegal within national territories’ (2003: 53). by placing an emphasis on the dangers of migration. and thus 46     . the state is often seen as a key enforcer of immigration law. Underlying this argument is a suggestion that. A second area of criticism for existing campaigns is in the way in which they may act as an anti-immigration tool. Nieuwenhuys and Pecoud suggest that anti-trafficking campaigns highlight the ambiguities between security and humanitarian perspectives of immigration. Chapkis 2003. Andrijasevic and Anderson (2009) highlight the ways in which campaigns often overlook the complexities surrounding the interplay between migrant work. For example. arguing that anti-trafficking campaigns launched in central and eastern Europe attempt to reduce emigration before migrants reach the border by ‘promoting a negative image of migration to western Europe’ (2007: 1674). They argue that anti-trafficking campaigns mislead the public in relation to what assistance is actually being offered to victims. Doezema 2000. anti-trafficking campaigns align with government attempts to restrict the mobility of migrants by advocating the idea that migrants ‘are almost (if not) always better off at “home”’ (54). Sharma argues that the narrative framework of anti-trafficking campaigns ‘reinforce restrictive immigration practices.devoid of agency (Augustin 2008a. The authors note that the term ‘human trafficking’ is often only used descriptively and does not correlate with what is administratively required for an individual to be considered ‘trafficked’ and capable of accessing governmental existence. 2008b. However. Nieuwenhuys and Pecoud echo this belief.

they argue that a focus on differentiating human trafficking victims from the more ‘regular’ phenomenon of migrant exploitation invites a ‘race to the bottom’ where only ‘those who are most abused and exploited count’ (Andrijasevic and Anderson 2009.threats of deportation against trafficking victims are most likely to be carried out by the state.GIFT) campaigns. They also charge several campaigns. as well as subsequent evaluations of the impact of campaigns. 155). rather than migrants (Andrijasevic and Andersons 2009. it is impossible to assess the extent to which awareness has been increased by campaigns. Moreover. McDonnell’s evaluation of this campaign states that. A third existing critique of anti-trafficking campaigns relates to the evidence-base for these efforts. with raising awareness of their organization or their work. most often seen to intervene on behalf of employers. Dewar and Napier-Moore’s (2010) study on behalf of the Global Alliance Against Trafficking in Women provides a comprehensive evaluation of the evidentiary problems facing human trafficking awareness campaigns. They argue that due to the lack of baseline surveys of knowledge and attitudes conducted. notably the United Nations Global Initiative to Fight Trafficking (UN. However. the sources cited for this conclusion were the fact that ‘human trafficking continues to be featured in major newspaper articles. Thus. television programs and conferences’ and the opinions of two other members of the Coalition 47     . 154). The US Coalition for Child Survival’s campaign to end ‘modern day slavery’ is a prime example of the inadequacy of evaluation mechanisms. Hames. ‘There is no doubt that advocacy groups have significantly raised public awareness of modern day slavery’ (2007: 6). the authors suggest that anti-trafficking campaigns must move beyond ‘the victim model’ and towards a broader evaluation of labour and immigration legislation as a whole. rather than of the crime of trafficking itself.

The study made no mention of any attempt to survey the campaign’s target audience either before. during or after the campaign. Moreover. Notably. The focus on child sex trafficking necessarily limits the applicability of the survey results to other areas of research. survey results indicated that 91% of participants were aware of people trafficking in some form and that 48% gained their information from the media. were almost necessarily aware of the campaign due to the promotional materials placed prominently throughout the store. There appears to be no publicly available data relating either to the effectiveness of awareness campaigns nor baseline surveys of their target audience. given the surveys were distributed among customers who. by virtue of being in a Body Shop store. 48     . and to highlight the need for more data to be collated in relation to public responses to awareness campaigns. apart from the notable exception of the survey report conducted by Child Wise and The Body Shop for their Stop Sex Trafficking of Children and Young People campaign. The Community Attitudes on Sex Trafficking in Children and Young People Survey Report (2010) collates the results of 17. The Body Shop campaign was the next most commonly cited source of information (20%). with the activities of non-profit organisations (awareness campaigns included) being cited by only 10% of participants.949 customer surveys collected by The Body Shop during the first year of the campaign from every Australian state and territory.(6). The survey report serves both to suggest that anti-trafficking awareness campaigns may not be as effective in communicating information to the public as claimed. the report may present an overly optimistic picture of the effectiveness of the Stop Sex Trafficking of Children and Young People campaign in raising awareness among the general public.

and the impact they can have in the depiction of especially female victims. two were devised by international organisations. Secondly. the ATEST campaign. Of these campaigns. Firstly. the Blue Hearts campaign. Materials in other languages are also available. four were run by non-government organisations and one was established by a commercial enterprise. non-government and corporate campaigns were desired in order to reflect a diversity of actors engaged in awareness-raising activities. The analysis of these campaigns seeks to explore previously un-examined aspects of anti-trafficking awareness campaigns. call to action and impact of these efforts. due to the primary language spoken by the researchers. a mix of government. the Rescue and Restore campaign. and imagery of non-English language campaigns could also be analysed in further 49     . the Body Shop campaign. Research Methodology This paper is drawn from an analysis of ten anti-trafficking awareness campaigns: the Blue Blindfold campaign.Existing research has made some inroads into understanding the basis of awareness campaigns. the Euro 08 campaign. the Hidden in Plain Sight campaign. all of these campaigns published materials in English. three were government-run or primarily government-funded. the Purple Teardrop campaign. which is the primary focus of this paper. It also analyses the construction of human trafficking through the establishment of victim narratives. it questions the rationale. This research will provide a comparison of a number of campaigns initiated by different organisations in order to begin building a better understanding of how persistent awareness campaigns construct a public understanding of the realities of trafficking. the EU Anti-Trafficking Day campaign and The Truth Isn’t Sexy campaign. In particular. These specific campaigns were chosen for analysis for several reasons.

are identified in order to gain a better understanding of how these campaigns may contribute to building an understanding of the nature of human trafficking amongst their target audience. Trafficking for Sexual Exploitation versus Trafficking for Other Forms of Labour One clear commonality amongst the campaigns is a prioritising of sex trafficking as opposed to trafficking for other forms of labour. and local citizens’ organisations’ efforts to fundraise for trafficking organisations. posters and leaflets) have been reviewed in order to conduct a discourse analysis of the primary narratives put forward by the campaigns. These narratives were identified through an analysis of the primary and secondary images used in the campaign materials. Four out of ten of the campaigns focus virtually 50     . The materials associated with these campaigns (including websites. The first is a focus on trafficking for sexual exploitation versus other forms of trafficking. numerous campaigns were excluded from this study on the basis that they were unlikely to have reached a large target audience. additional campaigns discovered during this research but excluded from the sample focused on other forms of sexual exploitation and the sex industry as well as sex trafficking. The second is a focus on female victims of trafficking. These included church-run ‘trafficking awareness days’. Two themes emerged strongly in the campaign narratives. In particular. Finally. and the industry highlighted as a destination for trafficking.research. Thirdly. as well as the textual ‘story’ associated with those images. the gender of the victim. They were also chosen in order to provide a mix of government-initiated. The campaigns chosen for this research were selected due to their declared focus as raising awareness about the crime of human trafficking.

asks people to sign a petition to help stop children being ‘tricked into trafficking for sexual exploitation’. which originated in the UK and Ireland but was also released in the United States and Canada. The fourth campaign. call for increased awareness and reporting of trafficking in all industries. The Blue Blindfold campaign.exclusively on the issue of sex trafficking. but also present narratives reflective of victims trafficked into other forms of labour. Released prior to and during the European soccer world cup in 2008. Of the other campaigns examined. ‘the truth isn’t sexy’. seeks to bring attention to the issue of ‘Women and children trafficked for prostitution’. endorsed by the UK Human Trafficking Centre and Crime Stoppers. The Purple Teardrop campaign. This campaign. The ATEST (Alliance to End Slavery and Trafficking) campaign. The Hidden in Plain Sight and Rescue and Restore campaigns. not specifically the sex industry. The Euro 08 campaign speaks to a more specific audience. The Blue Heart campaign. established by NGO Soroptomist International. also represents a diversity of cases of trafficking. utilises graphics modelled on print ads for sexual services in order to draw attention to women who have been forced into the sex industry. established by the US Government. The Body Shop campaign. funded by the United Nations Office on Drugs and Crime and the United Nations Global Initiative to Fight Human Trafficking. run in conjunction with the nongovernment organisation Child Wise. all draw attention sex trafficking. The Truth Isn’t Sexy. it urged participants and spectators attending the event to be aware of the possibility that women ‘searching for a better future’ may ‘find themselves exploited and trafficked’. 51     . declares that people can be trafficked into a range of industries. also focused exclusively on women trafficked for sexual exploitation. created by a coalition of 11 US human rights and anti-slavery organisations including ECPAT and the Polaris Project which often focus primarily on sex trafficking. with the tag line that.

Agustin (2008a. 52     . The targeting by these campaigns of trafficking into the sex industry may contribute to a public belief that human trafficking is primarily for sexual exploitation. 2008c) openly condemns attempts by anti-trafficking actors to present migrants engaged in sex work as victims of trafficking. What is notable. especially where migrant women are concerned. It may also conflate sex work with trafficking. sex trafficking is positioned as somewhat unique. however. and have instead actively chosen sex work as a way of overcoming social. to the exclusion of other forms of trafficking. 2000b. and exclusively in nearly half of the campaigns. It is possible that this focus on sex trafficking by the majority of campaigns. with the tagline ‘some people are very attached to their jobs’. The final campaign. economic and cultural disadvantages. As the only form of trafficking featured in all ten campaigns.attacks slavery in all forms through a series of billboard and public services announcements. all the campaigns drawing attention to only one form of trafficking focused on trafficking for sexual exploitation. they universally include victim stories and narratives that specifically relate to the sex industry. is that while these six campaigns included narratives of trafficking in a number of different industries. contributes to an understanding of trafficking as directly associated with sexual exploitation and the sex industry. released by the European Commission in conjunction with the EU AntiTrafficking Day held every year since 2007 depicts trafficking in a number of industries. Agustin stresses that many migrants engaged in sex work ‘reject being defined as sexually vulnerable and in need of ‘rescuing’ and protection’ (2008a). During the search for awareness campaigns on human trafficking.

Trafficking Victims The depiction of the age. gender and race of victims through the choice of primary images in these campaigns also contributes to a particular understanding of trafficking. The Purple Teardrop campaign utilises black and white close-up images of young women and girls’ faces crying purple tears. The text accompanying these ads tells stories from the first person perspective of women trafficked into the sex industry.Chapkis (2003) argues that the problem of migrant and sex worker abuse is unlikely to be resolved until hostile public attitudes towards poor women. typically found in phone booths and nightclubs. finishing with the line. and also are three of the campaigns with a primary or exclusive focus on trafficking for sexual exploitation. The primary images are designed to look like ads for sexual services. 53     . These images are sometimes supplemented by or replaced with a textual narrative that further influences public understandings of trafficking. a young woman standing in what could be assumed to be a brothel. and effective government responses to those issues are provided. ‘The truth isn’t sexy’. a young woman crying. The Truth Isn’t Sexy campaign depicts women but in an entirely different manner. undocumented workers and prostitutes are changed by a greater understanding of the economic disparities and social problems that have spawned human trafficking. They show women’s legs in sexy lingerie and poses. secondly. and thirdly. a man holding up an auction paddle. presumably bidding on a trafficking victim. ‘Punish me’ and ‘Sexy Blonde’. with headlines such as ‘Fancy it’. firstly. Three campaigns only reflect female victims of trafficking. The Euro 08 campaign also depicts female victims through the use of several images showing.

the Body Shop campaign and the Hidden in Plain Sight campaign all acknowledge in their campaign materials that trafficking victims can be both male and female. while the ATEST campaign communicates only in text. or even of people who could become victims. Of the ten campaigns reviewed. All of the images are somewhat disembodied as only body parts (arms. the images used occasionally and on the website are primarily of young girls. there is a notable absence of men in their choice of images and stories. Neither campaign includes imagery or prominent narratives of adult male victims of trafficking. the images are clearly not of real victims. While many of their campaign materials simply print a distinctive yellow and pink logo. EU Anti-Trafficking Day and the Blue Blindfold campaign prominently acknowledge and depict male victims of trafficking. The Body Shop imagery focuses on women almost exclusively. Blue Blindfold uses images of men and women blindfolded to represent their ignorance of the crime of trafficking. The Blue Hearts Campaign and the Hidden in Plain Sight campaign both explicitly state that victims of trafficking are both male and female. it is the only one to use imagery to draw attention to adult male 54     . ATEST. legs) are shown. This leaves the EU AntiTrafficking Day campaign as the only awareness-raising effort using imagery of victims to prominently feature adult male victims of trafficking. However. In this instance. the campaign uses manipulated images of men and women whose skin has grown to cover items such as heels (perhaps to represent the sex industry) and brooms (possibly to represent domestic servitude). Only three campaigns.Images of women as victims of trafficking are also dominant in the other campaigns. Notably. This image evokes a very conventional understanding of trafficking as a crime in which victims are physically imprisoned. and in one instance of a girl standing behind bars. Instead. neither the Blue Blindfold campaign nor the ATEST campaign use imagery of victims at all. yet the only male victims of trafficking depicted are young boys. The Blue Hearts campaign.

This is to be expected in campaigns that only focus on trafficking for sexual exploitation. Another campaign. while men who migrate simply disappear. or secondary. images. female victims. Furthermore. reiterating the notion that victims are passive entitites and bodies ‘to be gazed at’ (2007. 239). ‘the truth isn’t sexy’ also depicts women in highly sexualized clothes and poses. The ‘favouring’ of young female subjects for trafficking campaigns also contributes to what Schatral terms as a ‘gender specific and gender hierarchic’ phenomenon (Schatral 2010. contributing to a discourse where women who migrate become trafficked. Similar to the EU Anti-Trafficking Day campaign. none of the ten campaigns feature a ‘real’ or embodied adult male victim of trafficking in their primary. mistreated women’ (Schatral 2010. 38). However. adult males are still largely absent from the narrative. especially with the imagery chosen for the Euro 08 campaign. in campaigns addressing a wider range of trafficking. though seems to be using this imagery to intentionally juxtapose the objectification of women in commercial settings with the exploitation of trafficking. however this focus alone overlooks male victims of trafficking for other forms of labour. 252). The representation of women in trafficking campaigns has been a source of previous criticism. showing only women’s legs. It is also a valid criticism of the campaigns analysed in this study. who responded to the comments by abstaining from the presentation of ‘eroticised pictures of naked. This criticism was originally leveled at the International Organisation of Migration campaigns. 55     . Adult male victims are rendered invisible by awareness campaigns that prioritise young. Andrijasevic notes that female figures in trafficking campaigns are often scantily clad and never shown looking towards the audience.victims of trafficking. the images are disembodied.

and attracted by a flashy lifestyle… and the possibilities of their dream destinations’ (2005: 26). Jahic and Finckeneur argue that human trafficking discourse has surrounded a sympathetic characterisation of victims as ‘young. and largely excludes adult male victims from central trafficking narratives. The consistent focus on trafficking for sexual exploitation. Similar comments are echoed elsewhere (O’Connell Davidson 2006: 14-15. Conclusion This paper has explored research into human trafficking awareness campaigns. 56     . Doezema (2000) argues that the characterisations of victims of sex trafficking as virginal. helpless and childlike. Chapkis 2005). Rather. contributes to a very specific construction of human trafficking. Further research is required in order to examine the possible conflation of prostitution and trafficking in these campaigns. This construction positions sex trafficking as of primary concern. and begun an examination of how these campaigns contribute to the public’s understanding of this phenomenon. usually uneducated. and support. young and vulnerable should not be viewed as unintentional.The construction by campaigns of trafficking victims as typically female. female victims. Doezema also argues that such overly simplistic characterisations of trafficking victims restrict the anti-trafficking movement to ‘a relatively few number of cases that conform to the stereotype of the innocent girl lured or abducted into the sex industry’ (31-32). willing to move abroad. and the primary depiction of young. with Jahic and Finckeneur (2005: 27) Doezema (2000) and Chapkis (2003: 931) all arguing that this stereotype has been adopted in order to create a more sympathetic protagonist for the public and policy makers to be moved by. these depictions are considered most likely to capture the public’s attention. can also undermine the agency of all migrant sex workers and marginalises them by reinforcing notions of female dependence (2000). Pearson 2002.

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Transborder Crimes and Human Rights Abstract The case of Gabe Watson. an American. Australia Conference sub-theme: Global Justice. and was deported to the US. served 18 months in an Australian prison. where he is awaiting trial on charges of murder and kidnapping. This paper will examine two potential serious human rights violations that the impending trial of Watson presents: ne bis in idem. An analysis of this specific case and its charges will be presented in the context of the Australian.Society is Entitle to but One Satisfaction: Ne bis in idem and Jurisdiction Questions in the Gabe Watson Case Melanie O’Brien ARC Centre of Excellence in Policing and Security. and extra-territorial jurisdiction. 61     . US. Upon arrival in the US. is well-known in Australia and the US. termed by the media ‘The Honeymoon Killer’. and international application of extra-territorial jurisdiction and the ne bis in idem principle. The second issue is whether a state of the USA has the jurisdiction to try one of their nationals for conduct committed in the territory of Australia. While Australia avoided violating international law by deporting rather than extraditing Watson. He was subsequently convicted of manslaughter. was accused of the murder of his wife on their honeymoon while they were scuba-diving on the Great Barrier Reef. the first concern is that the US state of Alabama is seeking to try Watson for conduct he was already convicted of by an Australian court. Griffith University. Watson. Watson was extradited from California to Alabama.

murder Introduction In October 2003. and released to return to the United States. The first                                                                                                                         2 Inquest into the death of Christina Mae WATSON known as Tina WATSON. 24 April 2008 (‘Coroner’s Inquest’). from a legal perspective. when viewed in the context of all the evidence. The subsequent investigation into Tina’s death resulted in a Coroner’s Inquest. Watson pled guilty to manslaughter and served 18 months in prison in Australia. the case of Gabe Watson raises two serious concerns as to the potential violation of Watson’s rights. that a properly instructed jury. were on their honeymoon in Australia. However. both in Australia and the US. In the public opinion. Tina and Gabe Watson. two US citizens from the state of Alabama. satisfy me. there are those who believe Watson is innocent. those who believe he was a coward who should have saved his wife but is not guilty of murder. USA. Office of the Townsville Coroner. extra-territorial jurisdiction. which stem from the apparent view of the state of Alabma that the crime is transnational. Australia. 62     .Keywords: ne bis in idem. They were diving on the Great Barrier Reef when Tina died underwater.2 Pursuant to a plea agreement with the Queensland Director of Public Prosecutions. 2009). COR 124 of 2003. The plea of manslaughter was based on ‘Watson’s admission that he breached his duty to render assistance to his wife’ (Moynihan. Gabe Watson was questioned by Queensland Police. which determined in 2008 that ‘there is evidence of sufficient reliability on each of these identified matters which. The case has generated a significant amount of publicity. could make a finding of guilt against David Gabriel Watson on a charge of Murder’. and those (including Tina’s family) who believe that Watson is guilty of murder. It is an emotional case that has provoked strong emotional reactions. where he was then extradited from the state of California to the state of Alabama under capital murder charges. Upon completion of his sentence. Watson was deported to the United States.

A. Does the state of Alabama in the USA have jurisdiction over a crime that was committed within the territory of Australia? The second concern is whether the US prosecution of Watson is a violation of the principle of ne bis in idem (more colloquially known as double jeopardy). and international application of extra-territorial jurisdiction and the ne bis in idem principle. 18. is that criminal jurisdiction should not be exercised. 54. 10 (1927) (Lotus Case). Ser. Extra-territorial Jurisdiction The first area of concern in the Gabe Watson case is jurisdiction. para. 5 Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium). within the territory of another state’. pp. Lotus Case. Joint Separate Opinion of Judges Higgins. 6 Arrest Warrant Case. 63     . Ne bis in idem prohibits the prosecution of a person twice for the same offence or conduct.. 19. the ICJ found that ‘[t]his discretion left to States by international law explains the great variety of rules which they have been able to adopt without objections or complaints on the part of other States.of these concerns is extra-territorial jurisdiction. jurisdiction may be enacted extra-territorially (Akehurst. France v Turkey. General List No. Kooijmans and Buergenthal.                                                                                                                         3 4 The Case of the S. 1972-1973: 152-156). 121.4 The International Court of Justice (ICJ) has held that ‘[t]he only prohibitive rule. it is also accepted that. 2008: 299. 20.’6 There are two circumstances in which a state would seek to exercise jurisdiction for acts which occurred outside the territory of the state which are of relevance in the Watson case.3 This means that a state has jurisdiction over acts carried out within its territory. (Arrest Warrant Case). However.S. US. No. 301-303. This paper will examine these two issues of the Gabe Watson case. 20. (2002). Akehurst. “Lotus”. pp. p.5 In addition. provided there is no specific rule to the contrary. in the context of the Australian. International law dictates that jurisdiction is primarily territorial (Brownlie. ICJ. 1972-1973: 156-166). but does not have jurisdiction over conduct executed in another state. without permission.. PCIJ. 19.

C. Secondly. Joint Separate Opinion of Judges Higgins. the US may argue that they can enact jurisdiction on either the nationality or the passive personality jurisdiction.The first is the principle of nationality jurisdiction (Brownlie. war crimes.D. para. 1 (D. However since the late 1980s the US has moved towards acceptance of the principle with regard to US national victims of homicide and physical violence. as that principle is more widely accepted in international law. 9 Omnibus Diplomatic Security and Antiterrorism Act of 1986. upheld on appeal 30 ILM 463 (1991). para. of the various bases of jurisdiction’ (Brownlie.S. 47. § 2332. both offender and victim were American nationals. The application of the passive personality principle has been opposed by the US with respect to crimes committed by US nationals against nationals of other states (Shaw. also Shaw. 1998). such as murder. Nationality jurisdiction is generally only enacted in the case of serious crimes. § 1605 note. Arrest Warrant Case. 64     . p.8 In the Watson case. 77. 2008: 665). passive personality jurisdiction tends to ‘meet with little opposition’. Joint Separate Opinion of Judges Higgins. 78. In the present day.9 Although this acceptance was targeted to victims of terrorist attacks rather than individual murders. It has been ‘long regarded as controversial’. If there is no express                                                                                                                         7 8 Arrest Warrant Case.S. 47. provide for exceptions to civil jurisdictional immunities of a foreign state for personal injury or death of a US national. as a general principle. Supp 896 (1988). 2008: 665-6). United States v Yunis 681 F. but only in relation to terrorism and international crimes. when a crime committed results in harm to a national of that state. it still provides for jurisdiction over murder and manslaughter of US nationals outside US territory. Kooijmans and Buergenthal.7 and Brownlie terms this as ‘the least justifiable. 618 and the subsequent ‘Flatow Amendment’ 28 U.C. p.C. 18 U. and genocide. Extra-territorial application of US laws is usually stated expressly in the specific legislative provision. states can enact passive personality jurisdiction. Flatow v Islamic Republic of Iran. Hence. States reserve the right to exercise jurisdiction over crimes committed by their nationals. It is more likely that they would claim to enact nationality jurisdiction over the offender. even when committed outside their territory. 999 F. 2008: 303). ILR 121. Kooijmans and Buergenthal. treason. 2008: 304. Supp.

The US Court of Appeals. However. these laws enabling the US to enact jurisdiction over someone who has killed a US national are federal laws. it cannot be said that the Australian government did not effectively safeguard the interests of the victim. normally subject to the rule “that legislation of Congress. the presumption is generally that the legislation is not meant to be applicable outside of US territory. Yet.”). Whether Congress has in fact exercised such power is a question of statutory construction. unless a contrary intent appears. given the extensive investigation that took place and the subsequent conviction and punishment of Watson. the extraterritorial applicability of a law proscribing the murder or manslaughter of a US national                                                                                                                         10 11 United States v Corey. Ninth Circuit. at 1172 (emphasis added).11 In the Watson case. has found: ‘Congress may enforce its laws beyond the territorial boundaries of the United States. 65     . (“Generally there is no constitutional bar to the extraterritorial application of United States penal laws. legislation dealing with domestic matters is not meant to extend beyond the nation's borders.3d 1166. is meant to apply only within the territorial jurisdiction of the United States. were Watson to be sought by the federal authorities. yet no other government effectively safeguards those interests’. where Congress does not indicate otherwise. and ‘where American citizens and property need protection. Corey. 232 F.provision for extra-territorial application.”… The territorial presumption is thus based on the common-sense inference that.’10 The only time that the court has determined extra-territorial applicability of legislative provisions is ‘where the legislation implicates concerns that are not inherently domestic’.

§§ 1111(b) and 1112(b). Circuit Court of Jefferson County). The commission of a capital offence while engaged in                                                                                                                         12 13 18 U. As stated.12 Yet it is the state authorities of Alabama that are seeking to try Watson for his crime. Grand Jury Charge Sheet. being the causing of death of another person with intent or recklessness.13 Murder is prohibited and defined in section 13A-6-2 of the Code. The Code allows for jurisdiction if the offence was begun in Alabama. Circuit Court of Jefferson County. extra-territoriality of a provision must be expressly stated. but only to those crimes committed within Alabama territory. The State of Alabama. if elements of the offence were committed elsewhere but the crime was completed in Alabama. The exception would be if elements of the crime were found to have been committed in Alabama. a court could not interpret the crimes of murder and kidnapping under the Code to be applicable extra-territorially. State of Alabama’s Motion in Opposition to Bail.C. November Term 2010 (Exhibit A to State of Alabama v David Gabriel Watson. and the US Code provisions for murder and manslaughter are expressly limited to those crimes when committed ‘within the special maritime and territorial jurisdiction of the United States’. A capital offence is defined as an ‘offense for which a defendant shall be punished by a sentence of death or life imprisonment without parole’ (section 13A-5-39). 66     . section 15-2-4 permits jurisdiction. Conversely. and capital murder for pecuniary gain (section 13A-5-40(a)(7). Alabama has charged Watson with the offences of capital murder in the course of kidnapping (section 13A-5-40(a)(1)). there is no express extra-territorial jurisdiction. Following the reasoning of the Court of Appeals in Corey.S.would still not apply. but consummated elsewhere (section 15-2-3). CC-2010-3334. Under the Code of Alabama 1975. Case No.

There are two kidnapping offences under the Alabama Code. The motive for the alleged murder may have started in Alabama. In addition. evidence of planning can be difficult to prove. Prior to their wedding. It remains to be seen how Don Valeska. it will be a challenge to prove that the crime was begun in Alabama. with much of the evidence being circumstantial. but had not. However. Using or                                                                                                                         14 Coroner’s Inquest. which gives rise to the reasonable doubt required for acquittal. inter alia. In addition. 67     . the Attorney-General’s Office claims that Gabe kidnapped Tina.14 Tina’s father claims that amongst the wedding planning. or b. the prosecuting Deputy Attorney-General. ‘(3) Accomplish or aid the commission of any felony or flight therefrom’. 2010: 85-86).kidnapping or for the purpose of pecuniary gain is also considered an aggravating circumstance (section 13A-5-49). 9. which took place entirely in Australia. In addition. Kidnapping in the first degree (section 13A-6-43) is abduction of another person with intent to. Tina did not have time to do this. intends to prove kidnapping. p. Secreting or holding him in a place where he is not likely to be found. and so told Gabe she had done it. Similar to the crime of conspiracy being separate from the act conspired to. ‘abduct’ is defined as ‘To restrain a person with intent to prevent his liberation by either: a. Kidnapping in the second degree occurs when one person abducts another person (section 13A-6-44). but the motive is not an element of the actus reus. The charges are based on the belief by the Alabama’s Attorney-General’s Office that Watson planned to murder Tina after they were married so he could inherit her life insurance. it is alleged that he urged Tina to change her life insurance policy to have Gabe as her beneficiary (Simpson and Cooke. the planning of a murder by a single person is not the same as the act of murder.

moving her from the US to Australia. However. it seems a stretch to argue that a woman was abducted into her own honeymoon. Watson deceived Tina into going on the honeymoon with him. Using this argument. intimidation or deception…15 The kidnapping would thus be presented as abduction defined as restraint accomplished by deception. and the felony was completed in Australia. on reading of these definitions. Legally. emphasis added. However. 68     . one can predict that Valeska will present Watson as having kidnapped Tina with the intent to accomplish the commission of a felony (namely murder). Valeska will argue that the deception aspect of the crime occurred in Alabama. That is. Physical force.                                                                                                                         15 Section 13A-6-40. in order to commit the felony crime of murder. Tina willingly married Gabe and equally freely and intentionally departed to Australia on their honeymoon together.threatening to use deadly physical force. so as to interfere substantially with his liberty by moving him from one place to another. or by confining him either in the place where the restriction commences or in a place to which he has been moved. Despite a prior weekend away with another man whilst Gabe and Tina’s relationship was on a break. there appears to be no logic as to how Valeska is going to demonstrate that Tina was ‘abducted’. ‘restrain’ is also defined: To intentionally or knowingly restrict a person's movements unlawfully and without consent. Restraint is “without consent” if it is accomplished by: a.’ From this.

This section has demonstrated the clear problems with the exercise of jurisdiction by the US state of Alabama. Heath pled guilty to murder and was                                                                                                                         16 Heath v.16 The Court held that each state is a sovereign jurisdiction. Heath resided in Alabama with his wife. However. Costa. 82 (1985). and does not apply to the prosecution of the same offence by two states (Cranman. it will be intriguing to examine the arguments put forward by the prosecution. 1998: 187.S. The principle is enshrined in many Constitutions (Bassiouni. 69     . He arranged for his wife to be abducted and murdered. 1985). In the case of Heath v Alabama. Ne bis in idem The concept of double jeopardy has a long history in various legal systems (Allen and Ratnaswamy. When the case eventually comes to trial. for a crime committed in Australia. given the facts of the case. the exercise of extra-territorial jurisdiction by Alabama is contrivance to extend the law beyond its proper reach. 1993: 289). The murder took place across the border in the state of Georgia. including the United States’ Constitution (Fifth Amendment). It is the application of law to apply what could be termed ‘social justice’. but an application that is far from socially just. where her body was found. Alabama. 474 U. the Supreme Court of the United States determined that two states could try a person for the same conduct (Allen and Ratnaswamy. Fisher. 1961). 1985: 806-810). in February 2012. conduct violating the laws of both states amounts to two separate offences. because of this. 2000. Generally. this application of double jeopardy is used to prohibit the same crime being tried under both federal and state jurisdiction (under the US dual sovereignty principle).

2003. The dissenting opinion of Justice Marshall is intriguing. The principle has traditionally been implemented within a country.g.sentenced to life imprisonment in Georgia. and a view that each state is a separate sovereign which can be individually affected by the same conduct (Bassiouni. 1995). where the majority of potential jurors were aware of the fact that Heath had pled guilty to his wife’s murder in Georgia. 2007: 749). Alabama subsequently tried Heath for kidnapping with a felony (murder). and the case has been highly publicised in the United States (e. Thompson. It may well be that the sentence received and time actually served by Watson is not commensurable to the crime that he committed. There is no present 70     . In fact. there is no international rule of the application of ne bis in idem between countries (Conway. Despite the wealth of instruments applying ne bis in idem. 2010). He also pointed out that the defendant could not receive a fair trial in Alabama. NBC. and to violate basic principles of international law. Justice Marshall essentially accuses Alabama of trying to manipulate the justice system to ensure that Heath was executed for his criminal conduct. 2011). This seems to be almost the same situation as the Watson case: Watson did not receive a maximum penalty for his actions in Australia. The high level of publicity surrounding the case means that Watson is unlikely to receive a fair trial in Alabama. This is due to the different applicability of the law in different countries. where he received the death penalty. and the US may be violating the right to fair trial under Article 14(1) of the International Covenant on Civil and Political Rights. Yet this does not render it acceptable to violate Watson’s human rights. the case has received so much international attention that the case has been postponed due to the Alabama court’s inability to finance adequate security for the trial (Velasco. 2010. was subject to a guilty plea (for manslaughter). Morosin.

the European Arrest Warrant applies the mandatory principle between the European member states. Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA). another violation would have occurred. 12 December 1997. 18 Article 3(d). An examination of what would have happened had Australia extradited may seem odd.17 The UN Model Treaty on Extradition contains a ne bis in idem provision as a mandatory grounds for extradition refusal. Extradition of a person who is likely to receive the death penalty is contrary to human rights obligations. 45/116. 71     . However.18 Article 20 of the Rome Statute of the International Criminal Court19 (ICC) applies ne bis in idem. 2187 UNTS 90. Australia managed to circumnavigate this obligation simply by deporting rather than extraditing Watson. 19 Rome Statute of the International Criminal Court. and of Australia’s international legal obligations. the principle is becoming more readily applied between nations. but it is relevant in that it demonstrates the recognition and application of the ne bis in idem principle of both Australia and the United States. entered into force 1 July 2002. L 190/1. had Australia extradited Watson. amended by GA RES 52/88. For example. both of Watson’s human rights. However.right erga omnes or jus cogens duty to prevent extradition on the basis of ne bis in idem (Vervaele. with regard to both prosecutions by the ICC and those by domestic courts. 2005: 102). Thus it is clear that the principle is accepted internationally. The Treaty on Extradition between Australia and the United States of America (‘Extradition Treaty’) contains a provision preventing extradition of a person who has been tried and                                                                                                                         17 Article 3(2). UN Model Treaty on Extradition. 14 December 1990. Official Journal of the European Communities. he would be subject to the death penalty. The only extradition was between the state of California and the state of Alabama. A delay in the departure of Watson from Australia after the completion of his sentence was due to Australia’s concern that if Watson was extradited. GA RES.

21 Article 26. 331. 171.22 The Extradition Treaty provision against ne bis in idem prohibits extradition when the person has been punished for the offence for which his extradition has been requested. Had Watson been extradited.S. 1974. The principle of pacta sunt servanda provides that treaties are binding. Vienna Convention on the Law of Treaties. 22 International Covenant on Civil and Political Rights. It may be pointed out that the phrasing of the provision is relevant. Article VII(1)(a).S. and judicial decisions.N. as it does not proscribe extradition                                                                                                                         20 Treaty on extradition between Australia and the United States of America of May 14.21 In undertaking an extradition of Gabe Watson to be prosecuted in the US for the same crime that he has been punished for in Australia.N.20 Extradition (and other mutual legal assistance) treaties are based on mutual recognition of the other state’s/states’ legal systems. and in so doing undermine the rule of law in each country. Australia would have violated the Extradition Treaty’s provision prohibiting extradition under ne bis in idem. 1155 U. the US and Australia also would have violated Article 14(7) of the International Covenant on Civil and Political Rights (ICCPR). entered into force 23 March 1976. 72     . By seeking to extradite for conduct already tried in Australia.T.T. prosecutorial regime. as amended by Protocol of 1990 (‘Extradition Treaty’). the US would violate this recognition. This indicates a strong mutual relationship and recognition of respective criminal prosecutorial and judicial systems. Extraditions to and from the United States constitute the majority of extraditions (to or from) undertaken by Australia (JSCT. which provides that ‘no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country’. By extraditing under these conditions. entered into force 27 January 1980. and parties to a treaty will carry out the obligations under that treaty in good faith.punished for the offence for which his extradition is requested. both Australia and the US would have been in breach of treaty obligations. 2001: 15-16). 999 U.

27. per McHugh. Pearce v The Queen [1998] HCA 57.23 That is. in the Rome Statute). the provision prohibition on extradition would not apply as the extradition would not have been sought for the same offence. The Australian High Court has held that: To the extent to which two offences of which an offender stands convicted contain common elements. No doubt that general principle must yield to any contrary legislative intention. 103. the Second Circuit endorsed a ‘modified and more flexible test of whether the same conduct or transaction underlies the criminal charges in both transactions’. R v Hamzy [2001] NSWCCA 539. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history.24                                                                                                                         23 24 Sindona v Grant. para. 2003: 227).2d 167 (2d Cir. Often those boundaries will be drawn in a way that means that offences overlap. This could offer the argument that because Alabama is trying Watson for murder and kidnapping. but an offence based on the same conduct for which the person has already been tried in the requested state. then the offence is non-extraditable. but the punishment to be exacted should reflect what an offender has done. if the requesting state seeks to charge a person with a different offence. 40. it would be wrong to punish that offender twice for the commission of the elements that are common. in Sindona v Grant. 619 F. rather than according to their just deserts. para. for example. Followed in Johnson v The Queen [2004] HCA 15. Other case law has preferred an in abstracto approach. Hayne and Callinan JJ. For example.on the basis of the person’s conduct (which is the term used. focused on the identity of the offence (Conway. it should not be affected by the way in which the boundaries of particular offences are drawn. 1980). para. Some case law demonstrates that a strict interpretation of ‘offence’ will result in a manifestly absurd application of the law. Blay v The Queen [2006] 73     . rather than manslaughter.

para. In Watson’s case. at 21.It is clear that case law in both Australia and the USA does not support multiple prosecutions. given the cost of the investigation and conviction of Watson in Australia (which included returning him to the US) (Thompson. per Gaudron and Gummow JJ.25 which ‘helps to ensure stability in international legal relations by preventing the interminable pursuit of international criminals between jurisdictions’ (Conway. 26  R V Carroll. when based on the same conduct. 2003: 223). 434 US 497. and the crime of kidnapping as a completely different offence. para. This is a difficult aspect of the rule of ne bis in idem. 47. 7 (McLure JA) and para. 2011). based in part of the double jeopardy argument. 2003: 227). 26. despite any different formulation of the specific provisions in question (Aughterson. which would preclude an extradition or a second prosecution. 21. Alder v The Queen [2006] NSWCCA 158. It is also applied to reduce the scope for conflicting judicial decisions. and as a way of establishing finality of judgments.                                                                                                                                                                                                                                                                                                                                                                                   WASCA 248. there are without doubt areas of overlap between the specific conduct required for manslaughter and murder.26 and to avoid the use of greater resources than necessary for the administration of justice. para. The latter reason would certainly be applicable in the Watson case. 74     . this would not preclude the argument that the Alabama provisions include the element of intent (which the manslaughter conviction does not). Thus it is demonstrated that Australia and the US do apply ne bis in idem. 25 R v Carroll [2002] 194 ALR 1. At the same time. 1995: 119-121). not made clearer by the different interpretations in various states around the world (Conway. R v Wei Tang [2009] VSCA 182. The principle is applied between the two states as an application of the rights of the person in question. The Alabama court’s interpretation of the double jeopardy remains to be seen. Arizona v Washington. 503 (1978). 56 (Buss JA). In the April hearing for the defence’s motion to dismiss.

’ a presumption on which the ‘legitimacy of the criminal justice system rests’ (Parkinson. 2011). This scepticism is no doubt based on the presumption in the Anglo-American legal systems that ‘a final verdict reached after a fair trial is factually correct and morally authoritative. the guarding of a principal such as ne bis in idem is a significant element of global criminal justice. reportedly questioning Valeska over the charges: ‘Let me ask you this: didn’t they settle the case for manslaughter over there [Queensland] based on some negligence? I assume the prosecutor felt he didn’t have the evidence to prove murder… Unless prosecutors are in the habit over there of settling intentional acts for negligent acts’ (Patrick. during the trial. Given the present relative ease of extradition logistically. Judge Nail determined that the prosecution has the right to establish jurisdiction through evidence. 2003: 617). The state of Alabama is clearly trying to apply its own ‘social justice’ in order to reduce crime through ‘more adequate’ punishment.Judge Nail did not actually rule on the motion. Conclusion The sentence that Gabe Watson served. and that the decision on jurisdiction may not be made until the end of the prosecution’s case. So far. 18 months in prison. at the end of the prosecution’s case. the defence requests a judgment of acquittal based on the state’s failure to prove its case. In the US system. despite the crime being committed within 75     . As the date of the trial is set for 13 February 2012. it will be some time before there is a court decision to analyse. even Judge Nail seems sceptical about the case. may not seem fair to some. Alabama is tenuously presenting Watson’s crime as a transnational crime. especially when evidence points to his guilt (and a conviction confirms his role at least partially in Tina’s death).

just to attempt to ensure Watson receives what may be perceived as a ‘fairer’ sentence. The Journal of Criminal Law & Criminology 76: 801-831. Aughterson E P (1995) Extradition: Australian law and procedure. the designation of crimes as transnational or cross-border should not be taken lightly. References Akehurst M (1972-1973) Jurisdiction in international law. or even ‘justice’. Perceptions of justice vary. In a world where crime is rapidly globalising. each meting out of individual justice has to be fair. The perceived fairness of the sentence served by Watson in Australia should not result in gross manipulation of the law amounting to a violation of Watson’s rights. 2007: 749). There is no justice without fairness. Sydney: The Law Book Company Limited. 76     . which encompasses a recognition and application of the rights of each participant in the criminal justice system. but it must be remembered that for a justice system to function as a whole. British Yearbook of International Law 46: 145-258. ‘society (and the victim) is entitled to but one satisfaction’ (Bassiouni. For global justice to be effective there can be no violations of human rights carried out through a desire for personal justice. As the title of this paper states. and society’s satisfaction over Tina Watson’s death has already been sated. whether they are victim or defendant.the territory of Australia. Allen R J and Ratnaswamy J P (1985) Heath v. Alabama: A case study of doctrine and rationality in the Supreme Court.

msnbc. Fisher W T (1961) Double jeopardy. JSCT (August 2001) Extradition . Bassiouni M C (2007) International extradition United States law and practice. NBC (19 November 2010) Official: Australia ‘extorted’ Alabama in scuba death case. Canberra: Joint Standing Committee on Treaties. Oxford: Oxford University Press. New York: Oxford University Press. Two Sovereignties and the intruding constitution. Duke Journal of Comparative & International Law 3: 235-298.a review of Australia's law and policy. Nordic Journal of International Law 64: 261-274. Brownlie I (2008) Principles of public international law. Cranman E M (2000) The dual sovereignty exception to double jeopardy: A champion of justice or a violation of a fundamental right? Emory International Law Review 14: 16411679. UC Davis Journal of International Law & Policy 4: 181-200. NBC Today http://today. The University of Chicago Law Review 28: 591-613. Moynihan T (9 June 2009) QLD Director of Public Prosecutions press release.Bassiouni M C (1993) Human rights in the context of criminal justice: Identifying international procedural protections and equivalent protections in national constitutions.msn.com/id/40246395/ns/us_news-crime_and_courts/40273302. 77     . Costa J E (1998) Double jeopardy and Non Bis In Idem: Principles of fairness. Morosin M N (1995) Double jeopardy and international law: Obstacles to formulating a general principle. Conway G (2003) Ne Bis in Idem in international law. International Criminal Law Review 3: 217-244.

Sydney Morning Herald http://www. Brett Bloomston. faces off with Alabama Attorney-General Troy King over his client's charges. 78     .al.com.smh. Sydney: Macmillan. Shaw M N (2008) International law.au/news/gabe-watsons-lawyer-brett-bloomston-faces-off-withalabama-attorney-general-troy-king-over-his-clients-charges/story-e6freon6-1225956952099 Thompson T (14 June 2011) "Honeymoon killer" Gabe Watson has ignored a $35.html.com.au/world/death-at-27-metres-20110421-1dqgf. Simpson L and Cooke J (2010) Honeymoon dive: The real story behind the tragic honeymoon death of Tina Watson. http://www.com/spotnews/2011/04/alabama_budget_crunch_leads_je. Patrick P (22 April 2011) Death at 27 metres.couriermail. UNSW Law Journal 26: 603-621. The Birmingham News http://blog. Cambridge: Cambridge University Press.html. Courier Mail.000 bill from the Commonwealth for the cost of removing him from Australia last year. Vervaele J A E (2005) The transnational ne bis in idem principle in the EU mutual recognition and equivalent protection of human rights. Utrecht Law Review 1: 100-118.Parkinson C (2003) Double jeopardy reform: The new evidence exception for acquittals. Thompson T (20 November 2010) Gabe Watson's lawyer. The Courier Mail Velasco E (2011) Alabama budget crunch leads Jefferson County judge to postpone Gabe Watson's capital murder trial.

Policing. Investigation and Intelligence in Social Democracies .

Charles Sturt University Conference sub-theme: Policing.com. Investigation and Intelligence in Social Democracies Abstract Charles Sturt University has been an international trailblazer in the university model of police recruit education.Educating Police Recruits for Democratic Policing Corresponding author: Christine Jennett School of Humanities and Social Sciences. 2034 Email: cjennett@ozemail. This paper discusses some findings from a three year study of students enrolled in these two programs. NSW. In collaboration with the NSW Police Force (NSWPF). Using the 80     . it provides two university pathways into the force. It examines their attitudes to their chosen career at entry and again after they have been on field placement in a police station. Charles Sturt University David Bull School of Humanities and Social Sciences. South Coogee.au Mir Rabiul Islam School of Psychology. Charles Sturt University67 Johnston Pde. Charles Sturt University Rosemary Woolston School of Policing Studies and Graduate School of Policing Studies.

2010).framework provided by Wenger’s (1998) theory of ‘communities of practice’ it examines the ways in which policing and academic communities of practice work together. Australia is a member of the Commonwealth which has developed training manuals for those who educate police officers in member countries (Commonwealth Secretariat 2006. to allow them to be undermined. they are well placed to see that these rights are upheld but. university-level training program was recommended by the Wood Royal Commission. They often affect people’s liberty and personal safety. The Australian Human Rights Commission (AHRC) works with police to develop better police community relations (Harvey et al. 2005). Introduction ‘Decisions by police officers are likely to have profound implications for the people with whom they come in contact and for the officers themselves. Officers’ decisions have profound importance for people’s human rights. at times in tension. Some decisions determine whether people – citizens and officers – live or die’ (Haberfeld 2002: 4). 81     . to produce the ‘generational change’ and then ‘cultural change’ in NSW policing observed by Chan and Dixon (2007). equally. at times in complementary ways. The focus of these manuals is to make officers aware of their obligations under the international human rights framework. or to undermine them themselves. The change to a new professional. This study explores the resulting engagement of police recruits simultaneously with industry and academic communities of practice and provides a snapshot of the early stages of this process.

the bad police service undermines it. i. indeed. In addition to the human rights argument about the need for democratic policing. Lustgarten 1986).Key to an officer’s role in upholding or undermining human rights is the officer’s use of her/his discretion. The good police service upholds citizens’ dominion. of categories of people viewed as ‘police property’ has been the subject of study over the past forty years as policing organisations struggle to reorient their approaches to be more professional. and does not abuse citizens with violent force or arbitrary detentions. Queensland has not been as 82     . serves the interests of a wider community instead of only those of the government or a powerful elite. which law to enforce in some circumstances (Miller 1996. He argues that ‘the goal of the criminal justice system should be to maximise the dominion of citizens’ (Briathwaite 1992: 12). 2000. He emphasises that police services can be ‘the most important institutional guarantee of dominion’ or ‘the greatest institutional threat to freedom’.. in particular. Braithwaite has argued similarly and persuasively from a republican theoretical perspective. Distinguishing between ‘good police services’ and ‘bad police services’ he argues that ‘fear of crime’ and ‘fear of the power of the state to punish capriciously both threaten freedom’ (Braithwaite 1992: 13). democratic and ‘customer oriented’ (Leishman et al. Jennett & Bull 2006).’ As a result of the recommendations of commissions and inquiries in Queensland (Fitzgerald 1989) and NSW (Wood 1997) police services have experimented with university education of police recruits (Wimshurst 1992. The concept of ‘police culture’ (Reiner 2000) and. Casey (2010: 175) states that the objective of democratic policing is ‘to promote policing that respects the rule of law. Walklate 2000).e.

Further. The principal path is through the Associate Degree in Policing Practice (ADPP). By contrast. them’ mentality of police culture. NSWPF has entered agreements with two universities to ensure that all officers receive at least some university education. which is taught at the NSW Police College campus at 83     . The Courses Charles Sturt University (CSU) and the New South Wales Police Force (NSWPF) collaborate in providing two entry pathways into NSWPF. Mitchell and Jennett (2004) have argued that. complex and diverse approach to what they learn to combat the ‘us vs. a blind eye is turned to the excessive use of force (personal communication 2010). while Lusher (1981) and Wood (1997) advocated university education of police recruits to add a more inclusive. those officers who have been university trained are reportedly derided and referred to as ‘muppets’. there has been a tendency for universities to recruit former police (academically trained) to run these courses. Anecdotes from former Queensland officers with recent service experience suggest that while officers are held accountable for financial corruption. Haberfeld (2003) draws our attention to the importance of who teaches.consistent or thoroughgoing as NSW in this regard. clearly not ‘real’ police officers. Several events in the last decade reinforce the suggestion that excessive use of force continues to undermine the human rights of people in police custody (Street 2005. Bentley 2011). Queensland Courts 2006. ‘Who teaches and trains [is one of the factors] which will shape the future of law enforcement and determine the extent to which officers will be able to respond to an increasing array of complicated and sophisticated problems’ (Haberfeld 2002: 13). thus lessening the diversity of experience which these measures were designed to ensure.

and their reasons for choosing their entry path into the NSWPF. their identification with the policing profession.(1) The ADPP is marketed to those who are sure they want a policing career. taught through the Police College at Goulburn (Jennett & Bull 2006). Second.Goulburn. Previously noted was Chan and Dixon’s (2007) statement that recruits being educated in this way are promoting generational and cultural 84     . The BJS(P) is marketed to school leavers. principally by CSU’s School of Policing Studies. targeting people with life and work experience. in 2006-2007 we examined the students’ motivation to join the NSWPF. do provide snapshots or cross sections of students at different points in their studies. In this study we examined the influence of the field placement as a ‘rite of passage’ into policing and the challenges experienced by students as they engaged with two main learning communities (Wenger 1998). We will provide an overview of our findings from two of these studies here and discuss their significance for the future of democratic policing in Australia. in both the BJS(P) and the ADPP. First. the first 2 years of which are taught on CSU’s Bathurst campus by staff from the School of Humanities and Social Sciences (H&SS). who are too young to enter the ADPP or who are unsure that policing really is the career for them. which is a 3 year degree. the academic community of practice and the police community of practice both of which are mediated by the social community of their peers. while not comprising a longitudinal study of the one group of students. The Studies Since 2006 we have conducted three research studies with students enrolled in these two recruitment programs which. in 2009 we compared the attitudes of students in the pre and post field placement phases of their degree to see whether this experience caused them to reassess their earlier attitudes to their chosen profession. The second entry path is through the Bachelor of Justice Studies (Policing) (BJS(P)). with the final year consisting of the major part of the ADPP.

Published research on the relationship between recruits’ expectations of policing. that can carry the recruit through his/her entire career (McGowen & Hart 1990). the aim of this education process is to develop a police service which is an institutional guarantee of citizen’s dominion. van Knippenberg & van Schie (2000: 138) postulate that ‘this conception of the self as a group member provides a basis for the perceptional. knowledge. values. and relating these to their professional role. recruits began to transfer ‘their allegiance to the field of operational policing. beliefs and skills with others in the ‘defined’ group.change in the NSWPF in the direction of more accountable and therefore democratic policing. it should be noted that Chan’s study is primarily focused 85     . 2003) of recruit education and socialisation in NSW indicated that police recruits begin their training with ‘high expectations and lofty ideals’. In Braithwaite’s republican terms. However. their identity as police. It is the time when recruits develop their occupational identity by sharing attitudes. and their experiences of police education and training is limited in Australia. Chan’s mid 1990s study (Chan et al. In such a policing style police uphold the human rights of those with whom they come in contact as they carry out their daily policing duties. attitudinal and behavioural effects of group membership’. The initial years in any profession can be critical years. It is a time of developing ‘working models’. Occupational Identity Occupational identity conveys an understanding of how people compare and differentiate themselves from other professional groups (Tajfel & Turner 2001). Thus. This was consistent with Fielding’s (1988) earlier study of British police forces. building social capital as police officers’. through self-analysis in group-based circumstances. (2003:112) also found that after the first period of placement in police stations. Chan et al.

Research has shown that occupational identity. 15.4% were unsure. The first of these asked whether they wanted to become a member of the NSW Police Force.4% of BJS(P) entrants strongly agreed with this statement. Unsurprisingly. and. Of the ADPP entrants a slightly higher proportion (88. In the first study we surveyed ADPP and BJS(P) new entrants and second year BJS(P) students pre and post practicum. 81. or department-initiated.3% agreed but 3. The expectations that recruits bring with them are important to whether or not they continue in a policing career. a strong desire to belong to ‘the police family’ (Sato 2003) and job satisfaction are important factors in lessening the attrition rate in policing (Lynch & Tuckey 2004. This is to be expected because those entering the ADPP are only giving themselves the option to enter the NSWPF.6%). also. Harr (2005: 431) examined reasons why US recruits ‘drop out’ within the first 16 months of their policing careers and found that resignation was self-initiated.(2) With reference to occupational identification of new entrants the survey included a group of questions about identification with the policing profession.on the transition from the Police College to operational policing. Victoria Police 2002). It 86     . academy-initiated.8%) or was unsure (1. According to Haar (2005: 231) ‘[r]ecruits who self-initiated resignation experienced a conflict between the version embodied in their ideal and the reality of policing in practice’.5%) agreed strongly with the statement and a lesser proportion merely agreed (9. there have been substantial changes in police education in NSW since then. whereas those entering the BJS(P) are entering a longer developmental trajectory and they have the option to transfer to the Bachelor of Social Science (Criminal Justice) (BSS (CJ)) should they decide that NSWPF is not for them.

The ADDP entrants were slightly more likely than BJS(P) entrants to have personal motives (40. having the chance to do so. positive encounters with police. lifestyle. TV role models. BJS(P) students put a higher priority on social goals.should also be noted that some who decide the BJS(P) is not for them transfer to the ADP or aim for the Australian Federal Police after completing the BSS(CJ). Our data does indicate that a high proportion have always wanted to be police officers and. variety. Personal motives were the most important for all groups. We expected that the ADPP entrants might have a stronger police occupational identity score but this proved not to be the case and there was no significant difference between the entrants to the two courses. helping others. This also means that they have made a conscious decision to change career. a high proportion want to do it quickly.9% compared to 12. Our data also 87     .9%. (iii) experience – family/friends. ‘a rewarding career where I could make a difference and help others’). We asked the entrants whether they had always wanted to be a police officer? Of BJS(P) entrants 61% answered ‘yes’ to this question as did 73. We then went on to explore what had made them want to become a police officer? Responses covered three categories of motives: (i) personal motives – career.g.3% of ADPP entrants. compared to 36. This may be explained by the likelihood that ADPP recruits want to take the shorter course in order to start or return to paid employment as quickly as possible.8%). As previously noted. (ii) social motives – making a difference. although these were often combined with social motives (e.1%) and positive experiences of policing (15. most have already been in the workforce. at least at the point of entrance. so study would most likely result in a drop in income for them. in the community.

5%). While a similar proportion (21. Third.show that they want options for future careers and that the desire for options increases with the experience of the practicum.7%) and females (22. three items emerged as most important.2% cited it. as discussed below. (Respondents could give more than one reason).g. with very similar results for males (23. The second most important item was ‘wanted to pursue a rewarding career where I could make a difference and help others’. ‘a secure job with good conditions’ was not a critical factor for most students. The most frequent reason given was that ‘policing offers variety. opportunity and an active lifestyle’. Second. which we mention elsewhere. this is a strong characteristic of the occupational culture. there was a noticeable difference between males (18. as educators we have noted consistent references to these characteristics of policing when students in class have discussed their reasons for wanting to become a police officer.0%) gave this reason. There is also the practical issue. Research in the USA by Lord and Friday (2003: 73) has concluded that ‘male students responded with higher self-efficacy expectations for their ability to handle police functions 88     . Reiner 2000) have found over decades of research. and in this case the difference between males and females perhaps reflects gender roles in social life generally.5%). Although these results have not been linked directly with occupational identity. of being too young to be accepted directly into the ADPP. This study showed the importance of social motives for commencing students. Overall.9%) and females (24. As many researchers on police work (e. 23. Reasons for Wanting to Become a Police Officer The first point to make is that students want to become police officers for a variety of reasons.

4 years of on-campus study (Jennett et al. Such an aim would appear to be likely to neutralise the special contributions which women can make to policing by drawing on strengths which characterise positive aspects of traditional female socialisation. This study demonstrated that the entry path does not appear to be an indicator of strength of policing occupational identity as both ADPP and BJS(P) entrants identified strongly with the policing occupation (Jennett et al. they argued that it would make sense to recruit males and females with similar (‘androgynous’) sex-role identification and that this could help prevent gender role conflict ‘that women particularly may experience when working in a nontraditional field such as law enforcement’ (Lord & Friday 2003: 77). provides further support for the suggestion that social motives are significant factors in the decision making of prospective students to become police officers. In NSW the University model of police recruit education requires recruits to maintain their motivation over 2. ‘wanted to be involved in improving the community’.than female students’. 2009). It also showed that students in the BJS(P) consider their long term career options and likely progression in policing when they choose their entry path.7%). The third most significant item. 2008). will now be discussed. although noted by a somewhat smaller proportion of respondents (12. Subsequent surveying of BJS(P) students in the post practicum phase in second year suggested that those who were highly committed to the occupation in the first place are likely to complete their studies. which was conducted in 2009 and focused on the role of the practicum (field placement) in the student’s developing occupational identity. Therefore. For the 89     . Qualitative findings from the second study.

Whilst on-campus the students experience the academic community of practice and peers. Further.BJS(P) maintaining their connection with and motivation towards their chosen career is a factor in the design of a practicum in the middle of the student’s second year of study. in the main the influences on them in first year and the first half of second year are from their teachers (university academics) and their peers. post practicum fifteen students were surveyed and participated in a focus group (constituting three quarters of those who went on the practicum). The practicum also provides a reality check for those whose idea of a police officer’s work is gleaned mostly from television. Wenger (1998:10) argues that learning and knowing involve ‘primarily active participation in social communities’. In this study we examined the reactions of a group of second year policing students to their experiences during their practicum. Unusually. However. just prior to the field placement/practicum. Both open ended and closed questions were used in the survey. return with increased enthusiasm for their chosen profession and impatience to practice it. 90     .e. (as compared to previous years) only a minority of these students qualified (i. While in the field the students become immersed in the policing community of practice (‘the field’) characterised as it is by adherence to standard operational procedures and an occupational culture (Chan 2001. Our second study surveyed forty second year students towards the end of first semester. In this context the practicum becomes a ‘rite of passage’. Some already have friends or family who are police officers and derive at least some of their expectations of their chosen career from ‘the field’ indirectly through these sources. So they are indirectly participating in the police community of practice. Whilst in the field they experience the policing community of practice. passed their Professional Suitability Assessment (PSA) to go on field placement. Those who survive.

Wood (1997) thought that this regime of knowledge needed to be opened wider. has its regime of competence. Wenger (1998: 140) argues that learning takes place within ‘a regime of competence’. consisting of understandings about the way police go about their work and the nature of various categories of non-police. Wenger argues that: To say the concept of knowing is not defined outside a regime of competence is not to say that boundaries cannot be crossed … [they can] But that can take place only when participants are able to recognize an experience of meaning in each other and to develop enough of a shared sense of competence to do some mutual learning (Wenger 1998: 140). Campbell (2007: 142) has also used the concept of community of practice to analyse the position of early career police (first three years) in the NSWPF as they shift from being outsiders to insiders in policing. Rowe 2000. to experience challenges to its understandings which would be achieved by constructive engagement with the university sector. like other police organisations. At the practicum stage the students have an even more peripheral status. somewhat of an ‘us’ versus ‘them’ mentality. 91     . where other regimes of competence were to be found. Reiner 2000) which assists officers to cope on a day by day basis with the challenges of policing in NSW.Westmarland 2008. Each community of practice has its own such regime. or in Lave and Wenger’s terms from being ‘legitimate peripheral participants’ in the community of policing practice to ‘full members’. The NSW Police Force.

crossing boundaries is a process by which learning is potentially enhanced. in the first year almost exclusively. In a sense. distance’. an academic regime of competence. By creating a tension between experience and competence. and different repertoires – when even elements that have the same form (e. the same words or artefacts) belong to different histories. especially the structures of social inequality which frustrate them in achievement of their life’s desires. it is difficult for some students. He argues that ‘learning is impaired when experience and competence are too close’ and also ‘when they are too distant’. different enterprises with different definitions of what matters. ‘Crossing boundaries between practices [such as policing and universities] exposes our experience to different forms of engagement. Some struggle (or don’t struggle!) to see the relevance of psychology’s concerns with individuals’ motivations and behaviours. the university’s regime of competence is made up of many disciplinary regimes of competence. Many students who have chosen the full degree path into policing find themselves oriented towards a policing regime of competence but experiencing. to appreciate 92     . sociology’s focus on group behaviour. and potentially impaired (Wenger 1998: 140). proximity. who see themselves as needing to learn practical policing skills and becoming physically fit enough to pass their Professional Suitability Assessment (PSA). which produces social structures which are key to social control and social stability. and to social movements which burst these structures asunder to produce social change.e. and criminology which focuses on various explanations of why people commit crime.Wenger (1998: 140) argues that learning depends on certain relations – ‘locality. Therefore.g. Under these conditions ‘they do not pull each other’ (i. engage with each other).

Wenger argues that ‘Because learning transforms who we are and what we can do. It is in that formation of an identity that learning can become a source of meaningfulness and of personal and social energy’ (Wenger 1998: 215). 93     . These are all ‘skills’ identified by students who participated in the focus group for this study. but a process of becoming … We accumulate skills and information. between those which are to be found in the university sector and those which are to be found in policing. theories which predict human behaviour under specified circumstances and can help them to understand it. in the longer term. which the university curriculum makes available to them. who demanded ‘common sense’. but in the service of an identity. classification schemes. Some understand. and produce more ‘open minded’. ‘we should be taught common sense’. It is not just an accumulation of skills and information. and another. images. as Wood desired they should. Class presentations. debates and so forth may even give them ‘loud. ‘tolerant’ police. it is an experience of identity. confident voices’. ‘practical subjects’. that crossing regimes of competence. Police recruits who study for a degree at university are in the process of achieving the identity of a professional police officer.the concepts. not in the abstract as ends in themselves. On the other hand. is a stimulating experience which should energise students in the short term. there were frustrated students who did not appear to understand this process of cross stimulation of regimes of competence. whom people should find ‘approachable’. In the words of one student.

This is especially the case when they were advised in the field by police officers that ‘policing degrees’ don’t have value. undervalued). They also get an opportunity to decide whether they are suited for what they find. Providing a space where they can make connection with the academic community of practice is the challenge for university educators. Conclusion Students’ experience of the practicum in the middle of the second year of the BJS(P) has been argued to be a rite of passage during which they experience a reality check on ‘the fit’ between their expectations of their chosen career and the daily role of a police officer in the field. Moreover. While they are embraced by some. it is the point at which they have a firsthand chance to participate in the policing community of practice’s regime of competence. For these students. Much of what they learn highlights the contrast between practical knowledge (valued) and abstract knowledge (derided or. They observe what is ‘known’ and ‘valued’ in the regime of competence of operational policing. but whatever the student’s perspective about their university experiences. in the way Wenger says is necessary for learning to occur. the university’s regimes of competence may be derided or resented by others at this point. the university does not appear to have engaged their experience. their eye is on ‘the prize’: 94     . their past histories. whether it is consistent with their expectations or not.‘practical subjects’. at least. When they return to the university they are bonded as a group in which some have mentally already left the university and are impatient with what they are learning. specific knowledge and skills they can use ‘on the job’. One student says this ‘is a process which is necessary to weed out the dummies’ but sometimes ‘the dummies’ are merely those who have yet to understand the relevance of what they are learning. even if other degrees do.

and (4) BJS(P) post-practicum students. (1986). The students were surveyed about: (i) their identification with the policing profession (ii) their reason for choosing policing (which helps establish the sources of their identification). Internal consistency reliability was checked to form a consolidated scale for occupational identity (Cronback Alpha = . was introduced in 1993 and involved three years of study at CSU’s Bathurst campus until 2001. (2) new entrants into the Associate Degree in Policing Practice (ADPP). 2. It subsequently went through two name changes and the university campus study was cut to two years. Policing identity was measured using a scale adapted from Brown et al. Endnotes 1. as of 2010 debriefing from field placements now takes place at the Police College. enough recruits will be able to maintain this goal when they enter NSWPF and continue to regenerate it from within in the direction of Braithwaite’s good police service. not the university campus.‘[It is a] reward to know at the end of the day you made a difference and saved lives’ (Male 19 yrs). police station placement). (3) second year BJS(P) students pre-practicum (i. Each question was answered on a 5 point Likert scale. 95     .79). For purposes of analysis. the Bachelor of Social Science (Justice Studies – Policing).e. Methodology: A cross-section of policing students from the following four subgroups were surveyed: (1) new entrants into the Bachelor of Justice Studies (Policing) (BJS(P)). Hopefully. Also. The BJS(P)’s predecessor. the results from responses to seven questions were collapsed into a single identity score. and (iii) their reason for choosing their specific course (BJS(P) or ADPP) as an entry path.

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public confidence in the organisation. social media and citizen journalism. Based on qualitative data from a research project which includes interviews with key uniformed and civilian directors of police PR in Australia and observations of police-media operations. the crisis in policing consent. With a growing body of international research pointing to the need for policing organisations to foster public confidence and organisational legitimacy through the practice of procedural and distributive justice (Tyler 2006. Hinds and Murphy 2007) much less research has looked at public confidence in the context of police PR or media. and police legitimacy. this paper explores how PR directors in the Australian Police Forces conceive the links between ‘image work’. reform agendas. 100     . and the withering ‘old media’ such as newspapers and a proliferation of new media. Investigation and Intelligence in Social Democracies Abstract The growth in police public relations has seen Policing organisations become increasingly savvy at projecting ‘preferred’ images of police work through both the old and new media.Image Work(s): “Simulated Policing” and the New Police (Popularity) Culture Murray Lee University of Sydney Alyce McGovern University of NSW Conference sub-theme: Policing. This ‘image work’ (Mawby 2001) comes as a response to a number of modern policing and political challenges and opportunities such as the public fear of crime. Jackson and Sunshine 2007.

we argue that policing and its relationship with the media and the public is undergoing significant change and that many contemporary images and representations of policing.Introduction This paper identifies emerging forms of police ‘image work’ (Mawby 2002) that we argue also operate as ‘simulated policing’ (O’Malley 2010). and through the lens of the police digital video camera as reproduced on the daily news bulletin. there has been significant research on the relationships fostered between news journalists and police (Freckelton 1988. and increase public compliance and cooperation. Manning. Using qualitative data from research interviews with key public relations professionals with NSW and WA Police. on tele-visual ‘observational documentaries’. This policing takes place not on the beat. deter potential offenders. are policing. That is they generally seek to achieve traditional goals of public policing. 1999). the place of policing as ‘knowledge brokers’ (Ericson and 101     . and popular culture becoming increasingly blurred and fluid. or in the patrol car. Surette 2001. In the process this new police popularity culture has resulted in the line between policing. they are traditional in nature. Policing organizations are putting representations to work for them in ways that not only aim to improve their corporate image. the media. Police Popularity Culture Criminology has long discussed and researched policing cultures (Chan 1997). the policing we identify here occurs in virtual cyber-spaces. Rather. Moreover. Likewise. However. images and popular media representations of policing have been long-standing topics of interest (Reiner 2003. but which seek to increase the legitimacy of the organization. or even at the station. Mawby 2002. Yet while these the forms of simulated policing rely on a swathe or new technologies. 2010).

where (supposedly) routine policing becomes entertainment. Only now are we beginning to understand the scope and shape of that transformation. Reiner 2010) there is now a significant difference in the ways in which images are produced and circulated. youtube. 102     . for the past decade or so. The increase of police ‘multi-media units’ or what are essentially in-house television production facilities. While the examples we give here are certainly not exhaustive. and where the police organizations are popular twitter and Facebook friends. facebook. being reproduced and re-presented in ways Baudrillard (1983) could only imagine 30 years ago. To paraphrase Ferrell et al (2008:81). we are in a period where police media public relationships are liquid. The changes to which we refer are not simply a rebirth of police media relationships. three recent developments in policing strategies are illustrative of these changes: 1. 3. and blogs.Haggerty 1997) within media discourse and public representation has. feeding off themselves. We live in an historical moment where image is paramount. Rather. Policing. Welcome to the new police (popularity) culture where Scotland Yard employs ex News Corporation staff to manage their media profile and public relations. and popular culture are colliding. Police engagement with social media – twitter. continually shifting. folding in on themselves. Increasing police engagement with reality television – so called ‘ob docs’ or ‘observational documentaries’. news. self and society under conditions of late modernity’. 2. criminology needs to make sense of the ‘blurred line between the real and the virtual’ where ‘mediated processes of cultural reproduction constitute the experience of crime. been going through a significant transformation. While image has always been important for the legitimation of policing organizations (Emsley 1983.

Add to this the expansion of police media units/offices over the past 20 years and what we see is the development of a new police public relations apparatus the likes of which would have been unthinkable even 10 years ago.

We and others have argued elsewhere that in many ways this expansion is not so surprising (McGovern and Lee 2010; Lee and McGovern forthcoming; Mawby 2002). After all, police agencies have also come under increasing observation from a population and media hungry for stories and information about crime, and a 24 hour media cycle hungry for images, stories and print. Add to this the explosion of citizen journalism and the police are perhaps the most watched organization in the world in a panoptic synoptic relationship the likes of which has been outlined by Mathieson (2007); that is while the few watch the many the many also watch the few. It is not just the size of the expansion of that the police public relations apparatus that is significant, it is its form.

‘Simulated Policing’ Pat O’Malley (2010) has recently outlined what he argues are new forms of ‘simulated justice’ – he also refers to ‘simulated governance’ and ‘simulated policing’. This is a form of governance operating at the level of ‘the bar code reader at the supermarket, the freeway, the passport gate, the ATM, the baggage carousel, all exist to govern and police without touch, and thus to maximize good – desired - circulation and interfere only with ‘bad’ circulation’ (2010: 796-797). This ‘…governs distributions and complements individual discipline’ and ‘simultaneously expands the reach of policing while at the same time reducing its unit cost and visibility, and minimizing the friction imposed upon ‘good’ circulations’ (2010: 797).

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Quite obviously the policing techniques to which we refer here are quite different to that outlined by O’Malley. We are not looking at a growth in ‘telemetric’ policing, or indeed a reduction in the ‘visibility’ of policing; quite the opposite. However we want to identify a simulated form of policing that we believe has grown in chorus to the simulated processes and strategies outlined by O’Malley, and one that also relies on a swathe of new technologies.

The simulated policing to which we refer means a number of things but first and foremost it refers to the fact that policing is increasingly occurring at the level of the policing image. While the Peelian model of policing has always relied on the image and representation of policing to legitimate the institution of the police (Emsley 1983; Reiner 2010), the difference is that now the representation of policing, is policing – or at least an operational simulation of traditional policing. The image not only represents policing, but increasingly the image of policing and operational policing are inseparable – they are, for all intents and purposes, the same thing. This is not the loss of the referent, in the Baudriardian (1983) sense, there is little doubt that policing is happening; rather policing is occurring through often disembodied image work and image work is occurring though policing.

The second point about simulated policing is that those engaged in its production and reproduction believe in its authenticity, its operational utility, and its capacity to increase confidence in policing and the legitimacy of the police organization. Simulated policing is not just about (re)presenting images of police work – although it does this too – rather policing operates virtually. So this simulated policing is more than a cynical attempt at spin produced by increasingly professional and savvy public relations units – although it most certainly is this at times. Rather, it insinuates itself into the public conscience through an ever increasing number of virtual media formats.

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The third point about simulated policing is that it has a potentially almost unlimited public reach – much as O’Malley (2010) identifies in the simulated policing practices to which he refers. Where traditional public policing is temporally and spatially confined to public spaces and private spaces in particular circumstances, the continuous 24 hour cycles of shifts, and the limitations of staffing levels, simulated policing enters the private and public spheres through the internet, the television, the phone application, the tablet or iPad. It is not big brother watching, its rather more like a continuing reminder that police are there on your behalf if you are law abiding, that you can interact with them, and that they are doing, well, ‘something’ as one head of police public affairs told us. Watching, interacting and being entertained by policing (the synopticon) simultaneously operates as a form of bio-power aimed at regulating (a form of panopticon) (Foucault 1977). Let us look at some specific examples of this simulated policing. The following discussion uses in-depth qualitative research interviews conducted with 7 public relations professionals in 2010 in the NSW Police Force and WA Police1.
1

Policing through Social Media As a WA Police media professional noted:

Oh the demands for the ready-made immediate story, I think in the last few years we’ve had a huge increase, a massive increase in different types of media. It’s not just television, radio and newspapers anymore, it’s online news who have a deadline every ten seconds, so they’re on the phone all day and with Twitter and Facebook, we’ll get phone calls saying “Oh so and so just said on Twitter this...”
                                                                                                                       
1

This is part of a broader research project Policing Public Opinion which seeks to interview public affairs / public relations professionals from across all Australian policing organisations.

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well we don’t know ‘cause we can’t cover every Twitter entry in the whole world. So we’ve got to... you know, it’s a huge challenge, particularly when we’ve got our staff level here is a fraction of what Sydney and Melbourne have – that hasn’t even changed and the media has quadrupled in that time.

The NSW Police Force has over 50,000 Facebook fans. If the number of fans one has on a Facebook is a reflection of popularity, NSW Police are the most popular kids in the simulated policing class. The site operates largely as a news feed with police media releases often going straight to the Facebook site. A story/release is usually followed by comments and feedback from the public. The release from Friday, July 1, 2011 at 5:50pm is pretty typical:

Police investigate after child approached – Phillip Bay by NSW Police Force on Friday, July 1, 2011 at 5:50pm

Police in Sydney’s eastern suburbs are investigating after a child was approached in Phillip Bay yesterday. About 8.15am, the 11-year-old boy and a friend were waiting for a bus on Anzac Parade when it is alleged a dark-coloured sedan pulled up next to the boy.

It is alleged the driver attempted to entice the young boy into the car however the boy walked away and got on a bus. Police were notified and officers from both Botany Bay and Eastern Beaches Local Area Commands are investigating the alleged incident.

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Detectives are appealing for anyone who witnessed the incident or any suspicious activity in the area, to come forward. Police believe the driver was trying to disguise his or her appearance by wearing an orange wig, large reading glasses and heavy makeup. Anyone with information should contact Eastern Beaches Police via Crime Stoppers on 1800 333 000.

However, fan comments almost inevitably follow. These particular responses are also fairly typical and indicate the extent to which to public are drawn on and drawn in to this simulated policing:

Jessica Louise Sculthorpe: What is our world coming to. That is disgusting.

Belinda Saxby: We have had a child approached in the Woolgoolga area too.

Jodie Nicole: yes we also have had around 20 children approached now in the shell harbour area, in a matter of 4 weeks.

Vera Manjetny Woods: so r u saying their 'heavy make-up' made then look lighter than they were or it was light so they wouldnt (sic) look as dark.

Jodie Nicole Im (sic) sure if it was the prime minister that was kidnapped they would have 24 hr broadcasts, thank you NSW police force for keeping us involved in these attempted kidnappings, i just wish the news would do the same.. I really hope that young girl is found safe.

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Bianca Butt As far as Im (sic) concerned I will break the Law If anyone touches my kids AMEN

Shaune Bevan I'm sure you would have a whole army of people who would do that Bianca if anyone knew who these low life mongrels are.....

Brendan Denning Drag queens lol

Sam Armour this is becoming a sick world people who do tht (sic) should be locked up 4 life

So here on the NSW Police Force Facebook page, motives are imagined, single cases are projected on to greater crime and social problems, similar experiences are shared, information on crimes is revealed. Very often police are congratulated for their work. Occasionally negative comments are posted such as this:

Paul Ofthefamily Keogh: Looks likes a fag page to me....

However, almost immediately fans come to the rescue of the NSW Police:

Pamela Connell: illiterate knob-jockey!! ...... and obviously Centrelink pays your wages Mr Keogh..

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Michelle Buruato this idiot wants all of this attention ...so just stop giving to him ...ppl with his mentality thrive off of everyone attacking it ...just ignore it and hope it crawls back in its hole

As the director of the NSW Police Force Public Affairs Branch told us, he rarely has to mediate when such negative comments appear. Fans on the police Facebook site immediately put the offending contributor in their place.

Policing is simulated and played out in an online web culture where interested members of the public engage in crime talk and policing discourse – a kind of on-line virtual or simulated community policing.

Policing and Reality Television Policing agencies have become increasingly keen to partner television production companies in producing reality television series of policing – or “observational documentaries” as they are somewhat euphemistically known. In NSW at the time of our interviews the Police Force were contracted to be involved in no less than six separate observational documentaries. West Australian Police were also engaged in a number of ‘ob-docs’ and have been for some time. As the head of WA Police Media told us:

Well The Force - we were the first state to sign up to The Force. It was a wholly a West Australia Police program when it commenced, I think four-and-a-half years ago. It now involves New South Wales, Northern Territory and Tasmania. We see that as a highly valuable way of, high impact way of - you know what the greatest benefit is? It's been able to portray the realism of policing and also our

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professionalism. I'm not so interested as the media boss is in showing us catching a crook as how courteous or helpful the police officers are. It's difficult to measure the value of that. We've done one set of external research that came back that said people's views had significantly changed about policing as a result of seeing that. So we're doing that. We're doing a spin-off series with the Seven Network on dogs. We've just commenced a series with Foxtel called Kalgoorlie Cops which focuses on the gold fields and we're also doing a project for the BBC which will involve one of our officers going to the UK…

While these commercial arrangements also provide an income stream for police organizations (although not originally for WA Police as they were quick to point out), this appears not to be the key justification for police involvement. Rather, these provide another outlet for the extension of simulated policing; not only showing police ‘doing something’ as our NSW Police respondents put it, but also providing narratives of deterrence and attempting to build trust in police and legitimacy in the police organization. As Tyler (2006) and Hough et al (2010) have noted, legitimacy in the organisation this can also have the effect of increasing public compliance with the law and cooperation with police. Thus the governing rationality here suggests this simulated policing are perceived by their advocates have very real effects. As the head of the NSW multi-media unit put it:

Deterrent, it’s the word... Actually the catchword of an awful lot of these programs is that at the end of the day it’s deterrent that will stop them. It’s to stop them drink driving, it’s to stop someone who watches The Force - and The Force is another one, an observational documentary, just tracking cops in their various

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A range of operational messages are being disseminated. While humanising policing was one justification for police engagement in these programs. Clearly then this simulated policing is targeted.. it was clear that there was a broader strategy that saw particular programs partnered for specific purposes as the NSW Director of Public Affairs notes: …there’s three sides to that. Moreover. these messages are controlled when need be. However. there’d be those who are saying. one would expect that production companies self regulate what they put to air to a large extent given the mutually beneficial status of the programs to the producers. some elements of the organisation rely on a fear factor simply to stop something happening so if the riot squad turn up at a party that’s out of control they want people to stop what they’re doing the moment their presence is there so they actually don’t have to do anything …human …that’s why they cruise around in [black] vehicles and wear… scary looking clothes because people go ‘ok I get the picture’.roles from general duties right through to specialist squads and literally sticking behind them like glue and following their moments. the network and the police.. humanising the job is good. The Director of Multi-Media at the NSW Police Force put it thus: 111     . …[E]ach show will have a different corporate objective like you know Crash Investigation Unit clearly has road safety messages in it so that’s why we make that show and because when you’re confronted with those investigations you get people thinking about those sorts of issues.

RBT.. The Director of the WA Police Media unit saw the objectives of ‘ob-docs’ similarly: ML: What are the objectives when you are engaging these shows? Director of WA Police Media Unit: Demonstrate the professionalism of the police. I can’t think of many programs where we’d even make dramatic changes on anything.. We get to vet it. Through shows like The Force. it’s run with the legal side as well and some people mightn’t like some of the stuff. there's been recent controversy about the use of tasers and the roll out of those to general police. So if initially there's an argument.We get to vet it. allow the community to better understand the challenges that the police face. So yeah.. We make sure that we’re not going to portray ourselves in a way that is wrong and we’re not going to let something that is clearly wrong go to air. we oversight it.. we're able to show that the training that occurs with things like Tasers and how people don't just immediately whip it out and Taser somebody but often. allow the community to understand the types of decision-making that the police have to make. I mean there’s material there that some of the police don’t like seeing but in some ways other officers see that as a. to use verbal judo to talk the person around and then ultimately. how a situation in a street might evolve. so that’s there. raise public confidence in policing in our jurisdiction. For example. other senior officers see that as a great education process. But we’ve allowed things going through. the police try to talk. 112     . if it escalates and they have to use their force option. As we said with Drug Lords.

The man was arrested at his Northbridge home on Sydney’s North Shore and escorted. They weren’t.com. placed on YouTube.g. The Western Australian Corruption and Crime Commission reported in October 2010. edited. http://www. As Ferrell et al (2008: 184) put it.smh. The footage was filmed. ‘police shoot more images then they do people’.com. Many of the images related to crime and policing that we see on the evening news bulletin or in the daily 113     . produced.au/nsw/sydney-paedophile-ring-arrest20100622-ytu1. handcuffed by police. up from 20 per cent of Taser deployments in 2007 to 43 per cent in 2009’ (Watson cited in Guest 2010). that tasers are now a ‘compliance tool’ and ‘were increasingly being used against people resisting arrest. and delivered to the networks by the NSW Police Force Multimedia Unit just as the reports of the arrest in the daily papers were taken from NSW Police Media Unit media releases (e.au/1606567920/WA-Police-Taser-man13-times). The report followed the public release of video footage of a man in police custody being tasered 13 times by WA Police (http://video. reporter reporting.theaustralian. shortly after this interview. Multi-media production units are gradually finding their ways into police services. linked to the NSW Police Force web site. to a waiting police van. Police and Multi-media Production If you were watching the television news on Channel 7 and other networks on June 22nd 2010 you would have seen a 67-year-old Sydney man arrested and charged with 31 sexual offences against three young boys. camera’s ready. You would have been forgiven for thinking that Channel Seven News – or whatever network you were watching – were reporting from the scene.Ironically. cut.html#ixzz1SdFcGl9x).

so he’s about to face something like 200 charges this afternoon.before I came across here we shot some video today of a chap arrested in Northbridge this morning for some crimes where he has assisted Dolly Dunn way back when in procuring young lads for child sex assaults …. and the story presented as a completed news item. a 67 year old. Not only that. it could be quite large. the primacy of the image in contemporary culture means that this extension is significant.. what viewers perceive as an objective news story is actually one completely framed. In this sense a more sophisticated video production unit is simply an extension of the already existing police-media apparatus. and delivered by a policing organisation. To return to the news story that began this section of the paper. there may be family involved. Thus. produced. Our earlier research has shown how police media releases are often reproduced in newspapers verbatim (McGovern and Lee 2010).it sounds like a bit of a mastermind in this sort of area. it’s not all about us just shooting the videos and releasing it to the media but it is about protecting the neighbours. If you tell the whole media to be there at the same time you do the collateral damage to the case. in many cases the film has been edited in house. Now we shot some video of his arrest. The ability of policing agencies to frame policing and crime issues is great.. the NSW Police Multi Media director noted in his discussion with us: …. through fact sheets 114     . However.newspapers have often been shot by police camera crews. So in this case we would shoot it but the media would know a whole lot of other background information by other ways. On one level this is not so surprising. ready to report.

as the currently emerging News Corporation scandal in the UK demonstrates. These are representations of policing that simultaneously constitute policing: they are ‘simulated policing’. these simulations. there are dangers for police organizations that become blinded by their own popularity culture. or depending on the nature of the story we might get them in and have them there soon after the arrest. the examples we have discussed here all take place in newly emerging virtual and tele-visual contexts. Like the UK Metropolitan Police. Policing itself is being altered by its engagement in these virtual fields. While in many senses these strategies are simply extensions of traditional forms of media and public engagement. A critically engaged media has been vital to 115     .and stuff like that. Conclusion These new techniques and technologies being deployed by policing organizations signal a significant intensification of police engagement with the media and the public. operational reality and fictional entertainment. That most watched of institutions (Mawby 2002) is reveling in the spotlight and developing new capacities for taking advantage of its popularity as knowledge brokers for crime and policing. The mutually beneficial relationship between the media and police has the potential to blind both to their responsibilities. Images of policing are no longer simply re-presentations. policing culture. However. So the actual arrest part is protected in the sense that we’re not allowing things that are going to allow cases to fall over later on for legal reasons. These strategies break down the boundaries between popular culture. most of the public affairs professionals in Australian police organizations are former journalists – generally senior figures who have experience covering crime news.

Hayward K and Young J (2008) Cultural Criminology. Policing: A Journal of Policy and Practice 4(3): 203-210. accessed 19/07/2011. Jackson J. London: Sage. Cambridge: Cambridge University Press. Oxford: Clarendon Press. says report. Guest D (2010) Man tasered 13 times by WA police was subject to excessive force. Bradford B. Chan J B L (1997) Changing police culture: Policing in a multicultural society. Ericson R V and Haggerty K D (1997) Policing the risk society. So while there are no doubt potential regulatory benefits in these modes of simulated policing.the detection of police corruption and misconduct for example. Ferrell and N. Websdale (eds) Making trouble. Selby (eds) Police in Our Society. Manning P (1999) Reflections: The Visual as a Mode of Social Control. Freckelton I (1988) Sensation and symbiosis. London: The Macmillan Press. 116     . Sydney: Butterworths. Trust and Institutional Legitimacy. there are dangers in embracing a police popularity culture where only image works.au/news/nation/mantasered-13-times-by-wa-police-was-subject-to-excessive-force-says-report/story-e6frg6nf1225933953993. New York. Foucault M (1977) Discipline and punish: The birth of the prison. In J. Semiotext(s).theaustralian. New York: Pantheon Books. In: I. http://www. 2010. Emsley C (1983) Policing and its context. References Baudrillard J (1983) Simulations. Myhill A and Quinton P (2010) Procedural Justice. Ferrell J. October 4th. Hough M. Freckelton and H.com. The Australian. New York: Aldine de Gruyter.

crime reporting and the shaping of policing news. O’Malley P (2010) Simulated justice: Risk.Mathieson T (1997) The viewer society: Michel Foucault's `panopticon' revisited. Newburn (ed) Handbook of policing. Devon: Willan Publishing. money and telemetric policing. Mawby R C (2010) Police corporate communications. Tyler T (2006) Why people obey the law. Theoretical Criminology 1(2): 215-234. London: Wheatsheaf Harvester. Surette R (2001) Public information officers: The civilianisation of a criminal justice profession. Princeton. Journal of Criminal Justice 29(2): 107-117. In T. Reiner R (2003) Policing and the media. British Journal of Criminology 50: 795-807. Collumpton: Willan Reiner R (2010) The politics of the police (4th ed. NJ: Princeton University Press. Mawby R C (2002) Policing images. McGovern A and Lee M (2010) “Cop[ying] it sweet”: Police media units and the making of news. Australian and New Zealand Journal of Criminology 43(3): 444-465. Policing and Society 20(1): 124-139.     117     .).

This provision is included in The Prevention of Illegal Eviction From and Unlawful Occupation of Land Act 19 of 1998. who (urban residents) put pressure on the police to deal with this problem. South Africa Conference sub-theme: Policing. The presence of the squatters adjacent to urban areas frustrates the urban residents. This also put the police in a dilemma. Introduction Towards the first democratic elections in South Africa the South African Police together with the apartheid legislative policies were among the burning issues identified for transformation process. As a result some of the people remained homeless and resorted to squatting in idle open spaces/ land within the urban areas. which eventually they cope with by compromising the squatters’ basic rights and reacting in favour of the urban residents. Florida. Investigation and Intelligence in Social Democracies Abstract The increasing influx of people in South African urban areas after this country gained democracy created a challenge to the South African Police. That is the Act which replaced the previous apartheid legislation called The 118     . These movements had also overburdened the municipality’s service delivery in these urban areas.Policing Unlawful Squatting: The Case of South Africa Angel Mabudusha University of South Africa. The changes made to the South African Police after democracy include among others the limitation of the police powers against the people who unlawfully occupy any piece of land without permission of the owner/s. These policies discriminated against black people and denied them the freedom of movement and land acquisition.

Prevention of illegal squatting Act. they should look at the rights of both parties: the squatters and the adjacent urban residence. however it does not support the integration between the poor and rich people. owing to the provision of the new legislation (The prevention of Illegal Eviction From and Unlawful Occupation of Land Act 19 of 1998) a large number of black people migrated to urban areas and freely occupied areas of their choices. This article also argues that if the police are to uphold safety and security and protect the rights of all citizens. Hence those who could not afford accommodations resorted to squatting in idle open spaces within the urban areas. However. This article argues that the conventional method of dealing with unlawful squatting in urban areas is not only unsuccessful but it is also very biased. Act No 52 of 1951. Hence not much has been done by the local government or the police to protect the rights of the squatters. The current democratic legislations regulating unlawful squatting for example. Instead this legal prescript supports the eviction of people with no permission to occupy any piece of land (irrespective of circumstances behind the problem). Act No 52 of 1951 authorized unfair removals of squatters in urban areas and it had heavily discouraged the occupation of blacks in the urban areas. As to where the squatters should be accommodated is often neglected within these eviction processes. The goal of this piece of legislation was to ensure that no black person occupies any public or private owned land especially those close to urban areas. The Prevention of Illegal Eviction From and Unlawful Occupation of Land Act 19 of 1998 does not only limit the police powers of dealing with unlawful squatting. The Prevention of illegal squatting Act. The police task is only to ensure that unlawful squatters are indeed evicted and during the eviction process no one gets hurt in the process. The 119     .

the difficulties of obtaining land via land reform programs. Among the questions arising from the above argument are: Should the squatters be blamed for being unable to secure decent houses and land ownership for themselves? Should the urban residents be blamed for not integrating the squatters within the urban areas? Or should the whole blame be carried over to the local government because it could not manage to provide every citizen with decent housing and land ownership as promised in the constitution? All of these parties have good reasons for their behaviours. At the beginning of these RDPs the Social Development Departments recruited unlawful squatters into the government shelters. because of the increasing number of people migrating to urban areas. However. 120     . 2003 and Motsuki.South African constitution of 1996 Act 108 enshrined every citizen in this country with the rights to reside anywhere and to have decent housing. As a result the relocation of squatters for accommodation purposes in South Africa became unsuccessful. the majority of these squatters were unable to secure decent housing. and high unemployment rate. However. This is evident in municipalities such as the City of Johannesburg which have limited resources and insufficient manpower to attend to all the housing backlogs within their jurisdiction. with long backlogs of people on the waiting list for RDP houses (City of Johannesburg. this problem became difficult for the government institutions to manage. because of issues such as Reconstruction Development Programme (RDP) housing backlogs. 2008). Conventional Methods to Deal with the Problem of Illegal Squatting in the Urban Areas in South Africa Despite the development of the RDP houses many South African citizens remained homeless and others squatted unlawfully in urban areas. but it appears that some interests are more valued than the others.

When the police were called to remove unlawful squatters within the urban areas they would confiscate the belongings of these squatters and chase away those with the legal citizenship permits. Most of those who were chased away often return to the same spot. Fouche & Delport. Another limitation of this type of inquiry is that the presence of the researcher 121     . sometimes immediately or a day or two days after the police had left. since they had nowhere to go. In order to ensure the reliability of this information the researcher cross-checked the information gathered through the interviews against similar studies conducted by Ballard in Cape Town (2004) and the study contacted by SABC 1 news programme in Kwa Zulu Natal (2008). 2005). which entails that the data are collected from the participants who experienced the problem under study (De Vos. In turn. which is the fact that the conventional method used to deal with unlawful squatters is fruitless and biased. As a result a new approach that would address this problem from a holistic view point (that protects both the squatters and the urban residents’ rights) is needed. This triangulation method proved the existence of similarities between the current study and the previous studies. Strydom. that led to the waste of police resources. Every time the police are called they follow the same strategy. Research Methodology This paper adopts phenomenological method of inquiry. The advantage of this type of inquiry is that it provides the research with in-depth information about the problem from the standpoint(s) of the participants. though it is sometimes criticised for being constrained by closeness to their perspective. Those (squatters) found without the legal permits were arrested and send to Lindela repatriation centre for deportation to their countries of origin.This study finds that the squatting problem in urban areas poses a challenge to the police and this is why the methods attempted to deal with unlawful squatting in urban areas were unsuccessful.

This range of participants was selected because of their various experiences regarding the topic under the study. labeled each segments in the transcript.might influence the behaviours of the participants. again re-group the data that belongs to the same category and finalised the analysis process by revising the analysis process (Tesch.paying jobs (Honeydew Crime intelligence Analysis Centre. Weltevreden Park area was selected for this study because it is one of the urban areas with large tracks of opens spaces occupied by unlawful squatters within the City of Johannesburg Metropolitan Municipality (CoJ). adjacent community residents of Weltevreden Park and the unlawful squatters and their surroundings. identified the similarities that emerged from each transcript. The majority of residents in this area are white middle class people whereas. whereby she asked same question frequently on different occasions to determine if the information provided was consistent. The criterion followed during the coding process was Tesch’s eight step data anaylsis. The findings in these studies showed that the conventional method of policing illegal squatting in the urban areas it is a challenge to the police. allowing for ‘triangulation’ of the findings. field notes and observations were made from the police officials. verified the labels of each group. 2000: 62). Interviews. The co-coder was also used to provide a second opinion on the interview transcripts in order to establish if there are commonalities between her interpretations and the researcher’s interpretation. To address this limitation the researcher did member checking. This area is mainly characterized by a number of town houses and business complexes. In this case the researcher read through all the transcriptions one by one. 122     . in Van As & Van Schalkwyk. the squatters found adjacent to this area are mainly black people surviving on temporary low. grouped similar labels together. 2008).

preventing and securing the inhabitants of this country and their property as well as to uphold the law. section 205:3. it refers to “a person who occupies a land without the express or tacit concerned of the owner or the person in charge. For the purpose of this article. Definition of Concepts Shearing (1998:1) defines the term ‘policing’ as “what the police do”. the police duties include the task of maintaining safety and security. Unlawful squatter. policing will refer to the activities that the police do in order to uphold the law and to protect the rights of the people they serve. enforce the law and to maintain public order. The Context of Unlawful Squatting in South Africa The South African immigration data of the 2001 census showed that the internal and external migration of people into the urban areas in South Africa increased massively after this 123     . According to the Constitutional Act 108 of 1996. identify and describe the factors that challenge the policing of unlawful squatting in urban areas as well as to propose a framework of dealing with unlawful squatting in urban areas. whereas the urban residents are rich people with enough finances to secure expensive urban houses and to hire private security companies for extra safety measures. For the purpose of this article the unlawful squatters are categorized as ‘have nots’ while the urban residents are categorized as ‘haves’: the squatters are poor people without enough finances to better their living.The Objective of the Study The objectives of this study include: to investigate. or without any right in law to occupy such land”. according to The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998. is a term used interchangeably with vagrant. section 15.

modernized and civilized” area (Ballard. uncivilized black people’s life style (Ballard.country obtained democracy. Some of the residents in this study expressed angrily that they do not care about what the 124     . 2006).56). As a result. The presence of these squatters close to the urban residences had negatively impacted on the living style of the urban residents and it had also challenged the police duty of maintaining safety and security in those urban areas (Ballard. In Ballard’s study one of the residents furthermore compared her living close to the squatters as “…living in the middle of an African kraal”. This problem challenged the local municipalities in terms of providing shelter for everyone. 2004: 54). These adjacent residents in this study are also concerned with the safety and security of their properties and of themselves. The demographics of these migrants show that they are mostly the poor people who are unemployed and cannot afford to pay accommodation in the urban areas (Kop & Collinson. 1996). This was evident when some of them emphasized that since the squatters moved in adjacent to their homes they have been experiencing a high crime rate in their area and they no longer enjoy their status as urban residents. the fact that the presence of these squatters adjacent to their urban residence lowers the value of their houses and threatens their urban status as a “Western. A kraal in this case is a representation of rural. The areas which previously excluded black people were opened for everyone. According to the study conducted by Ballard (2004: 48) in Cape Town urban areas and the investigation conducted by the SABC 1 news team (2008) in KZN. The reasons for that include. most of these migrants resorted to squatting anywhere in the urban open land. The reasons for this surge in migration of people into the urban areas include the changes in the South African legislation. 2004: 54. This migration was observed mostly among black people from within the country and others from the neighbouring countries. 2004 and Solomon. the adjacent residents to the open spaces disliked the presence of the squatters close to their areas.

The reasons for their reaction also reflect the same allegations made in Ballard’s study that: • • squatters ruralise their urban area and lowers their property values. • push them to spend more on increasing their safety measures by contracting private security companies and installing surveillance cameras for extra security. The researcher also observed that those open spaces within the urban areas link a number of areas together making it easy for every person including the criminals to access those urban areas. • they threaten their health as they make fires on the open spaces which cause smokes as well as. The researcher also observed that this area (Weltevreden Park) is prone to new business and town house developments. Therefore.government or the police do about the squatters. Contrary to the allegations made by the residents. the only thing they wanted was for the police to remove the squatters close to their residence. the police record shows no evidence that links the squatters adjacent to the urban area with the crimes that occurred in those areas. Instead the police allege that those squatters had been of help to them in terms of providing them with information about the crime suspects. This makes these urban areas vulnerable to criminal activities. they threatens their safety and security as they no longer feel comfortable to walk around their area and. The squatters adjacent to Weltevreden Park urban area indicated that they have selected that area because of the availability of the open spaces adjacent to the urban area and also due to continuous development taking place in that area. these developments make it easier for the squatters staying in those open spaces to find temporary 125     .

2002:18). it represents national liberation and it is more concerned with attaining freedom for all and in promoting social relations among people (Mafeje. It advocates that all citizens in the country are equally entitled to a decent living conditions and access to basic infrastructures/ needs. Lack of shelters for the homeless in this area as well as the rise of the xenophobic attacks in South Africa in 2008 have also influenced the migration of some of the foreign nationals to these urban areas (White. Often the police resort to overlooking and compromising the human needs of these squatters in order to satisfy the interests of the urban residents. The reason was that the xenophobic attacks were more active in the township than in urban areas. They collect used materials and recycle them in return for remuneration. the squatters fight for survival as human beings. protection of every citizen’s rights and the accomplishment of equal 126     . The findings also showed that the adjacent residents were concerned about the fact that these squatters save used tins and plastics in the greenbelts (open spaces) and that makes their area unattractive. Social Democracy versus Neoliberalism Social democracy refers to social equity. for safety purposes some of the foreign nationals relocated close to these urban areas. The characteristics of social democracy entail: the creation of job opportunities for all. In South Africa. 2008). However that does not solve the problem: if the squatters are removed today they come back the following day and the residents in urban areas keeps on putting pressure on the police to protect them and their properties. In response to this concern. Therefore. which is the core of democracy. the squatters revealed that to them that is another means of making money. This in turn put pressure on the police because they are expected to act on this problem.jobs. The above discussion shows how the urban residents fight for their economic status as urban. which assists them to sustain themselves. civilized and modernized people whereas.

1996: 17). Furthermore he suggested that the notion of “rainbow nation”. Equality is reached 127     .apartheid social relations. The democratic values entail: freedom. Carlsson and Lindgren (2007:21) refer to social democracy as an ideology that consists of two pillars. In the case of this study it clearly appears that the squatters do not fit within the class of the urban residents and this is why they cannot win both the urban residents’ and the police’s recognition as innocent criticizes. This means that social relation between people is no longer a success based on the colour of one’s skin but due to one’s wealth. Lemanski reiterates that wealth is the current determinant of how socially integrated one will be in an urban area. Equality is much depended on freedom because for an individual to be equal to others he/she must first have the freedom to develop himself/herself.economic and resource redistribution. continues to influence the current post. “proudly South African” and “new South Africa” as well as the idea of mixing RDP houses with bound houses (in order to encourage integration between people of different classes) can be achieved fully if the protection of individual’s wealth may not intervene in social relations. While apartheid policies were aimed at segregating whites from other groups. It intends to create an environment where the country’s economy can be expanded without compromising the rights of the poor (Gray. equality and solidarity. Lemanski (2006:417) argues that the problem with social democracy in South Africa is that the apartheid policies which were used to determine who has the right to settle in urban areas. The democratic values emphasises that the values of the people should be part and parcel of their social life and social development. the current policy appears to have shifted the focus from race to class. One pillar concerns the democratic values and the other pillar concerns the social theory. • • Freedom refers to an individual’s ability to make his/her life choices freely.

This means the rights of the ‘have nots’ should be protected against exploitation. which are concerned with limiting the political powers of the state and promoting free economic system”. by increasing exploitation of the poor through curtailing regulation and cutting back the ‘safety net’ of state welfare provision. 2007:32). 2007:27). Hence. 2007:22). They represent the minority group of wealthy citizens whose interest is in ensuring that their wealth is well maintained within the country’s market system. While Patnalk (2006) views the neoliberal policies as the ideas that affect the lives of poor people negatively. but focus only on protecting personal interest rather than on equal social rights for all. Social theory emphasises that in order to achieve the democratic values the means of production together with other elements contributing to social development should be regulated by the ruling government. According to Beaudreau and Claizier (2009:1). These neoliberal ideas operate within the social democratic country. • Solidarity refers to sharing with one another in times of need (Carlsson & Lindgren. Brown (2011:131) states that neoliberalism entails the ideas that the individual performance in the market system should be independent from the government regulations. the ideology behind social democracy is to uphold the democratic values of the society while increasing the economic development for all (Carlsson & Lindgren. “Neoliberalism is based on the ideas of classical liberalism. If this is not realized it means those with power will receive more advantages than those with no power (Carlsson & Lindgren. 128     .when no one is favoured more than the other.

equality and solidarity are neglected when dealing with squatters in urban areas. Although the urban residents are aware of the circumstances of these squatters they are unconcerned about them. 129     . This could promote the values of social democracy and bridge the gap between the poor and the rich by alleviating the problems faced by the squatters and by the police departments. These strategies afforded the squatters temporary accommodation (Hong Kong: The Facts. in order for police to address the squatting problems adequately. The police had to invite the stakeholders such as the Department of Social Development together with the urban residents to determine the way forward on this matter through the coordination of resources. The CoJ has limited government shelters. The values such as freedom. they are instead concerned with enhancing their property values and their other personal interests. Hence they go as far as expanding their security measures to protect themselves against the squatters. Conclusion The challenges that are experienced by the South African Police regarding unlawful squatting are common in most urban areas within the country. This issue alone shows that there is a need for more shelters within this municipality. 2002). These are challenges that need to be addressed outside of policing itself. Some of the Hong Kong local municipalities adopted the strategy of developing low-cost rental flats while the Ahmebadan municipality in India resorted to fundraising projects to deal with this kind of problem.The above discussion shows that the police side with the protection of property rights of property owners against the human rights of squatters (which they also have a duty to defend) because of the pressure from neoliberalism. which in some areas do not exist. The South African Social Development Departments together with the urban residents can learn from the Hong Kong’s and the Indian strategy. 2008 and Mahadevia.

Available at: http://www. City of Johannesburg Municipality (2003) Draft regional spatial development framework administration region 5. Johannesburg. Britain: E G. Gray J (1996) After social democracy: Politics. Information Services Department (2008) Hong Kong: The facts. Australian & New Zealand Journal of Criminology 44(129).References Ballard R (2004) Middle class neighbourhoods or ‘African Kraals’? The impact of informal settlements and vagrants on post-Apartheid white identity. Roodeport: Honeydew SAPS. Urban Forum 15(1): 48-73. 130     . Honeydew Crime Intelligence Analysis Centre (2008) Crime statistics. Hong Kong: Information Service Department. Pretoria: Van Schaik Publishers. De Vos A S. Kok P and Collinson M (2006) Migration to urban South Africa. Beaudreau J and Clairzier P (2009) Neo-liberal democracy: A contradiction in terms.spectrezine. Report 03-04-02. capitalism and the common life.org/neo-liberal-democracy-contradiction-terms Brown D (2011) Neoliberalism as a criminological subject. Fouche C B and Delport C S L (2005) Research at grass roots for the social sciences and human services professions (3rd ed. Strydom H. Carlson I and Lindgren A (2007) What is social democracy? Sweden: Sjuharadsbygdens Trycker. Pretoria: Statistics South Africa.).

za/documents/constitution/1996/96cons2. African Security review 5(4). Mafeje A (2002) Democratic government and new democracy in Africa: Agenda for the future. Law enforcement and operations manager of Region C at the City of Johannesburg Metropolitan Municipality (2008) Statement to researcher. 5 June. 3 February. 34. Patnalk U (2006) Poverty and neoliberalism in India.za/ASR/5No4/StrategigPerspectives. Available at: http://www. Geneva: UNRISD Publications. Rao Bahadur Kale Memorial Lecture. SABC1 (2008) Cutting edge:Store away. Mahadevia D (2002) Sustainable urban development in India: An inclusive perspective.iss.Lemanski C (2005) The impact of residential desegregation on social integration: Evidence from a South African neighbourhood. 26-29 April. Nairobi: Kenya. Available at: http://www. Johannesburg. Occasional paper no. University of Toronto Community Peace Programme. Available at: http://www.za/Pubs/PAPERS/34/Paper34.gov.435. Pune.info.co. Shearing C (1998) Changing paradigms in policing: The sSignificance of community policing for the governance of security. SABC.html Solomon H (1996) Strategic perspectives on illegal immigration into South Africa 1. Motsuki A.html South Africa (1996) The Constitution of the Republic of South Africa 108 of 1996. Paper delivered at the African Forum for Envisioning Africa.iss.htm#24 131     . Pretoria: Government Printer. Geoforum 37: 417. 17 June.co. Paper delivered at Gokhale Institute of Politics and Economics.

White D. 17 June. Government Gazette 789 (18964) 5 June 1998. Van As M and Van Schalkwyk M (2000) Research and information management IV & Research Methodology. Weltevreden Park Councillor (2008) Statement to the researcher.South Africa (1998) The Prevention of illegal eviction from and unlawful occupation of Land 19 of 1998.     132     . Johannesburg. Florida: Technikon SA.

UK Email: R. multi-agency strategies and gang injunctions. Manchester. The targeted policing of ‘gangs’ centres on policy transfer from the US.uk Hannah Smithson Manchester Metropolitan University. of ‘violent gang activity’ in three predominately Asian (Pakistani and Bangladeshi) areas.Developments in Gang Policy and Policing in the UK: Who are Labelled and Why does it Matter? Corresponding author: Rob Ralphs Department of Sociology. abused in the UK. We provide empirical evidence of the problematic way that the term ‘gang’ is being used and. The paper provides a critical analysis on the specific 133     . UK Patrick Williams Manchester Metropolitan University. The research focused on assessing the current situation in relation to the extent. M15 6LL. e. Manchester Metropolitan University. UK Conference sub-theme: Policing. and nature. UK Rosamond Street West. intelligence-led gun and gang units.ac. we argue. This paper draws primarily on research commissioned by a Local Authority in the North of England. Investigation and Intelligence in Social Democracies Abstract Political responses to gun and ‘gang’ problems in the UK have increased dramatically in recent years. dedicated.g.Ralphs@mmu.

impact that these developments have had on young ethnic minority males in the research areas. policy. You’re wasting your time mate! There ain’t no gangs here [laughs].” (Fieldwork conversation with a 24-year-old Pakistani male. . This paper draws on the findings of research commissioned by a local authority in the North of England to outline what the authors’ view is a growing problematic usage of the term ‘gang’ when dealing with certain communities in the UK. . Drugs yes. prevention Introduction Respondent: “Hello Patrick. . Rob. ‘gangs’ in [name of area]. policing. resident in one of our research area).” Researchers: “We don’t. gangs no. .” Respondent: (laughter) “Gangs! You won’t find any gangs around here.. ethnicity. That’s funny man. The focus here centres upon the increased surveillance and policing of Asian communities. specifically young Pakistani and Bangladeshi males as a consequence of the application of gang labels that 134     .” Respondent: “What are you doing around here then?” Researchers: We’re doing some research on gangs . We document the significance of ethnicity in determining which communities receive the ‘gang label’ status and the increased surveillance of Muslim communities.. funny as . I didn’t know you lived around these ends. Keywords: Gangs. We argue that the uncritical acceptance of the term ‘gang’ and the policy transfer that has ensued has the potential to further marginalise and isolate some ethnic minority communities.

elevates the perceived level of risk they pose. 135     . where the concentration of much gang research has traditionally focused its gaze on ethnic minority and immigrant groups. UK Gang History and Knowledge There is a perception that gangs are an American phenomena that are transferring to Europe and other continents. Prior to embarking on our findings. this paper reflects the author’s real concerns of the confluence of ‘gang speak’ (Hallsworth and Young 2008) and ‘risk talk’ (Cohen 2002) and the serious implications of this development for young British and Minority Ethnic (BAME) individuals/communities where behaviours (which have little or no association with ‘gang’ behaviours) are increasingly being defined as gang related. Pitts 2008). demonstrating the crime control model of contemporary penal policy (Faulkner 2007). academic research that focuses on gangs has been minimal in comparison to the scale witnessed in the US. In particular. However. in a UK context. Davies (1998. Secondly. the alacrity of key Criminal Justice developments in responding to and tackling the ‘gang problem’ in the UK is outlined. Thrasher’s (1927) study provides a point of reference to the first piece of gang research. Despite this long documented history. Aldridge et al 2008. Bennett and Holloway 2004. we firstly highlight some of the problems and concerns relating to the problematic use of the term ‘gang’. The current research landscape in the UK remains relatively scarce despite an increase over the past decade (see Alexander 2000. 2008) has provided historical evidence of gangs existing as far back as the 1870s in Manchester and 1920s in Glasgow. We conclude that the uncritical and arbitrary employment of the gang label within a risk paradigm will serve to further intensify negative police-community relations and exasperate the acute socio-economic experiences for marginalised BAME communities.

Developments in Gang Policy and the Policing of ‘Gangs’ in the UK Despite the many problems inherent with defining a gang and both academic and practitioner concerns with the growing use of gang terminology. By comparison. ethnic segregation. political responses to gun and gang problems in the UK have increased dramatically in recent years (YJB 2008). often too readily attributed to gang activity.Marked social. section 60 powers enshrined within the 1994 Criminal Justice and Public Order Act. Further mirroring of US responses to gangs are evident in developments such as ‘gang databases’ and new police powers under the 2009 Policing and Crime Act that introduced gang injunctions (dubbed ‘gangbo’s in the UK). the past decade has seen increased media interest and consequently political interest in violent youth gangs in the UK culminating in policy transfer from the US. which permits the stop and search of people for guns and knives points towards its disproportional use against 136     . cultural and legal differences between the UK and US present difficulties in translating findings (and responses) to the UK context. that limit the association of gang members in public places. (gang related) homicide rates and the number and membership size of documented gangs. welfare state provision. the UK has very few known gang members and gang related firearm homicides. We outline here how the targeted policing of ‘gangs’ clearly centre’s on American inspired policy. There have been a number of Home Office initiatives to tackle gangs and perceived links to gun and knife crime. immigration. More broadly. Many English cities now boast US styled dedicated police gang/firearm units and support US influenced multi-agency responses to the ‘gang problem’. The differences between the US and UK contexts are significant and include key differences in (legal) access to firearms. Nevertheless. This has mainly been a result of high profile shootings and stabbings. aimed in particular at young people including the Tackling Gangs Action Programme (TGAP) and the Tackling Knives Action Programme (TKAP).

Without such agreement. marginalized and heavily-policed neighbourhoods. have emerged despite a distinct lack of empirically generated knowledge and understanding of gangs in a local context. however. We believe. criminalised and then dealt with on this basis. a point that is now subject to judicial review. in schools. our research suggests that young men from Asian communities who have a greater street 137     . that the aforementioned policy responses to gangs are disproportionately targeted and employed against young BAME people and communities.young BAME people. we contrast the official view with a lack of gang identity or acknowledgement of the existence of gangs by young people residing in these areas. by the police. We concur with Alexander (2008: 12) who claims: ‘[T]oo often groups of Black and Asian men are seen as ‘gangs’. very few academic or empirical gang studies have sought to acknowledge or understand the ‘unmentionable’ nexus between ethnicity and gangs. it is futile (and dangerous) to formulate and implement gang policy. We are therefore concerned that the new wave of US inspired gang injunctions and dedicated multiagency and policing units disproportionately target young. It is our belief that within the UK context. In particular. Furthermore. in their communities and on the streets. The Need for Locally Generated Empirical Knowledge The above set of national developments. they have advanced in the absence of an agreed definition of what a gang is (HMIPP 2010). ethnic minority males from already socially excluded.’ We go on to demonstrate how the gang label was adopted in our research area by control agencies (and some community stakeholders) despite a lack of working definition. Moreover.

the focus groups involved six young people in each group. recorded. Overall. Our fieldwork resulted in recorded data for 15 interviews with community members. 98 per cent of those involved were from a BME background. The study required an examination of the multiple social contexts and influences which concurrently work together to influence youth behaviours regarding ‘gang membership’. Significantly. The young people interviewed were aged between 16 and 24 years old. 21 interviews with practitioners and 16 interviews with young people. the research team spent time (both accompanied by local community stakeholders and independently) walking around the three research areas and ‘hanging out’ around identified areas where young people gathered in public spaces. Participants were aged between 12 and 20 years old.                                                                                                                         2 The name has been changed to protect the identity of the research area and the anonymity of participants. will be the more likely targets of gang interventions such as gang injunctions and ‘in your face’ policing tactics. the commissioners selected three areas for inclusion in the study. Fourteen were male and two female. 138     . Eleven focus groups were undertaken involving 68 young people.presence and less ability to find alternative locations to socialise. In addition to more formal. This data gathering technique led to more informal encounters and unrecorded conversations with young people and community members and facilitated a firsthand view of how young people socialised and interacted within their communities. Sixty-one were male and seven were female. The Research Project and Methodology The research was commissioned by the serious violent gang board to explore the extent to which ‘violent youth gangs’ were prevalent within the Northville2 area. We focused on locations where a range of activities such as anti-social behaviour and drug dealing were known to take place. one-to-one interviews and focus groups. On average. All interviewees were of Pakistani or Bangladeshi backgrounds.

as not in employment. Findings There were clear distinctions between the views of the young people. The above indicators highlight the prevalence of criminogenic and acute socio-economic problems within the research communities. followed by Bangladeshi.Northville and the Research Areas Northville is one of the most deprived local authorities in England beset with a number of socio-economic problems. with the largest BAME groups being Pakistani. The three research areas had a higher proportion of income-deprived households resulting in more claimants of state benefit and income-support. community groups and control agencies on the existence and prevalence of gangs in Northville. ‘assault with injury’ and ‘serious acquisitive’ crimes were higher within the research areas when compared to the overall Northville levels. these figures were by no means the priority areas of concern for crime and offending behaviour within Northville. Levels of serious violent. education or training (NEET) is again higher than the Northville average as are levels of housing overcrowding. There is also a higher than average BAME population. our research areas ranked outside the top three areas for ‘serious violent crime’ with only one appearing in the top five for ‘serious acquisitive crimes’. Yet comparatively. It currently has a younger age structure than the national (UK) average with a significantly higher proportion of people less than 16 years of age and a lower proportion of people aged 65 and over. The young people 139     . it is our view that there was little empirical justification for the selection of the three research areas by the commissioners. For example. From the above figures. The proportion of young people assessed.

and just distributing their name.” Whereas we just look at it and think “yeah it is those boys. making a name up for themselves. the very notion of gangs in the research areas was derided as laughable. That’s what I’d call gangs. I don’t think there’s any gang culture here. ‘gang speak’ emerges as an 140     . ‘It depends on who is looking at you. causing havoc in other places such as [neighbouring area]. from my own opinion. Causing havoc. around Northville.” (15 year old Pakistani male) It is important to restate that the emerging view from young people was that gangs did not exist within Northville and often. People who are older might look at it and think “yeah it is a gang. Going round. Like taking [area] for instance. group of [area] lads.consulted for this study were at pains to articulate that gangs were not evident within their communities. ‘I would define a gang as a group of people. Yet.’ (19 year old Pakistani male) For others. Therefore for community workers and members. this view sits at odds with some community members where there was an inference of gangs. individuals. the use of the gang label is appropriated for other purposes. there was an acknowledgement of the existence of ‘groups’ of young people who would ‘hang about’ together or just ‘chill’ with one another. starting something. However as we will see later. about twenty people. The majority of young people felt that ‘hanging about’ with friends was very different to being classified as a gang and much of the labelling of gangs was undertaken by those who were too old to know. There’s not any gangs is there.

or gangs should I say. that’s how I’d define it. territorial town as such with specific divides – like areas and bridges and things like. lack of resources. there are major issues in the community like overcrowding. acquisitive criminal activity. deprived areas. I mean if we are talking about young gangs.’ 141     .’ (Community worker) Of significance. so these young people have a collective togetherness where they are all facing the same issues. community workers associated the emergence of gangs with a lack of employment opportunities.you hear it within [area]… We hear about a lot of organised fights or there is a fight going to happen. definitely gang activity. This resulted in young people engaging in anti-social and ‘The groups of young people. Lack of employment. who are out there some of the issues they are facing makes them form these gangs.it is territorial things that go on. Territory is a big deal for me cos you can have people who live across the road from each other but because it’s a different postcode – then that’s how they define themselves. earning money to better themselves. they don’t like such and such a person because. I think traditionally it is quite a territorial area. ‘There is gang activity. I think there has always been an issue with young people in gangs..explanation for territorial rivalry and other socio-economic and the criminogenic features of the research areas. That is more teenage.. Now territorially you will hear people now... younger teenager stuff. they say we’re all in this pot together so this is our gang – it’s about safety.

do they have the skills and confidence to deal with it and come out of their shells? Or do they become more introvert and deal with the people that they know and stick to the streets that they know.(Community worker) Aside from the definitional ambiguities within the above quote.’ (Community member) It was apparent that the wider community members we spoke too including project leaders. And I think it’ll be the latter. elders and self-appointed community leaders had a more nuanced understanding of the local problems. which linked to the acute socio-economic and cultural problems within the community. ‘These young people. they’ve not only got the cultural thing to deal with. I think when a young person gets hit from multiple angles – with very difficult hard hitting issues at a young age. If you can imagine that this particular religion has been in the limelight. we got the racial thing to deal with – and they’ve also got to deal with the fact that their identity as a Muslim is tarnished by…the media. the socio-economic problems are further compounded by the wider ‘issues’ of perceived discriminatory attitudes towards the community and the demonisation of Islam. The commissioning of the research was 142     . But young people within this particular area are particularly unique – the majority of people in these area’s are Muslim. which further impacts upon the young people and the community more specifically. They were often highly critical of the local authority decision to focus the gangs research project within their communities. so they’ve not only got all the socio-economic things to deal with. local Imams. they just don’t have anything to do.

specifically the police. had also submitted funding applications to tackle the gang problem and work with local gang members. Indeed. Thereby resulting in an ‘alliance of convenience’ between some community stakeholders and local authorities. the research was commissioned as a direct response to a number of high profile incidents where young people were fatally wounded by firearms. 143     .                                                                                                                         3 It was widely assumed that our research was a kind of ‘needs assessment’ of what areas and projects would receive funding to tackle gangs. The research was often viewed as culminating in funding for the local authority to tackle the ‘gang problem’ with many community stakeholders stressing that ‘the funding’ needs to be directed to local groups and Mosques rather than going to the local authority and police. the appropriation of the gang label was undertaken as a means through which the community could also access crucial resources to tackle the more social.interpreted as reflecting a lack of understanding and awareness of the community.3 Moreover. ‘Drug Dealing’ or ‘Gangs’ – What’s in the Name? The police as ‘primary definers’ (Hall et al 1978) clearly viewed our research areas as having gangs with a recently compiled ‘gang database’ containing almost 100 gang members and several clearly identifiable gangs with hierarchical structures. we encountered an unexpected positive manifestation of ‘gang speak’ that was further apparent in the discourses of the control agencies. It was noticeable that the vast majority (over 90 percent) of the ‘gang members’ whose pictures adorned the walls were of Asian ethnicity. Hence. it transpired that the same community stakeholders who condemned the research for focusing on a non-existent gang problem in their communities. cultural and economic problems inherent within the community. From the police perspective.

they put them into ‘guns and gangs’ (Police officer) 144     . The high levels of drug dealing we encountered are significant here. the police don’t put their resources into [tackling] drugs. coupled with recent firearm activity. ‘…Unfortunately. One explanation for this assumption to emerge from police interviews was the lack of funding and subsequent priority attached to drug dealing in comparison to gangs and related violent crime. Yet no agreeable working definition of what a ‘gang’ was by the police or wider control agencies existed. irrespective of whether they were a practitioner. Northville seems to be popping up everywhere. community member or young person. Yet persistently the police utilised the high prevalence of drug dealing within the research areas. So there’s four shootings there that are all connected to Northville. drug dealing was viewed as an individualistic way of making money and not ‘gang activity’ as was often interpreted by the police. as a means of reinforcing the view that gangs existed within Northville. there was the incident at [unrelated area] and then even the shooting in [unrelated area] came back to Northville. gun crime together with drug dealing clearly equated to gangs in the eyes of the police and local authority.’ (Police Officer) In this respect. gun crime emerges as indicative of a ‘gang problem’. as Holdworth and Young (2008) have noted as a worrying national trend.‘The two shootings. For the young people. each respondent we spoke with. In contrast to the disagreement surrounding the existence of gangs in these areas. It transpired that. described in detail what they perceived to be an inherent drug-dealing problem in Northville.

we’ve had to beg. In addition. it became apparent that police officers were also viewing the research as an opportunity to ‘rubber stamp’ the existence of gangs in the area and potentially ensure resources to tackle a priority-policing problem. although there are issues of territoriality manifesting in expressive behaviours (fighting. This view contrasts with that of community practitioners and workers who more willingly engage 145     .’ (Police officer) In line with conversations with community stakeholders. there are groups of young people who hang about with one another or ‘chill’ because there is ‘nothing else to do’ within their areas. borrow. name-calling) and anti-social behaviours between young people from different areas. there are clear discrepancies between the views of the young people. In summary. ‘To really embarrass us we’ve had to find our own [police] vehicles. For the young people the notion of gangs was laughable and contested.’ (Police officer) The severity of this resulted in the following disclosure.‘Drugs are not a force priority. to go around the building searching for vehicles for us to use. The drug dealing that existed was widely viewed as an individualistic enterprise. It’s from the top they are not going to put their resources into this [drugs]. it’s not measured against other forces and therefore…it’s not a government target. That’s my job. steal [sic] to get [police] cars. [they] put them into robberies and burglaries. the community and the control agencies as to the existence of gangs.

there are shifts afoot with violent crime. ‘Gang Speak’ It is clear that the present problems in Northville are set against wider social problems of inequality and a lack of legitimate opportunities. bite-size. essentialised in their difference’ (Hallsworth and Young 2006:184-185). what has emerged in recent years as a means of ‘sense making’ is ‘gang speak’ a concept neatly encapsulated through the work of Hallsworth and Young (2008). incorporate the language of gangs despite definitional problems. the ‘strain’ experienced by ‘entrepreneurial’ young people within an area of limited opportunities with ‘gangs’ and ganginvolvement. local authority crime and disorder teams and other agencies. there is a need to broaden our analysis to ‘make sense’ of the various views and interpretations of the situation in Northville. The frustration of inadequate resources and the operational focus upon drugs. ‘Gang-speak’ increasingly facilitates a simple. drug dealing. Taking these views together.in ‘gang-speak’. outsiders unlike us. rather than the better resourced target areas of ‘gun and gangs’ results in daily difficulties in securing the tools to appropriately exercise their duties. digestible identification of those ‘outsiders threatening the good society. ‘gang speak’. Yet. From the community view the acute socio-economic conditions. an engagement with illegitimate/informal markets. is imprecisely associated with gang involvement. the control agencies which includes the multi-agency arrangements including the police. through its simplicity has served to conflate gun or violent crime. For the control agencies. Within Northville. Thus the gang label and attempts to apply it to the young Asian people within 146     . the absence of legitimate opportunities and the prevalence of an entrepreneurial attitude amongst the young people within the community fosters the engagement of young people in a range of activities and behaviours which in our view. drug dealing and other illicit behaviours perpetrated by young Asian people within the research areas. Finally. We now turn to this matter.

He draws attention to a body of research that indicates a similar significance of ethnicity in how gangs are socially constructed in Australian cities (Collins et al. Poynting et al. serves to ‘filter out’ or ‘silence’ those more plausible explanations for the ‘complex. White et al. Poynting et al (2001. 2000. with detrimental effect on police/community relationships. acknowledged and problematised. What is concerning is that the label arises as a ‘transcendental signifier’ as a means through which the behaviours of the young BAME people are all at once identified. 2004) detail how a moral panic in the 1990s in South-Western Sydney around ethnic minority gangs resulted in the criminalization of large sections of its Middle Eastern community. White (2008: 140) has noted the Australian ‘media fixations with ‘ethnic youth gangs’. 2004. 147     . We argue that gang terminology uttered by the emerging ‘gang industry’ has similar capabilities to criminalise ethnic minority communities in the UK. The fact that the research areas were those where predominantly Pakistani or Bangladeshi young people reside points towards the ‘ethnicisation’ of crime and particularly the emergent behaviours in Northville.this study. multi-layered’ socio-economic problems experienced within our research communities and how this impacts upon the identities and experiences of young people. More recently. In addition. relegating all other explanations for the conditions inherent within the community. something alien to English communities. It was noted how the wider problem of youth crime was racialised. 1999). the ‘gang-involved’ with its basis in a foreign (albeit American) culture implicitly signifies difference. Foote 1993. and similar to Hall et al’s black mugger of the 1970s. which legitimised a law and order crackdown. They note how the misreading and oversimplification of complex social realities led to the labelling and targeting of immigrant young people.

Feeley and Simon 1992). contain or manage the ‘risk’ posed by problematic individuals and populations (Garland 2001. as a means of strengthening calls for increased resources. Of particular concern then is the confluence of ‘gang speak’ with ‘risk talk’ to form an irrefutable discourse that provokes crime control responses for the identification and management of problematic behaviours and communities . Under the guise of ‘protecting the public’. Kempshall 2006. As with our findings.in this instance the Asian gang (Faulkner 2007). modern powers enacted to control the problem of ‘gangs’ are on a par with current strategies for managing dangerous offenders. 148     . As such. the assessment of risk is not the neutral. control agencies devise and develop strategies to reduce. This framing of youth activity as ‘gang related’ activity escalates their behaviour to a higher level of risk. accountability and consistency in the ‘effective’ allocation of resources to communities and individuals identified as presenting with high levels of criminogenic need and conversely. Contemporary crime control strategies then encapsulates ‘risk’ and ‘risk management’ techniques as managerialist tools for maximising efficiency. for example the sexual offender. objective science that its proponents would suggest. where the control agencies resources to tackle drugs and drug-supply were not appropriate then there was a shift towards redefining the problem that inadvertently inflated the risk posed by certain groups and communities. Gelsthorpe and McIvor (2007) and HannahMoffatt (2010) have consistently deconstructed the risk fallacy and highlighted the serious implications of risk strategies for women and BAME people who encounter the Criminal Justice System.‘Risk Talk’The Politicisation of Risk ‘Gangs’ are now increasingly synonymous with ‘high risk’ of harm. Yet contrary to the contemporary criminal justice belief. which in turn intensifies levels of surveillance and justifies more stringent forms of intervention and monitoring. the greatest level of risk.

Critically. Gang Speak and Ethnic Minority Groups In comparison with their overall proportions in the population of England and Wales. 149     . Criminology demonstrates this overrepresentation from the use of stop-and-search through to the proportions of BAME people within the prison population (Bowling and Phillips 2005. BAME young people have been identified as disproportionately represented throughout the agencies of the criminal justice system. In relation to ‘gangs’ young BAME people and in particular men. drugs. are increasingly on the receiving end of strategies to tackle the problem of the gang. The reclassification and labelling of the research areas as having a violent gang problem then increases ‘risk’. Risk Talk. Mythen et al (2009: 5) reminds us that racism and discrimination against Muslim groups is an ‘endemic problem’ enduring time and place. However as we will see the ‘stigmatic effects’ of ‘gang speak’ and ‘risk talk’ links with a ‘particular vehemence to visible. enabling the gang label to be uncritically applied to the young people whose behaviours are constructed as a threat to Northville law and order. groups and communities. ‘honour killings’. This interpretation recasts ‘risk’ from the actuarially anodyne towards a process where ‘risk and blame’ combine as attributes for problematic individuals. increasingly contributing to a media and populist discourse conflating ethnicity with gangs. the employment of ‘gang speak’ and ‘risk talk’ act as a cultural key. feared or despised minorities’ (Spark 2000:5). Durrance and Williams 2003). With specific reference to Muslims. ‘Risk talk’ feeds the media construction of young British Asians as connected to ‘violent crime. it is the employment of ‘risk talk’ that enables the control agencies to apportion and attribute ‘blame’ upon the research communities as ‘at risk’ or on the periphery of gang problems and hence necessitating criminal justice intervention. Within our study.

It is within this context that the young Asian male is constructed as a particular ‘threat’ to white British culture through the transgression of cultural norms and the ‘Asian gang’ is a further manifestation of the alleged threat that they pose. has significant implications for those who are so defined. 150     . The stigmatic effect of the gang label. Importantly. Although there are an increasing number of dissenting voices from within the criminal justice agencies at the disproportionate sentences and incapacitation strategies increasingly being disposed upon young BAME people identified as gang-involved. Therefore. young Asian men have come under attack as being involved in the systematic sexual abuse of young white ‘vulnerable’ women.’ More recently. the arrangement of ‘mug shot’ hierarchical gangs within the police station of Northville serves to embody and reinforce the belief in gangs. the information is used to inform strategy and approaches for working with those identified. the inflation of risk and the imposition of punitive court disposals can have a profound impact in curtailing the life opportunities and chances for many young BAME people who become ensnared within the gang-risk net. the people who are recorded on these databases may not have committed offences. derived through police intelligence. The attribution of the label ‘gang’ we argue.illegal immigrants and fraudulent welfare claimants. or expressed behaviours related to gang involvement or membership. Current practices such as the development of gang databases appear to confirm the media driven public fears. associated or flagged as ‘gang-involved’ or as a ‘gang-concern’. even where the police officers concede that the young BAME people on display are “not necessarily in gangs” (police officer). Despite this. The incursion into the lives of young BAME people identified as ‘gang-involved’ or ‘at risk’ of gang involvement occasions a disregard of the ‘rights’ of young people so classified.

Many of these social systems involved members of extended family networks and in some cases family networks rather than peer groups/gangs appeared to be factors that are more dominant. community and the control agencies highlights the complexity of the gang in the UK and further problematises the responses of criminal justice agencies.Conclusion Our research established drug dealing markets and other criminal activity. The contrasting views to emerge between the young people. entrenched criminality is not indicative of gangs. the research found no evidence that young people in Northville had a distinct identity and crucially did not define themselves as discernable gangs. if communities employ gang labels as a means of exploiting funding opportunities. the current climate of cuts and withdrawal of mainstream funding places further strain on already limited youth and 151     . drug dealing and violent crime with gangs is imprecise. Significantly. ethnicity. it is our assertion that the focus of this research upon predominantly Asian communities results from the unproblematic adoption of ‘gang speak’ and ‘risk talk’. The unchecked continuation of this empirically unsound approach to addressing the socio and criminogenic needs of marginalised young BAME people and communities will only serve to accentuate the very problems that they seek to eradicate. especially the police. Conflating acute socio-economic problems. heavily localised social systems enabling criminality have been well-established features of urban Britain for many decades. 1991). Taken together. However. as Hobbs (2001) has indicated. this is hugely problematic and concerning. The recent austerity measures have had a profound effect on youth provisions across the UK and as such. informal. These communities become further marginalised and stigmatised. Further. in contrast to currently accepted definitions. Our findings also points towards the perennial challenge of gang definitions (Decker and Kempf-Leonard. and encounter antagonistic relationships with authority.

Street gangs. Bennett T and Holloway K (2004) Gang membership.’ We predict that these disadvantaged communities will undoubtedly find more gangs in the absence of other viable funding streams that will further perpetuate the cycle of ‘gang speak’ and elevation of risk. kids. British Journal of Criminology 44(3): 305-323. Collins J. Runnymede perspectives. van Gemert. the Coalition Government has recently announced £18 million to tackle gangs and related violent crime in the next two years. Gangs and Knives (CAGGK) fund providing £4 million for the voluntary and community sector (May 2011). drugs and crime in the UK. London: The Runnymede Trust. identity and masculinity.community provisions. Alexander C (2000) The Asian gang: Ethnicity. The funding criteria focuses on voluntary sector organisations working with young people ‘at risk of involvement in gang. migration and ethnicity. Peterson and I L. Noble G. In F.) London: Routledge. Medina J and Ralphs R (2008) Dangers and problems of doing 'gang' research in the UK. cops and crime: Youth ethnicity and crime. Cohen S (2002) Folk devils and moral panics (3rd ed. with the Communities Against Guns. D. Lien. References Aldridge J. Alexander C (2008) (Re)thinking ‘gangs’. Sydney: Pluto Press. Oxford: Berg. gun and knife crime. Poynting S and Tabar P (2000) Kebabs. Cullompton: Willan: 31-46. In contrast. 152     ..

Gelsthorpeand R.’ In R.. Garland D (2001) The culture of control: Crime and social order in contemporary society.perspectives on ItaloAustralian youth gangs in Adelaide. Criminology and Criminal Justice. Britain’s first youth culture. Criminology 30:449-474. Preston: Milo Books. Devon: Willan Publishing. London: Routledge.Davies A (1998) 'These viragoes are no less cruel than the lads': Young women. Foote P (1993) ‘Like. White (ed) Youth subcultures: Theory. Davies A (2008) The gangs of Manchester: The story of the scuttlers. Faulkner D (2007) Prospects for progress in penal reform. Probation Journal 50(3): 211-24. Decker S and Kempf-Leonard K (1991) Constructing gangs: The social definition of youth activities. 153     . Oxford: Oxford University Press. Morgan (eds) Handbook of probation. British Journal of Criminology 39(1): 7289. 5(4): 271-291. Criminal Justice Policy Review. Douglas M (1992) Risk and blame. In L. Feeley M and Simon J (1992) The new penology: Notes on the emerging strategy of corrections and its implications. history and the Australian experience. gangs and violence in late Victorian Manchester and Salford. Durrance P and Williams P (2003) Broadening the agenda around what works for Black and Asian offenders. 7(2): 135-152. Hobart: National Clearinghouse for Youth Studies. Gelsthorpe L and McIvor G (2007) Difference and diversity in probation. I’ll tell you what happened from experience..

In: G. Maxson C L. Mythen G. British Journal of Criminology 49(6): 736-754. London: Home Office. and HM Chief Inspectorate of Constabulary. risky identities and the performance of safety. A practical guide for local authorities. Walklate (eds) Beyond the risk society: critical reflections on risk and human security. Cullompton: Willan. May T (2011) Funding to tackle knife. gun and gang crime. HM Chief Inspectorate of Prisons. Hennigan K M and Sloane D C (2005). CDRPS and other local partners. England: Open University Press. Punishment and Society 12(3): 262-286. British Journal of Criminology 41(4): 549-560. Walklate S and Khan F (2009) ‘I’m a Muslim. Hannah-Moffat K and Maurutto P (2010) Re-contextualizing pre-sentence reports. Hobbs D (2001) The firm: Organizational logic and criminal culture on a shifting terrain. HM Chief Inspectorate of Probation. Pitts J (2008) Reluctant gangsters: The changing face of youth crime. Crime Media Culture 4(2): 175-195. HMIPP (2010) The management of gang issues among children and young people in prison custody and the community: A joint thematic review.Hallsworth S and Young T (2008) Gang talk and gang talkers: A critique. Home Office (2008) Tackling gangs. risk and race. 154     . Kempshall H (2006) Social policy and risk. but I’m not a terrorist’: victimisation. London: Home Office. "It's getting crazy out there": Can a civil gang injunction change a community? Criminology and Public Policy 4: 577-606. Mythen and S. Home Office Circular 2nd February 2011.

Pacific Islander. Inc. Yale Law Journal 107(7): 2249-2279. In: F. Thrasher F (1927) The gang: A study of 1. European Journal on Criminal Policy and Research 9: 401-412. White R.313 gangs in Chicago. Oxon: Routledge. Anglo Australian. Somalian. 155     . Peterson and I L. D. Wacquant L (2001) The penalization of poverty and the rise of neo-liberalism. Street Gangs. Guerra C and Lampugnani R (1999) Ethnic youth gangs in Australia: Do they exist? (seven reports – Vietnamese. Latin American. Noble G. Perrone S. Medina J and Aldridge J (2009) Who needs enemies with friends like these? The importance of place for young people living in known gang areas. White R (2008) Weapons are for wimps: The social dynamics of ethnicity and violence in Australian gangs.Poynting S. Melbourne: Australian Multicultural Foundation. risk and insecurity. Ralphs R. van Gemert. Cullompton: Willan: 140-55. Turkish. Migration and Ethnicity. Noble G and Tabar P (2001) Middle Eastern appearances: “Ethnic gangs”. Journal of Youth Studies 12(5): 483-500. Spark R and Hope T (2000) Crime. Poynting S. Sydney: Sydney Institute of Criminology. Summary Report). Chicago: New Chicago School Press. moral panic and media framing. Tabar P and Collins J (2004) Bin Laden in the suburbs: Criminalising the Arab other. Stewart G (1998) Black Codes and broken windows: The legacy of racial hegemony in antigang civil injunctions. Lien (eds). Australian & New Zealand Journal of Criminology 34(1): 67-90.

Their candid views and opinions coupled with their willingness to spend time familiarising us to the area and generally ‘hanging around’ with us made the research possible.     156     . London: Youth Justice Board. FitzGerald M.Young T. insight and access to the areas in which they live. Hallsworth S and Joseph I (2008) Groups. gangs and weapons. Acknowledgements We would like to thank the local authority for commissioning this research. We are also grateful to a large number of local community groups and individuals for their information.

edu. We would also like to acknowledge the support of the Australian Research Council and of Victoria Police.au Conference sub-theme: Policing. None of these collaborators are responsible for our errors or misunderstandings. including Prof Trang Thomas. 157     . that apart from raising questions of human rights breaches. community led approaches.Vietnamese Communities. thereby hampering attempts to address other sources of insecurity within that community and potential access to intelligence on more serious crimes. the generous involvement of Vietnamese Australian community members and members of the social services and justice services who spoke with us.meredyth@rmit. It makes the argument that current zero tolerance policing strategies sit at odds with more preventative. and the contributions of CIs on this large collaborative project. such strategies risk alienating the mainstream Vietnamese community.                                                                                                                         4 The authors would like to thank fellow researchers Helen McKernan and Richard Evans to this paper. Dr Leanne Weber and Prof Michael Gilding. Prof Nita Cherry.4 this paper examines the perspectives of the community outreach and legal sectors on policing the drug trade.edu.swin.au Prof Denise Meredyth RMIT University Email: denise. who played central roles in this research project. Crime Prevention and Drug Trafficking in Victoria James Scambary Swinburne University of Technology Email: jscambary@groupwise. this paper draws on elements of working papers to which they contributed. Investigation and Intelligence in Social Democracies Abstract   Drawing on research for a four-year project: ‘Exploring the experience of security in the Australian Vietnamese community: practical implications for policing’.

protect the community and prevent crime.Introduction   This paper is drawn from research for a four-year ARC Linkage Project: ‘Exploring the experience of security in the Australian Vietnamese community: practical implications for policing’. for their part. Both the Victorian Police and the Australian Vietnamese Women’s Welfare Association (AVWWA) were primary project partners. Community groups. communication has been minimal. The project team conducted 89 interviews with police. drug related crime has been at the forefront of community insecurity and policing efforts. conducted between 2008-2011. drugs and anti-police sentiments. was to improve cooperation and trust between the Victoria Police and the Vietnamese community and to understand the safety and security issues for Vietnamese Australians. community outreach and legal sector professionals working with predominantly Vietnamese clients. gambling and violence but report limited confidence in the police’s ability to intervene. gambling. police and Australian Vietnamese community members indicated that despite the efforts of police to build closer relations with the Australian Vietnamese community. Police agencies acknowledge that many officers associate Vietnamese ethnicity with high crime rates. Vietnamese injecting drug users (VIDUs) and 11 focus groups with Vietnamese Australian men and women. and a key source of friction. with low levels of trust on each side. Yarra and Springvale. 158     . Early discussion between the researchers. expressed strong concerns about crime rates. The intention of the study. But while a range of crime issues have been of concern to both the Vietnamese Australian community and the police. The project was conducted in three Victorian PSAs with high Vietnamese populations: Maribyrnong.

Evans. 1987. 1994). available information was fragmented and police lacked understanding of Vietnamese people and their culture (Phillips et al. Police then launched a number of initiatives in response to these concerns and to redress the lack of engagement with and understanding of the Vietnamese community. spanning the full spectrum from ‘soft’ community oriented approaches to ‘hard’ zero tolerance policing (ZTP). NSW Vietnamese Women’s Association. however. with each generation more integrated into Australian community life. sections of the Australian Vietnamese population in urban Melbourne also became associated by law enforcement agencies with patterns of criminal activity in drugs. as well as resettlement issues. domestic violence and. These approaches have been informed by a wide number of policing traditions. a cycle of poverty and crime (Bui and Morash. have contributed to family breakdown. But the strains of war and refugee trauma. productive and committed to education.This paper focuses on the views of outreach and legal sector professionals (19 out of 23 were Vietnamese) from this study on policing of drug crime in the Vietnamese community . whether zero tolerance policing is impacting on already low trust levels of the police and undermining longer term community engagement strategies. 2008. including challenges to traditional patriarchal social structures. for some. By the mid 1980s. Background The Vietnamese have generally been viewed as ‘successful’ immigrants to Australia: hardworking. Witnesses were reluctant to speak. 159     . 2009). The Vietnamese community became concerned about the impact of the drug trade on their businesses. personal safety and the image of their community as a whole. There were obstacles to effective police action. The central concern of this paper is the paradox between the Vietnamese community’s demand for tougher action on drug crime and the police methods used to combat it. gambling and extortion.

‘Operation Bao Ve’. so they are not necessarily mutually exclusive. these two approaches cannot simply be divided into pro-active or re-active models as there are a variety of shades in between and combinations of the two. 1987). Brunson and McGarrell 2009). As Patterson notes (in Famega. 1999).Zero tolerance policing is a largely rhetorical term that refers to a policing strategy that encompasses a range of methods. It can. be broadly be taken to mean greater community involvement in crime prevention. implemented in 1985. the two approaches are used to complement each other (Corsaro. the use of periodic intensive or ‘saturation’ policing campaigns or crackdowns (Newburn and Jones. and in particular. 1987). however. With problem oriented policing strategies such as ‘pulling levers’. (Weisburd and Eck 2004) but can also mean merely more police visibility (Reisig and Parks. Community policing or community oriented policing (COP) as it is sometimes known. the setting of crime reduction targets. Vietnamese traders 160     . for example. but with the common elements of a vigorous law enforcement approach to even minor transgressions. 2007. was an early example of a cooperative approach by the Victorian Police to build community relationships with the Vietnamese community and encourage them to report offences (Victoria Police. Greene. they appear to have been used in isolation to each other. In the way they have been applied to the Vietnamese community in Melbourne. 2004) or the permanent assignment of police to a neighbourhood to build relationships (Goldstein. however. with predictable outcomes. is considerably harder to define than ZTP. its implementation varying over time and in application by different police agencies. 2009).

1999). Bao Ve’s efforts were extended by the Asian Division. formed in 1989 (Harvey. In recognition that lowering drug use can also lower drug crime. and publicly criticised as evidence of prejudice on the part of police. The Asian Squad grew rapidly to 22 staff by 1999. resulting in a flow of intelligence and reporting about crime. the name ‘Asian Squad’ was a cause of resentment among members of the Vietnamese community. In 1990. However. Such patterns perpetuated a suspicion of authority within the Vietnamese community. with cooperation and funding from the Vietnamese traders and Footscray Council. established links with and between the Asian traders and Footscray City Council and between Footscray traders and the police. While police still maintain contact with traders this project was discontinued after a few years (Tuck 1995). A focus on the problem of drug trafficking as a Vietnamese concern was considered self-reinforcing – research indicated that young Vietnamese and other youth of Asian appearance were more likely than offenders from other backgrounds to be arrested by police for drug dealing (Beyer et al. this unit was dedicated to a non-confrontationist method of policing that would garner greater trust and cooperation with local ethnic communities and enhance security. 2002).cooperated with police to largely eliminate Vietnamese gang related protection rackets and this operation resulted in a number of successful prosecutions. in more recent times police have also formed partnerships with health service providers and signed commitments to harm 161     . later the Asian Squad. Equipped with a separate office and its own vehicles. 1989). An informal evaluation of the program found it had raised public perceptions of safety. including a Vietnamese translator and two police with fluency in Vietnamese (Police Life. concerns over drug related crime voiced by the Footscray Vietnamese community led to the development of a Footscray Council Ethnic Police Unit in 1990.

As Zhou claims (1994).minimisation principles (DHS 2008). including drafting in extra police from outside jurisdictions. the Vietnamese Australian community is highly networked. One such agreement operates between the North Richmond Community Health Centre (NRCHC) and the Richmond Branch of the Victorian Police. for a number of reasons. 2002). like many small immigrant or refugee communities. creates sometimes quite substantial extended family structures. During Operation Clean Heart. Chain migration. Operation Elizabeth utilises similar tactics. who have agreed to co-locate an NRCHC counsellor at the Richmond Police station. often through the use of exclusion orders (Aitkin et al. whereby family members are sponsored to migrate. While overzealous police crackdowns have the potential to alienate any community. comprise a significant sub-group within the Vietnamese community. with the difference that it takes place within a highdensity high rise housing commission complex with a large Vietnamese population. operate at the other end of this spectrum. or as a separate group altogether). Zero tolerance approaches such as police crackdowns such as ‘Operation Clean Heart’ on the Foostcray street heroin trade (Aitkin et al 2002) or the ongoing. length of residence in Australia and ethnicity (Vietnamese-Chinese. Nonetheless. religion. an area of the Footscray central business district was subjected to saturation policing with an extra 18 officers brought in for the operation. This is certainly true of the Victorian Vietnamese community. for example. for example. 162     . differentiated by a number of factors including age. cyclical Operation Elizabeth crackdown in Richmond. was either arrested or expelled from the area. Any person suspected of intending to sell or procure drugs was stopped and searched and if found guilty or suspect. class. The Vietnamese community in Victoria is highly diverse. generation. small migrant communities are particularly sensitive to such treatment due to their size and networked nature.

although nuclear families are important in the Vietnamese community. news. they do not function in isolation. A theme that repeatedly came through in interviews for this project was that in these areas. The social capital afforded by such networks provides a vital support system and adaptive advantage for migrants and refugees (1994).                                                                                                                         5 ‘Second death in six months after arrests’ Paul Millar. ‘everyone knows everyone’.5 Therefore. The Age May 26. Members of these communities are aware of what is going on within their community. a number of sources interviewed for this study alluded to how negative media coverage of police corruption or mistreatment of members of the Asian community had been discussed widely in the Vietnamese community. or just rumours of police mistreatment of members of the Vietnamese community circulates rapidly and pervasively. potentially alienating the very community they are trying to protect and rely on for intelligence. Rather. 2010 163     . Funerals and wedding ceremonies are big family events. migrant hostels in Australia or with other newly arrived neighbours in the densely packed housing commission estates. they are contained in a web of social and kinship relations. where people go not just to participate in the occasion but also to exchange news (Zhou 1994: 832). especially through frequent large social events. There are also non-kinship networks such as through close bonds formed with other unrelated families during extended periods in off shore transition camps. to take advantage of facilities in their own language and opportunities in the formal and informal economy afforded by family connections. Regular Buddhist Temple and Church gatherings also offer further avenues of information sharing. Vietnamese Australian refugees have settled in areas close together to live near other family members. Accordingly. such as the death of a Chinese man at Dandenong police station in 2010. Like many immigrant communities.

while there are few statistics to justify the feeling of being profiled. but sometimes through every day interactions. compared to when he just drove his own old Holden.Invasive policing methods used in crackdowns. As Weitzer points out. generating feelings of being targeted and perceptions of racial profiling (the use of race as a criterion in police decisions to stop and interrogate citizens) (Weitzer 2002). Interviews and focus groups also revealed numerous examples of where overzealous policing had led to indiscriminate targeting of young people. the perception of being profiled can be just as important as the reality (2002). was driven by a stereotype that any young Vietnamese driving a new car must be a drug dealer. This phenomenon. he believed. sometimes as collateral damage in the campaign against drug crime. described how when he drove his friend’s new car. This study heard a number of accounts in interviews and focus groups of police mistreatment of the public. Another factor cited in that report as contributing to a breakdown in the Vietnamese community’s relations with the police was police mistreatment of the Vietnamese public and cultural insensitivity. were a significant source of community alienation. Many of the interviews reported perceptions of police ‘profiling’ of the Vietnamese community. or in one case. One source spoke of police confiscating money from community members during raids in the belief that it was the 164     . a businessperson. while attending a Christmas work function. of young people in particular. he was frequently pulled over by police. There were a number of personal accounts of people being stopped and searched (in one case strip searched) when they were just doing their job as outreach workers. were cited in a 2001 NSW State Parliamentary inquiry into Cabramatta policing as one of the key factors that led to a breakdown in police relations with the Vietnamese community there (NSW Government 2001). One source. as evidenced in interviews for this study. Such perceptions of police profiling and discriminatory treatment.

there is a widespread cash economy within the Vietnamese community partly due to mistrust of banks and also due to the fact that many people can’t get bank accounts or credit cards due to lack of stable employment records. assaulted or otherwise mistreated with housing and possessions sometimes damaged. her house ransacked and the door smashed in on a number of occasions. even parents. attitudes towards illicit drug use and control measures are ironically generally more conservative in the Vietnamese community than in the general population. 165     . The ‘Hui’ system or ‘investment clubs’. rehabilitate their lives and return to their families. Some sources expressed the view that they would like to see drug users and dealers locked up so they could ‘dry out’. They were adamant. entails the storage of often large sums of money in the home but apart from Hui. Many Vietnamese have also been affected by family members’ drug use and while some VIDUs have been alienated from the community. as described by a number of respondents.proceeds of drug crime. many are still part of that community. are suspected of collusion with the drug user they are seeking and are verbally abused. One source claimed that often family members. credit history and other factors. Despite the stigma of drug crime attached to the Vietnamese community. in which she was pinned down on the floor and verbally abused. Concerns about crime issues surrounding drug use figured strongly in focus groups in this study but while a number of sources voiced the sentiment that there should be tougher action against drug crime. One Vietnamese social worker described how an elderly Vietnamese client had been traumatised by repeated police raids in search in search of her son and his drug cache. that the justice system was too lenient. Interviews also described cases of family members being caught up in police searches for drug dealers. when in fact it was life savings. this support for harsher methods was conditional.

with street level policing conducted by inexperienced younger. more experienced officers with a knowledge of social issues behind the drug trade and cross cultural training are now desk based. a contention is supported by a recent Deakin study on policing ethnic minority groups (2010). and the argument that Vietnamese equate policing operations with activities in their home countries “is a simplistic analysis that verges on being racist” (NSW Government 2001). is a key factor in public cooperation. with the consequence that the bulk of people arrested for drug crimes are user dealers. Such practices would inevitably raise comparisons with police in Vietnam. earlier interviews indicated that police tend to assume that low Vietnamese trust in the police is due to migrant memories of dealings with police in Vietnam. This nexus between experience of Vietnamese police and mistrust of Australian police has also been questioned by others. Therefore the effectiveness of using such inexperienced officers as shock troops in drug policing should be measured against the long term impact on community relations. that this did not translate into support for police mistreatment of drug users. The gap between policing traditions appeared to be almost a generational gap. But as one Vietnamese community leader for this study claimed. Public perceptions of police legitimacy.however. 166     . especially in its application of procedural justice. at the lowest end of the scale (Maher 1999. The latter perception is supported by the fact that most drug policing is carried out by unspecialised police. more junior officers. they had acquired their distrust here. with a clear perception among a number of sources that the older. which they believed eroded trust and police legitimacy. second generation Vietnamese had no experience of Vietnamese police back home. As identified in the Cabramatta inquiry. the Vietnamese community expect the police to operate within the rule of law.

It also noted. with a number of senior serving police officers venting their frustration at this lack of consistency and commitment to maintaining relationships with the community. however. at that time. there is a danger that the Vietnamese community and its crime issues may be yesterday’s concern. however. and new forms of organized crime have emerged. underscoring the need for sustained.A Victorian state government report noted more than 15 years ago that there is need for a more systematic and sustained program of community policing and inter-agency cooperation with respect to drug use. it was made clear in this study that such methods should be implemented in a sensitive and humane manner and should not be at the expense of more community oriented methods that take account of the complex social basis for drug use and related crime. On current trends. With police attention now turning to more recent refugee communities. that such work is not highly valued in the Force. particularly at local and district level. and associated public safety issues. While there is a case for. are by no means diminishing within the Vietnamese community. and that officers involved received neither adequate career recognition nor sufficient resourcing for their efforts (PDAC 1996). The 2001 Cabramatta Report (NSW Govt. with the Vietnamese community. and indeed even a demand from the Vietnamese community for reactive policing methods. although there are many common lessons which can be applied with the newer refugee communities. consistent approaches to engagement with the Vietnamese community and health providers. drug use. and the place of VIDUs in the Vietnamese community. 2001) noted that a similar inconsistency in approach had led to the poor state of relations.     167     .

References   ACU/Centacare (2008) ‘Support needs of Vietnamese families of drug users’ Melbourne. June. Aitken C, Moore D, Higgs P, Kelsall J and Kerger M (2002) The impact of a police crackdown on a street drug scene: Evidence from the street. International Journal of Drug Policy 13(3): 193-202. Alfred Deakin Research Institute (2010) Policing ethnic minority groups with procedural justice: An empirical study. Working Paper No. 02. April. Beyer L, Crofts N and Reid G (2002) Drug offending and criminal justice responses: Practitioners perspectives. International Journal of Drug Policy 13: 203-2. –– (2002) Ethnic based differences in drug offending. International Journal of Drug Policy 13: 203-11. Corsaro N, Brunson R K and McGarrell E F (2009) Problem-oriented policing and open-air drug markets: Examining the Rockford Pulling Levers Deterrence Strategy. Crime & Delinquency XX(X): 1–23. Department of Human Services (2008) (internal updated version of 2001 policy) Victorian needle and syringe program: Operating policy and guidelines. Department of Human Services. pp. 49-51. Drug and Alcohol Multicultural Education Centre (2008) Alcohol and other drug use, attitudes and knowledge amongst the Vietnamese community in Sydney. Report 5/6 Sydney, November.

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Dixon D and Maher L (2002) Anh Hai: Policing, culture and social exclusion in a street heroin market. Policing and Society 12(2): 93-110. ––(2005) Criminal policing, crime and public health: Lessons for Australia from the 'New York miracle'. Justice 5: 115. Evans R (2009) Exploring the experience of security in the Australian Vietnamese community: Practical implications for policing. Victoria police and the Vietnamese Australian community in Victoria: A brief history. Melbourne: Institute for Social Research, Swinburne University of Technology. Working Paper 5, ARC LPO776899. Famega C N (2009) Proactive policing by post and community officers. Crime & Delinquency 55: 78. Goldstein H (1987) Toward community-oriented policing: Potential, basic requirements, and threshold questions. Crime & Delinquency 33(6): 6-30. Greene J (1999) Zero tolerance: A case study of police policies and practices in New York City. Crime and Delinquency 45(2): 171-187. Harvey R (1989) ‘Saving face’ Police Life. 67. Kibria N (1994) Household structure and family ideologies: The dynamics of immigrant economic adaptation among Vietnamese refugees. Social Problems 41(1): 81-96. Morabito M (2010) Understanding community policing as an innovation: Patterns of adoption. Crime & Delinquency 56(4) 564-587. Maher L and Dixon D (2001) The cost of crackdowns: Policing Cabramatta’s heroin market. Current Issues in Criminal Justice 13(1).

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–(1999) Policing and public health: Law enforcement and harm minimisation in a street level drug market. British Journal of Criminology 39(4). National Drug Law Enforcement Research Fund (NDLERF) (2004) The role of police in preventing and minimising illicit drug use and its harms. Commonwealth of Australia. Newburn T and Jones T (2007) Symbolizing crime control: Reflections on zero tolerance. Theoretical Criminology 11(2): 221–243; 1362–4806. NSW Government (2001) Report on inquiry into Cabramatta policing. Parliamentary Paper No. 864 NSW Legislative Council, General Purpose Standing Committee No. 3. NSW Vietnamese Women’s Association (1994) Between two cultures: Vietnamese women in Australia (Phu Nuu Viet Nam Giuua Hai Giong Van Hoa). Sydney: NSW Vietnamese Womens Association. Ngo N (2010) The white path: The experiences of young Vietnamese-Australian heroin users returning to their homeland. Unpublished PhD thesis Melbourne: RMIT. Phillips P C and Jones C H et al. (1987) Operation Bao Ve : A profile of Vietnamese gang activity in Victoria 1982 to 1986. Melbourne: Victoria Police. Police Life (1999) Asian connection: Talking the talk takes on an entirely new meaning for police dealing with Victoria's Asian communities. Police Life. Reisig M D and Parks R B (2004) Can community policing help the truly disadvantaged? Crime & Delinquency 50: 139. Tuck D (1995) A case study of police ethnic relations in Footscray, Victoria’. Canberra: Australian Institute of Criminology, Multiculturalism and the Law Series.

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Victorian Government (1996) Drugs and our community. ‘Report of the Premier’s Drug Advisory Council, Victorian Government, March. Weisburd D and Eck J E (2004) What can police do to reduce crime, disorder, and fear? The Annals of the American Academy of Political and Social Science 593: 42. Weitzer R and Tuch S (2002) Perceptions of racial profiling: Race, class, and personal experience. Criminology 40(2): 435-456. Zhou M and Bankston C (1994) Social capital and the adaptation of the second generation: The case of Vietnamese youth in New Orleans. International Migration Review 28(4): 821845.
   

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The Penumbra of the Policing Mandate: The Case of the South African Police Service

Rika Snyman School of Criminal Justice, College of Law, University of South Africa, Florida, South Africa Email: rsnyman@unisa.ac.za

Conference sub-theme: Policing, Investigation and Intelligence in Social Democracies

Abstract This presentation challenges the move towards neo-liberalism in policing in South Africa, despite the fact that the mandate of the South African Police Service is grounded in the principles of socio-democracy. This creates tension between the manner in which police officials are expected to conduct their work and their legal mandate. The aim of the paper is to provide an insight into the extent to which the current mandate of the SAPS evolved from its intended socio-democratic roots into a neo-liberal law enforcement approach and the need to return to its roots. A penumbra is the border region of half-shadow resulting from the partial obstruction of light by an dense object and is the point where light and shade blend and symbolizes the tension between neo-liberalism and socio-democracy in policing in South Africa.

Key terms: socio-democracy, neo-liberalism, mandate of the police

Introduction The South Africa Police Service (SAPS) finds itself in the penumbra of dealing with extremely high levels of crime, particularly violent crime. The official statistics reveals that
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during 2009 and 2010 just over two million serious crime cases were registered, of which a third were contact crimes. Allegations of extensive police brutality (Hosken, 2011:1), the wrongful use of force, poor investigation of crime and criminal elements within the ranks of the SAPS are leveled at the police on a daily basis. Police brutality is becoming a major concern, as it is a symptom of a robust results-driven policing approach. Between April 2009 and March 2010, the police assaulted 1 667 people, an increase from the 1 578 between 2008 and 2009 and the 1 380 from 2007 to 2008. This is in sharp contrast with 224 in 1998 and 380 in 1999 (Rawoot, 2011). Bruce and Faull (Hosken 2011:1) are of the opinion that the training that police officials receive are “a paper pushing exercise to get as many police to the streets as quickly as possible, with focus on numbers rather than quality.” Although individual police officials have to face the consequences of their behaviour individually, experts such as Bruce and Faull (Hosken 2011:1) and Burger (2010) put the blame on the lack of clarity when management communicates with police officials on the ground on their approach to dealing with crime. Unrealistic demands are made on police officials to reduce crime, forcing them to take shortcuts, discouraging victims to report crimes and even torturing suspects to obtain information on crime and "At leadership level there is an attitude that these things are necessary to get things done” (Rawoot, 2011).

This presentation sets out to discuss and analyse the official mandate of the SAPS by looking at its origin, the manner in which the mandate shifted over the past two decades and the unrealistic demands placed on police officials to prevent crime. The policing context was sketched in terms of the type of society which needs to be policed and concluded that there is a need for policing to return to its socio-democratic approach, as entrenched in the South African Constitution. This presentation is based on an analysis of a range of literature sources

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which includes the legal foundation of the SAPS, seminal publications and expert voices on the chasms which exist in policing in South Africa in 2011. The aim of the paper is to provide an insight into the extent to which the current mandate of the SAPS evolved from its intended socio-democratic roots into a neo-liberal law enforcement approach and the need to return to its roots, thus avoiding the current penumbra if finds itself in.

The Mandate of the South African Police Service Seven years after South Africa emerged from the shackles of apartheid, Gordon (2001) warned that the macroeconomic strategy adopted by the government during the early years of the new-found democratic dispensation, would lead to “… punitive solutions to rampant crime” and “… seems likely to contribute to aggressive law enforcement.” The political slogans “more cops less crime” and “Tough on crime, tough on the causes of crime” were uttered by individuals who represented the victims of apartheid but unwittingly echoed the neo-liberalism stance of Margaret Thatcher and the New Labour government in the UK in the early 1990’s (Reiner, 2005). In reading Burger’s (2010) reflection on the changes and developments within the South African Police Service during 2009 and 2010, Gordon’s warning sadly seemed to have come true.

Legal Foundations of the South African Police Service Mandate The South African Police Service forms part of the public administration of the Republic where the democratic values and associated principles of transparency and efficiency mirrors the content of the Constitution, namely:

the founding provisions of the Constitution (Chapter 1);
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the values and principles contained in the Bill of Rights (Chapter 2 of the Constitution);

the democratic values and principles governing public administration (section 195(1) of the Constitution);

other values and principles and enshrined elsewhere in the Constitution (section 195(1) of the Constitution);

The values which underpin the mandate of the SAPS are constructed mindful of sociodemocratic principles. Socio-democracy recognizes individual rights through constitutional methods and distinguishes itself by its opposition to capitalism and communism. It purports that political democracy be expanded to include social and economic democracy, thus resulting in an equal, fair and just society (Carlsson & Lindgren, 2007). Ferguson (2008, 20) views social democracy as the only vehicle which can reconcile a well functioning capitalist system, democracy and social stability, thus forming the building blocks of a free, equal and fair society. Social democracy is thus an affirmation of the right of all individuals to share equally in the best that the society can technically be capable of engineering.

The fundamental values of social democracy namely that of freedom, equality and brotherhood (Carlsson & Lindgren, 2007: 21) is echoed in the National Crime Prevention Strategy (NCPS) as it provided a shift away from crime as a security issue to crime as a social issue (Bruce & Gould 2009: 13-20). The architects of this strategy recognize that South Africa should look beyond mono-causal explanations of the high crime rate and addressing it, by expanding police capacity, towards a multi-dimensional understanding of the complexity of crime. They list the improvement of community values, job creation, welfare safety nets and provisioning for the health, education and development needs of the citizens of South
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Africa among others. which heralded in radical changes in all spheres of life. maintain law and order and preserve the country’s internal security. This position has not changed in 2011 as the fabric of South African society has not evolved dramatically in the 14 year period. but especially in the manner in which the police was mandated to prevent and investigate crime. as areas which should urgently be addressed alongside improvements to the criminal justice system and environmental design (South Africa 1996b). 2009: 13-20). The inability to address the crime problem in the past. such as affirmative action. An analysis of crime during the period in which the NCPS was constructed. 2010: vii-xxiii). chiefly due to weak institutions and the manner in which the Constitution was interpreted (Misra-Dexter & February. South Africa created a framework for a sustainable democracy. familial and societal factors (Bruce & Gould. the Reconstruction and Development Plan and black economic empowerment. Despite the successful democratic scaffolding which was constructed. indicates that the risk and resilience factors arise from the interplay between individual. thus entrenching social crime prevention into the crime prevention arena. The high incidence of poverty. was voiced by the architects of the National Crime Prevention Strategy as ”Previous crime prevention initiatives were developed without adequate analysis of the root causes of high crime rates … efforts 176     . with the psychosocial consequences which were at the core of the crime problem (Altbeker 2008: 39). A non-racial multiparty democracy was introduced in South Africa in 1994. inequality and unemployment make for feelings of insecurity and a cynical outlook on future improvement. During the years leading up to the first democratic elections in 1994. did South Africa remain as unequal as it had been during the apartheid years. South Africa fell short of successfully implementing the rights enshrined in the Constitution. Despite major efforts.

By changing from a ‘force’ to a ‘service’ just after Apartheid ended. pointed to the desire to police the citizens in South Africa in a spirit of consultation and cooperation. a strong message was sent out to both the public and the police officials that service provision and cooperation with the community replaces the forcefulness of the past. the role and functions of the police were set out where the primary function of the police would be to prevent crime. the African National Congress. The prominence placed on policing was due to the high crime rate in the country. This crafting of the role of the police was formalized in the Constitution of the Republic of South Africa and signified the importance attached to policing in the country (South Africa 1996a). renaming the department as the Department of Safety and Security and changing the ranks from military-style ranks to civilian ranks. idealistically expected to be responsible for the safety of every person in the country (Burger. primarily through the application of more policing capacity to selected problems” (South Africa 1996b:7). The policy makers were adamant that this spirit could be realized in day-to-day policing. made them effectively responsible for social. The requirement placed by the government on the SAPS to drive social crime prevention initiatives. The Slip Away from the Socio-democratic Roots In various formal transitionary documents. economic and 177     . such as the ‘Ready to Govern’ document of the dominant political party.have been on ‘stemming the tide’ and have relied on reactive strategies. The emphasis placed on crime prevention and community policing in the negotiating documents during the transition years. as they declared in Section 18(1)(f) of the South African Police Service Act “…joint problem identification and problem solving by the service and the community” as the key to effective policing” (South Africa 1995). 2007: 69-75 & 84). but principally to correct the atrocities which were committed during the apartheid years. under the banner of policing (Newham & Dissel 2010).

2009: 13-20). 2010). due to an inability by its champions to grasp the intricacies of the nexus between crime and its risk factors. did the NCPS soon fail after its implementation. less focus was placed on the diminishing role that the community should play in social crime prevention. It’s clear social and moral philosophy stereotypically asks questions such as “Why am I here” and “What is expected from me” (Treanor. 2010). In the meantime the democratizing value of community involvement in preventing crime receded further and further from view. The accomplishment failure could however not be attributed on ignorance of the value of socio-democratic principles on the part of the government. The major strategic blunder was to locate the NCPS within the Secretariat for Safety and Security. Social crime prevention was largely left in the hands of the SAPS to implement. the Firearms Control Act (2000) and the Child Justice Act (2009). 2002: 9-22). The answers to the ubiquitous questions. Neo-liberalism and Policing Neo-liberalism is a concept associated with economics. “I am here for the 178     . the SAPS was held responsible for the high crime rate in the country.environmental development. Despite the recent adoption of sophisticated legislation which speaks to socio-democratic principles. yet at the same time shifting the operationalisation of the policing mandate squarely on law enforcement. its implementation left much to be desired (Bruce & Gould. With the strong emphasis on ‘fighting crime’. Following on this. such as the Domestic Violence Act (1998). Further to this. derived from the ideas of early liberalism as coined by Adam Smith (Raphael & Macfie 1976). which stifled the steps towards its implementation (Rauch. creating the impression that its failure was the fault of the SAPS. but by poorly executed policies and a lack of a holistic commitment by the relevant government departments to commit themselves to it (Burger.

Poverty. 2008: 25). This dilemma is thus not unique to the South African context as it is a malady that police organizations across the 179     . rationality. inequality and insecurity are the bitter fruits that the neo-liberalism tree delivered in countries such as the UK. placed crime and the rule of law as the key focus. “within this limit. The second element. The first of the three key elements of neo-liberalism. is embodied in Margaret Thatcher’s infamous saying that “there is no such thing as society. Treanor further (2010) states the triangular nature of neo-liberalism’s ethical precept to be “act in conformity with market forces” and secondly. all boats rise” (Ferguson. This resulted in a narrow understanding of what the main task of policing was.market’ and “I am expected to compete” flows logically from its source. as the “impossible mandate” of police organizations all over the world. Newburn and Reiner (2007: 910) refer to this as “the term ‘police’ was used then in a much broader way to connote the whole craft of governing social order”. implying that the best way to organize any society. This value set permeates through economics to capture society as a whole and enters private life. Burger (2007: 42) names the unrealistic demands placed on police to prevent crime. The prevailing liberal philosophy at the time when the notion of policing was conceptualized. Neo-liberalism has eroded solidarity and created huge divides between the rich and poor in society as it fails to deliver on its metaphor “in a rising tide. methodological individualism. resulting in locating the prevention of crime within the state. with the last element. is around the market. refers to the tendency of individuals to put their self-interest first and putting the welfare of others on the back burner. New Zealand and now South Africa. Chili. market supremacy. only individuals and families” (Ferguson. act also to maximize the opportunity for others to conform to the market forces generated by your action” with lastly “hold no other goals”. 2008: 25).

The police mandate of police organizations all over the world. Police organizations worldwide inherited this functional impossibility and its unfeasibility is perpetuated in the South African Police Service. President Zuma. despite the socio-democratic foundation of its mandate. is filled with contradictions and Manning (2006: 95) is of the opinion that the policing mandate depicts the maladies of the evolving socio-political order best. It appears as though no one is prepared to reexamine the platitude placed on the police in 1829 by Peel’s conception of the “new police” (Crawford. which let to decisive changes in the SAPS. because their work sphere which is staked out for them. South African politicians promised to “increase the war on crime”. 2007: 866 . further compromising its policing mandate. its effects are clearly visible and carry a strong voice. tough on the causes of crime” as the police had minimal impact on the key drivers of crime.world. struggle with. Reiner (2005) regards neo-liberalism as the crucial cause of crime. He focuses on the irony of the celebrated slogan during the time “tough on crime. such as long-term unemployment.868). Although neo-liberalism is a term not commonly found in debates on policing. is unmanageable. poverty and poor education. Instead. met in October 2009 with all the police station commissioners where he made clear that too much emphasis iss placed on service delivery and too little on law enforcement. The Neo-liberalism Demands Placed on the South African Police Service During the 2009 presidential election campaign. Robert Reiner (2005) reflects on the symbolic contribution that the British police played in the sharp drop in crime in Britain during most of the 20th century and attributes the slump to the effective informal social controls rather than to effective policing. The newly elected president of the country. He hinted at changes to legislation such as the ubiquitous section 49 of the Criminal Procedure 180     .

After this change. Such militarization of the police successfully deteriorates the relationship between the police and the communities in which they work and lowers crime reporting and willingness to assist the police with information on crime. find themselves in the quandary to work in the South African Police Service. as well as a need to swop the civilian style ranks for military ones. mandated to be responsible for social crime prevention. but expected to mainly focus on law enforcement. police officials. especially seen in the light that such a move made no significant impact in reducing crime or improving the effectiveness of the police to resolve reported crime in various countries.Act (South Africa 1977) which regulates the powers of police officials to use deadly force. whose civil ranks were replaced with military ranks. Minnaar (2010) refers to the inherent dangers of incorporating military principles into policing. Altbeker (2008: 45) refers to the nexus between inequality and the high levels 181     . while lenient to citizen’s safety and maintaining good discipline within the Force” (Burger 2010). the change occurred on 1 April 2010 and it was justified as follows: “Police forces around the world are referred to as the Force and their ranks are accordingly linked to such designations. We have taken a stance as this government of fighting crime and fighting it tough…this should not be misinterpreted as merely the militarization of the police but as part of our new approach of being fierce towards criminals. Despite the unconstitutionality of these changes. This conflation of the opposing discourses of community policing and the militarization of the police give rise to the position of the SAPS as a segregative mechanism where law abiding citizens are separated from the law breaking citizens. thus augmenting policing initiatives which deter and incapacitate the dispossessed.

The Policing Context Shearing (2007: 249) talks about the need to “think of our present and our future. as the future build upon the past. which in turns underpins the high levels of violence in the country. Despite efforts by the South African government to alleviate the plight of the poor. the gap between the rich and poor is widening. in order to understand what the future holds for policing in South Africa. of the character of a civilization” (Reiner 2005). but the symptom of a greater malice. as a refigured past”. From this. Instead of further entrenching the 182     . it becomes vital to contemplate on the values which underpinned the mandate of the South African Police Service during the 1990’s. The crime that must be policed is not the disease which must be cured. Racism. A debate around the kind of service that the public want from the police brings the argument full circle back to the primary question of what the society which must be policed. thus implying a profound segregation between the rich and the poor in the country in terms of policing crime.of violence which are concentrated mainly amongst marginalized and poor people.This places increased demands on the mandate to police crime. Altbeker (2008) demonstrates the extent to which exclusion of the largest portion of South Africa’s from the formal employment sector led to inequality. looks like as “policing is a symbol. which extends beyond the reach of policing. xenophobia and gender inequality further fuel the economic and political stresses which culminates into a volatile environment where violent behaviour and disregard of fellow citizens’ human rights are the order of the day (February 2010). not a source.

crime prevention should depend on transforming the society which is policed and demonstrates the political will to re-engineer society. Reiner (2005) uses a similar framework as Burger (2010) and Smith (2007) in that he concludes that the state’s governance of security has shrunk and that it is not pluralized at all.police’s skewed directive. Herbert (2006) refers to Clear and Karp who point towards the fact that communities bring criminals 183     . The prevailing worldview philosophy of South Africa. Back to the Future of Policing in South Africa The nature and extent of crime in South Africa and the poor handling thereof since the adoption of democracy in 1994 are facts which cannot be ignored. and the impact this has on the socio-economic rights and dignity of people. but as a threat to community solidarity. that criminality can be effectively reduced (Herbert 2006: 172). crimes should not be seen as an offense against the state. as there are a myriad others (Smith in Shearing. 2007: 250). encompassing its notion “I am because your are” into the policing field. The impossibility of the mandate of the South African Police Service is reiterated by Smith that the police is not the only source of social control. namely the Constitution of South Africa. From a socio-democratic viewpoint. It is clear that drastic changes are needed to policing in the country. Any crime reduction strategy which focuses only on police tactics is destined to fail and it is only through empowering communities to control themselves. It is obvious that there is a need to get back to the drawing board of 1994 where the basis of policing in a new democracy was laid. There is great concern about the debilitating effects of corruption and unethical behaviour on the democratic foundations of the country. namely Ubuntu. should permeate all aspects of life in Africa.

with the community stepping back expecting the police to rid them of crime. The neo-liberal wind which blows through the SAPS reinforces the division between the police and the community. Conclusion The loss of a vibrant organic connection between the socio-demographic vision that the architects of the ‘new’ South Africa had after the demise of apartheid and the stark realities of meeting the current calls for action against the high crime rate. The clarity of the mandate of the South African Police Service appears to be the fringe region of half shadow from the partial obstruction of its socio-democratic mandate by the neo-liberal political and public demands to address the crime problem in South Africa. The complex reality within which police officials are required to fulfill their mandate. futile. Eck and Maguire 2000). allowing the police to retain their authority and moral standing. The neo-liberal policing approach allows categorical framing of crime and policing. There is little evidence that new police strategies are responsible for reducing crime (Greene 1999.and victims together should they not engage in community-supervised reconciliation processes. citizens expecting robust police to protect them against crime and politicians to vilify criminals instead of assisting them. The main task is of communities to acknowledge the criminals in their midst and to engage in a process where they are actively confronted and redirected. siphoned off the benefits of democracy and the Constitution. result in the demise of the envisioned ideals. This will clear the point where light and shade blend. The penumbra in service delivery by the police can only be clarified when there is lucidity on what the police’s actual mandate is. thus rendering the neo-liberal tendencies in policing in South Africa. 184     .

Oxford: Oxford University Press. Dixon B (2004) In search of interactive globalization: Critical criminology in South Arica’s transition. Morgan R and Reiner R (eds) The Oxford Handbook of Criminology (4th ed. Bittner E (2006) The quasi-military organization of the police. Crime. In: Maguire M. Bruce D and Gould C (2009) The war against the causes of crime. Law and Social Change (41) 359-384.). De Villiers P and Adlam R (eds) (2004) Policing a safe. In Kappeler V E (ed) The police and society (3rd ed. Pretoria: ISS News. In Blumstein A and Wallman J (eds) The crime drop in America. Burger J (2010) Institutional schizophrenia and police militarization.References Altbeker A (2008) Adding injury to insult.). Burger J (2007) Strategic perspectives on crime and policing in South Africa. Crawford A (2007) Crime prevention and community safety. How exclusion and inequality drive South Africa’s problem of violence. Ill: Waveland Press. Johannesburg: Centre for the Study of Violence and Reconciliation. Cambridge: Cambridge University Press. Pretoria: Van Schaik. Long Grove. SA Crime Quarterly 30: 13-20. Carlsson I and Lindgren A (2007) What is social democracy? Stockholm: Ide och Tendens. Eck J and Maguire E (2000) Have changes in policing reduced violent crime? An assessment of the evidence. 185     . just and tolerant society. Winchester: Waterside Press.

Gordon D R (2001) Side by side: Neo liberalism and crime control in post-apartheid South Africa. Pretoria News.za Herbert S (2006) Policing the contemporary city. Challenging neo-liberalism and promoting social justice.asp 186     .icd.za/documents/annual_reports.February J (2010) Benefits if democracy lost in the gap between the constitution and complex reality. Pretoria news 27 March 2011 Available at: http://www. Cape Times. Advances in Criminological Theory (15): 251.pretorianews. ICD (2010) Annual report of the Independent Complaints Directorate. poor training and negligent management fingered at vital summit. In: Kappeler. Long Grove Ill: Waveland Press.). Los Angeles: Sage. Greene J (1999) Zero tolerance: A case study of police policies and practices in New York City. Criminals in cop ranks. Beeld: 10 May. Fixing broken windows or shoring up neoliberalism. Crime and Delinquency 45:17-187. 26 May. V E (ed) The police and society (3rd ed. 24 March. Hosken G (2011) Police brutality laid bare. Hawker D (2011) SAPS ‘could regress’ with new rankings.gov. Available at http://www. Fuller J R and Woznick J F (2008) The status of criminological theory. Ferguson I (2008) Reclaiming social work. Fourie H (2011) Cele defends heavy-handed cops.co. Social Justice (Fall).

Martinez E and Garcia A (2000) What is “neo-Liberalism? A brief definition. Misra-Dexter N and February J (eds) (2010) Testing democracy: Which way is South Africa going? Cape Town: ABC Press. In: Kappeler V E (ed) The police and society (3rd ed.co.za/pubs/ASR/8No3/PoliceReform. Henry and D J.org/campaigns/econ101/neoliberalDefined.iss. Newham G and Dissel A (2010) Policing in South Africa: 2010 and beyond. Ill: Waveland Press. Aldershot. In: M. Henkes C and Egle C (2008) Social democracy in power. Pretoria: Institute for Security Studies. strategies and appearances. Neyroud P (2007) Managing the police through a time of change. Unpublished presentation.). UK: Routledge Taylor Francis Group. Long Grove. MaguirE. Minnaar A (2010) From a service to a force – is the SAPS militarizing? Understanding the dynamics of police discipline and rank from an international comparative perspective. Abingdon. ISS conference: Policing in South Africa: 2010 and beyond. Available at http://www.globalexchange. In: A.).html Merkel W. 30th September and 1 October 2010.Malan M (1999) Police reform in South Africa: Peacebuilding without peacekeepers. Smith (eds). The Oxford Handbook of Criminology (4th ed. R. Oxford: Oxford University Press. Transformations of policing. Available at http://www. Petring A. Reiner (eds).html Manning P K (2006) The police mandate. The capacity to reform. African Security Review 8(3). 187     . Morgan and R. UK: Ashgate. Newburn T and Reiner R (2007) Policing and the police.

In: Henry A & Smith D J (eds) Transformations of policing. South Africa (1996a) Constitution of the Republic of South Africa (Act no. South Africa (1995) South African Police Service Act (Act no. html 188     . Oxford: Clarendon Press. Available at http://www.Raphael D D and Macfie A L (eds) (1976) The theory of moral sentiments. Pretoria: Government Printer. The Guardian. Treanor/ neoliberalism.za Shearing C (2007) Policing our future. p. South Africa (1996b) National crime prevention strategy (NCPS).constitutionallyspeaking. Pretoria: Government Printer.6. xx of 1996). Pretoria: Department of Safety and Security. UK: Ashgate. Satgar V (2011) Reclaiming a vision of hope and a life of dignity: Neoliberal South Africa and the narrowing of democratic space.saps. Aldershot. Rawoot I (2011) Police violence highest in a decade. South Africa (2011) South African Police Service Annual Report.za/saps_profile/strategic_framework/annual_report/2009_2010/3_crime _situation.co.nl. 24 November.gov. Available on http://www. 27 May.net/users/Paul. 68 of 1995). Mail and Guardian.inter. Reiner R (2005) Be tough on a crucial cause of crime – neoliberalism.pdf Treanor P (2010) Available at http://web.

Penal Policy and Punishment in a Global Era .

Public Attitudes to Punishment and the Democratisation of Sentencing Policy Dr David Indermaur Law School. In this paper some of ways of engaging the public and providing for considered judgment in regard to sentencing policy are explored. Perth Conference sub-theme: Penal Policy and Punishment in a Global Era Abstract The tension between representations of public opinion. Introduction Throughout many western countries the call for the courts to more accurately reflect public opinion has become commonplace. powerful forces but where in this tussle is the public? Traditional separations of power between arms of government and the judiciary may protect their respective power bases but also appear to effectively block out the public from a serious role in policy formation. University of Western Australia. political decision making and sentencing policy provide the basis for the oft cited ‘crisis of confidence’ in the courts. The nature of informed public opinion and the contribution that ‘deliberation’ makes to our understanding of public attitudes are also examined. Powerful people. It is argued that democratisation sits at the opposite end of a continuum of ways of engaging the public from the dominant political strategy of populism. The implicit responsiveness of the courts and governments to public opinion can be quite dangerous as the ‘public opinion’ that is being taken on board is a kind of media dominated and reactionary 190     . Linked to this is a palpable tension between politicians and the judiciary over both matters of policy and practice.

In this vein it will be argued that democratisation provides a meaningful framework for such engagement and that it sits at the opposite end of a continuum of ways of engaging the public from the dominant political strategy of populism. It is argued in this paper that the public needs to be more effectively engaged in the policy development process and this engagement will involve a more considered and responsible role for the public.discussion and bears little relation to more considered public judgment. not only on the question asked. This discussion ultimately leads to a consideration of how a broad range of efforts aimed at engaging the public might be used in the development of sentencing policy. The idea that the beliefs or voice of the public can be summarised or portrayed through polls and other devices belies the fact that the responses we get are dependent. It follows that we need to be circumspect about the very construct of public opinion at the outset. What are Public Attitudes? Public attitude is not as simple as it is usually portrayed. This is not merely an abstract point but goes to the heart of the politicisation of sentencing. 191     . Many people purport to represent public opinion and therefore we need to know something about what it is and why such claims can so easily be made even though they are rarely questioned or justified. the surrounding public information atmosphere and also other concerns that the member of the public wants to express. but also the wider context of the question. The paper begins with a review of different ways of conceptualising and working with the construct ‘public opinion’ before reviewing the range of possible levels of engagement with the public in regard to policy development.

Thus some authors (e. the media and sentencing practice referred to here. For example.The best available evidence suggests that the thing we call ‘public opinion’ is highly variable. It is particularly important when comparing public attitude on sentencing with court practice to understand that the concept of ‘attitude’ is very different from ‘judgment’. the product of ‘top of the head’ opinion polls –such as we often see in newspapers. Public opinion is often. 192     . they are encouraged to deliberate deeply. In this distinction.g. In contrast public judgment involves deeply considered judgment contained within certain parameters and guided by elaborate ‘rules’ of evidence and the like. Habermas (1989 [1963]) distinguished ‘mere opinion’ and ‘public opinion’. Naturally these serve very different purposes but they reflect in some degree the evolution of our thinking about public attitude. A more accessible reference is Roberts (1992) or Cullen et al (2000). Roberts and Stalans (1997) provide the most detail and complete reference. 1998). public judgment has been used in the field of criminal justice for centuries in the form of the jury. quickly changing and largely dependent on the context and question asked32. The thoughts and positions adopted by a member of the public in relation to a question is usually preprimed by certain media and political discussions which sketch out the contours of most debates along the lines of already established socio-political interests (Herbst. For example. what Habermas calls ‘public opinion’ is not the simple collection of individual views (mere opinion) but rather the ‘evolution’ of such individual views as a result of rational                                                                                                                         32 A number of authoritative sources provide detail on the picture of public opinion. Lewis. What we might call public judgment on the one hand and public opinion on the other represent two extremes. if not usually. from being just lightly held opinion to considered judgment. In regard to the media and political exploitation of public concerns see Roberts et al (2003) or Indermaur and Hough (2003). This group of citizens is engaged in a particular manner so that they become highly informed and responsible and. 2001) talk about the ‘constructed’ nature of public opinion. The modus operandi here almost requires little consideration and uncensored reaction akin to a word association test. as much as possible.

Price and Neijins (1998) argue that there are three elements of informed public opinion: information. ‘planning cells’. . For example. Studies of public attitudes have found this to be a crucial shift that informs and colours the outcome significantly. Informed public opinion has been incorporated into a range of methods designed to provide a meaningful reflection of public views and responses to specific issues.?’ question. and consider each other’s views before making a decision or recommendation for action. ‘citizen panels’ and ‘citizens’ juries’. ‘deliberative polling’. Placing respondents into a position where they need to weigh up competing goals. encouraged to discuss and challenge the information. Studies of the effect of deliberation on attitudes to sentencing suggest that when asked to provide considered judgments members of the public will respond differently than when 193     . So there is a range of levels of public opinion from superficial top of the head opinion to considered judgment which is more nuanced. These include. informed and considered. ‘consensus conferences’. Durham et al (1996) found that support for the death penalty decreased substantially when respondents were placed in more of a decision-making role by being presented with a case vignette rather than with a simple ‘do you favour . One important milestone along this road is the development of the notion of ‘informed public opinion’. deliberation and responsibility taking. Common to all these is the deliberative component where participants are provided with information about the issue being considered.critical debate (Habermas 1989 [1963]: 219). sensitivities and constraints to arrive at a responsible decision provides a task that invites a considered response. . Interestingly two of these criteria do not primarily have to do with information but the orientation of the respondent to the task.

Doob’s study helped identify the significant public interest in the effectiveness of sentencing. it is the utilitarian aims that predominate when conditions for rational problem solving are established. What is essential for considered judgment is the context of decision making. Most want both justice outcomes (that offenders get punished for wrong doings proportionate to the gravity of the offence) but they also want to ensure that public safety is enhanced or at least not diminished in the process. For example Rex (2002: 145) notes from her study of public perceptions of the functions of sentencing that ‘people combined elements of retributive (or desert) thinking with consequentialist (or crime reductive) aims in their understanding of punishment’. 194     .being asked for very general opinions (Green. When we ask members of the public to think about the purposes of sentencing they tend to conflate or combine the major purposes. Thus measures of ‘top of the head’ attitude reflect preferences which generally tell us more about an individual’s emotions and values and less about their knowledge or considered thought about a particular topic. as Doob (2007) found. The difference between considered judgment and the kinds of responses provided in top of the head opinion polls is that considered judgment is much more closely guided by the task and information relevant to the task. 2006). However. These are interesting and may be relevant reflections of public ‘mood’ but should not be confused with a considered judgment or preferred action in a particular case or even types of cases in general. members of the public isolate their interests in terms of crime reduction. where top of the head opinions invite and reflect personal values or affect that are seen by respondents as appropriate to the general nature of the questions. One may espouse punitive opinions in a survey but also respond in a sober fashion to tasks requiring the exercise of judgment. When engaged as a decision maker rather than a critic of the courts or governments.

Punishment policy provides an opportunity not only 195     . Psychologically. Many who have sought to understand the public demand for punishment have concluded it is the emotional. The technical details about alternatives to imprisonment. Indeed this cathartic effect can be sought because in many other areas where frustrations are built up there are few easy solutions and none that lend themselves to the release and expression of outrage. it would be a mistake to assume that the major problem with public attitude was simply a lack of information. if such insecurity/fear can be replaced with an enabling and exuberant affective state such as moral indignation (anger) then something of a cathartic ‘remedy’ is achieved. anger. pursuit and punishment and has provided us with regular. anger and disgust are certainly easy to elicit on topics of crime and punishment. Savvy populists understand the Realpolitik of emotional management for electoral advantage. Emotions of fear. resentment and fascination that crime provides (Garland (2000: 363). social and symbolic value of punishment that provides the real appeal. These social and emotional functions of punishment derive largely from an experience within individuals of insecurity manifest in a fear of crime. high rates of recidivism and so on will matter less to most than the release afforded through the expression of moral indignation. The emotional dimension of crime and justice explain its constant appeal to the media: It has surrounded us with images of crime. Expressions that emphasise punishment are thus often favoured because they involve a release at the emotional level. The merging of expressive emotions as a means of responding to amorphous threats provides a formula which gives crime and justice ubiquitous appeal as an object for media and political attention.Although the depth and breadth of public misinformation or misunderstanding has been documented for decades now. everyday occasions in which to play out the emotions of fear.

The crisis of confidence or legitimacy in the courts is exacerbated by superficial polling which appears to reinforce and amplify public discontent with the courts. 196     . Crime presents political opportunities in much the same way as war does. Stories of crime and resistance are as much a media staple as stories of war and ‘the beauty of our weapons’. It follows that if we are to have a rational or responsible sentencing policy it is fundamental that the expressive value of punishment needs to be named as such so that it is not confused with a considered or accountable policy. It is not necessarily because of a realistic threat of victimisation but rather because crime represents par excellence a range of other breakdowns in social institutions and relations through which individuals feel disempowered (see Tyler and Boeckmann 1997).for expressive emotions at the individual level but grand gestures in the political realm. Stories of both crime and war can be worked to galvanise emotions and forge experiences of social solidarity against agreed enemies. Because of the power of expressive emotions and symbolic politics some may argue that there is nothing wrong with providing punishment which may be expressive but not based on rational consideration. unless we accept the notion that crime policy should simply serve as a means for the public venting of frustrations we need to find a way of addressing the conflict between responsible policy making and popular punitiveness. With crime it is thus very much a case of how an opportunity has been presented to serve political needs – rather than simply the question of what can be done to reduce crime or protect the justice system (Beckett 1997). In the same way that there are political advantages in such discontent there are advantages to the media in being a channel for moral outrage. But this simply puts sentencing in the position of the domestic cat that is kicked as an outlet for frustrations developed elsewhere. Further.

This table will be used to examine the progression towards deeper levels of public engagement culminating in democratisation. populism is dependent on emotions and media hyperbole rather than a true privileging of the public.To sum up. The underlying issue is the level of respect and power afforded to the public. the systematic and responsible engagement of the public is vital not only to the legitimacy of the criminal justice system but also to protect it from political exploitation. Although populist responses appear to privilege the public and provide the public a ‘royal road’ to the articulation of policy. It is fair to say that these are in a relatively early stage of development. There have been a number of suggestions about how to engage the public. The table is organised to reflect power arrangements between the government and the public. Perhaps the most important to name is that it does not deliver a solution to the crime problem that makes sense under close analysis. In the following section the range of possible levels of engagement and their associated problems will be outlined. Although superficially satisfying the populist response has many problems. There are those who argue that an effective response to crime – in terms of optimising safety whilst ensuring a fair punishment – is less important than the symbolic gesture of imprisoning 197     . This table was developed for ways of looking at the various responses to the crisis of confidence in the courts (Indermaur 2008). For many the populist response is the right response and brings elites back in line with public wishes and thus represents a case of ‘democracy at work’. Levels of Public Engagement Ways of engaging the public in regard to criminal justice policy can be sketched from reactionary to progressive. A range of responses from fundamentally disrespecting the public in populism to the opposite in democratisation can be placed on a continuum as shown in Table 1.

certain categories of offenders for long periods. However this would privilege emotion over rationality to a degree that few politicians or members of the public would explicitly endorse. Information, knowledge, and rationality do eventually have a place and when brought into play spell out the problems with the populist response. It only really works at the level of a superficial glance. As van Swaaningnen (1997: 190) noted:

This way of government, which empties democratic and social principles of their meaning, marks "the unbearable lightness of politics". It is crucial to reveal the gut reaction populism on which this politics is actually based…

The next step along a continuum of power/engagement are those solutions that emanate from a position of elite power. A range of solutions that implicitly assume that elites know best and the public, uniformed as they are about matters of crime and justice policy, need to be ‘educated’ or ‘informed’ or even persuaded in the hope that they will endorse the status quo.

Table 1. Potential responses to public dissatisfaction with the courts Continuum of Power/Engagement Superficial public power Elite power position Solution Punitive Populism Change public attitude Educate the public Protect current arrangements better Inform and influence policy makers Change/influence media coverage Problems Provides costly solutions with little public benefits little evidence of practical effectiveness “ denies legitimate concerns experts become political actors “

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Table 1. Cont... Continuum of Power/Engagement Privileging the public Solution Provide more/better information Make policy and practices more transparent Make policies and practices more accountable More meaningful measures of public attitude Democratisation of crime policy Privileging the public Formal process of public engagement/debate Provide more/better information Make policy and practices more transparent Often not in media interests to report “ Problems Often not in media interests to report “

Many of the solutions under the elite power position category involve ‘doing things to’ the public that would protect current power arrangements for elites who are able to determine sentencing policy. Roberts et al (2003) provide some detail on the range of responses to penal populism that include these possibilities. Essentially these solutions break down into two categories that amount to almost the same thing. The first is trying to change public attitudes, the second is to educate the public. The belief held by many scholars in this area is that punitive attitudes are the result of misinformation and/or a lack of information. It follows, according to this view, that appropriate education will change attitudes in the direction of less punitiveness. However, this is based on the naïve assumption that that punitive attitudes are based on beliefs about crime and that the goal of punishment is to reduce or prevent crime. As discussed earlier superficial attitudes are more likely to be values expressive and more likely to be reflective of generalised frustrations.
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There is obviously a political dimension to the use of emotions in this area that, if ignored, will impale all of the best intended reforming efforts. The emotional and political dimension of public attitudes, particularly as a political object, has to do with the perceived role and position of the public in relation to government. It is essentially a power battle. This is also why other purported solutions in this vein such as the construction of bodies such as Sentencing Councils designed to provide a ‘buffer’ between government and the judiciary do not effectively deal with the dilemma of elite power and public disempowerment.

There are three other classes of response which also ultimately emanate from a position of elite power, although those who usually espouse them would see themselves as radical reformers rather than protectors of the status quo. These solutions start from the position of accepting that public policy on crime and punishment is intensely political, that the public is largely misinformed about the nature of crime and punishment and that political and special interest groups will exploit the extant reality for their own benefit. The solutions suggested in this group are aimed at getting a better crime policy not necessarily engaging or empowering the public. These reform solutions suggest that the best way forward is for reformers to find a seat at the table where policy is being formulated and try to influence it in the same way that special interest groups might. The idea here is to play the media, to reshape public debates, in effect to enter the fray and influence the outcome for a more rational sentencing policy.

Some of the efforts at this level are aimed at influencing the nature and the content of media coverage so that it becomes more informed, better educated and more reasonable. Again here there is a risk that we are working against what is viewed as a ‘problematic public’ rather than effectively engaging with the public. Some of the efforts such as the suggestions for a

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‘replacement discourse’ (Barak, 1994) are aimed not at quelling public anger but re-directing it.

About this point in the continuum the public is seen less as an adversary and more as an ally for progressive change. Whilst battles rage over so called lenient sentencing perhaps the anger could be effectively redirected to those who promise to get tough on crime but are unwilling to set any targets or provide any measure of their success or any other meaningful indicator of their performance. Indeed a vital contribution that reformers can usually make is to provide some context to the public discussion in a manner that fills out the picture and provides meaningful frames of reference. One important role is to help re-focus the debate in a manner that encompasses the whole rather than one part, for example by describing trends in both reported and unreported crime and crime rates in other countries. In responding to public concerns it is of course fundamental to the possibility of engagement that the expressed concerns are acknowledged but then sufficiently focused in the light of available knowledge.

So by this point in the continuum an essential shift toward democratisation appears to have been reached. By beginning to place the public in the position of the ‘owners’ of public policy who should be presented with evidence on the performance of sentencing and criminal justice more generally we move clearly to a position of privileging public opinion. Adopting a posture of respect to the public changes our responses to the problem considerably. Information is still the key, but now this is seen as something that should be provided to the public as a matter of course because they are the owners or guardians of the policy. Without accurate information on crime and justice and the success of various policies and strategies how are the owners able to assess the performance? Once this role and relationship is fully

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grasped high quality and comprehensive information on all manner of criminal justice operations will be made publicly available as a matter of course.

In the same vein, the actual practice of criminal justice and the rationale for certain decisions can be and should be made more available. A transparent policy signals a degree of openness and trust by those in charge of criminal justice policy to the public and perhaps once sufficiently informed will be demanded by the public. Those seeking to provide a more transparent system are indeed working for the public and signalling by their work that the public is to be served rather than avoided.

Efforts to more accurately measure and understand public preferences are respecting public opinion by taking it seriously. By engaging the public in serious discussions involving both information and judgment we signal that we expect more from the public than simply a repository of ‘top of the head’ opinions. The measurement of public attitude to be comprehensive needs to move away from a focus on ‘top of the head’ opinions that do little more than reflect the current media debates and symbolic positions and actually engage the respondent in a position of respect as a decision maker. As a decision maker the way individuals approach and respond to matters before them changes. Firstly to provide a meaningful response the respondent needs to be able to be briefed on important and relevant information and be able to access more information as they perceive may be necessary or relevant in their role as a decision maker. In much the same way as a group of the public in the form of a jury are fully apprised of the evidence and are able to seek more information then when a group of the public are charged with the responsibility to establish parameters for sentencing policy they must be fully informed, respected as the key decision maker and given the authority to seek more information.

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In terms of both measuring public opinion or preferences as well as giving an enhanced role to the public – the key word is deliberation. In other areas of discussion of the democratisation of social policy the dominant notion is one of a ‘deliberative’ democracy.

The attempt to ‘democratise’ social policy in various ways is a new and growing area of interest mostly outside of criminal justice33. The power of populists and the media to take the moral high ground can continue for only so long as they can purport to speak for that mystical figure ‘public opinion’. Those claims can be cut down by establishing a robust process of public engagement that truly involves the public and brings them into the key decision making framework. A key question for those interested in democratisation is where public input is best placed. At the very abstract level of overall principles and goals it is likely everyone would agree that we want a sentencing system that optimises crime reduction whilst being fair and consistent. The large goals of sentencing and justice are largely not in dispute. All parties want to achieve public safety as a priority and to do this in a way which is fair and just to all parties. Whilst there may be debates about the quantum of the punishment such debates can be disciplined through the introduction of a budget designed to achieve public safety (Roberts et al, 2003). By placing all the efforts to achieve safety in a balanced budget the relative costs of imprisonment as a way of achieving safety will become more apparent. Most importantly this effort is justified by the potential to legitimise broad principles aimed at balancing crime reduction goals with protection of individual rights.

Ways of Involving the Public In the previous section the problems at the intersection of between government and the public regarding public engagement were explored. With this as a base perhaps we can now
                                                                                                                       
33

For an overview see Goodwin (2003), Dryzek (2000), Bessette (1994) and Gastil amd Levine (2005).

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consider the different levels or forms of public ‘involvement’ of the public in sentencing reform? Clearly they differ in terms of the degree of power or agency afforded to the public. At one extreme we imagine the public being a school room of passive subjects waiting to be educated – at the other a critical master that must be persuaded of the merits of current sentencing policy. In the middle we have perhaps something more of what we are aiming at – the possibility of a respectful, information rich debate about the purposes and strategies of sentencing. Key axes concern level of responsibility and the level of power. These two axes of responsibility and power allow us to consider how expectations of the public differ in different forms of government (Table 2). Reflecting on the respective roles or postures of government and the public we can see more clearly how respectful involvement of the public not only provides the public more power but also at the same time expects more responsible decision making.

Table 2. Roles of the public and government in various forms of engagement. (RF = relational form, EoP = Expectations of the public in this form) Responsibility afforded to the public component Low High

Low Power of the public component High

RF: Totalitarianism EoP: Instruct, educate

RF: Representative democracy EoP: Passive listening, voting

RF: Populism EoP: Sell, react

RF: Deliberative democracy EoP: Involve, consider

Although apparent public involvement in juries, parole boards and in restorative justice cases may signal positive involvement for the public this all amounts to a very small impact on

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sentencing and in ways that reflect in only a meagre way what might be called ‘the public’. A legitimate public involvement would clearly seek to incorporate and harness the views of the ordinary citizen that does not have a particular ‘axe to grind’ but is concerned with the things most citizens can be thought to be concerned with – public safety and the integrity and fairness of the criminal justice system. Also this public involvement must be geared up to be at least modestly informed about some relevant facts about crime and the possible functions of punishment.

Following this there has to be room for some debating process where views can be put forward, tested, responded to and so on This process is necessary to test the robustness of certain views and explore what is essential and what is more peripheral or expendable in public wishes concerning sentencing The debating process also tests out how public views can respond and change with the addition of information – like the technical likelihood of changing behaviour, producing more public safety, the relative costs of certain proposals and perhaps some of the unanticipated consequences.

From this process of providing information and debate we can arrive at a set of principles and priorities that derive from public input into the process and hold these against the view from the legislation, the judiciary and sentencing scholars. Such input can be used as a way of

deriving certain positions and decisions taken by the legislature.

In considering the public input the focus should be on overarching principles, priorities and the purposes of sentencing. The technical detail of how to give effect to these principles is more the province of legal technicians – the administrators of the criminal justice system that

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But to hold to such a view is at the very heart of the problem. We thus return to where we started – the crisis of confidence in the courts. Participative democracy here is in line with the public sentiment that is sceptical about elites self interest in holding power. passive media consumers epitomised by talk back radio shows. The evil is created by the process of exclusion.have the task of ensuring that the administration of criminal justice is fair and gives effect to the legislated aims and principles. The 206     . Part of the problem with the current political arrangement it draws on a well spring of non participating. Ultimately it is the public either through its elected representatives or through a more participative process that that will determine the level of punishment that should be assigned to various offences and the guiding purposes of sentencing. The media serve to provide a form of public debate. Understanding the nature of this crisis needs to include a healthy analysis of the manner in which the courts have become positioned as the representation of the ‘old elites’ and thus paving the way for populist ‘solutions’. about the how to settle competing interests. Democratisation offers the prospect of breaking out of this nexus. Unfortunately under populism the public drive for an influence in such matters is expressed in undifferentiated and unproductive ways (such as mandatory sentencing). Certainly there is a role for consciousness raising as a prelude to that debate – but ultimately much of the public concern can be dealt with as a discussion about priorities. but it is one predicated on a passive democracy. The crisis over sentencing policy and the routine attacks on the judiciary in the tabloid press can be seen to be the outcome of ‘shutting the public out’ of a matter that they have a high stake in – public safety and moral responses. There is a belief amongst some in the judiciary and academia that sentencing is too important to be entrusted to the public.

The slide of representative democracy into populism is assisted by a simplistic notion of public power within a passive democracy framework. By reclaiming. as some argue. populism is the bane of democracy then the misrepresentation of the voice of the public plays a large part in the corrosion of democracy and robs it of its potential to produce policy that is widely endorsed and respected. Summary and Conclusion If. Most discussions and indeed measures of public opinion have been closely framed by political and media interests and their specific agendas. a lack of information but in the nature of the 207     . People understand the difference between giving an opinion that expresses general or political sentiments and taking responsibility for official action affecting people’s lives. reformatting and restoring the legitimacy of the public voice populism can be effectively opposed and exposed for what it is.remedy is to involve. The emphasis is at the emotional and symbolic theatre and rather less on the more sober aspects of governance. pretends much but details little and delivers little. therefore. Putting any individual or collective in the position of high power and low responsibility invites the capricious and the ill informed a disproportionate influence on policy. A balanced approach is to match responsibility with power so that the policies we have are tempered with a greater degree of caution and consciousness for the effect and implications of the policy (see Johnstone 2004). The ‘problem’ of public opinion in regard to criminal justice policy is not. through not only information giving which could be criticised as being patronising. but through full engagement and empowerment in a decision making forum. The populist response promises much.

volume 27. Durham A. In: M. Tonry (ed) Crime and justice: A review of the research. References Barak G (1994) Media. Cullen F. Beckett K (1997) Making crime pay: Law and order in contemporary American politics. Oxford: Oxford University Press. Canadian Journal of Criminology 42(3): 323340. Fisher B S and Applegate B K (2000) Public opinion about punishment and corrections. 208     . process and the social construction of crime. New York. A true ‘democratisation’ of policy would invite the public in to consider not only the headlines but the substance of sentencing preferences the goals. Chicago: University of Chicago Press. Justice Quarterly 13(4): 705-736. New York: Garland. NY: Oxford University Press.relationship between government and the public. Bessette J (1994) The mild Voice of reason: Deliberative democracy and American national government. Elrod P and Kinkade P (1996) Public support for the death penalty: Beyond Gallup. Dryzek J (2000) Deliberative democracy and beyond. Chicago: University of Chicago Press: 1-79. Engaging the public is fundamental to support the legitimacy of criminal justice reforms. Doob A (2000) Transforming the punishment environment: Understanding public views of what should be accomplished at sentencing. that costs and the tradeoffs that must be made between justice and safety.

Freiberg and K. Penal populism. Indermaur D (2008) Dealing the public in: Challenges for a transparent and accountable sentencing policy. MA: MIT Press. British Journal of Criminology 40: 347-375. In: A. Chicago: University of Chicago Press. Cullompton. Indermaur D and Hough M (2003) Changing attitudes to punishment. Cambridge. crime and justice. International Journal of Public Opinion Research 10: 145-176. 209     . In: J V. Oxford: Oxford University Press. Price V and Neijens P (1998) Deliberative polls: Towards improved measures of ‘informed’ public opinion. New York. Herbst S (1998) Reading public opinion. Johnstone G (2000) Penal policy making: Elitist. UK: Willan.Garland D (2000) The Culture of high crime societies: Some preconditions of recent ‘law and order’ policies. Roberts and M.’ British Journal of Criminology 46: 131-154. Gastil J and Levine P (eds) (2005) The deliberative democracy handbook: Strategies for effective civil engagement in the twenty first century. San Fransisco: Jossey-Bass. sentencing councils and sentencing policy. Thomas Burger. populist or participatory? Punishment and Society 2: 161-180. Goodwin R (2003) Reflective democracy. Trans. Lewis J (2001) Constructing public opinion. Gelb (eds). Sydney: Hawkins Press. Habermas J (1989 [1963]) The structural transformation of the public sphere: An inquiry into a category of bourgeois society. Hough (eds) Changing attitudes to punishment: Public opinion. NY: Columbia University Press. Green D (2006) Public opinion versus public judgment about crime: Correcting the ‘comedy of errors.

Boulder. 16: 99-180.Rex S (2002) Reinventing community penalties: The role of communication. Cullompton UK: Willan. Crime and Justice: A Review of Research. Roberts J (1992) Public opinion. Law and Society Review 31: 237. Cullompton UK: Willan. crime and criminal justice. London: Sage. In: S.264. but why? The psychology of public support for punishing rule breakers. Reform and punishment: The future of sentencing. In: S. Stalans L. In M. Chicago: University of Chicago Press. Roberts J (2002) Public opinion and sentencing policy. CO: Westview Press. Roberts J and Stalans L (1997) Public opinion.     210     . Tonry (ed). Tonry (eds). Roberts J. New York. Indermaur D and Hough M (2003) Penal populism and public opinion: Lessons from five countries. Rex and M. Tyler T and Boeckmann R (1997) Three strikes and you are out. Rex and M. crime and criminal justice. NY: Oxford University Press. van Swaaningnen R (1997) Critical criminology: Visions from Europe. Tonry (eds) Reform and punishment: The future of sentencing.

It will consider the effect that a person’s religious motivation has upon the sentences handed down. See. Nicola McGarrity. in the second half of 2010. 37 people (all Islamic men) have been charged with terrorism offences in Australia. in particular. I appeared as junior defence counsel in the Victorian Supreme Court for Mr Saney Aweys. University of New South Wales. 211     . ‘“Testing” Our CounterTerrorism Laws: The Prosecution of Individuals for Terrorism Offences in Australia’ (2009) 33 Criminal Law Review 201. who was charged and ultimately convicted of doing an act in preparation for a terrorist act. Twenty-six of these men have been convicted and sentenced to between four and 28 years imprisonment (with the sentences for three of the men pending). the prospects of rehabilitation. Furthermore. objective seriousness of the offence and specific and general deterrence.Principles Relevant to the Sentencing of Individuals for Terrorism Offences Nicola McGarrity* Faculty of Law. Since 2001. The thesis that will be tested is whether the extremist religious beliefs of persons convicted of terrorism result in significantly higher sentences than would be the case with regard to a person motivated by ‘private’ factors. The purpose of this paper is to examine the principles applying to sentences for such offences. Sydney Conference sub-theme: Penal Policy and Punishment in a Global Era Abstract This paper draws upon previous research that I have conducted into the prosecution of persons accused of terrorism in Australia.

The vast majority of the terrorism offences introduced since 9/11 focus on conduct preparatory to the actual engagement in a terrorist act. including possessing a thing connected with preparation for a terrorist act37 and doing an act in preparation for a terrorist                                                                                                                         * 34 35 36 37 Lecturer. Therefore. religious or ideological cause’ and of coercing an Australian or foreign government or intimidating the public. What Price Security? Taking Stock of Australia’s Anti-Terror Laws (2006) 9. This is probably unsurprising given that the only commonly accepted instance of terrorism on Australian soil was the 1978 bombing of the Commonwealth Heads of Government Meeting at the Hilton Hotel in Sydney. Andrew Lynch and George Williams.36 For obvious reasons. the action must cause a minimal level of harm.1(1). University of New South Wales. over the last decade. Australian Research Council Laureate Fellowship: Anti Terror Laws and the Democratic Challenge. These laws all hinge upon the definition of a ‘terrorist act’ in s 100. the punishment of criminal conduct after the fact – inappropriate. 212     .4.Introduction Prior to the 9/11 terrorist attacks in the United States.1 of the Criminal Code Act 1995 (Cth) (Criminal Code).1(3) establishes an exception for advocacy. However.1(2). such as serious damage to property or serious physical harm to a person. dissent and protest.1). no person has ever been charged with this offence. Criminal Code Act 1995 (Cth) s 100. Faculty of Law. more than 45 anti-terrorism laws have been enacted by the Commonwealth Parliament. Gilbert + Tobin Centre of Public Law. it is an offence to engage in a terrorist act (s 101. Criminal Code Act 1995 (Cth) s 100. Division 101 of the Criminal Code makes it an offence to engage in a range of preparatory conduct. there were no national anti-terrorism laws in Australia. This definition requires that the action be done or the threat of action be made with the intention of advancing a ‘political. Criminal Code Act 1995 (Cth) s 101.35 Furthermore. This is because of a belief on the part of legislators that the potential for terrorist acts to cause mass loss of life makes the usual reactive approach of the law – that is.34 However. Section 100.

Criminal Code Act 1995 (Cth) s 102. Twenty five of these men have been convicted. To date. one contained in Division 103 of the Criminal Code and the other in the Charter of the United Nations Act 1945 (Cth). and all but one a self-professed Muslims). The terrorism offences have been aggressively enforced.4. 22 of the 25 men have been sentenced. Division 102 also creates status offences for membership of.6. and how these principles have been applied by Australian judges. The Australian. Nayef El Sayed and Wissam Fattal (‘the Holsworthy terrorists’) is currently reserved. the sentencing judgment and the general principles reflected in it will be considered in this article. making it an offence. where an organisation has been listed by regulation or declared by the courts to be a ‘terrorist organisation’.3. Criminal Code Act 1995 (Cth) s 102.42 or association with. New Trial Order in Case of Belal Khazaal’. Nevertheless. it is an offence to direct those activities39 and to train with40 or provide support or resources to41 a terrorist organisation.45 Instead. Criminal Code Act 1995 (Cth) s 102.38 Division 102 targets terrorist organisations. 9 June 2011.2. ‘“Testing” Our CounterTerrorism Laws: The Prosecution of Individuals for Terrorism Offences in Australia’ (2010) 34(2) Criminal Law Review 92. Criminal Code Act 1995 (Cth) s 102. The conviction of Bilal Khazaal was recently overturned and a new trial ordered. 213     . A decision on the sentences of Saney Aweys. There are also two different regimes of financing offences.46 Their sentences ranged from 1 year imprisonment with a three year good behaviour bond to 28 years imprisonment. This figure does not include the sentence of Bilal Khazaal.8.44 This paper will not examine the cases against these men or the conduct of their trials. The sentencing plea took place on 5-6 May 2011. see Nicola McGarrity. See ‘Jihad Book Conviction Overturned.43 a terrorist organisation. For a detailed discussion of Australia’s terrorism trials. Criminal Code Act 1995 (Cth) s 102. Charges have been laid against 37 individuals (all male.                                                                                                                         38 39 40 41 42 43 44 45 46 Criminal Code Act 1995 (Cth) s 101. to participate in the activities of that organisation.act. it aims to set out the general principles relevant to sentencing of individuals for terrorism offences.5. For example.

loss or damage resulting from the offence. (c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct. (j) the deterrent effect that any sentence or order under consideration may have on the person. (h) the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences. (b) other offences (if any) that are required or permitted to be taken into account. These matters are: (a) the nature and circumstances of the offence. Subsection 16(2) then sets out a non-exhaustive list of 13 matters that the court must take into account if they are relevant and are known to the court.The starting point in relation to sentencing for Commonwealth offences is subsec 16A(1) of the Crimes Act 1914 (Cth). (k) the need to ensure that the person is adequately punished for the offence. This subsection provides that ‘a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence’. (f) the degree to which the person had shown contrition for the offence: (i) by taking action to make reparation for injury. or (ii) in any other manner. (e) any injury. (g) if the person has pleaded guilty to the charge in respect of the offence—that fact. (d) the personal circumstances of any victim of the offence. loss or damage resulting from the offence. 214     .

In the Canadian case of R v Khawaja. means and physical or mental condition of the person. ‘the unique nature of terrorism-related offences and the special danger that these crimes pose to Canadian society’ (seriousness of the offence). upon the precise factual circumstances surrounding the commission of that offence. Second. (n) the prospect of rehabilitation of the person. there were three key factors to take into account in the context of terrorism offences.47 the Ontario Court of Appeal considered that. age. ‘the degree of continuing danger that the offender presents to society’ (prospects of rehabilitation). ‘the need for the sentence imposed to send a clear message to wouldbe terrorists that Canada is not a safe haven from which to pursue their subversive and violent ambitions’ (general and specific deterrence). Seriousness of the Offence The seriousness of a terrorism offence will obviously depend. in relation to a similar list of statutory factors. cultural background. First. and the volume. the manner in which Khazaal collected and collated the material contained in the document. in sentencing Bilal Khazaal for making what the prosecution described as a DIY guide to terrorism. For example. in large part. antecedents. This article will examine the significance of each of these factors in the sentencing of Australian terrorists. detail and accuracy of the information relating to the commission of terrorist                                                                                                                         47 2010 ONCA 862 [192]. Finally. Latham J examined the period of time over which the offence was committed. 215     . (p) the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.(m) the character.

and requesting permission from a Somali sheik to engage in a terrorist attack on an Australian army base. the proximity of the preparatory acts to the commission of a terrorist act. R v Elomar and Ors [2010] NSWSC 10 [17]-55]. A comparison of two recent cases clearly demonstrates how this issue might play out in practice. offences committed by a group (as opposed to an individual). Proximity to the Commission of a Terrorist Act A particularly vexed question is whether the remoteness of preparatory activities from the commission of a terrorist act should be taken into account in sentencing. there was evidence that the men had taken significant steps towards the commission of a terrorist act. First. Saney Aweys and two other men (the Aweys accused) were convicted before the Victorian Supreme Court of the same offence. collected ammunition. Amongst other things. and possessed large quantities of instructional material about Islamic jihad and bomb-making.50                                                                                                                         48 49 50 R v Khazaal [2009] NSWSC 1015 [17]-[21]. In the 2008/2009 trial of Mohamed Elomar and four other men before the New South Wales Supreme Court (the Elomar accused).acts. however. contrasted the nature of the activities undertaken by the Aweys accused with those undertaken by the Elomar accused.49 In a 2010 trial. this section of the article will examine whether and how three particular issues affect the court’s calculation of the seriousness of a terrorism offence. Second. 216     . they had attended training camps. the target of and/or the means proposed to be used in the terrorist act. The former’s activities were limited to a short reconaissance trip to Holsworthy Army Barracks in Sydney. The comments on this case are based on my personal experiences as junior counsel for Saney Aweys. Instead. At sentencing. purchased laboratory equipment and chemicals. the prosecution argued that the proximity of the preparatory activities to the commission of a terrorist act was irrelevant. The defence. Finally.48 It is beyond the scope of this article to set out the factual circumstances relating to each of the 25 men convicted of terrorism offences.

the Commonwealth Parliament made a deliberate decision to ‘enable intervention by law enforcement agencies to prevent a terrorist act at a much earlier time than would be the case if they were required to wait for the commission of the planned offence or for an unsuccessful attempt to commit it’. in addition to examining the remoteness of the preparatory activities from the commission of a terrorist act. This is because in enacting the preparatory terrorism offences in Division 101. Lodhi v R [2007] NSWCCA 360 [229]. His Honour took into account the fact that ‘the arrangements were relatively well advanced and were characterised by a clear and logical inevitability. but for the intervention of the authorities. it is necessary to consider the nature of the terrorist act contemplated. R v Elomar [2010] NSWSC 10 [68]. namely that.51 The Court of Criminal Appeal accepted that the proximity between the preparatory act and the completion of the offence was a relevant factor.52 However.53 That is.Some guidance might be taken from the decision of the New South Wales Court of Criminal Appeal in Lodhi v R. In many instances. the only case in which the prosecution has identified a specific terrorist target was that of Saney Aweys and two other men. proximity ‘does not determine the objective seriousness’ of that offence (emphasis added). the very nature of the offences in Division 101 and 102 of the Criminal Code means that it is very likely that the offending activities will be extremely remote from the commission of a terrorist act. 217     . Nature of the Terrorist Act In any event. the early intervention by law enforcement agencies means that a terrorist target will not have been selected by the convicted men. The activities and intercepted telephone conversations of the men indicated                                                                                                                         51 52 53 [2007] NSWCCA 360. such arrangements would have been put into effect sooner rather than latter’. the Court of Criminal Appeal in Lodhi v R insisted that. Indeed. This approach appears to have been adopted by Whealy J in sentencing Mohamed Elomar and four other men. although a relevant factor.

who pleaded guilty                                                                                                                         54 55 56 See n 17 above.55 His Honour held that each of the men ‘intended that the terrorist act or acts … would involve action that. Although there was insufficient evidence for Whealy J to be satisfied beyond reasonable doubt that ‘any of the offenders intended directly to kill or take human life’. R v Elomar [2010] NSWSC 10 [69].56 Group-Based Nature of the Offences The trend in prosecuting the terrorism offences in recent years has been to prosecute groups of persons rather than individuals. The seriousness of the offence will depend in large part upon whether the intention of the terrorist was to. and the nature of the harm that the terrorist act is intended to achieve. such as firearms or explosives. The most obvious way in which this has manifested itself has been in the prosecution of persons for terrorist organisation offences. 218     . it is impossible as yet to determine what effect the selection of a terrorist target will have upon sentencing. for example. at the very least. his Honour found that ‘it is clear beyond argument that the fanaticism and extremist position taken by each offender countenanced the possibility of loss of life if that were to occur’. the Benbrika trial saw the prosecution of 12 men (not including Izydeen Atik. was intended to cause serious damage to property’. For example. In contrast. cause serious property damage or take human life.that the terrorist target was Holsworthy Army Barracks.54 Given that a decision on sentencing is currently reserved in that case. Ibid [60]. This was the key factor that led Whealy J to conclude that the offence committed by Mohamed Elomar and four other men ‘was of the most serious kind falling only marginally short of the most serious case’. the prosecution has frequently presented evidence as to the means the convicted men intended to use in the commission of a terrorist act.

in which the accused were charged with conspiracy to do an act in preparation for a terrorist act. the moral culpability of an individual who becomes involved with an organisation of the latter class is likely to be greater because ‘logic and common sense imply the probability that the offender will be committed to the terrorist philosophy and objectives of the organisation before being admitted to its membership.58 Below is a discussion of the two key ways in which the group-based nature of terrorism offences may impact on sentencing. the Victorian Court of Appeal held that the history of the particular organisation with which the convicted persons were involved may be taken into account in sentencing. 219     . Criminal Code Act 1995 (Cth) ss 11.60 nevertheless ‘the activities of the former class of organisation are less likely to result in the commission of a terrorist act than the latter’.6). ‘with a proven record of committing the worst terrorists acts imaginable’. Ibid [556]. R v Benbrika and Ors [2009] VSC 21 [555]. Seven of the men were convicted of being members of a terrorist organisation (Criminal Code Act 1995 (Cth) s 102.3). and so they will go into it with their eyes wide open’.prior to trial) for terrorist organisation offences. Three of the men were convicted of providing resources to a terrorist organisation (s 102.7). The Court of Appeal drew a distinction between an organisation consisting of a ‘rag-tag collection of malcontents’ and an organisation. First.57 A different approach was adopted in the Elomar and Aweys trials. Although the Court of Appeal made these comments in the context of sentencing for Division 102 terrorist organisation                                                                                                                         57 58 59 60 61 62 See R v Benbrika and Ors [2009] VSC 21.2).5 and 101.61 Furthermore.62 Therefore. such as Al Qaeda. Ibid [557]. the nature of the organisation is a factor that should be taken into account by a sentencing judge in deciding what range of sentence to impose. Benbrika was convicted of directing the activities of a terrorist organisation (s 102. Finally. Three of the men were convicted of attempting to make funds available to a terrorist organisation (s 102.6. in upholding an appeal against the sentences handed down to the Benbrika accused.59 Whilst any activities engaged in with the intention of advancing the commission of a terrorist act cannot ever ‘be regarded as less than very serious’. Ibid [555].

more fanatical. 220     . more determined. Ibid [64].64 However.65 His Honour went on: It certainly could not be said that the prospect of a terrorist act or acts was completely indeterminate as to when it would occur. Ibid [15]. Justice Whealy noted that ‘the overall extremist zeal of a group venture is more enduring. more resourceful and ultimately likely to be more successful than an individual acting alone’. this principle has a particular significance in the terrorism context because of the extremist motivation of the accused. and the authorities’ surveillance thwarted or at least diminished. in sentencing Elomar and four others for the offence of conspiring to do an act in preparation for a terrorist act.offences. However. The driving fanaticism behind the collective mindset of the conspiracy would have ensured that events moved quickly once sufficient material had been assembled.66 Prospects of Rehabilitation Section 16A(n) requires the court to take into account the prospects of rehabilitation for an accused in determining what the appropriate sentence is. Second. there is no reason why the history of an organisation might not also be relevant in sentencing a group of persons for conspiracy to engage in a preparatory offence contrary to Division 101 of the Criminal Code. the accepted approach in                                                                                                                         63 64 65 66 R v Elomar & Ors [2010] NSWSC 10.63 Whealy J adopted the conventional approach that ‘[t]he sentence must reflect the organisational nature of the conspiracy rather than confining the sentencing discretion to the identification of the role of the offender with specific reference to the physical acts that he undertook’. Ibid [68].

Australian terrorism trials appears to be that rehabilitation is of limited relevance.71 the Court of Appeal for British Columbia noted that ‘these offences are often [or.70 These statements seem to suggest that rehabilitation is a subsidiary factor. In the United Kingdom case of R v Martin.72 His Honour stated:                                                                                                                         67 68 69 70 71 72 [1998] EWCA Crim 3046.67 Lord Bingham stated: In passing sentence for the most serious terrorist offences. personal and general deterrence and retribution. the object of this court will be to punish. always] motivated by political. rehabilitation is likely to play a minor (if any) part. [2010] NSWSC 10. deter and incapacitate. religious or ideological purposes or objectives’ and ‘[s]uch beliefs are often immutable’. 221     . Similar comments were made by Whealy J in R v Elomar & Ors. [2007] NSWCCA 360. The underlying reason for this relates to the inclusion of what is generally referred to as the ‘motive element’ in the definition of a ‘terrorist act’. A terrorism offence is an outrageous offence and greater weight is to be given to the protection of society. Ibid 480. In R v Thambaithurai. Ibid [274] R v Thambaithurai 2011 BCCA 137 [22]. according to the Australian definition of a ‘terrorist act’.68 Similar statements were made by Price J in Lodhi v R:69 Rehabilitation and personal circumstances should often be given very little weight in the case of an offender who is charged with a terrorism offence.

It sets it apart from other criminal enterprises motivated by financial gain. the reality is that the prospects of rehabilitating an individual convicted of a terrorism offence will generally be extremely low. This is the most startling and intransigent feature of the crime.76 Whealy J stated that ‘the plea must be taken to indicate that the offender is unlikely to be. 222     . a danger to the community                                                                                                                         73 74 75 76 Ibid at [63]. as well as ‘a drawing back by the offender from the extremist views that motivated the commission of the offences’. by passion. in the sentencing of each of Mazen Touma. there is no support in s 16(2) of the Crimes Act 1914 (Cth) for a blanket rule that rehabilitation is a subsidiary factor. For example. by a need for financial gain or simply private revenge.73 However. [2009] NSWSC 1002. an intolerant and inflexible fundamentalist religious conviction was the principal feature for the commission of the offence. Rather. of equal value. This accords with the manner in which sentencing judges have considered. although the courts are statutorily required to consider the question of rehabilitation. or represent. Mirsad Mulahalilovic and Khaled Sharrouf Justice Whealy held that the pleas of guilty made by these men could be taken. as criminal activities so often are.75 Similarly. Each of the factors set out in this subsection are. in R v Mulahalilovic. In R v Sharrouf. ‘to express remorse and acceptance of responsibility’. in each terrorism trial. anger or revenge. the question of whether there has been any movement away from the individual’s extremist position. [2009] NSWSC 1010.This criminal enterprise was not in any sense motivated. prima facie. to a degree. Ibid [49]. An alternative way of understanding the views expressed by Lord Bingham and Price J is to say that.74 Whealy J accepted that overall ‘the offender has reasonable prospects of rehabilitation’.

I am satisfied beyond reasonable doubt. in the vast majority of Australia’s terrorism trials. intentions he held with great vigour and firmness. 223     . religious and (sic) worldview based on his faith and his attitude to the extreme dictates of fundamentalist Islamic propositions.79 Therefore. or possibly where he or she gives evidence on the stand. Ibid [144]. but sincerely held. very little weight was given by Whealy J to statements made by these three individuals to psychologists or other persons to the effect that they had renounced such views. This does not mean that his penalty is to be in any sense aggravated or increased. In R v Lodhi. [2006] NSWSC 691. His Honour continued at [74]: The offender was perfectly entitled to maintain his innocence both during the trial and thereafter. [2008] NSWSC 1475. They were. They were the consequence of a deeply fanatical. This suggests that it is only where a person pleads guilty. the defendant(s) did not give any evidence at trial or during sentencing.80 Whealy J stated at [49]: … there is not the slightest evidence to suggest that he had renounced his former intentions.77 However. But it does mean that I can make no allowance on his                                                                                                                         77 78 79 80 Ibid [70].on release’. Justice Whealy noted in R v Touma78 that ‘considerable caution’ must be taken in judging the prospects of rehabilitation and whether there has in fact been a movement away from extremist views because ‘the present state of [the defendant’s] mind has not been explored or tested in any way’. that a sentencing judge is capable of finding that an individual has in any way renounced his extremist views.

that he or she is driven to intimidate the public or coerce the government because of an extremist religious conviction – increases the need for the community to be protected from his or her criminality. it makes it difficult for the sentencing court to form any view as to whether the imposition of a significant penalty on the offender will result in his reform and rehabilitation. Equally. the proportionality test spelt out in s 16A(1) as well as the continuing relevance of common law sentencing principles mean that general deterrence will still be taken into account by a court in sentencing an individual for a federal offence. General deterrence is not aimed at the specific individual. R v Elomar & Ors [2010] NSWSC 10 [93] (Whealy J). but rather aims to deter prospective offenders by instilling in them the fear of incurring similar sanctions.81 In contrast to specific deterrence. for example. General and Specific Deterrence Section 16A(2)(j) recognises that specific deterrence should be taken into account in sentencing an individual for a federal offence. It is therefore necessary for him or her to be incapacitated for a considerable period of time.behalf for contrition and remorse. general deterrence is not mentioned in s 16A(2). A prominent theme running through Australia’s terrorism sentencing judgments is that the ‘public’ motive of terrorism accused – for example. The importance of general deterrence in terrorism cases was described by Whealy J in sentencing Faheem Lodhi as ‘obvious’. Nevertheless. Specific deterrence aims to dissuade the individual offender from committing further offences of a similar nature by imposing sanctions which demonstrate the adverse consequences of criminal activity. His Honour stated:                                                                                                                         81 See. 224     .

with its very openness and trusting nature.83 This was further explained by the Court of Appeal for England and Wales in R v Barot:84 Terrorists who set out to murder innocent citizens are motivated by perverted ideology. However. are aware that. however. the Court of Appeal insisted that these principles must still be taken into account: It is. Many are unlikely to be deterred by the length of the sentence that they risk. they are likely to be committed by members of our own community and often by persons of prior good character and favourable background. Indeed. One has only to consider the tragedy of the London bombings in 2005 to recognise this observation as a sad truism. Lodhi v R [2007] NSWCCA 360 (Spigelman J) [87].82 The reality is that ‘the force of an ideological or religious motivation’ for terrorism means that specific and general deterrence may frequently be ineffective. some are prepared to kill themselves in order to more readily kill others.Such crimes are hard to detect. however long this may be.                                                                                                                         82 83 84 R v Lodhi [2006] NSWSC 691 [91] (Whealy J). (2007) EWCA Crim 1119. Moreover. terrorism is an increasing evil in our world and a country like Australia. is likely to fall easy prey to the horrors of terrorist activities. 225     . they place themselves at risk of very severe punishment. if they yield to that temptation. important that those who might be tempted to accept the role of camp followers of the more fanatic.

the courts must speak firmly and with conviction in matters of this kind. This does not of course mean that general sentencing principles are undervalued or that matters favourable to an offender are to be overlooked.87 Conclusion The factors discussed above – objective seriousness of the offence. In my view. will not in fact deter those whose religious and political ideologies are extreme and fanatical. it is cautiously hoped. the need to deter this man from future offences is a potent factor in the sentencing process. 226     . in the context of firm denunciatory statements. In addition to general deterrence. as I have said. Adopted by Whealy J in R v Mulahalilovic [2009] NSWSC 1010 [49]-50]. the principles of denunciation and deterrence are to play a substantial role. and general and specific deterrence – are obviously not the only factors                                                                                                                         85 86 87 Ibid [45].85 Similarly. prospects of rehabilitation.Punishment is the other important element of the determination of the sentence for offences such as this. The community is owed this protection even if the obstinacy and madness of extreme views may mean that the protection is a fragile or uncertain one. [2006] NSWSC 691. that in offences of this kind. be unlikely or less likely to re-offend. Ibid [92]. however. in R v Lodhi.86 Whealy J stated: It may be that the imposition of stern penalties. It does mean. But a stand must be taken. There is also a need to recognise that the imposition of a substantial sentence may have a personal impact as a deterrent on this offender so that upon his release he will.

Other factors that might be taken into account are.relevant to sentencing of individuals convicted of terrorism offences in Australia. However. of course. 227     . these three factors are crucial to understanding why the 25 men convicted of terrorism offences in Australia have been sentenced to such long periods of imprisonment. the subjective circumstances of a convicted person (such as their health and family circumstances) and the conditions in which they have been and will be detained.

while most Anglos-Saxon countries experience high imprisonment rates and ongoing increases. Western Australia. when explaining the developments in the US and UK since the seventies. While the first set of literature looks at the broader political and social changes that industrialised countries have in common. It will also examine if the experiences from abroad provide any solace for WA and try to identify ways forward. leading up to a ‘Culture of Control’ as described by David Garland (2001). 228     . This paper will use the international analytical framework and test its validity for the West Australian situation. in an era of penal populism. Perth Conference sub-theme: Penal Policy and Punishment in a Global Era Abstract The last decades have been characterised by growing prison populations and increasing punitiveness.Explaining Prison Populations: A Review of International Evidence Hilde Tubex Department of Corrective Services. whilst there is very little evidence available on Australia as a case study. It is indeed striking that. Australia mainly appears in the macro analyses. the Scandinavian prison populations have remained stable and at a low imprisonment rate and that in some European countries as the Netherlands and Germany there is even a recent significant decline. the second emphasises the differences between jurisdictions and their possible explanations. Both occurrences have lead to a boost in criminological literature analysing prison populations from a macro or meso perspective.

has been funded by the Australian Research Councils Future Fellow programme and will run from August 2011 to July 2015.Introduction About a decade ago. In this contribution. David Garland published his book ‘The Culture of Control’ (2001). to understand prison numbers in Australia and the differences thereof in states and territories. Tonry 2001. his book is commonly recognised as a standard work in explaining the recent evolution of prison populations. The expected outcome of this overall study is to identify ways to reduce the prison population in Australia. leading to more punitive societies. we present an overview of the most important findings of both lines of research. This literature review is the first stage of a broader study. as was pointed out by other scholars (cf. marginal populations and the overrepresentation of Indigenous people’. 229     . Up till today. the second emphasises the differences between jurisdictions and their possible explanations (Snacken and Verfaillie. the question remains to what extent this analysis is also applicable to other countries. 2006). in which he describes the penal evolution in the US and the UK over the past 30 years. testing the validity of models explaining imprisonment rates in other jurisdictions. Macro Level Analysis: A Global Perspective Macro level analyses start from the presumption that global transformations in the economic and social context have impacted on the way we punish. While the first set of literature looks at the broader political and social changes that industrialised countries have in common. The project ‘Reducing imprisonment rates in Australia: international experiences. However. and more particularly the over-representation of Indigenous people. Over the last ten years there has been a boom of criminological analyses exploring changes in the size of prison populations from macro or meso perspectives. 2009).

Welfare and Punishment In one of the first comparative studies in this area. poverty and Republican Party representation. They reach the same conclusion of an inverse relationship between imprisonment rates and levels of welfare spending during the nineties. including Australia. and start from the hypothesis that they are part of a ‘policy regime’88 aimed at the governance of social marginality. Beckett and Western (2001) investigate the relationship between welfare and punishment in the US over the period 1975-1995. They suggest that US state regimes are either inclusive. expanding the Beckett and Western analysis to 18 OECD countries. comparing imprisonment rates and percentages of GDP spent on welfare in 1998. or exclusionary. they calculate that if the welfare expenditure would not have increased during this period. emphasising the social causes of marginality and the capacity of society to reintegrate deviants and therefore more welfare oriented and less punitive. they also identify an overrepresentation of black Americans in these states. 230     . Downes and Hansen (2006) build on this US study. In their study. That is. They describe how both the penal and social climate have become harsher over the last decades. that increasing levels of national investment in social welfare are strongly statistically related to relatively low prison populations. and the fact that this trend increases over time. Other factors related to higher imprisonment rates are relatively high levels of wealth and income disparity.These analyses focus on similar trends occurring in civilised societies. starting from the idea that marginal people are undeserving and incorrigible and are therefore less welfare oriented and more punitive. prison populations would have been                                                                                                                         88 As defined by Esping-Anderson (1990). they not only demonstrate that states with less welfare spending have higher imprisonment rates. and various components have been identified as being related to punishment. Further.

in comparison. if not the main protection against the resort to mass imprisonment in the era of globalisation. and moderate imprisonment rates. however. Cavadino and Dignan (2006a and b) divide 12 countries into four ‘family groups’ of penal systems. material inequality. resulting in social exclusion and marginalisation of the ones that don’t do well on the free market. neoliberal. a minimal welfare state. Continental European penal systems are described as conservative corporatist with. that have high imprisonment rates89.even bigger. which are embodied in the political economy. an egalitarian society with generous social rights and low imprisonment rates. Penal Policy and Punishment Using the classification of policy regimes as defined by Esping-Andersen. They find that it is mainly the neo-liberal political economies. 231     . for which it is not the responsibility of the state to interfere or rectify. more generous welfare benefits and social rights. more inclusive. Neo-liberalism is characterised by the free market principle. social democratic corporatist and oriental corporatist. exemplified by the US but including other Anglo-Saxon countries such as Australia. conservative corporatist. New Zealand and England and Wales. Downes and Hansen (2006: 154) argue that a substantial Welfare State is increasingly a principal. individualism and limited social rights. The Scandinavian countries have social democratic corporatist systems. which are featured by generous welfare provisions. either in a social or economic way.                                                                                                                         89 It does. Criminality is considered to be the result of free willed choices. less inequality. The authors explore reasons for the relationship between neo-liberalism and punitiveness. note that traces of social democratic principles persist in Australia and New Zealand. and this leads to punitive societies with harsh penal systems. The individualistic philosophy is intolerant of those who deviate. They relate it to the cultural attitudes towards marginalisation.

The possible reasons for a positive relationship between common law systems and higher imprisonment rates might be that in these systems punitive ideas are more readily diffused and accepted through the media and political institutions. through 232     . stating that social inclusiveness and economic inequality are important indicators of differing social climates. Trust and Punishment Finally. He asserts that prison populations can be explained neither by focussing on individual factors.They refer to the two studies discussed above. Minority Threats and Punishment Ruddell (2005) investigates the factors related to imprisonment in a sample of the 100 richest developed and developing nations. he examines the relationship between: the retention of the death penalty and institutional conditions. Tonry (2001) earlier suggested that civil law systems would be more receptive for professional and expert advice. and a larger sample of 99 countries ranked according to the UN Human Poverty Index. He identifies the most important factors as being: public sentiment (confidence in fellow citizens and government). he argues. nor by too general and complex theories. including Australia. political structures and legal cultures. Explanations can be developed. His analysis reveals a positive association between incarceration rates and common law systems. as well as the existence and size of minority populations. Political Systems. imprisonment and social disruption. as measured by the Stark multiculturalism index. instead of penal policy being led by public opinion. Controlling for other variables. there is the study of Lappi-Seppälä (2008) exploring seven factors that are possibly related to imprisonment rates in a basic sample of 25 industrialised countries. strong welfare states. an effect grounded in traditionally more punitive cultural values and beliefs. and imprisonment and population heterogeneity.

Lappi-Seppälä also explores the ‘minority-threat hypothesis’. 233     . explanations of penal policy remain curiously local. that population heterogeneity would lead to higher imprisonment rates. According to Tonry (2001: 518). He finds that the relationship is more complex. are not a straightforward explanation for levels of repression. expected to have a positive/negative impact. the country should take more/less.and even there the example has only been followed in a diluted form . Snacken and Verfaillie (2009) recommend a multi level approach as the macro level analyses are characterised by their failure to explain diversity in punishment and criminal policy making and for being inadequate to provide the conditions for change.but has had a limited impact elsewhere in Europe. and related to the attitude people have towards immigrant populations: whether they are (not) welcome. Tonry (2001) was one of the first to point out that the American model as described by Garland has mainly impacted on other Common Law jurisdictions such as England and Australia . as mentioned above.analysis of detailed country specific characteristics such as those he isolates. He concludes that demographic factors. including immigration. Macro Level Analysis and its Limitations The macro level perspective has been criticised on several occasions. Although the process of globalisation is important. it requires an in depth analysis of what has happened in individual jurisdictions to explain the discrepancies and the diversity within European countries.

We will more particularly investigate when criminal policy became an important item.consulted on 14. Beyens and Tubex. and what the main influences are that have                                                                                                                         90 All the imprisonment rates used in this section are based on the World Prison Brief (Available at: http://www. 1995.org/ . down from over 300 in the in early 1990's).000 total population)90 and their recent evolution.07. for example. see Snacken. which might be different. Consequently. The rate of imprisonment in the US has increased seven fold since 1973 and stands at present at 743.prisonstudies. while those in France (102).Meso Level Analysis: A European Comparative Perspective The best way to support the argument above is a quick overview of current imprisonment rates (number of prisoners per 100. Hungary: 165. In former Eastern block countries rates have fallen significantly since 1990 (for example. 1995 and Tubex and Snacken. The imprisonment rates in Turkey (168) and Spain (159). 234     . are now similar to the Anglo-Saxon jurisdictions. Scandinavian and Balkan regions have stable and much lower rates (for example. While most western liberal jurisdictions experienced a significant increase of prison populations since the start of the last quarter of the 20th century. and therefore bias the information. Although there have also been increases in imprisonment in several mainland European jurisdictions. However. we present a more detailed analysis of the criminal justice dynamics of some European countries. From the above. selected on the basis of their traditional differences with the UK-US model. 91 For earlier versions of this kind of exercise. it becomes clear that Europe does not represent a homogeneous entity.2011) as this is a consistent and regularly updated source for imprisonment data. New Zealand (199) and Australia (133). as described by Garland 91 . there are some significant differences in the imprisonment rates. Belgium (97) and Germany (85) remain substantially lower. there are also a range of articles analysing what happened in particular jurisdictions. Finland: 59. In the section below. it needs to be mentioned that these figures are based on the definitions used in the different jurisdictions. Increases have also been substantial in the UK jurisdictions (152 in England and Wales). it is remarkable that there are wide variations in its extent. Slovenia: 65).

this upward movement is alleviated by amnesties and pardons. 2007. they are something of a significant feature of French penal politics. excluding new categories of offenders every time. 2010). causing significant dips in the curve but not significantly altering the trend. and they ‘deflate’ the prisons with up to 21% of the prison population being released after a collective pardon (Lévy. and on a more practical level. Since 1988 pardons are taken on an annual basis and their effects are now integrated in the prison population forecasts. While all legal systems have forms of clemency. France: Human Rights and Mild Punitiveness As in most other European jurisdictions.impacted on the policy. During the eighties and nineties there is a slow but steady increase. but it is still surprising that they are not subject to major controversy among politicians or the general public. Roché. as well we discuss some country specific and significant features in this respect. The last decade imprisonment rates are seesawing upwards till 2009. with one important decline in 1982 after the victory of the Socialist President Mitterand after 23 years of uninterrupted rule of the Right (Lévy. the prison population in France has expanded since the mid seventies. 2007). in 1995 it is 89 and currently 102 (Kensey. The imprisonment rate in 1975 is 49. 2006. 2007). Increasing concern for crime has caused restrictions to the use of clemency measures. it addresses prison overcrowding and every citizen 235     . but also the fact that clemency measures have never been politicized. or make the front page of the news papers. Amnesties and pardons always have had an important impact on prison numbers in France. after which they level off. Lévy (2007) sees the institutional organization of judicial powers in France as a possible explanation.

Daems.can potentially benefit from it. maximum security units were introduced in 1975 and prohibited in 1982. Since then. there is no clear cut division and both parties have introduced diversionary measures and improved prisoners rights. 2007. a necessary evil needed for incapacitation rather than for rehabilitation (Lévy. There are definitely signs of increased punitiveness. But clemency measures are not the only explanation for the relative stability of the French prison population. Until the seventies. and alternatives for prison were introduced. due to increases in the crime rates and prison riots. reaching a peak with the 1981 presidential election campaign. both parties agree on the fact that imprisonment needs to be seen as a last resort. Lévy. prison issues and penal policy were hardly matters of public debate. Roché. 2007). causing prison overcrowding and bad prison conditions (Tubex and Snacken. 1995. 236     . 2007). 2007. sentencing policy is an integral part of political debate. 2007). the ‘left wing’ putting more emphasis on prevention and rehabilitation and the ‘right wing’ more on retribution and incapacitation. However. Roché. along the lines of what was described by Garland: the introduction of longer sentences for certain types of serious offences such as sex offences and violent offences and of ‘periods of security’. making up the balance over the last 30 years. 2007: 585). However. a stronger identification with the victim leading to penal populism and a growing ‘criminology of the other’ (Salas and Lévy in Daems. Roché (2007) identifies the French penal climate as one of ‘mild punitiveness’. But there are also opposite signs: the death penalty was abolished at a time that it had majority public support (1981). This changed through the seventies. 2004. but also build more prisons and established harsher sentences (De Maillard and Roché. Insecurity and punishment became subject of controversy and entered the political agenda. increases in the average duration of imprisonment.

2010). Salle. however. while they have endured the same global trends of rising crime rates in the sixties and the economic decline since the seventies. Analysis shows that this is mainly a result of the exercise of judicial discretion. both politicians and the public have so far not broken with their long standing tradition of human rights and the humanistic conception of punishment. there is a rich body of literature that has been produced by sociologists. while in most other countries imprisonment was on the increase. 2003.French penal policy is in general very little influenced by scientific research or expert opinions. Germany is once more one of the only countries where the imprisonment rate is on 237     . There is still a critical attitude towards the powers of the state to infringe on the individual freedom by punishment. often hampered by language barriers. 2004). and field workers are scarce (De Maillard and Roché. more specifically of a consequent choice of the judges and prosecutors to limit the use of short prison sentences in favour of conditional sentences and non-custodial sanctions.by about 22% . and this as a result of a waning faith in the effectiveness of prison (Tubex and Snacken. political scientists and legal theorists. Oberwittler and Höfer. 1995. Interesting is that recently. We reach the conclusion that what characterizes the French situation is that. historians. Germany: A Rational Approach What is remarkable about German prison statistics is that Germany was able to reduce significantly its prison population . as evidenced in the work of Loic Wacquant and others. demographers. 2005).in the eighties. Criminology is not a developed academic discipline in France. which distribution is. which are perceived as a bulwark against punitiveness (Snacken. however.

but by the time the StVollzG was completed. penal policy appeared on the public and political agenda in the nineteen-sixties. 2005). 238     . At the beginning of the seventies socio-therapeutic prisons were introduced and prison conditions improved indeed. As a consequence of the reunification of West and East Germany an increase in the prison population occurred. due to rising violent crime. edition one to eight. there was the fall of the Berlin wall and increased waves of migration from communist states and Yugoslavia. 2005). 2003. to mention just some (Oberwittler and Höfer. 2005). from 98 in 2003 to 85 in 2010 (World Prison Population List. as a result of the influx of immigrants and rapid social and political changes. 2003). Public concern related to crime intensified after the reunification in 1989. an increase in the average length of sentence and more restricted release practices. which proposed resocialisation as the primary aim of punishment and normalisation as an important mean to achieve that aim. During the nineties the prison population rose. as a result of student and activist action revealing hard prison conditions and sensitising public opinion.the decline. In Germany. which are informed by independent and critical criminological research with a strong legalistic influence (Salle. Oberwittler and Höfer. This eventually led in 1977 to an important review of the law on the implementation of punishment (das Strafvollzugsgezetz). it had lost its momentum and the reform could never meet the overall expectations (Salle. and World Prison Brief). Germany has witnessed dramatic political changes and important socioeconomic challenges. Since the 1990’s. 2003. Regular opinion polls show that the increase peaked in 1993 and subsequently eased (Salle. Oberwittler and Höfer. German crime policies traditionally remain in the hand of experts and bureaucrats.

However. 1994). 2004). he identifies the following influential factors: an increase in the size and 239     . and their prison population multiplied by seven between 1975 (17) and 2005 (124). Together with van Swaaningen (2007). it is remarkable that satisfaction with public safety recovered so quickly. towards the end of the eighties and the beginning of the nineties. Then recently. the standard work of David Downes (1988) and he has been looking back at what happened with this ‘country of tolerance’. this exemplary image starts to fade (Tubex and Snacken. early release was applied automatically without conditions and regimes in the prisons were fairly liberal. this striking evolution hardly led to any local criminological analyses (Van Swaaningen. There is of course. they experienced a significant fall of their imprisonment rates (from 128 in 2006 to 94 in 2010)(World Prison Population List seventh edition and World Prison Brief). 2006). 2006). humane and tolerant penal climate. Rehabilitation is still valid. The detention rate was one of the lowest in Europe. So far. crime and punishment are not high on the electoral agenda and fines and non-custodial measures are still the most frequently used sentences (Meier. We conclude with them that Germany can certainly not be considered as a ‘high-crime society’. resulting in overcapacity. The Netherlands: Intriguing Fluctuations The Netherlands are a particularly interesting case as they traditionally had the reputation of a progressive. the Netherlands were the only country keeping up with the ‘American-style’ increase of the imprisonment rates.As Oberwittler and Höfer (2005) observed. with social-therapeutic institutes playing an important role in punishment (Tubex. During the last two decades. the majority of prison sentences were of short duration. which they now have rented out to accommodate Belgian prisoners. Strange enough.

This caused a changing moral climate that affected the public opinion as well as politicians. 2006. over time. automatic early release was abolished. ‘the other’ was associated with inadequately integrated deviant immigrants. Tolerance was overtaken by irritation about ‘the other’. there is a growing categorized approach. and less on the criminal justice system (Van Swaaningen. and two-thirds of unsentenced and half of the sentenced prison population found themselves under a ‘standard regime’ which is described as ‘sober but humane’92. While in the early days the criminologists from the ‘Utrecht school’ left a discernable mark on penal policy. However. All this translated in a more punitive approach throughout the whole penal process: the mean length of sentences of imprisonment increased. a recent study by Kruttschnitt and Dirkzwager (2011) demonstrates that the early findings of Downes (1988) regarding the ‘depth of the carceral experience’ are to be confirmed. After a couple of shocking incidents (9/11. 2007). introducing all sorts of specialist regimes for problematic groups (Downes and van Swaaningen. and growing concern about immigration. we still have hopes that the longstanding ‘tolerant’ tradition of the Dutch society. As a result.                                                                                                                         92 However. an emerging ‘war on drugs’ and international pressure in this respect. 240     . for now. disturbing the Dutch society. Further. Important is also the changing role of the criminological expert. studies focus more on forms of criminality and the efficiency of penal policy. and ‘getting tough on crime’ climbed on the political agenda. 2007).nature of crime during the eighties. will safeguard them from going down the US path. research in penal matters moved to private and more managerially oriented entities. the murder of a right wing politician and of an anti Muslim film director). Forecasting what is going to happen in the Netherlands has proven to be tricky. Downes.

2000. Scandinavia was. 241     . they also provide prison conditions that are exemplary (Pratt. their adoption of the ‘just desert’ philosophy did not lead to a more punitive approach94 and increasing detention rates. it is not only the fact that Scandinavian countries manage to keep their prison numbers low. There is substantial agreement among scholars on the most important pillars of the Nordic penal system: a societal model with highly egalitarian cultural values and social structures. 2007.                                                                                                                         93 94 The countries reviewed are Finland. Norway and Sweden. Scandinavian countries have been well studied to explain their ‘Scandinavian exceptionalism’.The Scandinavian Countries: An Example of Persistent Reductionism Finally. as their imprisonment rates remain stable over the last half a century and are way below the European level (at around 60-70). Pratt and Eriksson 2011). reinforced by population and religious homogeneity. consequently. 2007: 274). liberal and criminology trained professionals. 2008a. but in practice it became a repressive and incapacitative model (Tubex. Further. Pratt and Eriksson 2011). 2000. a sustained commitment to social welfare policies95. 2008a and b). one of the regions where the rehabilitative idea was widely implemented and. For that reason. became strongly criticized because of the perverse effects of the treatment ideology. together with the US. In contrast with the US however. Pratt. 2008a. the strong influence of knowledge and expert opinion. an independent judiciary of young. and a media reporting being sober and informed on crime matters (Lappi-Sepälä. a consensual government model that generates high levels of social trust and legitimacy. even in the period when crime rates increased (1965-1990) (LappiSepälä. an analysis of the Scandinavian93 countries cannot be absent. 2002). the just desert idea in the US also stood for a liberal and reductionist approach. 95 Good social policy is the best criminal policy (Lappi-Seppälä. Pratt. It should be noted here that initially.

Inclusive societies with strong welfare systems and corporatist political economies are a safeguard against an extensive use of imprisonment. it is mainly Sweden which risks losing its exceptional status. as the government decided that there was no convincing way to justify why the Finnish prison population should be four times the size of their Nordic neighbours. but significant increase. such as drugs and violence. promoting the use of alternatives that truly replace imprisonment and general prevention (Lappi-Sepälä. realizing a decrease of their imprisonment rates from 200 in the fifties to around 60 at the beginning of the nineties. however. which causes concern about the future and the sustainability of their approach. and there are signs of an increasing politisation of crime and a decline of the role of the expert. The rise of the prison population is mainly related to a more punitive approach of specific offences that are considered particularly serious. 2000). imprisonment rates in Scandinavia have experienced a relatively small. both LappiSeppälä (2007) and Pratt (2008b) conclude that the changes should not be exaggerated and that the overall tradition of a rational and humane criminal policy remains intact. is the Finnish ‘success story’. while the model remains most solid in Finland. There is. we can conclude that over the years and various studies. However. Conclusion From the literature reviewed above.The best example that the penal situation is a matter of choices. some consensus has emerged on factors explaining fluctuations in prison populations. The decrease resulted from important initiatives of decriminalisation and depenalisation. a cluster of features that are associated with lower / higher levels of punitiveness. According to Pratt (2008b). However. since the late 1990’s. The most important lesson is that there is not one factor that individually can explain imprisonment rates. They are not 242     .

Cavadino M and Dignan J (2006a) Penal policy and political economy. References Becket K and Western B (2001) Governing social marginality: Welfare. and they are also more likely to support a strong welfare state. have an inverse relationship to the impact of expert opinion and rational decision making. Criminology and Criminal Justice 6: 435-456. Finally.only more tolerant towards deviance. for which this first review forms the basis. A specific focus will be on the imprisonment of minorities and marginalised groups. incarceration and the transformation of state policy. As civil law countries are more reluctant in the power they are willing to give to the state. leaving common law countries more vulnerable to repressive policies. Punishment & Society 3: 43-59. but they also find ways to deal with deviance other then punishment. and to suggest solutions to the problem of hyperincarceration of the Indigenous people. The aim of the ARC Future Fellowship project. egalitarian societies seem to be less punitive. is to explore the relevance of the international experience in explaining increasing prison numbers for the Australian situation. the conflict model might feed into more penal populism and a different relationship with the media. 243     . but it depends on whether controversies over the source of immigration lead to greater punitiveness. The independence of the judiciary and the judicial culture is also different in both legal systems. Consensus governments also seem to do better in this respect as they rather go for the compromise somewhere in the middle instead of more extreme solutions. The impact of public opinion and the media then at their turn. Further. the powers of the judiciary are more limited and they have a different status.

New York: Oxford University Press. Downes D (1988) Contrasts in tolerance.Cavadino M and Dignan J (with others) (2006b) Penal systems: A comparative approach. Crime and Justice. European Journal of Criminology 1: 111-151. Esping-Anderson G (1990) The three worlds of welfare capitalism. Oxford. Daems T (2007) Engaging with penal populism. Post-war penal policy in the Netherlands and England and Wales. The case of France. Downes D (2007) Visions of penal control in the Netherlands. Crime and Justice. Downes D and Van Swaaningen R (2007) The road to dystopia? Changes in the penal cimate of the Netherlands. Garland D (2001) The culture of control. De Mailard J and Roché S (2004) Crime and justice in France: Time trends. Oxford: Clarendon Press. 244     . New York: Oxford University Press: 133-154. Punishment & Society 9: 319-324. A Review of Research 36: 217-296. Armstrong and L. In: S. McAra (eds) Perspectives on Punishment: The Contours of Control. London: Sage publications. Downes D and Hansen K (2006) Welfare and punishment in comparative perspective. New Jersey: Princeton University Press. Crime and social order in contemporary society. policies and political debate. Oxford. A Review of Research 35: 31-71.

Direction de l’administration pénitentiaire. Cahiers de démographie pénitentiaire 19. Ministère de la Justice. A Review of Research 37: 313-387. Lappi-Seppälä T (2000) The fall of the Finnish prison population. Crime and Justice. Kruttschnitt C and Dirkzwager A (2011) Are there still contrasts in tolerance? Imprisonment in the Netherlands and England 20 years later. Crime and Justice. Cahiers d’études pénitentiaires et criminologiques 35. quelques données comparatives. Meier B D (2004) Alternatives to imprisonment in the German criminal justice system. Lappi-Seppälä T (2008) Trust.Kensey A (2006) Les détenus de 1996 à 2006. A Review of Research 35: 217-296. Journal of Scandinavian Studies in Criminology and Crime Prevention 1: 27-40. Ministère de la Justice. and political culture: Explaining differences in national penal policies. Lévy R (2007) Pardons and amnesties as policy instruments in contemporary France. Oberwittler D and Höfer S (2005) Crime and justice in Germany: An analysis of recent trends and research. Lappi-Seppälä T (2007) Penal policy in Scandinavia. European Journal of criminology 2: 465-508. Crime and Justice. Federal Sentencing Reporter 16: 222-231. Kensey A (2010) Dix ans d’évolution du nombre de personnes écrouées de 2000 à 2010. Direction de l’administration pénitentiaire. 245     . welfare. A Review of Research 36: 551-590. Punishment & Society 13: 283-306.

substance and severity in Western penal policies. Snacken S. Van Bendegem (eds) It takes two to do science (pp. Déviance et Société 27: 389-410. Pratt J (2008b) Scandinavian exceptionalism in an era of penal excess. Prison et politique. Criminal Law and Criminal Justice 1: 18-53. Crime and Justice. The origins and development of Scandinavian prison systems. Tonry M (2001) Symbol. Salle G (2003) Situation(s) carcérale(s) en Allemagne. Snacken S (2010) Resisting punitiveness in Europe? Theoretical Criminology 14: 273-292. Part I: The nature and roots of Scandinavian exceptionalism. Beyens K and Tubex H (1995) Changing prison populations in Western countries: fate or policy? European Journal of Crime. Eisendrath and J P. Punishment & Society 3: 517-536. Australian & New Zealand Journal of Criminology 44: 7-23. public opinion and (criminological) research. and minority threat: A cross national study of imprisonment. Snacken S and Verfaillie K (2009) Media. A Review of Research 36: 471-550. Brussel: VUB Press. In H. state priorities. Punishment & Society 7: 7-28. Part II: Does Scandinavian exceptionalism have a future? British Journal of Criminology 48: 275-292. Roché S (2007) Criminal justice policy in France: Illusions of severity.Pratt J (2008a) Scandinavian exceptionalism in an era of penal excess. British Journal of Criminology 48: 119-137. Pratt J and Eriksson A (2011) ‘Mr Larsson is walking out again’. 246     . Ruddell R (2005) Social disruption. 159-182).

Déviance et Société 19: 103-126. Aperçu international et analyse des causes. From Belgian positivism to new penology. Hoe punitief is Nederland (pp. T. A Review of Research 36. Collumpton.2011) 247     . Tubex H and Snacken S (1994) Punitiviteit in Nederland. 331-347). International Centre for Prison Studies.consulted on 14.). Moerings. Chicago: Chicago University Press. Tonry M (ed) (2007) Crime. Newsletter of the European Society of Criminology 5: 16-19. Tubex H (2006) Sex offender policies in five countries. and politics in comparative perspective. Robert (eds). ESC. 1-23). Tubex H and Snacken S (1995) L’évolution des longues peines. punishment. In M. In: N.Tonry M (2006) The prospects for institutionalization of restorative justice initiatives in Western countries. Hutton and C. Tata (eds) (pp. World Prison Brief (Available at: http://www. 452-468).07. Arnhem: Gouda Quint. Burlington: Ashgate. Tubex H (2002) Dangerousness and risk. Aertsen. European Journal of Criminology 3: 463-501. Walmsley R Prison Population List (1st to 8th ed. Van Swaaningen (2006) Criminology in the Netherlands. Sentencing and Society: International Perspectives. London: King’s College.org/ . teloorgang van een voorbeeld? Langgestraften en gevaarlijke gedetineerden in internationaal perspectief. In I. Crime and Justice. Institutionalising Restorative Justice (pp. Devon and Portland: Willan Publishing Press. Daems and L.prisonstudies.

Indigenous Justice .

Indigenous offenders 249     . Keywords: sentencing.W. Queensland University of Technology GPO Box 2434. we know very little about the impact of Indigenous status on other sentencing outcomes. Using data from Queensland’s higher courts.bond@qut.Indigeneity and Non-Custodial Orders: Comparing Different Sentencing Outcomes in Queensland’s Higher Courts Corresponding author: Christine E. Bond School of Justice. Queensland University of Technology Conference sub-theme: Indigenous Justice Abstract Most research on Indigenous sentencing disparities has focused on the decision to imprison and subsequent length of prison term.au Samantha Jeffries School of Justice. Brisbane QLD 4001 Email: christine. In Australia.edu. non-custodial orders. we statistically explore this gap in our understanding of the treatment of Indigenous offenders before Australian criminal courts.

To identify the influence of Indigenous status on these custodial sentencing outcomes. With regard to sentence length. 2010. higher or lower courts).g. varying according to Australian jurisdiction and court level (i. In this paper. 2009. results are mixed. we address this gap by reporting results from exploratory analyses of non-custodial sentencing outcomes in Queensland’s higher courts by Indigenous status. shorter and equal terms of imprisonment are given to Indigenous versus non-Indigenous defendants. 2007). 2011a). thus estimate the direct effects of Indigeneity. Snowball and Weatherburn. Currently.e. after adjusting for other known sentencing determinates (e. These analyses are based on a broader examination of Indigeneity and sentencing in this jurisdiction (see Bond et al. longer. Australian research suggests that Indigenous offenders are not more likely to receive a prison sentence. 250     . 2011b.Introduction To date. (For recent Australian studies on custodial sentencing outcomes. 2011b. 2006. we know little about the impact of Indigeneity on non-custodial orders. Australian research exploring the relationship between Indigenous status and sentencing decisions has focused on the decision to imprison and length of imposed prison terms. Jeffries and Bond. Because the focus of Australian Indigenous sentencing disparities research has been on imprisonment. current offence severity and past criminal history). After other sentencing variables are held statistically constant. 2011a. see Bond and Jeffries. Australian researchers have used multivariate statistical techniques to disentangle the influence of other potential sentencing factors and. 2011c. Bond et al.

g. past empirical research indicates that. responsibility toward and ties to others). premeditation). the offender’s prior offending record. employment status. offender’s role in the offence.g. Our primary research questions is: Does Indigeneity have a direct effect on non-custodial sentencing decisions in Queensland’s higher courts (i. seriousness of offence. the court must consider submissions made by community justice group representatives. we use multinominal regression models to explore non-custodial sentencing in the higher courts.e. presence of co-offenders. and intellectual capacity. sentencing courts have a broad discretion to take into account a wide range of circumstances surrounding offenders and their offences in making sentencing decisions. plea. which may include “cultural considerations” (s. age. courts can consider: the offender’s character. In addition. Ashworth. determining the impact of Indigeneity on sentencing requires disentangling the influence of these other potential sentencing determinates. 2009). 1994. in addition to race/ethnicity/Indigeneity. remand). Albonetti. familial situation (e. Wu and Spohn. once other key sentencing factors are controlled? 251     .9(2)). court process factors (e. offence location. 1996. Jeffries.g. and culpability or blameworthiness variables (e. In the current study. 1995. personal histories of abuse/victimisation. criminal history. 1991.9(2)(p)).Factors Known to Impact Sentencing: Queensland Legislation and Past Research In Queensland. the following factors or variables may influence sentencing outcomes: age. Daly and Bordt.g. Daly. District and Supreme) for adult defendants. current case characteristics (e. conviction counts. as well as likelihood of rehabilitation and evidence of remorse (s. 1987. 2002b. Allen. in sentencing Indigenous offenders. 1995. the nature of the offence and harm caused by the offender.g. Under Queensland’s Penalties and Sentences Act 1992. health statuses) (see e. sex. 2002a. Similarly. Thus. Rattner.

Study Sample, Measures and Descriptive Information We use case-level data compiled by Queensland’s Department of Justice and Attorney General (JAG). The JAG data provide information on sex, Indigenous status, age at the time of sentencing, offence seriousness, final plea, and sentence type. However, other important information is not available (such as remand status, criminal history, social background information). Consequently, we selected a random sample of 1,200 adult sentencing events occurring between June 2006 and June 2008 in Queensland’s higher courts. The sample was stratified equally by sex and Indigenous status to allow for further data collection from sentencing transcripts and criminal history files. Due to the unavailability of some transcripts or criminal history files, our final sample consists of 1,179 cases (or 98.3% of the original sample). Of these, 650 (55.1%) received non-custodial orders, and had complete information on the independent variables of interest. In sum, our analytic sample consisted of 44.5% Indigenous offenders and 52.9% female, with a mean age of 31.4 years.

To assist in the interpretation of patterns, non-custodial sentencing outcomes were grouped into types of orders (the dependent variable). Specifically, we created a categorical variable with the following values: (1) suspended sentences of imprisonment96; (2) bond with supervision orders (e.g. intensive corrections order and probation); (3) other non-custodial orders not including disqualification of drivers’ licence and monetary orders); (4) convicted but discharged.

Although at first glance the category of “other non-custodial orders” may appear to include a rather diverse range of sentences, there were two rationales for this grouping. First, the small
                                                                                                                       
96

Recall that for these analyses, suspended sentences of imprisonment are treated as non-custodial orders, as offenders are released back into the community, only potentially serving a term of imprisonment upon breach.

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number of cases in some sentencing orders meant that we needed to group orders together for meaningful empirical analyses. Second, each of these sentences results in offenders being released into the community under particular conditions, but without higher levels of supervision (e.g. good behaviour bond, community service order).

We collected information on four groups of independent variables for our analyses of the relationship between Indigenous status and the groups of non-custodial sentencing orders. The four groups of independent variables are:

(1) Offender characteristics. Indigenous status (coded as 1) is self-reported in Queensland. Offenders in the JAG database who were listed as “unknown” or “refused” were dropped from the analyses. (The proportion of “sentencing events” where the Indigenous status of the offender was unknown or refused was just over 6%) All other offenders were treated as “non-Indigenous” (coded as 0). In addition to Indigenous status, we also control for sex (1=female; 0=male) and age at sentencing (in years).

(2) Past and current offending. In the analyses, criminal history was measured as a standardised additive index of number of prior convictions, number of prior convictions in the same offence category as the current sentenced offence, and number of prior terms of imprisonment in the jurisdiction of Queensland. The seriousness of the principal offence97 was measured using the National Offence Index (NOI). Developed by the Australian Bureau of Statistics, the NOI ranks all
                                                                                                                       
97

Using a definition derived from the South Australian Office of Crime Statistics and Research, principal offence refers to the offence that received the highest sentencing penalty, with prison being the highest. If two offences received the same penalty, the offence with the highest statutorily-defined penalty is the principal offence. If the charges are the same, the first charge is used.

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offence classifications contained within the Australian Standard Offence Classification System in order of seriousness from 1 to 155 with 1 being the most serious and 155 being the least serious. We then reverse coded the score to make the analyses more readable, so that higher scores indicated more serious offences. The presence of multiple conviction counts (1=multiple counts present; 0=no multiple counts) was used as an additional measure of offence seriousness. Type of plea (1=guilty plea) and offender’s last known remand status (1=bail)98 were also included. Remand status was coded from last known in-custody status recorded in the adult court database before the data of the sentencing hearing.

(3) Context of the offence. Our analyses include two dummy variables that described the context of the current offence, namely: evidence of premeditation (1=yes; 0=no); and offence location (1=private place; 0=other). This information was coded from the District and Supreme Court sentencing transcripts.

(4) Offender’s social history. We coded offenders’ childcare responsibilities (1=has childcare responsibilities; 0=none), substance abuse history (1=has substance use problems; 0=none noted), employment (1=employed; 0=not noted), and health status (1=poor health; 0=none noted). Social history information was coded from the sentencing transcripts. Study Findings To explore the effect of Indigenous status on non-custodial sentencing outcomes, we conduct our analyses in two stages. First, we examine the baseline differences between Indigenous and non-Indigenous defendants. Second, we report the results of exploratory multinomial
                                                                                                                       
98

On remand could not be used as it introduced collinearity into the analyses. Thus, we rely on whether or not the last known remand status of the offender was “released on bail”.

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regression analyses, showing the main direct effects of Indigenous status on non-custodial orders.

Baseline Differences by Indigenous Status Table 1 reports the descriptive statistics for our higher court sample. As demonstrated in this table, there is a statistically significant relationship between Indigenous status and some noncustodial sentencing outcomes. A greater proportion of Indigenous offenders were discharged but convicted (31.5% vs 21.1% respectively), but a significantly smaller proportion of Indigenous offenders received other non-custodial orders (12.8% vs 21.6% respectively), compared to non-Indigenous offenders.

Further, as shown in Table 1, there are notable differences by Indigeneity in offender demographics, case and offending characteristics, offence contexts and social histories. More specifically, compared to non-Indigenous defendants, Indigenous offenders had significantly higher mean criminal history scores (0.22 vs -0.66), were more likely to be identified as having offended with a degree of premeditation (21.1% vs 1.4%) and were younger (mean ages of 29.8 years vs 32.8 years). Indigenous defendants were also significantly less likely to have entered a final plea of guilty (71.3% vs 85.0%). In our sample, Indigenous offenders were never identified as employed, as having childcare responsibilities, or as having health problems.

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Table 1. Descriptive Statisticsa by Indigenous Status, Non-Custodial Outcomes Only (Adult Higher Courts, Queensland, 2006-2008)
Total % Indigenous % female Mean age Mean prior criminal history index Mean seriousness principal offence % with multiple conviction counts % with plea of guilt % released on bail (last known) % occurred in private residence noted % evidence of premeditation noted % childcare responsibilities noted % presence of employment noted % poor health noted % substance use/abuse noted 44.46 52.92 31.42 (10.16) -0.281 (2.30) 90.56 (42.92) 8.46 78.92 38.62 12.31 10.15 9.38 5.38 6.46 10.15 Indigenous --51.90 29.76 (8.98) 0.22 (2.59) 91.81 (44.49) 8.65 71.28 39.10 0.0 21.11 0.00 0.00 0.00 9.69 Non-Indigenous --53.74 32.75 (10.85) -0.68 (1.95) 89.55 (41.66) 8.31 85.04 38.23 22.16 1.39 16.90 9.70 11.63 10.53 n.s. *** *** n.s. n.s. *** n.s. *** *** *** *** *** n.s. Sig.

% convicted but discharged % suspended sentence of imprisonment % bond with supervision order % other non-custodial order Number of cases
# p<0.10; * p<0.05; **p<0.01; ***p<0.001 Note:
a

25.69 30.46 26.15 17.69 650

31.49 27.68 28.03 12.80 289

21.05 32.69 24.65 21.61 361

** n.s. n.s. **

Percentages are reported for dichotomous variables. Means (with standard deviations in brackets) are reported for continuous

variables. For continuous variables, a t-test was calculated to test the equality between group means; for dichotomous variables, a z-test was calculated to test the equality between group proportions.

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Direct Effect of Indigenous Status Multinomial regression analyses were used to estimate the separate direct impact of Indigenous status on non-custodial sentence outcomes (the dependent variable) while controlling for other key sentencing determinates (independent variables). We controlled for offender demographics, case and offending characteristics, context of the offence and offenders’ social history. Table 2 presents the results of our multinomial models of Indigenous status on the likelihood of difference non-custodial orders, adjusting for other offender and case characteristics. We report the relative risk ratio for Indigenous status, which estimates the unique direct impact of Indigenous status for one non-custodial sentencing outcome compared to another outcome (e.g. the odds of an Indigenous offender receiving a suspended sentence of imprisonment as opposed to a supervised bond order).

Before discussing the results, a few technical points need to be made. First, although coded, some sentencing factors could not be included (such as offender’s role in the commission of the offence, the presence of co-offenders), as there was insufficient variation within our sample (5% or less of the sample in a category). Second, we cannot account for selection bias due to lack of information on earlier decision-making stages.

As shown in Table 2, our analyses suggest that the difference between Indigenous and nonIndigenous offenders focuses on other non-custodial orders. Compared to non-Indigenous offenders, Indigenous offenders are almost 2 times as likely to receive a suspended imprisonment order rather than other non-custodial orders; and approximately 2.1 times as likely to received a supervised bond order than other non-custodial orders. Although not significant at conventional levels, Indigenous offenders are also about 2.1 times as likely to be discharged but convicted rather than other non-custodial orders (p<0.1). All other contrasts
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were not significant and their estimated effects were close to equal odds (i.e. an estimated relative risk ratio close to 1.0). This pattern of findings suggests that, unlike for nonIndigenous offenders other non-custodial orders such as good behaviour bonds are not the preferred non-custodial sentencing option for Indigenous offenders sentenced in Queensland’s higher courts, once we have taken account of other sentencing factors.

Table 2. Direct Effect of Indigenous Status on Non-Custodial Outcomes, adjusting for Key Case and Offender Characteristics (Adult Higher Courts, Queensland, 2006-2008)
Comparison Supervised bond order vs suspended imprisonment order Other non-custodial order vs suspended imprisonment order Discharged but convicted order vs suspended imprisonment order Suspended imprisonment order vs supervised bond order Other non-custodial order vs supervised bond order Discharged but convicted order vs supervised bond order Suspended imprisonment order vs other non-custodial order Supervised bond order vs other non-custodial order Discharged but convicted order vs other non-custodial order Suspended imprisonment order vs discharged but convicted order Supervised bond order vs discharged but convicted order Other non-custodial order vs discharged but convicted order Number of cases Pseudo R2 χ2(d.f.) # p<0.10; * p<0.05; **p<0.01; ***p<0.001 rrr (s.e.)a 1.071 (0.302) 0.500 (0.164)* 1.033 (0.433) 0.934 (0.263) 0.467 (0.140)* 0.965 (0.397) 1.999 (0.655)* 2.141 (0.685)* 2.066 (0.825)# 0.968 (0.406) 1.036 (0.426) 0.484 (0.193)# 650 32.82 583.83(42)***

Note: a Reports estimated relative risk ratio for Indigenous status, controlling for gender, age at sentencing, prior criminal history index, offence seriousness, presence of multiple conviction counts, occurred in a private residence, evidence of premeditation, plea of guilty, on bail, presence of childcare responsibilities, presence of employment, poor health noted, ongoing substance use/abuse noted.

Summary/Conclusion This paper identified whether there was empirical evidence of a direct effect between Indigenous status and non-custodial sentencing decisions for adult offenders convicted in Queensland’s higher courts. Overall, our results showed a significant direct effect for other non-custodial orders: Indigenous offenders were less likely to receive other non-custodial orders (primarily good behaviour bonds and community service orders) than non-Indigenous offenders in similar statistical circumstances. (Recall that these findings are of a direct effect
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for Indigenous status are in comparison to suspended sentences, supervised bond orders and discharged but convicted orders.)

There are is an important caveat on these findings. Although we were able to collect information on a range of mitigating and aggravating factors in the higher courts, these measures are:

(1) limited (i.e. information was coded from judicial sentencing remarks meaning that the absence of statements regarding certain sentencing factors does not necessarily mean they were not known by the judge and/or impacted their sentencing decisions) (2) incomplete (as evidenced by a loss in sample numbers during our analysis). This suggests that the above Indigenous/non-Indigenous differences may be explained by unmeasured, or more precise measures, of legal and social factors.

In these circumstances, speculation about possible reasons for non-custodial sentencing differences in the higher courts may be somewhat premature. Nonetheless, broader project consultations with Indigenous criminal justice groups, judges/magistrates and police prosecutors may provide some possible insight into the disparities around the use of particular types of non-custodial orders (such as community service orders) in the higher courts. During the consultation process, these stakeholders frequently noted that communitybased sentencing options in remote and outer regional locations were limited (see Bond et al, 2011a). This issue differentially impacts Indigenous defendants because they are more likely to reside in such locations. Thus, although Queensland Corrective Services has opened probation and parole offices in a number of remote areas, the ability to fulfil the requirements

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Steffensmeier et al. to the extent that focal concerns may be applicable. or community-based and fine. This perspective argues that judges’ sentencing decisions are driven by three focal concerns: blameworthiness. Funding This work is based on a project undertaken for the Department of the Premier and the Cabinet (Queensland. options involve releasing offenders back into the community. our research suggests that practical constraints around the ability to undertake certain types of non-custodial orders in non-urban locations may dominate decisions about the use of community-based sanctioning. 1998) or the pre-trial decision to remand in custody (e. probation. disparities would be located within the theoretical framework of focal concerns (e. To date.of non-custodial orders such as community service remain limited in outer regional and remote locations. However. This exploratory study cannot resolve this issue. there are generally few community-based alternatives other than probation (i. However. where the range of community-based alternatives tends to be more limited than in Australian jurisdictions.                                                                                                                         99 Some earlier sentencing disparities research used sentencing severity scales. perhaps because most statistical disparities research is North American. 1998).e. Freiburger and Hilinski.g. its application in the context of noncustodial orders is unclear.g. as non-custodial. Steffensmeier et al. and practical constraints and consequences (Steffensmeier et al. as this research is predominately North American. incarceration. Typically in statistical sentencing disparities research. community protection (or risk to the community). However. This paper does not reflect the views or policies of the Queensland Government. Curran 1983).g. such as the decision to imprison (e. 2010). Australia). fines) (see e. 260     . 1998).g. focal concerns perspective has been applied for judicial decisions involving incarceration. 1993.99 Its appropriateness to judges’ deciding between community-based sanctions has not yet been explored.

Bond C and Jeffries S (2011b) Harsher sentences? Indigeneity and prison sentence length in Western Australia’s higher courts.Acknowledgements We acknowledge our debt to all those in the Department of the Premier and the Cabinet (Queensland). Psychology and Law 17(1): 70-78. Sociology. Law and Society Review 31(4): 789-822. Philadelphia: Open University Press. Ashworth A (1995) Sentencing and criminal justice (2nd ed. 261     . and departures on sentence outcomes for drug offenses. In press. Bond C and Jeffries S (2011a) Indigeneity and the judicial decision to imprison: A study of Western Australia’s higher courts. References Albonetti C A (1991) Sentencing under the federal sentencing guidelines: Effects of defendant characteristics. Allen H (1987) Justice unbalanced: Gender. Justine Hotten. guilty pleas. Queensland Courts and the Queensland Police Service who supported and facilitated this project.). Bond C and Jeffries S (2010) Sentencing Indigenous and non-Indigenous women in Western Australia’s higher courts. British Journal of Criminology 51: 256-277. Department of Justice and the Attorney-General (Queensland). Denise Foster. psychiatry and judicial decisions. London: Butterworths. Ashnil Murray. Psychiatry. We also appreciate the research assistance of Michael Cerruto. Mark Grosert and Angela Thistlethwaite.

and age on the pretrial decision.Bond C and Jeffries S (2011c) Indigeneity and the likelihood of imprisonment in Queensland’s adult and children’s courts. report for the Indigenous Criminal Justice Research Agenda Department of the Premier and Cabinet. Justice Quarterly 12(1): 142-175. S and Loban H (with Cerruto M) (2011a) Exploring Indigenous sentencing disparities in Queensland. Curran D A (1983) Judicial discretion and defendant’s sex. crime. In press. Jeffries S (2002b) Just or unjust? Problematising the gendered nature of criminal justice. Freiburger T L and Hilinski C M (2010) The impact of race. Brisbane: Queensland Government. 262     . Women’s Studies Journal 18(1): 24-41. Jeffries S (2002a) Does gender really matter? Criminal court decision making in New Zealand. Jeffries S and Weatherburn D (2011b) How much time? Indigenous status and the length of imprisonment decision in New South Wales. Daly K (1994) Gender. Psychology and Law First published on: 04 March 2011 (iFirst). Psychiatry. Daly K and Bordt R L (1995) Gender effect and sentencing: An analysis of the statistical literature. Bond C. State of Queensland. Criminal Justice Review 35(3): 318-334. Australian and New Zealand Journal of Criminology. Criminology 21(1): 41-58. New Zealand Sociology 17(1): 135-149. New Haven: Yale University Press. In press. Jeffries. gender. and punishment. Bond C.

Ulmer J and Kramer J (1998) The interaction of race. 40(3): 272-290. Black. Australian and New Zealand Journal of Criminology. 99.Jeffries S and Bond C (2009) Does indigeneity matter?: Sentencing Indigenous offenders in South Australia’s higher courts. Rattner A (1996) The effect of legal and extra legal variables on sentencing in Israel. Kramer J and Streifel C (1993) Gender and imprisonment decisions. Steffensmeier D. Snowball L and Weatherburn D (2007) Does racial bias in sentencing contribute to Indigenous overrepresentation in prison? Australian and New Journal of Criminology. and male. Steffensmeier D. Justice Quarterly 13(1): 129-151. Criminology 36: 763-797. gender. Sydney: New South Wales Bureau of Crime Statistics and Research. and age in criminal sentencing: The punishment cost of being young. Contemporary Issues in Crime and Justice. Snowball L and Weatherburn D (2006) Indigenous over-representation in prison: The role of offender characteristics. Wu J and Spohn C (2009) Does age have an effect sentencing length? A meta-analytic review. 42(1): 47-71. 263     . Criminology 31: 411-446. Criminal Justice Policy Review 20(4): 379-413.

Eco-Justice and Environmental Crime .

Queensland University of Technology. The justice implications of environmental problems are well documented. and argues that the framework of human rights norms provides an approach to environmental governance which can help to minimise injustice and promote the interests of those groups who are most adversely affected. On the international level.Human Rights and Environmental Wrongs: Achieving Environmental Justice through Human Rights Law Bridget Lewis Law Faculty. deforestation or other degradation disproportionately impacts upon poorer neighbourhoods or areas populated by minority groups. This paper investigates the role of human rights principles in addressing these instances of environmental injustice. there are environmental injustices which exist between developed and developing states. Australia Conference sub-theme: Eco-Justice and Environmental Crime Abstract The links between the environment and human rights are well established internationally. In addition to these links between the environment and human rights. with many examples where pollution. it suggests that the human rights enforcement 265     . there are also potential injustices for future generations. it is argued that human rights principles offer a strategy for addressing environmental injustice. Further. Environmental issues also impact on governments’ capacity to protect and fulfil the rights of their citizens. It is accepted that environmental problems impact on individuals’ and communities’ enjoyment of rights which are guaranteed to them under international human rights law. Further.

or constituted by. unfairness or exclusion in an environmental context. Judge Weeramantry stated that: 266     . inter-generational equity. The Place of the Environment in the Human Rights Legal Framework In his separate opinion in the Gabcikovo-Nagymaros case before the International Court of Justice.mechanisms which exist at international law could be utilised to lend more weight to claims for more equitable environmental policies. and argues that the framework of human rights law provides a normative approach to environmental governance which can help minimise injustice and promote the interests of those groups who are most adversely affected by environmental change. human rights violations. it suggests that the human rights enforcement mechanisms which exist at international law could be utilised to lend more weight to claims for more equitable environmental policies. Environmental injustice can therefore be identified wherever there is inequality. It also strives to include in decision-making processes those who are most likely to be affected by environmental change. Further. environmental equity. This extends to potential injustices between developed and developing states. Instances of environmental injustice are often accompanied by. Keywords: human rights. national and international levels. This paper investigates the role of human rights principles in analysing these instances of environmental injustice. and between present and future generations. environmental justice. international law Introduction Environmental justice is concerned with the fair and equal distribution of environmental burdens and benefits at the local.

The corollary of this approach is that environmental degradation can amount to a violation of human rights under international law.is a vital part of contemporary human rights doctrine.. It is scarcely necessary to elaborate on this. The Right to Health Article 12 of the International Covenant on Economic.‘the protection of the environment. or indirect in the sense that a poor environment will affect an individual’s or a community’s capacity to realise their human rights generally. This section will outline some of the rights which are guaranteed under international human rights law and highlight the necessary role that the environment plays in ensuring these rights are fulfilled and protected. for it is sine qua non for numerous human rights such as the right to health and the right to life itself. In this sense environmental protection can be constructed as a prerequisite for the full enjoyment of human rights. Part four of this paper will consider in more detail the practical possibilities for using human rights enforcement mechanisms to promote environmental justice. Social and Cultural Rights (ICESCR) (1966) guarantees to all people the right to the highest attainable standard of health. or impede a government’s ability to protect the rights of its citizens. At international human rights law it is a well accepted principle that a healthy environment is a necessary precondition for the promotion of several recognised rights (Sachs 2003: 26). The environmental dimensions of existing human rights can be described as either direct or indirect: direct in the sense that a poor environment will directly limit an individual’s or a community’s ability to enjoy a specific right that is guaranteed to them. This 267     .. as damage to the environment can impair and undermine all the human rights spoken of in the Universal Declaration on Human Rights and in other human rights instruments’ (1991: 207).

In its General Comment 14. and the continuous improvement of living standards. the Convention on the Elimination of All Forms of Discrimination Against Women (1979) and the International Convention on the Elimination of All Forms of Racial Discrimination (1965). Social and Cultural Rights elaborates on the scope and content of Article 12 of the ICESCR. This right is also guaranteed to children under article 27 of the Convention on the Rights of the Child. Social and Cultural Rights 1999). and environmental problems such as pollution are constructed as barriers to full enjoyment of the right. the United Nations Committee on Economic. and a healthy environment’ as well as ‘the prevention and reduction of the population’s exposure to harmful substances such as radiation and harmful chemicals or other detrimental environmental conditions that directly or indirectly impact upon human health’ (2000). access to safe and potable water and adequate sanitation. clothing and housing. General Comment 14 clearly indicates that the environment is considered a significant contributing factor to achieving an adequate standard of health. It makes clear that the wording of the right to health in Article 12 is intended to include a wide range of socioeconomic factors and underlying determinants of health. Social and Cultural Rights 2002) as well as the right to food (Committee on Economic. The right to an adequate standard of living is considered to imply the right to water (Committee on Economic. safe and healthy working conditions. including ‘food and nutrition. The Right to an Adequate Standard of Living Article 11 of the ICESCR guarantees to all individuals the right to an adequate standard of living. housing. including adequate food. deforestation or desertification affects the 268     . Where environmental degradation such as pollution.right is also articulated in the Convention on the Rights of the Child (1989).

all peoples have the right to dispose of their natural resources and must be protected against deprivation of the means of subsistence. or limits a community’s ability to provide adequate food and nourishment. to enjoy their own culture. or to use their own language. 269     . to profess and practise their own religion. The components of self-determination can be considered to be under threat from environmental harm. trapping and gathering (1989). Indigenous Rights Human rights can also be adversely affected by environmental harm where the environment plays a particular role in the traditional cultural or spiritual lives of certain groups. persons belonging to such minorities shall not be denied the right. fishing. Article 27 of the International Covenant on Civil and Political Rights (ICCPR) (1966) states: ‘In those States in which ethnic. Indigenous peoples may also be entitled to self-determination. as well as traditional activities such as hunting. Under common article 1. then the right to an adequate standard of living is violated.availability of clean and secure water supplies.’ The International Labour Organisation’s Convention 169 includes measures to protect the environment of indigenous territories. religious or linguistic minorities exist. Indigenous peoples in particular may experience violations of their rights where the natural environment around them is disturbed. in community with the other members of their group. a right which is located in common article 1 of the ICCPR and the ICESCR. A range of human rights are accorded to indigenous peoples.

The Concept of Environmental Justice The term ‘environmental justice’ can be defined using a range of theoretical approaches. This paper argues that human rights principles can be used as a normative framework to assist with decision-making and policy formulation and that doing so can help achieve just outcomes. whereby just outcomes are assessed according to the equality and fairness with which environmental benefits and burdens are distributed between individuals. which provide an understanding of environmental justice based on conventional criminological discourses as they apply to environmental harm (see Walters 2010. and in some circumstances environmental harm has been held to amount to a violation of human rights guaranteed by law. exploitation of natural resources or climate change.The various possible forms of environmental harm. or constituted. One formulation of environmental justice can be drawn from the emerging fields of eco-crime and green criminology. such as pollution. The international human rights framework recognises that the environment is a significant factor contributing to a State’s ability to protect and fulfil its citizens’ human rights. communities and States (Bosselman and Richardson 1999). and argues that where environmental injustice is identified it is often accompanied. This paper uses the distributive justice model. deforestation. by human rights violations. and encompasses a wide range of justice considerations. White 2008). 270     . have the potential to impact on a wide range of human rights. Another account of environmental justice is based on the theory of distributive justice. The following section considers the nature of environmental justice in order to demonstrate the sorts of problems which a human rights approach can help address.

Her theory of inter-generational equity incorporated 271     . countries or generations.In 1989 Edith Brown Weiss wrote what might be considered to be a rather farsighted paper on climate change and equity. Climate change also illustrates another level of environmental injustice: injustice between present and future generations. Although this problem is particularly well-illustrated by the problem of climate change. in that many of the people who will suffer worst. as well as their access to natural and cultural resources. Brown Weiss identifies inequities in terms of the quality of the natural environment which future generations would inherit. from the effects of climate change are among the least responsible for its causes. or a combination of these factors. and future generations who will have to live with the consequences (Chandani 2007). be it because of their reliance on the environment for subsistence and their consequent vulnerability to environmental harm. She argued that climate change represented an issue for environmental justice in terms of its unequal effects for certain communities. there is a disparity between past and current generations who have been responsible for greenhouse gas emissions. In doing so she highlighted one of the key injustices of climate change: that people in developing states are likely to be worse affected because of their vulnerability to environmental change and their lower capacity to adapt to it (2008: 618). Because of the extensive time frame over which the results of global warming are played out. and in all likelihood first. She drew on John Rawls’ theory of justice (1979) to identify the problem of achieving distributive justice between members of the same generation in relation to the effects of climate change. It is often the case that environmental harm such as pollution or deforestation affects poorer communities more seriously. or their economic incapacity to cope with such harm successfully. the same kind of injustice can be found in relation to many forms of environmental degradation. Climate change entails an additional facet of environmental injustice.

and we must strive to leave the Earth in no worse condition than we received (2008: 623). These two layers of justice do not operate independently however. The following section will expand upon this notion of how a rights-based approach can help achieve environmental justice. and focus their attention on the environmental legacy that they will leave for future generations. As Brown Weiss pointed out. A Human Rights Approach to Achieving Environmental Justice There are a range of ways in which a human rights approach to environmental problems can help achieve just outcomes. Inter-generational equity is also bolstered by a rights-based approach because a broad understanding of human rights requires not only that we protect the rights of present 272     . As outlined above.and inter-generational justice. In discussing the challenge of climate change. and particularly for developing states. This presents one of the key ways in which human rights principles can help address environmental injustice: by working towards the protection and fulfilment of human rights for all people. She argued that a failure to address the needs of communities today would exacerbate the inequalities facing future generations. conservation of quality and conservation of access.three elements: conservation of options. one cannot expect people to fulfil obligations to future generations if they are not able to satisfy their basic needs’ (2008: 216). we can build capacity in these communities so they can more meaningfully engage with sustainable development practices. a human rights approach which works towards capacity-building in developing states can help establish the conditions necessary to encourage sustainable development and thereby improve the likelihood of inter-generational equity. Environmental justice can therefore be interpreted as operating on two planes: intra. she argued that our strategies must address these three issues. ‘in the present generation.

governmental or corporate. Environmental problems may arise where impoverished communities or developing states strive to achieve economic development by any means available. but are instead better able to take more environmentally compatible and sustainable measures. A rights-based approach also incorporates the concepts of nondiscrimination and equity that are central to sustainable development. a rights-based approach would assess the human as well as the environmental impacts of such work. but also that we ensure that our actions today will not jeopardise the chances of future generations of enjoying those same rights. Capacitybuilding also helps reduce communities’ vulnerability to environmental exploitation by external parties. Where projects are proposed which would cause environmental changes. such as those caused by climate change. Further. As well as promoting capacity-building in otherwise vulnerable communities. the right to education and the right to the highest attainable standard of health. This can occur in a number of ways. This helps to mediate against the inequitable impact which climate change would have on developing states or otherwise vulnerable communities.generations. these communities and their governments are under less pressure to pursue economic development at the expense of the environment. The capacity-building which Brown Weiss identified as a precondition to inter- generational equity also has positive consequence for environmental justice among members of the same generation. when environmental problems do occur. In terms of intra-generational equity. human rights principles also have a valuable role to play. By working towards full enjoyment of rights such as the right to adequate living standards. communities possess greater resilience and capacity to adapt. human rights principles can provide a normative framework to assist in more just decision-making in environmental governance. and which can help to 273     .

which could be utilised by individuals and communities who allege their human rights have been violated (Posner 2007: 3). More significant in a practical sense may be the availability of human rights tribunals. In a practical sense the international human rights legal framework also offers a mechanism for achieving environmentally just outcomes. protect and fulfil human rights. establishing that environmental degradation such as pollution or deforestation can amount to a violation of human rights. criticism from the international community is given weight by international law. at the very least states must refrain from activities which violate human rights. Where states fail to meet their obligations. Several cases have already been successful before regional human rights tribunals. courts and committees. in Lopez-Ostra vs Spain (1994) the European Court of Human Rights held that pollution caused by a waste treatment facility located near the complainants’ home violated their right to privacy and family life (guaranteed under article 8 of the European Convention on Human Rights (1950)) by limiting their ability to enjoy their home. For example. In the Awas Tingni case before the Inter- 274     . While the exact standard of obligation may vary depending on the particular right concerned and according to a state’s capabilities. For example. an individual may bring a complaint to the Human Rights Committee where there is an alleged violation of a right contained in the ICCPR (First Optional Protocol to the ICCPR 1976: art 1).ensure just outcomes for individuals and communities likely to be affected by environmental change (Atapattu 2008: 36). Regional enforcement mechanisms may also provide an avenue for redressing environmental injustice. Human rights laws impose obligations on states to take steps to respect. This was found to be the case even though the court did not find a violation of the right to health in the circumstances.

there is normative force in the human rights regime. These judicial avenues provide one option for communities or individuals unjustly affected by environmental harm where such harm can be construed as a violation of human rights.American Court of Human Rights (2001) the Mayagna Awas (Sumo) Tingni community of Nicaragua argued that the Nicaraguan government had failed to protect their property rights over traditional lands and natural resources. any claim alleging a violation of human rights will face the causative challenge of proving that a particular state’s conduct (either directly or through its failure to properly regulate non-state actors) caused the breach of human rights. Nonetheless. 275     . As well as these procedural limitations. which were to be commercially developed. The Court upheld the claim and agreed that the Community’s property rights under the American Convention of Human Rights (1969) had been violated by the State’s failure to provide an adequate system of indigenous title and protection of indigenous lands. This is particularly a challenge for any claim relating to climate change. There are limitations to the ability of the human rights regime to address environmental injustices. where the cumulative and transnational impact of greenhouse gas emissions and the complex scientific processes involved make it very difficult to hold a particular State responsible for a specific outcome (Stephens 2010). and in many cases individuals are unable to avail themselves of international or regional mechanisms until they have exhausted local legal options (Optional Protocol 1976: art 2). and the possibility of claims against States where they have failed to meet their human rights obligations may provide an important incentive for addressing environmental injustice. Access to the regime relies on States being parties to the relevant instruments of international law.

and can be identified in disproportionate impacts on poorer neighbourhoods. In many cases environmental injustice can be described in terms of the human rights violations it represents. The utility of human rights in achieving environmental justice can be seen in three key areas. and provide a set of norms against which to evaluate potential environmental harm. human rights law provides a complementary and useful tool in achieving environmental justice for present and future generations. Atapattu S (2008-2009) Global climate change: Can human rights (and human beings) survive this onslaught? Colorado Journal of International Environmental Law and Policy 20(1): 35-67.Conclusion Environmental injustice takes many forms. developing states and future generations. Together with other forms of environmental governance. by ensuring that all individuals and communities enjoy the full complement of human rights we can build capacity for communities. 276     . human rights enforcement mechanisms provide a valuable avenue for individuals and communities to seek redress for environmental injustice inflicted upon them. Beyond this descriptive function. Finally. a rights-based approach to environmental governance can highlight more fully the human impact of environmental degradation. References American Convention on Human Rights (“Pact of San Jose. drawing on our evolving understanding of the interconnectedness of human rights and the environment. opened for signature 22 November 1969 (entered into force 18 July 1978). to focus more clearly on sustainable development strategies and just environmental outcomes. First. Second. particularly those in developing states. the human rights framework also has a role to play in redressing and preventing environmental injustice. Costa Rica”).

opened for signature 21 December 1965. International Labour Organisation. Brown Weiss E (2008) Climate change. opened for signature 16 December 1966. 37 ILM 168. 660 UNTS 195 (entered into force 4 January 1969). Convention Concerning Indigenous and Tribal Peoples in Independent Countries. 993 UNTS 3 (entered into force 3 January 1976). 277     . opened for signature 17 June 1989. International Convention on the Elimination of All Forms of Racial Discrimination. Convention on the Elimination of All Forms of Discrimination Against Women. Chandani A (2007) Distributive J=justice and sustainability as a viable foundation for the future climate regime. 1249 UNTS 13 (entered into force 3 September 1981). International Covenant on Civil and Political Rights. opened for signature 18 December 1979. 1577 UNTS 3 (entered into force 2 September 1990). intergenerational equity and international law.The Hague: Kluwer Law International. opened for signature 20 November 1989. Gabcikovo-Nagymaros Project (Hungary v Slovakia) Separate opinion of Vice-President Weeramantry. Conv 169 (1989) reprinted in 28 ILM 1382 (entered into force 5 September 1991) Lopez Ostra v Spain (1995) Eur Ct H R 38.Bosselman K and Richardson B (2009) Environmental justice and market mechanisms: Key challenges for environmental law and policy. Carbon and Climate Law Review (2): 152-163. 1976). 999 UNTS 171 (entered into force 23 March. Social and Cultural Rights. opened for signature 16 December 1966. Vermont Journal of Environmental Law 9(3): 615-638. Convention on the Rights of the Child. International Covenant on Economic.

278     . Sachs W (2003) Environment and human rights. Social and Cultural Rights (2002) General comment 15: The right to water. Rawls J (1971) A theory of justice.12/2000/4. trade and the politics of regulation. opened for signature 16 December 1966. Paper No 137. 1976).12/1999/5. 171 (entered into force 23 March. United Nations Committee on Economic. UN Doc No E/C.T. Social and Cultural Rights (1999) General comment 12: The right to adequate food. InterAm Ct H R (Ser C) No 70. Posner E (2007) Climate change and international human rights litigation: A critical appraisal. UN Doc No E/C. White R (2008) Crimes against nature: Environmental criminology and ecological justice. Walters R (2010) Toxic atmospheres: Air pollution.S. Critical Criminology 18(4): 307-323. Cambridge: Harvard University Press. Optional Protocol to the International Covenant on Civil and Political Rights. Chicago Public Law and Legal Theory Working Paper 148.Mayagna (Sumo) Awas Tingni Community v Nicaragua judgement of 31 August. Stephens P (2010) Applying human rights norms to climate change: The elusive remedy. Environment.N. Social and Cultural Rights (2000) General Comment 14: The Right to Health. United Nations Committee on Economic. and Energy. September 2003. Colorado Journal of International Environmental Law and Policy 21(1):49-83. Wuppertal Institute for Climate. 999 U. Collumpton: Willan Publishing. 2001.12/2002/11. United Nations Committee on Economic. UN Doc No E/C.

Sex. Gender and Justice .

numerous studies have been conducted and several new theoretical perspectives were developed and tested. Ontario. DeKeseredy Faculty of Social Science and Humanities. University of Ontario Institute of Technology Oshawa. The main objective of this paper is to critically review the Canadian empirical and theoretical work on woman abuse done so far and to suggest new directions in sociological research and theorizing. due to the Canadian federal government's anti-feminist stance and to the influence or right-wing fathers' rights groups. Canada L1H 7K4 Email: walter.ca Conference sub-theme: Sex. and Future Walter S. Statistics Canada no longer conducts surveys that focus primarily on violence against women and instead produces sexually symmetrical findings (equal rates of male and female violence) generated by a modified version of the highly controversial Conflict Tactics Scale. 280     .Understanding Woman Abuse in Canada: Past.dekeseredy@uoit. Since then. For example. Special attention will also be given to the ways in which broader political economic forces have helped shape and constrain scholarly work on a variety of highly injurious male-to-female assaults that occur in private settings. Present. woman abuse in Canada started receiving much social scientific attention. Gender and Justice Abstract In the mid 1980s.

there was no name for violence against women by their husbands or partners" (p. while most men are immune from physical and sexual assaults in domestic/household settings. some people and places in Canada are safer than are others. Feminists also influenced the development of a spate of large. at least 11% of married/cohabiting women are physically abused by their male partners. 281     . these contexts are extremely dangerous for an alarming number of women. 6). "Prior to the 1970s. Annually. as well as the construction of several theories. Instead. however. but it is beyond the scope of this paper to present them. Many more statistics support the assertion that "It often hurts to be a woman in Canada" (DeKeseredy. only 40 years ago that an exhaustive bibliography on wife beating could be written on an index card (DeKeseredy & Dragiewicz. (DeKeseredy.S. Since then. Further. 2007). but it was not of major interest until recently to social scientists.and small-scale studies. Additionally. politicians. mainly because of feminist efforts. the main objective is to review Canadian empirical and theoretical work on woman abuse done so far and to suggest new directions in sociological research and theorising. 2009). and the general public. The Past There was episodic concern with woman abuse in Canadian history. after all. 2011a). 2011a). approximately 25% of women enrolled at post-secondary schools experience some variation of sexual assault (DeKeseredy & Flack. many Canadians pay considerable attention to the various assaults women experience during and after intimate relationships. practitioners. For example. 2009).Introduction Canada is often defined as a "low-violence" or "very safe" country (Currie. It was. ample evidence suggests that Canadian men are more physically violent to adult female intimates than are males in the U. There is much empirical support for this characterization. As Denham and Gillespie (1999) remind us.

almost all of them used some version of Straus' (1979) Conflict Tactics Scale to glean data on physical violence and Koss. and Johnson and Dawson (2011) for reviews of these studies.Research specifically designed to determine the extent of woman abuse in Canada began with MacLeod and Cadieux's (1980) examination of transition house and divorce-petition data. 1998). Except for Statistics Canada's VAWS (Johnson.                                                                                                                         100 See DeKeseredy (2011) and DeKeseredy and MacLeod (1997). DeKeseredy. most Canadian surveys showed that at least 11% of women in marital/cohabiting relationships are physically abused by their partners each year. 1987)."101 which supported "the widespread apprehension that wives often experience elevated risk when deserting a violently proprietary husband" (Wilson. 282     . several Canadian researchers gathered more reliable quantitative data on woman abuse in intimate relationships. "every year. 1996). and Schwartz (2004). While not derived from a representative sample of the general population. Their study was "methodologically unsound" (Ellis.100 Although these scholars used different sampling and interview techniques. there were also studies of "post-separation woman abuse" and "intimate femicide. Rogness. 101 See Brownridge (2009). and Wisniewski's (1987) Sexual Experiences Survey to capture statistics on sexual assault. During the aforementioned time period. and DeKeseredy and Schwartz (2009) for reviews of research on these harms. Gidycz. one in ten Canadian women who are married or in a relationship with a live-in lover are battered" (p. but they concluded. In the mid-1980s to early 1990s. this conclusion was not far off the mark as demonstrated by subsequent more sophisticated studies. 17). The rate of such violence in university/college dating was found to be twice as high and so was the incidence of sexual assault (DeKeseredy & Schwartz.

2009. Much of the Canadian theoretical work on woman abuse is guided by DeKeseredy's (1988) male peer support model. most woman abuse surveys were primarily concerned with answering two questions: (1) "how many women are abused by their current or former male partners?" and (2) "what are the correlates of woman abuse" (DeKeseredy & Hinch. which was revised and expanded over the past 25 years. 1991: 28)? This is not to say that all of this work constituted "abstracted empiricism" (Mills. a perspective that attempts to explain why separated/divorced and cohabiting women are more likely than married women to be abused by the men they live with or have lived with. Still. 1995: 340-341). Smith (1990) tested the feminist hypothesis that wife beating results from men's adherence to the ideology of familial patriarchy. Further. Another perspective that garnered much attention in the late 1980s was evolutionary psychology. 1959). For example.102 The late 1980s also witnessed the development of Ellis and DeKeseredy's (1989) dependency.Johnson. DeKeseredy and Schwartz (1998. From 1980 until now.                                                                                                                         102 See DeKeseredy (1990). 2009. 1988) argue that male violence against women is the result of competition for sexual access to women. variations of feminist theory influence Canadian woman abuse research and still do today. Daly & Wilson. 2010) and Schwartz and DeKeseredy (1997) for in-depth reviews of the empirical and theoretical literature on the relationship between male peer support and woman abuse in various intimate heterosexual relationships. This observation still holds true in Canada (Brownridge. DeKeseredy 2011a).. 283     . Statistics Canada's VAWS was influenced by feminist thought (Johnson. Canadian scholars working in this tradition (e.g. few original theories were crafted and tested by Canadian scholars. 1996). deterrence (DAD) model. The concept of male proprietariness is emphasized in evolutionary thought and is defined as "the tendency [men] to think of women as sexual and reproductive 'property' they can own and exchange' (Wilson & Daly. 2002. As well. 1992: 85). availability. using data from his Toronto woman abuse survey. & Daly.

"there is no greater challenge in the abuse field than getting [violent] men to exit from abusive relationships" (p. 2003). Male proprietariness is also a major component of DeKeseredy." Certainly. The first question blames females for the abuse they endure in intimate relationships. the progressive empirical and theoretical work done since the mid-1980s unintentionally contributed to an anti-feminist backlash (DeKeseredy & Schwartz. as Stark (2007) notes. Where We Are Today The late 1990s marked the start of a major shift in Canadian federal government responses to woman abuse. Statistics Canada is now influenced by political forces driven by fathers' rights groups and others intent on minimizing the pain and suffering caused by male-to-female violence.Ellis and DeKeseredy (1997) built on the concept of male proprietariness by integrating it with a theory of interventions to explain variations between estrangement and intimate femicide. which. Hardesty. Rogness. 2008). 2002: 599). 2009. "It is men who stay. in approximately one decade. Moreover. 130). Their offering moves well beyond answering the problematic question. and Schwartz's (2004) feminist/male peer support model of separation/divorce sexual assault. Statistics Canada 284     . "Why doesn't she leave?" to "What happens when she leaves or tries to leave?" and "Why do men do it?" (DeKeseredy & Schwartz. and the Canadian federal government is supportive of these groups' initiatives. had a major impact on the research community. Patriarchy is now being reasserted by conservative fathers' rights groups and other anti-feminist organizations (Dragiewicz. not their partners. in turn. And. but it is no longer a priority for most politicians and the general public. woman abuse emerged out of a vacuum of silence to become a major issue for Canadian researchers. In sum.

well-known for his anti-feminist stance.. 2011a). meanings. a non-profit women's group that tackles violence against women and other forms of female victimization. but rather conducts General Social Surveys (GSS) that produce equal rates of male and female intimate violence without carefully examining their differing contexts. such as its July 2011 version. 285     .(2002." (p. On top of these transitions. Prime Minister Stephen Harper buttressed the anti-feminist agenda by eliminating funding to the National Association of Women and the Law.this is a sociological fiction and contradicted by surveys. announced that women's organizations are no longer be eligible for funding for advocacy.php (accessed July 11. activists. 2011). As well. 2011) no longer focuses primarily on violence against women. some prominent Canadian politicians. there will be more cases where women are "twice victimized": first by violence and the men who abuse them. psychologist Donald Dutton (2010) states that only a "minority of men are violent either outside or within relationships. There is no norm for wife assault ..103 that                                                                                                                         103 See http://www. Bev Oda. 8). journalists. on October 3. 2006. SWC was also required to remove the word equality from its list of goals (Carastathis. 2006). The Public Health Agency of Canada used to prioritize violence against women. and then by the lack of social support provided by the Canadian federal government (DeKeseredy. and researchers dismiss the alarming rates of woman abuse generated by progressive surveys and ferociously attack feminist interpretations of these figures.ca/ncfv-cnivf/EB/2011/july-juillet/e-bulletin-eng.. 2005. or research projects.phac-aspc. For example. but now publishes Family Violence Prevention E-Bulletins. In early September 2007. government lobbying. and motives (DeKeseredy. 2009). Consequently.gc. then federal minister for the Status of Women Canada (SWC).

& Dragiewicz. Many people who use such language selectively cite research that incorrectly characterizes violence as bi-directional. Though often criticised. For example. ignored. 2011). Ironically. gender-neutral terms such as "intimate partner violence. Rennsion. or sex symmetrical (DeKeseredy & Dragiewicz.g. or even silenced. and I continue to do research with U. in press). Dutton. colleagues on separation/divorce assault in urban and rural parts of their country (see DeKeseredy & Schwartz. and the experiences of abused Canadian 286     .g. In the current political atmosphere characterized by a counter-movement to degender the naming and framing of woman abuse (Bumiller.. the anti-feminist backlash. 2006. Nevala. it is their voice . It is also somewhat paradoxical that Molly Dragiewicz. 2008. 2008). Johnson & Dawson. this situation has a positive consequence for the social scientific community since feminists' studies are generally very rigorous because they know that they will be subjected to heightened scrutiny and criticism for being "political" rather than scientific (Romito. 2011) do not understand feminism.. feminist inquiry is subject to vitriolic attacks. DeKeseredy. but most. woman abuse). much of the recent research was done outside Canada. who launch them (e. 2008). a leading expert on Canadian fathers' rights groups. What is more. Canadian feminist academic work on woman abuse persists.that is the loudest. Ollus." and "domestic violence" are replacing gender-specific ones (e.not those of feminists or abused women .support the erroneous notion that women and girls are equally violent as males and that female rates of violence are increasing. mutual. And. if not all. Still.S. 2009). University of Ottawa criminologist Holly Johnson helped conduct the International Violence Against Women Survey (Johnson. 2009.

2010). his analyses of GSS data receives much less public attention than GSS data showing sex symmetry. 2002. Jiwani. in press). Unfortunately. Intersectionality is also directly relevant to feminist interpretations of Internet pornography. recently came from the U. Nonetheless. 2009) and Dragiewicz and DeKeseredy (2008. DeKeseredy and Olsson (2011) show that it is also strongly associated with various types of woman abuse in intimate heterosexual relationships. 2009). Undoubtedly. however. Statistics Canada's recent renditions of the GSS are highly problematic. 287     .104 Again. DeKeseredy. such as those who are immigrants. examined only the woman abuse statistics in the 1999 and 2004 GSS and produced some valuable information on violence against women at the margins.                                                                                                                         104 For more information on her recent Canadian work on these issues. Other salient examples of recent Canadian feminist scholarship could be reviewed here. they face numerous challenges over the next few years as Canada continues to move to the right of the political economic spectrum. 2010).women lacking legal representation in the family courts. Brownridge (2009). including Du Mont et al. Pajot. and who are Aboriginal. see DeKeseredy and Dragiewicz (2007. 2010. It is to some of them that I turn to next. and so are moral panics about girls' aggression (Barron & Lacombe. disabled.'s (2009) research on drug-facilitated sexual assault.S. which has become more violent and racist (Dines. there are prolific feminist researchers scattered across Canada and they continue to do interesting and policy-relevant empirical and theoretical work. to work in Canada. Intersectional analyses of violence in the lives of girls is another issue that garners much attention in the Canadian feminist community (Berman & Jiwani. 2006.

2011b). but the circumstances are different. not after the fact. "A basic premise of the journal is that partner abuse is a human problem. As stated in the Guidelines for Authors. and magazines reach large audiences. Dragiewicz.. however. and that the particular role of gender in the etiology. This statement holds true today. DeKeseredy. That articles and letters written by feminists are periodically published by the mainstream press and that some feminist scholars have been on television serves as evidence that the mainstream media do not totally dismiss or ignore progressive interpretations of gender violence (CaringellaMacDonald & Humphries. creating a situation where they are "seen and heard." Gender. 1999: 1236). 1998. newsmaking criminologists assert that progressive scholars should take every opportunity to offer their research and views to the media. Springer Publishing Company now produces the journal Partner Abuse and people seeking to gain a sophisticated understanding of current feminist contributions will learn little from reading it. 2011). There was an anti-feminist backlash then. 2011a. 2007) Since newspapers. Gender matters is a message that repeatedly needs to reach the general public and one effective way of doing so is through social media such as Facebook (DeKeseredy.. 2011b). 2009). perpetration. For example.Challenges Ahead At the end of the 1990s. television shows. but it more deeply entrenched and mainstreamed (DeKeseredy.. "this is a critical point in the evolution of our understanding of woman abuse" (p. 288     . 47). Researchers should also target mainstream media and engage in "newsmaking criminology" (Barak. Denham and Gillespie (1999) declared. "matters" and major steps need to be taken to resist the degendering of one of Canada's most compelling social problems (Dragiewicz. and consequences of emotional and physical partner abuse cannot be assumed. web sites. but proactively" (Renzetti.

Collaborations help "spread the wealth. if not more. "work to expand the collective understanding of woman abuse. found only one variable out of 42 characteristics allegedly related to wife-victims that consistently discriminated between abused women and those who were not abused. since 2008. but the man (DeKeseredy. the best efforts to explain woman abuse focus on men rather than women. Hotaling and Sugarman (1986). Dragiewicz. 2011a).105 There will be even more intense competition for scarce grant money as governments at all levels downsize their budgets. For example. though.Canadian funding for woman abuse research is at an all time low and this situation will not improve under Prime Minister Stephen Harper's leadership. Ontario. The only major national surveys likely to be administered during his tenure will be those crafted by Statistics Canada and the data will continually support the sexual symmetry of violence thesis. Feminist projects. This is still the case now. and it is consistent with the argument that any woman is a possible object of violence. Molly Dragiewicz and I conducted local studies of abused women's experiences with the family court process funded by Ontario provincial grant money given to Luke's Place Support and Resource Centre based in Oshawa." but also. and there is a need for new perspectives. They can create new opportunities for solutions that could not exist if groups worked in isolation" (Denham & Gillespie. funded by local community groups and provincial government agencies can be done.                                                                                                                         105 See DeKeseredy. It is thus time for researchers based at different institutions to think seriously about collaborating instead of competing with each other. 1999: 45). 289     . Theoretical work is just as. Yet. What differs in not the woman. and Demers (2011) and Dragiewicz and DeKeseredy (2008) for more information on this work. important as empirical projects.

the bulk of material cited here is sociological. sociologists did most of the Canadian theoretical and empirical work on woman abuse.g. Such work. cultural. 2011). "This is all to the good. will be met with acerbic criticism from conservative researchers and activists seeking to minimize the breadth of woman abuse and reduce it to a function of mental disorders (e. however. Dutton. 2010. political. The challenge for us as sociologists is to continue to question the meaning of changes in the story of woman abuse and their unanticipated consequences to uncover the real meaning of change and the social meaning of woman abuse prevention (DeKeseredy & MacLeod. Rather. broader social. As Michalowski (1996) states in his story of critical criminology. In other words. Obviously. and other types of scholars. 2006. 290     . Conclusions This paper offers a brief history of Canadian empirical and theoretical work on woman abuse. I increasingly suspect that we can best arrive at useful truth by telling and hearing multiple versions of the same story" (p.Equally important is constructing and testing theories that focus on "the big picture" as well as micro-level determinants (Rosenfeld. 1997). and economic contexts in which woman abuse occurs need to be examined because this harm does not occur in a vacuum and is a widespread problem. anthropologists. This is not the result of selective inattention or paradigm hostility. 9). 2011). An unknown number of readers will disagree with this historical account and assert that important contributions were neglected.. social workers. Woman abuse as a social issue compels us all to become sociologists and to look at our whole society through the lens of a critical analyst. Included in another version will be contributions made by psychologists.

sexual assaults. the anti-feminist backlash. 2001). DeKeseredy. New York. Bumiller K (2008) In an abusive state: How neoliberalism appropriated the feminist movement against sexual violence. NC: Duke University Press. and the like. 2011a). 2008). Sadly.There is yet another story about woman abuse in Canada that needs to be told. Ottawa: Status of Women Canada. separated/divorced women in Canada are still at high risk of being killed (Cross. Wolfe & Jaffe. Batacharya (eds) Reena Virk: Critical perspectives on a Canadian murder (pp. one that focuses on the different approaches to preventing and ending beatings. Toronto: Canadian Scholars' Press. Durham. understood. 2007. NY: Routledge. 291     . Despite budget cuts. Berman H and Jiwani Y (eds) (2002) In the best interests of the girl child. many achievements are attributed to the ongoing and ever changing efforts of men and women involved in the violence against women movement (Johnson & Dawson. but they are not markedly safer (Dragiewicz & DeKeseredy. References Barak G (2007) Doing newsmaking criminology from within the academy. In: M. scores of women will continue to suffer in silence until the major causes of woman abuse are recognized. 270-296). Theoretical Criminology 11: 191-207. Barron C and Lacombe D (2010) Moral panic and the nasty girl. 2011). Rajiva and S. 2011. But have the rates of woman abuse decreased over the past 40 years? Abused women now have more resources to choose from. and addressed by policy makers and the general public (Johnson & Dawson. Brownridge D A (2009) Violence against women: Vulnerable populations. stalking. Without doubt. and a host of other obstacles.

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scholarship. gender. and the family. However. Del Martin published Battered Wives. this paper outlines key tactics of antifeminist backlash against the battered women’s movement. Introduction In 1976. law.ca Conference sub-theme: Sex. Molly Dragiewicz Assistant Professor of Criminology Faculty of Social Science and Humanities. economics. the first book devoted to the subject of battered women in the United States. The Violence Against Women Act (VAWA) has enjoyed broad-based support for over 15 years.S. Gender and Justice Abstract Opposition to men’s violence against women who are their intimate partners has become politically popular in the United States. VAWA has been refined and expanded with each reauthorization. University of Ontario Institute of Technology Email: Molly. While many of the underlying cultural issues Martin described in 1976 are still 299     .Tactics of Antifeminist Backlash Against the U.but rarely as a social issue worthy of thorough investigation” (1981: 15).dragiewicz@uoit.as occasional fodder for sensationalistic reporting. “The news media have often treated wife-abuse as a bizarre and relatively rare phenomenon. Martin observed that. Based on interviews with 35 advocates in the United States. Battered Women’s Movement Dr. woman abuse and state responses to it are mired in cultural tensions about crime. Resistance to the battered women’s movement is often overlooked in this political context.

VAWA has been refined and expanded with each subsequent reauthorisation. the U.d. This excerpt highlights the now-dominant conceptualisation of violence against women as an important and gendered social problem requiring collective action. Congress enacted the Violence Against Women Act (VAWA).S. In 1994. law. VAWA also acknowledged that violence against women requires specialised responses to address unique barriers that prevent victims from seeking assistance from the justice system (U. However. Department of Justice. and the family. gender. violence against women and state responses to it continue to be mired in cultural tensions about crime. n. 300     . this paper outlines key tactics of antifeminist backlash against the battered women’s movement. VAWA recognised the devastating consequences that violence has on women. families.). a comprehensive legislative package focused on violence against women. and society as a whole. One of the most visible symbols of this marked social change is the Violence Against Women Act (VAWA). Resistance to the battered women’s movement is often overlooked in the contemporary political context that produced and sustains VAWA. there has been a sea change in hegemonic discourses on men’s violence against women. Based on interviews with anti-violence advocates in the United States. knowledge.S. VAWA is a federal law which has enjoyed broad-based support since its passage in 1994. economics. The United States Department of Justice website describes VAWA this way. Opposition to men’s violence against female intimate partners has become politically popular in the United States.relevant.

Attacks on feminism. are an important part of the backlash against the battered women’s movement. Campaigns to transform men’s violence against women from a private shame to a public political issue have been among the most popular and widely embraced projects of feminism. Justice system responses to violence against women and race and gender-blind criminal justice policies have both been associated with disproportionate unintended negative consequences for women. INCITE!. 2004: 3). 1999. Schlesinger. Ultimately. INCITE!. 301     .Backlash Popularized by Susan Faludi (1991). efforts to harness state power to address violence against women are ripe for unintended consequences (Chesney-Lind. Faludi. 2006). undermine. the term backlash refers to “efforts to contain. 2008). As is the case with other progressive social movements. the battered women’s movement’s successes were accompanied by “criticism. 2005. 2008). and silencing” (Collins. Minaker & Snider. DeKeseredy. Feminists wary of neoliberal appeals to formal equality have documented the ways in which gender-blind approaches to crime and violence have not only failed to ameliorate gender inequality but. many of the beliefs and practices conducive to this form of violence persist. In the case of violence against women. As feminist scholars and activists have noted. in some cases. resistance to state campaigns is convoluted as opponents of feminism seek to couch their objections to anti-violence efforts in ways that sidestep normative anti-violence positions. exacerbated it. cooptation. 1991. and reverse the gains made by women under feminism” (Dragiewicz. 2006. both veiled and overt. while feminism has succeeded in substantially altering discourse and law on violence against women. 2003. 2006. 2003. DeKeseredy & Schwartz. especially women of color (Chesney-Lind.

Study participants were recruited and interviewed until responses reached thematic saturation. The exploratory study utilised a convenience sample. and lawyers. two had some college. Thirty of the respondents were female and five were male. with invitations to participate extended online via professional listervs for anti-violence advocates. with an average of approximately an hour and a half. including a mix of Caucasian. scholars. Thirteen respondents had a JD.000. university antiviolence program staff. Asian. Seven respondents identified as lesbian or queer. Transcribed interviews were coded using MAXQDA. ranging from nine years to more than forty years. The Sample The average age of respondents for this study was 59. and the age range was from 30-67. Respondents averaged twenty-two years in the field. the annual average was $49. child counsellors or therapists. and one had a college degree and some graduate classes. Native American heritages. A few respondents noted that their income fluctuates from year to year due to consulting work. The sample consisted of 35 interviews which were conducted and transcribed between 2007 and 2009. For respondents who reported salaries. state coalition staff. and 302     . battered women’s shelter staff. national advocacy organisations. and four identified as mixed race. fifteen had Master’s degrees. practicing attorneys. Interviews ranged from fifty-two minutes to over two and a half hours.Methodology The findings discussed in this paper are drawn from semi-structured interviews on support for and resistance to anti-violence work since the inception of the battered women’s movement. five had PhDs. Thirty one of the respondents were Caucasian. Two respondents reported being retired and working on a volunteer basis. Respondents were from twenty different states. and 28 identified as straight or heterosexual. The sample included clinical law professors. a qualitative software analysis package.

Findings While the larger study looked at a range of issues related to support for and resistance to battered women’s movement work. the nature. In response to a question about whether respondents experience resistance to their antiviolence work. this paper is focused on the tactics of antifeminist backlash against the battered women’s movement. Most of the respondents had had more than one job working on antiviolence projects prior to their current position.independent advocates. and many specific tactics have been subsumed under the named categories. In what follows. To protect the identities of the respondents. I review several key tactics identified by the study participants. individualisation. which is especially important given the nature of their work with violent men. I have not provided identifying information about the sources of individual quotations and have redacted location and organisation specific information where necessary. level and impact of resistance varied widely according to respondents’ specific professional locations. This review provides a general description of backlash tactics rather than a comprehensive list. discrediting women/feminists.” While all respondents indicated experiencing or observing some forms of resistance to their work. 303     . Six primary tactics emerged in descriptions of resistance to anti-violence work: • • • • • resistance to acting on legal and policy changes. changing the subject. the most common response was “absolutely. victim blaming.

Judges won’t do what they’re supposed to do. Respondents repeatedly described the failure to implement new policies in meaningful ways as manifestations of resistance to antiviolence efforts. which comes from a variety of places: ignorance. basically it’s court supervision. or the cops will do dual arrest.. Our problem is implementation of the law. . This type of resistance was characterised as a way of pushing back against legal and policy changes imposed by authority figures. In some communities perpetrators come before the criminal justice system repeatedly. when the perpetrators stop going to the batterers’ intervention program probation should turn them in to the court and they should go to jail. Judges or state’s attorneys won’t prosecute or they’ll plea down to just simple battery. or they arrest the wrong person.. and when they stop.. and just plain old fashioned misogyny” as a key form of resistance. or they won’t do any arrest. and so the perpetrators know that they can get away with abuse because someone turns a blind eye to them and there are very few counties where all the systems and all the players from criminal justice do what they are supposed to do. A lot of cops don’t arrest. For example. lack of training. We also have a lot of people that don’t do what they should do in the criminal justice system. Resistance to Acting on Legal and Policy Changes Respondents named “Lack of implementation of the law. and those programs are designed to. 304     . But the probation office lets the ball drop and doesn’t turn them in. And so they know that they can get away with it. They go to batterers’ intervention programs. they stop going to the batterers’ intervention programs.• direct attacks and threats.

305     . but it’s not because the women is the primary aggressor. I find it really challenging when the criminal justice system doesn’t follow through and do what they should be doing. Another example of this is officers responding to pro-arrest policies by refusing to investigate the situation. But we have had some state’s attorneys who have actually arrested victims. such as responding to pro-arrest polices with dual arrests or arresting the victim of violence rather than the perpetrator. there’s been scratching. is this injury primary aggression? Or is this a defense injury. I find it challenging when state’s attorneys want to arrest victims for violating their own orders of protection because if you’re a petitioner of an order of protection. like the injuries that happen to men’s faces or hands but men are strangling women.This quotation describes a range of ways that local authorities fail to implement the laws that are in place in the state. and they scratch the hands trying to get the hands off the throat? Yeah. Or they’re left with finding a guy who’s been… who has some kind of injury and the woman doesn’t so they don’t look at. For example. Many respondents described the implementation of positive policy changes in ways that punish survivors of violence. there’s been damage. you can’t violate it. as in this example: We get dual arrests or we have law enforcement officers who don’t necessarily understand the dynamics.

This approach undermines the investigative role of police and creates a “he said/she said” scenario that equally discredits both parties. Victim Blaming Another frequent theme in accounts of resistance to antiviolence work is victim blaming. Arrests of victims of abuse can have serious repercussions for survivors’ ability to access services. This type of victim blaming serves a defensive purpose that allows people to maintain their view of the world as safe. For example. some police officers fail to investigate the circumstances surrounding violence calls like they do other crimes. Unfortunately. 306     . It's easier to blame the victim because they are the one who is carrying the story and they are the ones who are carrying the pain right to our doorstep. willingness to call police for help in the future. friends and family members blame victims of woman abuse for their own victimisation.As in situation described above. Respondents identified two primary types of victim blaming. if police officers do not investigate thoroughly. In the first type. I think it is really hard and we don't want it to happen to us and we don't want it to happen to our loved ones and we wish it didn't exist at all so we have to find somebody to blame. leaving it for the judge to sort out. there is no evidence collected to facilitate fact-finding in the court. and custody cases in the event of divorce. Victim blaming takes the pressure to solve the problem off of the individual hearing the disclosure.

reciprocal. It is not an either/or proposition. For example. and to dismiss gendered understandings of violence.” As in this quotation. bi-directional. “The biggest arguments we get are that they are saying that women are just as violent as men and when there is physical violence on a woman they are saying she is at fault because she attacked him first. In these cases. it is a both/and proposition and both partners must recognise their responsibility. I can quote verbatim from [a local shelter’s] brochure which says domestic violence will not stop until people realise that it is the responsibility of all parties involved to end domestic violence. violent men cannot stop being abusive until women change their behaviour. One respondent described the way that abused 307     . According to this understanding of violence. Discrediting Women/Feminists Discrediting women and feminists as sources of knowledge is another popular backlash tactic. the argument is used to explain away reports and evidence of abuse. or symmetrical. Respondents reported this argument is used for several purposes: to attack existing services for abused women. It is used by individual abusers. to discredit women’s reports of violence. So it's a dance of mutual destruction. One advocate expressed it this way. A closely related type of victim blaming is claiming that women are as violent as men. individuals involved in state institutions such as the courts. the argument that women are as violent as men is often raised when there is a record of physical violence. and organised anti-feminist groups.Another frequently mentioned type of victim blaming is portraying woman abuse as mutual.

women’s accounts are dismissed as not credible if they fail to mesh with cultural stereotypes. but they think they know it. And so they keep making mistakes and they’re not open to being told they are making mistakes.” Many respondents reported that individual women’s reports of violence are routinely dismissed as false allegations. They’ve committed it. “So one of the implicit arguments is that we all know what battered women look like. There’s not an openness or a willingness to look for the real experts. For example. And I think most of the time the experts are women and in this society we don’t take women as seriously as men. Another example of discrediting women is the application of a higher standard of proof to women than men in abuse cases. “Women are given a higher standard of proof than their abusers. She’s just vindictive and she’s using this to get back at me. And so I think that contributes to it. One respondent said. is that she’s making it up.” Claims of false allegations appear to be especially 308     . “… this is utterly pervasive throughout the court system and all areas of jurisprudence. are given less credibility than the abusers. they’ve been a victim of it. And often they don’t have the full story or they can’t be objective. and this isn’t it. So you have people who think they know the issues who don’t. they’ve had a friend or someone that was involved and therefore they think they understand it. they face stereotypes and they are paying for their abusers actions.” Another respondent described how stereotypes continue in the face of evidence due to women’s lesser authority as scholars and experts: One of the things about domestic violence is that most people have had some experience regarding domestic violence.

I think one of the biggest arguments which is so ludicrous it’s almost impossible to refute.… It’s not part of this scenario because domestic violence only happens in you know . Despite the popular belief that domestic violence awareness is a fait accompli. This idea rests on the assumption that the battered women’s movement exists not because violence against women is an actual problem. 309     .common in custody proceedings where mothers raise the issue of abuse in court. Such claims are used to minimise the extent of men’s violence against women and argue against the continued provision of resources for survivors.” As another respondent put it. One respondent said.0001% of all relationships. discrediting feminists and “the domestic violence industry” were frequently named by respondents as backlash tactics. the idea that “Domestic violence doesn't happen here” continues to be used against anti-violence advocates. the big one that we hear from the mad dads is that domestic violence is not actually a problem.” The claim that women gain some advantage over men by reporting violence serves to discredit all women’s reports of violence. but because “… feminists have an evil agenda to take over the world and they must be stopped. In addition to discrediting individual women’s reports of abuse. or to take children out of their father’s lives so you have that. And that it’s something that is so exaggerated and that it’s just sort of perpetuated by the domestic violence industry. “…the assumption is that women are making false accusations in order to gain an advantage.

Another example of individualization involves looking at specific acts or behaviours through a narrow and decontextualised lens. For example. this involves dismissing the research on violence altogether. Another respondent described individualisation in media coverage of abused mothers’ custody disputes. Controlling behaviour patterns. individualisation promotes popular understandings of violence and abuse as interpersonal problems that do not merit a collective response. not a gender issue. 310     . respondents reported decontextualising the problem of violence by saying things like “it’s a people issue.Individualization As a backlash tactic. we’re dealing an individual case here. This effectively dismisses the thousands of studies on the nature and dynamics of violence and abuse. as in this example: Another thing that I’ve seen is when we talk about research and they’ll say well just because most abusers do that it’s unfair. So we don’t need that kind of research. One respondent put it this way: If a woman hits back in self-defence or to make him stop or whatever you’ll get unqualified professionals to say well that’s the same as what he did without an understanding of what was the purpose.” Individualising approaches to violence dismiss the cultural context in which it occurs as irrelevant. Sometimes. all that. you’re dealing with an individual case.

we tend to call them custody visitation scandal cases…. There were a couple of men from an anti-violence organization in [our state] in that training and they argued. But when we look at hundreds and thousands of these cases. And just keeping us stuck in that. boys and girls were both being victimised at the same rate. and if you look at one case. you have an extreme result. if you take one of these cases and we’ve… I don’t know if you’ve seen the term.You will get the media talking about individual cases. it’s easier to see a pattern of mistakes that the courts are making. they argued with us about whether the problem of teen dating violence was more really more equal. What you don’t get is the media doing the kind of investigation to show the patterns of abuse that are really important. Changing the Subject Changing the subject away from woman abuse to some other problem was a backlash tactic named by many of the respondents in the study. Because you know. that really. This quotation describes the relationship between media accounts and collective understanding of the issue of woman abuse and child custody. stuck 311     . And after all. that cause so many children to be sent to live with abusers. one of the common abuser tactics is to demonise the woman. And the media has really been remiss in exposing this pattern. One advocate described efforts to persistently change the subject during a training session. which on the surface looks like it’s wrong but you can’t be sure ‘cause you know maybe there’s something wrong with that one mother. But we tend to get these cases.

in one case he would be accusing her of… the first way he got the baby was to accuse her of drug addiction. but it made her lose a lot of jobs and so. all of them came out clean. Many respondents also reported abusers’ use of frivolous complaints against their partner in order to retaliate for reporting of abuse or to distract the courts from reports of abuse. jumped through the hoops she went through 18 random drug tests.there and not being willing to get off of it and move on. not being able to move on after they’ve been asked to sit down…. And just. It looks like men coming to workshops and participating and then having to be right…. you know? Similar experiences were recounted by a number of advocates who saw the insistence on changing the subject as a way of resisting the expertise of survivors. advocates. what do you mean. One of the early cases that I got into was a police officer who would throw everything he could throw at his former wife so and she was arrested I think 8 times in the end. not being able to take coaching. The head of the drug testing unit was there to testify that she was not a drug user and yet the courts favoured the father and the judge very clearly said that it was because he was a police officer and he trusted the police officer. and scholars who focus their energies on violence against women. typical white male privileged bull. None of his charges ever stuck. So first it 312     . The unarticulated assumption appears to be that neither advocates nor scholars should be focused on women and girls’ experiences if men and boys’ needs and demands were not being met first. what do you mean by that? you know and just … you know like. For example. You know like. And she went through the hoops.

It’s a game. what we’re talking about and I probably didn’t say this before but we’ve made a lot of progress in the movement to end domestic violence and … there’s now more people in the community to help victims of domestic violence. Often. the most common tactic is seeking custody or joint custody. When used as an individual tactic. changing the subject serves to distract the court or others from investigating the abuse at issue. there 313     . It also serves to create an impression that the parties are engaged in a mutual fight since they are both making complaints. threats and attacks are used by individual abusers against their partners. Of course. more indirect forms of abuse have developed. abusers used a variety of other tactics. Direct Attacks and Threats Finally. For example. this is used as an excuse to avoid fact finding or investigation of the reported abuse. You know the basic.was drug abuse. he charged her with a whole series of different things. Abusers’ threats and efforts to take custody of children were frequently reported. In addition to the obvious examples of threats and perpetration of physical and sexual violence against partners who had reported abuse or sought assistance in leaving. then he came back later and charged her with parental abuse and then he charged her later with one thing after another and it was like throwing … it was like throwing wet toilet paper at the ceiling to see what can stick. And. direct attacks and threats continue to be used to resist the battered women’s movement. In a cultural context where the use of violence is condemned. And to see what could stick and now what they’ve come up with is parental alienation and that’s the one that’s sticking now.

the respondent notes the courts’ complicity in facilitating ongoing abuse and control via the child custody determination processes. they tracked me down right? Described where I lived. I’ve had threats from individuals. So there’s that kind of level of threat stuff. abusers. 314     . And he’s seeking custody for all the wrong reasons. and obviously abusers don’t like that. And the most unspeakably cruel tactic is seeking custody for the purpose of punishing her for leaving. Direct attacks and threats were also used against advocates and anti-violence organisations. … There was the guy who was threatening one time … left me phone threats against my family. So that’s a common one you know. So they’ve needed to develop other tactics to maintain what they believe is their right to control their partner. or to try to make her come back. In this example. They believe they are entitled to maintaining control. And so you have all of these cases where the mother has been the primary parent or the father has been abuser to her and often the children also. sort of like physically threatening me in the courthouse. right? Of personal violence against me… and I think about the individuals. For example. And the court isn’t getting it. either from individuals or from other programs or agencies who haven’t liked a sort of stance.are more services and resources and ability to. everything from being in my face. for women to get away. Primarily from abusers. There’s also periodically over the years the threat to contact funders has come up.

Conclusion This paper has provided a brief overview of the tactics of antifeminist backlash as reported by anti-violence advocates. As such. antifeminist backlash is multivalent. scholars need to continue to develop measures of violence that more accurately reflect its 315     . individualisation. Often. by facilitating particular cases. it requires a broad collection of responses which strive to maintain the visibility of the larger patterns in gendered violence as well as maintaining the focus on violence against women in the face of objections to this emphasis from individuals and organisations. and indirectly. these attacks were instigated by individual abusers against an individual or organisation that had provided assistance to the woman or children they were abusing. There are several areas where further research is needed to understand and counter the backlash against the battered women’s movement.Other respondents described attacks related to their jobs. In sum. These tactics crossed levels of social ecology. such as complaints to professional organizations and frivolous lawsuits. The tactics were often contradictory and inconsistent. As many of the interviewees noted. However. changing the subject. a variety of allies assisted the abusers in carrying out the attacks both directly. from intervention in individual cases to the promotion of understandings of violence and abuse that jibe with abusers’ articulated beliefs. and direct attacks and threats. Like sexism and woman abuse. discrediting women/feminists. victim blaming. by legitimating abusers’ claims and catering to their demands. the study participants identified a staggering variety of tactics including: resistance to acting on legal and policy changes.

Contexts such as the family courts. viewed individually. Additional research is also required to investigate the outcomes of antifeminist backlash.realities. However. practices. As the Australian experience with family law reform and its evaluation shows. Careful attention to the interaction of justice and other systems are of central importance to ongoing work to prevent and intervene in violence against women. attitudes. (1983: 4). but are systematically related to each other in such a way as to catch one between and among them and restrict or penalize motion in any direction. As Marilyn Frye argued. and structures. Many were developed in the 1960s and 1970s and are inadequate to identify much less assess contemporary manifestations of inequalityperpetuating beliefs. which are so key to abused women’s safety. The respondents’ accounts reveal the interlocking dynamics of oppression of abused women that. this is one area in which the demand for future research is heightened due to ongoing effects on entire families. They also need better measures of the social context of persistent inequality that continues to promote violence and abuse. have barely been investigated in the United States. Existing measures of social inequality are extremely crude and narrow. By definition. it is equally important 316     . criminologists focus on formal and informal justice systems. do not tell the whole story. Abused women’s experiences might be understood in a similar fashion. The experience of oppressed people is that the living of one’s life is confined and shaped by forces and barriers which are not accidental or occasional and hence unavoidable.

Volcano. New York: Crown. Violence Against Women 5(11): 1238-1257. Feminist Criminology 1(1): 6-26.). INCITE (2003) Critical Resistance-INCITE! Statement on gender violence and the prisonindustrial complex.org/article. economics. from http://sisyphe. and the new racism. Politics of reality: Essays in feminist theory (pp. Faludi S (1991) Backlash: The undeclared war against American women. CA: Volcano Press. Feminist Criminology 3(2): 121-144. gender.php3?id_article=1689 Dragiewicz M (2008) Patriarchy reasserted: Fathers’ rights and anti-VAWA activism. New York. References Chesney-Lind M (2006) Patriarchy.to attend to the interplay of media. crime. and culture if we want to end violence and abuse. Frye M (1983) Oppression. CA: Crossing Press. and justice in an era of backlash. 1-16). Retrieved January 7. Collins P H (2004) Black sexual politics: African Americans. academia. DeKeseredy W S (1999) Tactics of the antifeminist backlash against Canadian national woman abuse surveys. Martin D (1981) Battered wives (2nd ed. DeKeseredy W S and Schwartz M D (2005) Backlash and whiplash: A critique of Statistics Canada’s 1999 General Social Survey on Victimization. 2008. Freedom. Social Justice 30(3): 141-151. 317     . NY: Routledge.

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Policing interactions with LGBT young people serves the purpose of visibly yet unverifiably (Mason. like violence is itself a bodily spectacle from which onlookers come to know things. Queensland University of Technology.edu.dwyer@qut. Brisbane. Aligning with the work of sexualities academics and theorists. Police actions recounted by LGBT young people suggest the workings of a certain kind of visuality (Mason. regulate. and punish public visibilities of sexual and gender diversity. 2002) and evidenced more subtle actions that sought to constrain. Queensland. The paper concludes noting how police actions are nonetheless visible and therefore make knowable to the public the importance of keeping same sex intimacy invisible in public spaces. Australia Email: ae. 4001. I argue policing practices work to constrain public visibilities of sexual and gender diversity in public spaces.‘Just Stupid Drama Queens’: How Police Constrain.au Conference sub-theme: Sex. and Punish the Public Visibilities of Sexual/Gender Diversity as Out of Place Angela Dwyer School of Justice. this paper suggests that. 319     . 2002) regulating displays of sexual and gender diversity in public spaces. Australia 2 George Street. Regulate. Gender and Justice Abstract Using interview data on LGBT young peoples’ policing experiences. policing works to subtly constrain public visibilities of “queerness”.

yet this data tells us nothing about the actual intentions of police. I examine these issues in relation to notions of how LGBT young people represent bodies out of place and how. This quote from a young gay male demonstrates the complexity in which LGBT youth-police relations unfold. I suggest police actions may have served another. more subtle form of disciplinary correction for LGBT young people’s behaviour as a ‘[v]isible yet unverifiable means of correction’ (Mason. Young participants perceived their interactions with police to be unfair. constraint. LGBT (lesbian gay bisexual transgender)... gender diversity.. gay male. regulate. 17).even if they’re not doing anything wrong.other than we’re an eyesore. 2009: 39) 320     . I argue Quintin is elaborating on what he perceives to be sexuality and gender diversity being subject to constraint. discipline... It is not obvious to Quintin exactly what it is that makes him uneasy about police. performativity Introduction A lot of them are gay or bi expressing themselves. 2002: 20). It’s just if we don’t fit in to what the general population is tending to look like.they’re singled out and sort of picked on by police. subsequently. police may be seen to be ‘punishing or constraining the public visibility’ (Tomsen. public spaces.Keywords: Visibility.it could be because we’ve got some sort of outrageous colourful outfit on. embodiment.. regulation.. we tend to be looked at and sort of not always picked on but sometimes that has been exactly the case but generally just watched really closely more than someone else (Quintin. heteronormativity. punishment. bullied and sometimes run out of the city for no valid reason whatsoever... they’re approached. but he knows he and his other gay peers visibly attract their attention in public spaces. and punishment by police actions. sexualities.

heteronormativity (Jackson. 2001).of these young bodies. and performativity (Austin. I am interested in showing. and their specific interactions with police in public spaces. 2007. Bodies are inscribed (Foucault. of policing. mostly at an LGBT youth support service during drop-in times (12. 1999). Situated in this framework. 2003). four days per week. 2004). in turn. I attempt to move away from causation explanations that individuate and blame young people for their police interactions. 1977). place (Dalton. 1984. Australia. Poststructural Framework: A Focus on Visible. Queensland. discipline (Foucault. Moran and Skeggs.30pm to 4. in contrast that LGBT young peoples’ accounts of policing elaborate versions of being in public space that are sanctioned in specific contexts ‘and. Participants were questioned about their knowledge and perceptions of police. in this instance. Conceptualising their interactions in this way enables an understanding of how the general public come to know about the appropriateness (or not) of making a spectacle of same sex intimacy in public spaces (Mason. In applying the framework above to this data. 1979). enable such situations to even begin to say something about the object’ (Mason. I examine qualitative data from 35 interviews with LGBT young people aged 12-25 in Brisbane. This enables an understanding of how 321     . This may seamlessly “correct” the public embodiment of queerness among LGBT young people who are subtly encouraged to regulate their behaviour in line with these expectations. from approximately October 2008 to April 2009). 1984) by discourses of queerness that mark the body as a text of discursive knowledge informing ‘the very matter of [the] body’s material constitution’ (Kirby. 1997).30pm. 2001: 32). visibility (Skeggs. Kirby. 1997: 3). Non-heteronormative Embodiment This research was underpinned by poststructural assumptions about the concepts of the body (Foucault.

then. 2004: 10). a person’s conduct may be situated as nonheteronormative and/or non-heterogendered and therefore improper. both in terms of not being heterosexual and being in public places. who should occupy space and who should not’ (Moran and Skeggs. They represent ‘ungovernable’ (Dalton. 1975) manner.the body can be done (Butler. the expectation that a person is and acts either male or female. separates and distributes. By constraint. breaching boundary of properly heterosexual spaces that ‘divides. 1990) in ways that perform a discourse of non-heteronormative (Jackson. 1996: 210) exemplifying how not to do heterosexuality in public spaces. This includes language which functions in a distinctly performative (Austin. LGBT young people represent bodies out of place... with talk understood as “performing an action” (Austin. is impermeable. stable and fixed’ (Moran and Skeggs. In doing non-heteronormative embodiment. 2004: 7). 2004: 7).[and] has clarity. Reading bodies in this way implies a certain visibility and questions of ‘what should be visible and what should not. 2003) queerness and that may be read as discursive texts by police. 1975) by way of ‘speech acts’ that literally perform the act of which they speak. LGBT young people are seen as ‘the subject-to-be-looked-at’ (Young. Nonheteronormative embodiment here also implies those that fail to align with heterogender (Pringle 2000) – that is. 2007: 385) bodies in need of regulation. Constraining the Public Visibilities of Bodies Out of Place Police appear to constrain public visibility of LGBT young people as bodies out of place in public spaces as their bodies fail to align with heteronormative and heterogendered normality. I am referring to Foucault’s (1977: 11) elaboration of constraint in terms of 322     . visibility is about place – ‘recognition of being in and out of place that invariably invokes regimes of placement’ (Moran and Skeggs. Most importantly.

gay male. Police detected gender diverse embodiment and sometimes moved out of these spaces to avoid them: When I was in drag yes. gay male. with comments focusing on feelings.. Alex (male to female transgender. 18).. These forms of constraint were attached to how their bodies made their gender or sexuality visible in ways that transgressed heteronormative expectations: ‘if I’m not looking really gay they’ll be a lot nicer’ (Nikolas.. We had that incident they [police] came and at first they were saying the other people were at fault. 2004).. 1990) gender in ways that fell out of place in heteronormative and heterogendered public spaces. The actions were sending them a message about how they were doing (Butler.they just wanted to get away from me (Alexis. obligations and prohibitions’. 25) suggests being out of place in terms of gender diversity is ‘a power thing you’re giving up your right being male and dominant’.. but these actions were nonetheless perceived by LGBT young people as constraining. we’re all kinda tomboys. that I wanted her next to me because I was bleeding.it trips them out.I think as soon as they realised that’s the 323     . Constraint was subtle and was grounded in being out of place (Moran and Skeggs. weird looks – almost undetectable limitations and moderations of their behaviour. Physical constraint was less common.. 19). and then I was saying my girlfriend. We all have short hair my group and we don’t dress in dresses.discipline as ‘a system of constraints and privations. ‘It’s not that much of a problem for me considering I look like a chick and they just call me a slut’: Constraining Gender Diversity in Public Spaces Police actions appeared to constrain gender diversity in a range of subtle ways.

and it was just like “Yeah I’m a 14 year old kid with shaved head” (Tayden. albeit subtly.then that officer that kept on pushing those matter was 324     .. they kinda switched. This makes known to LGBT young people that gender diversity situates them out of place in a heterogendered space.I didn’t really get treated that well cause they were like. Visibility and surveillance are central to how subtle assumptions like these act as forms of constraint. 21)... Police appear to have decided these young people are a problem and have subsequently sought to constrain.their attitude towards us and started to be quite negative and starting to blame us for the incident itself (Kimi. This could be problematic for LGBT young people when police have expectations about how the young person’s conduct was visibly at odds with their embodiment of gender: I’m a pretty butch girl so I’ve never had any really good relationships with police. the gender diversity of these participants. and they were out of place.way it was. Although far removed from targeted abuse of LGBT people in history (Tomsen 2009). lesbian female. police actions made it clear to LGBT young people that their physical presence was not appreciated in heterosexual public places..just doing routine checks on shit. “Ah you should stand up for yourself you’re butch ha ha”.... How this gender diversity is perceived by police seems to inform how LGBT youth-police interactions unfold: I was assumed to have been a guy and was treated as a male at first until they saw my ID so I was treated pretty badly and I hadn’t done anything.. 19). pansexual.

The outcomes though remain the same – LGBT young people perceive police actions as showing them that gender diversity ought to be out of public spaces. they’re still at that younger stage where they find it necessary to write the word lesbian on 325     .informed that I’m a chick and then totally stopped and changed the way he spoke to me (Xavier. or hugging between same sex couples visibly drew the attention of police as out of place in public space. 25). Alex notes this could be as subtle as a look from police: ‘I don’t know it’s just very different. Young peoples’ accounts in this study did demonstrate more overt examples of nonheteronormative behaviour being constrained by police. same sex intimacy was constrained consistently by police. just enough to make it clear to this young person they are out of place and to invoke self-governance measures to not appear so outwardly “gay”. It’s not allowed in Queen Street’: Constraining Sexualities in Public Spaces According to LGBT young people. male to female transgender. Holding hands. 22). 2002) this in ways attracting police attention: Some of the younger dykes out there that are like 15 16. ‘“Public affection” or something like that. gender diversity produced constraining and productive outcomes for Xavier. kissing. I’ve been with my boyfriend with police around but just because we’re pretty normal looking people. They kinda just give you a weird look and look the other way’ (Alex. These ‘weird’ looks act as a subtle form of constraint. Some young people acknowledged police may react to how LGBT young people are “out and proud” and can flaunt (Mason. female to male transgender. In this instance.

it’s not socially acceptable to do a lot of things out in public like kissing. 22) stated. Xavier (female to male transgender. When asked if police had ever used this language in interactions with LGBT young people.. Homophobic pejoratives were not commonly used. LGBT young people in this study described other forms of constraint involving language. 2011: 208).some of them cop it a fair bit. ‘Oh yeah “you fucking faggot I’ll fuck you like a bitch that you are”’. A lot of young LGBT people are scared of police as well because I guess with our culture. these views align with those expressed about the Sydney Gay and Lesbian Mardi Gras (Waitt and Stapel.everything they own and shit like that. ‘Well we don’t run around writing heterosexual on all of our stuff. I think there’s a bit of a street mentality where people are like. 19). a view that Ticket suggests the police would share. hugging. Why do you have to wave it in our face’? (Ticket. and I think especially a lot of young ones just like to push their buttons (Tayden. pansexual. Other young participants noted how these forms of language served to constrain not only the 326     . Even if this is how these young people are perceived. where visible displays of ‘raunchy’ intimacy ought not be made public by the Mardi Gras event. Police regulate the boundaries (Moran and Skeggs. the young person recognised the words were spoken as an act of constraint. Interestingly. lesbian female. 19). Displays of raunchy same sex desire are unruly (Dalton 2007) and clearly out of place. they continue to have the right to congregate in public space and recreate with other young people. 2004) of “waving it in your face”. with individual officers imbued with the power to decide who has and has not transgressed this boundary. yet when they were used by police..

he expects he will always be the subject of homophobic language from police and the public: You’re going to get that from everyone if you hold hands. he’s walks.. but also those who witnessed the exchange: One of my friends was pulled over once and he’s the biggest queen you’ll ever meet. if you kiss in public. These are the material effects of homophobic language for LGBT young people. the police had pulled him over just for a routine breath check.. As Pinky reflects on the situation above. 18). I’ve been in trouble. yet he does not.. talks like a stereotypical gay guy and he was pulled over. 18). you’re going to get whispers you’re going to get people calling out ‘faggots’ or ‘dykes’ (Pinky. He was breathalysed. doing their job. Pinky recognises that doing same sex intimacy in public spaces in any form makes nonheteronormative sexualities visible (Skeggs 1999) in ways that situate them as out of place 327     . Homophobic language had its desired effect – it has acted (Austin 1975) in ways that lead Pinky to constrain his behaviour for fear of potential further trouble from police. gay male. Pinky knows the situation above is unfair and feels he should say something. sounds. I was in the car at the time.I said nothing because they’re the police and I don’t want to get into trouble.. gay male. just put your arm around their shoulder. He said “Is everything alright officer?” and he said “Oh shut up you stupid faggot”. don’t want to more (Pinky. you’re going to get looks.he’s got the pitched voice.behaviours of those on the receiving end of the comments.

They’re always pulling up if a guy lays on another guy or if a girl lays on another girl. This interaction highlights that. 2004). they’re pulling it up pretty fast but like if I laid on a guy. they wouldn’t overly worry about it too quickly (Sarah. 328     . 17). More importantly. While Sarah is technically out of place as a male to female transgender young person.(Moran and Skeggs. almost invisible’ (Waitt and Stapel. LGBT young people noted police actions similarly worked as a means of correcting same sex intimacy in public spaces. Police appear to use this benchmark to “measure” behaviours of LGBT young people in public spaces. 2011: 209) queerness. while the imperative to hide diverse sexuality has fallen away somewhat in contemporary times. it is clear that one off remarks like these align with what Mason (2002: 20) calls a ‘[v]isible yet unverifiable means of correction’ – they correct same sex intimate behaviours in public spaces by excluding them from these spaces. the common expectation to do this ‘continues to serve as the favoured benchmark against which all representations of homosexuality are measured’ (Mason 2001: 24). male to female transgender. she identifies as a female with a boyfriend and passes successfully as heterosexual and heterogendered – and in place. that is ‘non-threatening. It is expected they will adhere to unspoken homonormative ideals (Bell and Binnie 2004) about not “flaunting” their sexuality in public spaces.

. but this is the only case of this happening in this study. to the 329     . For example.she’s still male but she wears a wig and dresses up and the cops ripped her wig off in public once to taunt her’ (John..... one participant recounted a situation where a police officer physically acted on the body of a young transgender female: ‘One of my friends Holly who is a transgender person.she’s transgender. 18).. ‘Once you wear the uniform. gay male. More common was the use of language to regulate transgender bodies for being out of place in public space: One person. police actions shifted towards regulation in two ways: through homophobic language. Police actions demonstrate to Pinky. in the process of becoming a woman. 2009:42). police used language to regulate bodies falling out of place in how they were visibly non-heteronormative. leave the other shit at home’: Language as Regulation According to LGBT young peoples’ accounts. was asked to show her ID.. It was pretty obvious she looks like a girl (Pinky. This was particularly the case for transgender young people. and applying formal legal sanctions.disciplined for their gender non-conformity’ (Tomsen. This situation clearly exemplifies police acting on a young gender diverse body because this body does not match with heterogendered (Pringle 2008) expectations. These words appear no less effective than physical actions – they produce the same result: they regulate transgender visibility in public spaces as ‘soft targets. and it came up male.stop lying to us”.. gay male.‘A Bit over the Top’: Regulating the Public Visibilities of Bodies out of Place While informal regulation and formal punishment were less common than constraint.and they were saying “But you’re a fucking male. 18)...

‘I see you live with a bunch of lesbians’: Police Use of Legislative Punishment Police also formally punished public visibilities of this group via authorised legislative forms of punishment. took us back to the cop shop and gave us each a $100 fine.. At least one LGBT young person..transgender young male involved. Individual officers have here interpreted the legislation broadly (in terms of public offence) and issue fines as punishment for visibilising their non-heteronormative intimacies in public spaces.. Although it is clearly unfair that police issue fines to boys who are “making out” with boys. and to onlookers that these bodies are out of place and in breach of legislative frameworks. 330     . We weren’t drunk going over to the train station.We were holding hands through Queen Street and the police pulled us over and like “You’ve been drinking haven’t you? Where have you been drinking?” and I’m like “Fat Louis’” and they’re like “Oh don’t lie to us”.drinking in public (Nikolas. concluded police actions were based on displaying same sex intimacy in public places: I was walking through Queen Street with one of my friends and we were coming from Fat Louis’. gay male. elements of situations recounted suggested this may be an issue. 18). They are the subject-to-be-looked-at. Even though there were times when young participants were unsure if it was their sexuality that police responded to. We’d had a few drinks. and are ill-disciplined in this defiance. however. seen to be defying heteronormative boundaries.. it is not breaching the boundaries of the legislation.

and we were driving past him..... Police actions in these examples again constrain not only the behaviours of those who police initially interacted with – their actions equally correct LGBT behaviours on a broader..’cause he knew he couldn’t give me a fine just for telling him he was hot (Mac..and I couldn’t say anything cause I wasn’t sober and underage. gay male. If I had of been some big breasted blonde bimbo. I got in trouble for public nuisance because I had no clothes on.00 fine for telling a copper they looked hot in their uniform.. the way he charged me was he said I had my body parts out the window. lesbian female. Jimmy Von D has come to know about how same sex intimacy can be out of place. but kissing in public. he probably would have let me off the fine. Onlooking LGBT people know they need to regulate how they behave in public so as to avoid attracting similar police 331     . Like Pinky. this male cop. 19).. 16).I got a $125.but ‘cause he was a straight male copper that was insulting to him.and you get in trouble for interfering (Jimmy Von D. more publicly visible scale.. that is understandable.just for kissing in public.‘cause I was in a car when I said it.. and if they keep doing it they’re going to handcuff them and take them away.. it’s fucking ridiculous.. and how it may be problematic to respond to this even if she knows it is unfair of police to regulate these activities. The cops came up to them and started harassing them pulling them apart and saying they were causing a nuisance to the public..so he wrote the fine out under that and they had me in the interview room and he told me that he was giving me the fine because that offended him ..

for ‘making out at a train station’ with his male partner: ‘The coppers came along and fined us actually. But some are strict on kissing in public. I got charged again. yet his only means of recourse is to not pay the fine: ‘haven’t paid it. Would you like me to go do it in a hole?”’. some examples demonstrated how legislative frameworks.. was twice detected and fined by police: first. make visible to No Name that displaying same sex intimacy in public places deserves to be punished. which are ‘never unambiguously and precisely written’ (Chan et al. bisexual male. 2007: 398).. 2004: 73). Police actions discursively mark these bodies and same sex intimacies in public spaces as deviant... some of them can be better than others. afforded police opportunities to use discretionary powers in ways that would otherwise constitute a breach of basic human rights: The cops.attention. and second for ‘making out’ in a shopping centre with his male partner ‘at like 9 at night on a late night. The use of punishment by police was not always so subtle or ambiguous in terms of enacting non-heteronormative sexualities and/or genders. I’ve seen a couple of people actually ticketed for being in the street kissing. in turn.. Alexis 332     . Indeed..it was just making out with a guy that you like in public – Jesus Christ not guilty’... Alexis is well aware these police actions fall outside the boundaries of sanctioned police discretionary powers.. The police act to regulate this unruly desire and. 19)..I’m like “This is not cool.. Another gay male participant Alexis (gay male... The two guys in this instance constitute ‘the existence of an unruly desire that is both out of place (by virtue of being public) and ungovernable’ (Dalton. rendering them ‘criminal subjects’ (Dalton.public nuisance or disturbance.this is public offence or some crap.fined for public disturbance’. 19). 2007: 385). two guys (No Name.

or (iii) a threatening way. or enjoyment of. or (iv) a violent way. and punishment.resists the punishment police give him. Police assume public space is a pure. 333     . unwelcome and that any member of that community could be the next victim’. and (b) the person’s behaviour interferes. with the peaceful passage through. The accounts presented. This Act includes the offence of public nuisance106 and behaving ‘in an offensive way’ which police interpret here as inclusive of same sex intimacy in public spaces. regulation.5. a public place by a member of the public.                                                                                                                         106 (2) A person commits a public nuisance offence if— (a) the person behaves in— (i) a disorderly way. Particularly problematic in these examples was how. These examples demonstrate the application of the Summary Offences Act Qld (2005. and this captures succinctly the dynamics of how this happens with LGBT young people. Dalton (2007: 380) makes a similar argument about beat spaces where historically ‘the logic of gay sexuality as diseased played out in police interactions with men encountered at beats’. a move which unfortunately serves to criminalise him further. according to Hall (2005: 69). or is likely to interfere. s. ‘Under Their Breath’: Concluding Thoughts ‘Under their breath’ was how Pearl (male to female transgender. just as police officers ‘assumed entitlement to gaze upon semi-naked bodies’ of lesbians in Lamble’s (2009: 120) work. so too did officers in this study assume entitlement to intervene in expressions of same sex intimacy in public spaces.6). 19) described the subtleties of police constraint. unclean use of this space. moral space in which same sex affection constitutes improper. may be reminiscent of hate crime where this acts as ‘a message crime’ – it conveys a strong message to the general public about a particular person or group is ‘different. or (ii) an offensive way.

and punishment. Bargen J Luke G and Clancey G (2004) Regulating police discretion: An assessment of the impact of the NSW Young Offenders Act 1997. London: Penguin. London: Penguin. In: P. regulation. Rabinow (ed) The Foucault reader (pp. The key issue warranting further consideration is how we have moved beyond this in a shifting contemporary landscape of subtle forms of hate crime. Foucault M (1977) Discipline and punish: The birth of the prison. Devon: Willan. Hall N (2005) Hate crime. yet still highlight the importance of regulating bodies failing to align with heternormative genders and sexualities. 334     . Urban Studies 41(9): 1807-1820. or witnesses of. Law Critique 18: 375-405. Chan J. and constraint. genealogy. Criminal Law Journal 28(2): 74-92. Foucault M (1984) Nietzsche. Bell D and Binnie J (2004) Authenticating queer space: citizenship. urbanism and governance. Police practices subtly constrain and govern young LGBT bodies in ways that blend into the fabric of public spaces.While the data here may not resemble hate crime in that we know nothing of police intentions. police actions. Dalton D (2007) Policing outlawed desire: ‘homocriminality’ in beat spaces in Australia. References Austin J L (1975) How to do things with words. Oxford: Oxford University Press. 76-100). history. it nonetheless produces material effects for LGBT young people who are subject to.

prejudice and sexuality. Weeks.gov. Holland and M.qld. 335     . 69-83). 2005. Cambridge: Polity. Leisure Studies 30(2): 197-216.Jackson S (2003) Sexuality. In: J. violence and safety. Mason G (2002) The Spectacle of Violence: Homophobia. Lamble S (2009) Unknowable bodies.pdf Tomsen S (2009) Violence. Waites (eds) Sexualities and Society: A Reader (pp. London: Routledge.au/LEGISLTN/CURRENT/S/SumOffA05. Skeggs B (1999) Matter out of place: visibility and sexualities in leisure spaces. Moran L and Skeggs B (2004) Sexuality and the politics of violence and safety. Accessed July 30. London: Routledge. Social & Legal Studies 10(1): 23-44. British Journal of Management 19: s110-s119. Summary Offences Act Qld. New York: Routledge. Kirby V (1997) Telling Flesh: The Substance of the Corporeal.legislation. Pringle J (2008) Gender in management: theorizing gender as heterogender. Waitt G and Stapel C (2011) ‘Fornicating on floats’? The cultural politics of the Sydney Mardi Gras Parade beyond the metropolis. unthinkable sexualities: lesbian and transgender legal invisibility in the Toronto women’s bathhouse raid. gender and knowledge. Mason G (2001) Body maps: envisaging homophobia. heterosexuality and gender hierarchy: some reflections on recent debates. J. New York: Routledge. Social Legal Studies 18(1): 111-180. 2011 http://www. Leisure Studies 18(3): 213-232.

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edu. a social and structural precursor to gendered violence. disbelief and denial. b. Introduction This article analyses the pervasive patterning of interpersonal and institutional relations whereby women’s accounts of their own experiences are silenced and/or re-narrated in a sociocultural context that privileges the masculine subject position over the feminine subject position. Invalidation is embedded within interpersonal and institutionalised arrangements and interactions.au Conference sub-theme: Sex. Invalidation serves to inscribe gender relations upon the bodies of women through the mental and physical health deficits of the gendered violence that it enables and facilitates. It is a constitute element of gendered violence as well as a socio-political condition that enables gendered violence. Gender and Justice Abstract This article proposes that invalidation is a pervasive manifestation of gender relations as they are expressed through strategies of minimisation. University of Western Sydney Email: michael. as well as through the denial of testimonial legitimacy and the consequent withholding of resources. support and services. Drawing on the work of psychologist Linehan (1993).Invalidation and gendered violence across the lifespan Michael Salter Lecturer in criminology. a subjective dimension of the experience of gendered violence. this paper identifies this pattern as ‘invalidation’ and shows how invalidation is: a.salter@uws. 337     .

as systemic failures to detect or intervene in gendered violence. trivialised or negated. that her desire to meet basic needs for care and support are selfish. and a significant source of psychological harm to victimised girls and women. gendered violence and the experiences of victims and survivors. results in multiple quality of life deficits and psychosocial challenges. or provide adequate care and support to victims. this paper posits invalidation as a common experience amongst girls and women that is politically and socially located and fundamental to the maintenance and perpetuation of gendered inequity. and that 338     . In particular. d.c. The concept of invalidation draws attention to the ways that gendered inequity can be inscribed upon the bodies of victimised girls and women through abuse and violence. In an invalidating environment. Through a synthesis of psychological research with sociological and feminist theory. beliefs or emotions) is systematically punished. She defined an invalidating environment as one in which expression of private experience (such as thoughts. a feature of institutionalised and community responses to gendered violence. Linehan (1993) has proposed that this relationship can be explained by the ‘invalidating’ childhood environments described by many sexually abused women. a strategy utilised by perpetrators of gendered violence. the child learns that her thoughts and feelings are of limited value. e. Invalidation It is well recognised that women with a history of child sexual abuse are more vulnerable to a range of mental health problems as well as psychosocial issues such as substance abuse. the analysis focuses on how the various forms of invalidation coalesce and intensify around female victims of gendered violence in ways that compromise their health and safety and their capacity to exercise citizenship. selfharm and suicidal ideation. These multiple manifestations of invalidation are well documented in feminist literature on masculine domination.

As her needs escalate as a result of her abuse. acknowledge and manage the affective dimensions of her experience. in and of itself. or what she finds inexpressible may manifest through psychosomatic symptoms. emotions and experiences. Not only does the act of sexual abuse involve the denial of the child’s own needs and the imposition of the needs of another upon her. In contrast. child sexual abuse intensifies the patterns of invalidation that are already embedded in the environment of the girl child. she may attempt to express and regulate her emotions in problematic ways such as through self-harm. Her work suggests that being over-ridden. Lacking other methods. and devaluing her own opinions.negative experiences (such as pain. This process has been linked to the development of personality disorders (Linehan 1993). but the very fact that sexual abuse usually goes unnoticed by others is. A child raised in a validating environment is supported to recognise and predict the ways in which particular environments give rise to particular emotions. profoundly invalidating to the victim. the inability or unwillingness of caregivers to recognise and address those needs reinforces the silencing and devaluing dimensions of sexual abuse. child sexual abuse is both the paradigmatic example of sexism and the prototypical experience of invalidation. 339     . Linehan (1993) noted that some families constitute particularly invalidating social environments however she highlighted how invalidation occurs primarily to girls and women. In effect. modulate or regulate her emotions. a child raised in an invalidating environment does not develop the skills to identify. or to recognise and communicate when she is in need or distress. In Linehan’s (1993: 52) view. anger or frustration) are the product of unacceptable personality traits. undermined and enduring the imposition of others views is a common and pervasive experience amongst girls and women in Western culture and she linked this experience directly to gendered inequality. resulting in a lack of emotional competency as the child grows to adulthood struggling to identify.

The psychologising of women’s responses to abuse and violence has tended to affirm the predominant characterisation of women in psychology. Feminist clinicians and theorists have contested the ways in which the problems that women experience in the aftermath of abuse and violence have been pathologised within the ‘psy’ discourses (Burman 1990. as Linehan (1993) proposes. alcohol and drug abuse (Rosenthal. then invalidation is a common and indeed pervasive feature of the social order and not solely an aetiological factor in the childhoods of some mentally ill women. the multiple 340     . in society in general’ can be read as a description of the systematic quality of invalidation. comes into play in many fields: in law. lacking in a strong conscience or super ego’ and weaker in comparison to men. recognition of the clustering of problems in the lives of some women with histories of abuse and trauma does not require a medicalised. since it is the pervasive devaluation of the accounts and testimony of girls and women that serves as the primary basis for invalidation. Scutt’s (1997: xi) observation that ‘[w]omen’s credibility. whilst feminist theory highlights the social and political dimensions of invalidation. emotionally unstable. domestic life. Lynch & Linehan 2005) and acute psychological distress (Krause. Meyer & Waller 2008). The empirical literature points to the psychological harms and health effects of invalidation. economics. eating disorders (Haslam. pathologising model. the persistent disruption of girl’s and women’s efforts to conceptualise and articulate personal experience. Mountford. medicine. and the imposition of more authoritative views upon them. or purported lack of it. public life. Herman 1992. Ussher and Nicolson 1992). Mendelson & Lynch 2003).depression (Jack and Dill 1992). If invalidation describes. described by Weisstein (1993: 8) as ‘inconsistent. in more detail. However. The following sections will combine these two insights to explore.

before concluding with some reflections on the political significance of invalidation more generally. semiotic (Irigaray 1985a) and social (Connell 1987) order. 1995) and theorists affiliated with critical masculinity theory (e. Kimmel. The work of Connell (1987. 341     .g. However. in conditions of masculine domination. feminist and pro-feminist theorists have proposed that gendered violence can be understood as a social practice whereby hegemonic modes of gender relations are enacted.manifestations of invalidation as an expression of masculine domination. and in particular how the harms of invalidation appear to coalesce around female survivors of gendered violence. 2005) has been important in identifying how valued social characteristics are coded as masculine and configured into a ‘hegemonic masculinity’ that is presented in the cultural imaginary in opposition to a subordinated set of ‘emphasised femininities’. The paper will trace the role of invalidation as an inherent property of gendered violence. The Role of Invalidation in Gendered Violence Messerschmidt (1993) documented how criminology has traditionally viewed violence as a male biological imperative. The primacy of the masculine subject position over the feminine subject position has been identified as a fundamental principle of the Western political (Pateman 1988). Common forms of gendered violence such as domestic violence or sexual abuse have been overlooked or else offenders have been pathologised so that their conduct is understood in terms of individual deviance rather than social or cultural factors. power and domination. Hearn et al. social and institutional manifestations. emphasising its interpersonal. social power is not conferred neatly according to biological sex but nonetheless boys and men are necessarily privileged within material and symbolic arrangements that associate masculinity with control. and the consequent ‘naturalising’ of men’s violence in research on violence and crime. They note that. embodied and reinforced.

The act of gendered violence makes concrete the pervasive (and therefore often implicit and unacknowledged) diminishment of femininity within the cultural imaginary as the victim is forced to occupy the position of (degraded.Masculinity can thus be understood as a culturally idealised state that is realised through the exercise of social power. Critical masculinity theory and affiliated theorists have emphasised how the subjectivity of men is shaped through such acts. but the experience of the victim is also structured according to the cultural logic of gender. even if only momentarily. and many of the impacts of gendered violence upon the survivor can be understood in these terms. Nonetheless. inasmuch as the success of an attempt to claim masculine privilege necessarily rests on eliciting deference or enforcing subordination (Schrock and Schwalbe 2009). as her own thoughts. power and violence. are strategies utilised by men and boys to embody culturally prescribed masculine ideals (Kaufman 1987. This experience is inherently invalidating since the victim’s subjective experience is silenced and then re-narrated according to the script of masculine domination. transcendental) masculine subject imagined by the perpetrator. and the experiences of masculine accomplishment that these behaviours generate. needs and wants are eclipsed. This approach has been productively applied to the study of violence and crime by researchers and theorists who argue that displays of transgression. Gendered violence is necessarily a dyadic performance in that the production of a sense of masculine accomplishment for the perpetrator requires a woman or child (or occasionally another man) to be forced to occupy the role of subordinate feminine object to the dominating masculine subject. Cossins 2000). as the perpetrator enforces her participation within a 342     . the symbolic and experiential qualities of such masculinity acts are not distinct from their interactional effects. Messerschmidt 1999. coercion and risk-taking. corporeal) feminine object to the (dominant.

In turn. Kernsmith 2005) and through the survivors’ subsequent pursuit of justice.g. Horrocks et al. Petruckevitch et al. Profitt 2000. the conditions for a robust counter-response to the invalidating qualities of gendered violence are often absent. survivors of gendered violence can and do contest the legitimacy of this imposition and reassert their capacity for self-determination.g. 2001). for many girls and women. wellbeing and acknowledgement of the harms committed against them (e. and 343     . and much of the energy of feminist movement has come from victims and survivors of sexual abuse. 2005). sexual assault and domestic violence. Jordan 2008). Many adult victims of gendered violence report a history of abuse dating back to childhood (Coid. Davidson and McNamara 1999. the absence of effective policing and justice mechanisms to detect and intervene in gendered violence. Gendered violence is most frequently a relational and repetitious phenomenon that exposes children and women to abuse and coercion over an extended period of time. However. It is often the case that victimised women’s contact with health and justice agencies ‘triggers’ the psychological symptoms of trauma and distress that have their origins in gendered violence due to the experiential similarities between gendered violence and their subsequent encounters with these agencies. Social institutions and arrangements are not only unresponsive to the needs of survivors of gendered violence but they may forcefully reproduce patterns of silencing and invalidation (Kelly and Radford 1990. Lavis.production of gendered power. This is a cycle of abuse and revictimisation made possible by the lack of familial or community support for the victim. Ullman and Knight 1993. The following sections will consider how this experiential link is produced by the relations of power that structure gendered violence as well as health and justice agency responses. Victim resistance is evident during acts of gendered violence (e. and the failure of many health and welfare services to provide adequate support to victims and survivors.

identity and needs but the repetitious nature of gendered violence constitutes a system of interpellation that can disrupt the maintenance of an 344     . and its enforcement through coercion and abuse. Individuals acquire their identity within social conditions that are implicitly structured by ideology and hence in their social practice they come to embody ideological truths and roles. in that it ‘hails’ women and children to recognise themselves in the mirror of masculine domination. or a ‘ritual of ideological recognition’ (Althusser 1971). ideology is not imposed upon an abstract. It is through the effacement of individual subjectivity by the ideological truth of feminine subordination. A way of being and feeling is called forth that is both impersonal and intimate in that interpellation positions the subject in relation to an ideology that is simultaneously externally evident and internally familiar. Gendered violence is just such an interpellation. pre-ideological subject but rather the subject is ‘always-already interpellated’ in that it is ideology that constitutes the subject and forms subjectivity. The victim is necessarily possessed of her own agency.how this relationship compounds and reinforces the invalidation and negation of women’s self-hood. that the perpetrator can craft the corresponding experience of domination through which hegemonic masculinity is (momentarily) validated and lived. According to Althusser. When the individual is addressed or ‘hailed’ in ways that invoke the subject’s position within ideological structures. the subject recognises herself in relation to that structure. Masculine Domination as an Apparatus of Interpellation Althusser (1971) used the term ‘interpellation’ to refer to the ways in which the ideological values that have been internalised by the subject through her relations and interactions with others can be activated by operations of power.

This process is made all the more pervasive when. The effectiveness of this process is amplified by the subtle and pervasive operations of gendered inequity in everyday life. the victim of gendered violence is a child. who for developmental reasons is particularly vulnerable to such an ideological intrusion. Repeated acts of violence ‘hails’ the victim to recognise her subordinate position within the gender order.autonomous and self-affirming sense of selfhood. Hogg et al. Rissel et al. half report coercion occurring prior to the age of 16 (de Visser. women with histories of child sexual abuse are at heightened risk of physical and sexual violence (Messman and Long 1996. Although some researchers have emphasised the interaction between personal and environmental factors in revictimisation (Grauerholz 2000) its political implications have been overlooked. and thus masculine domination begins to intrude from the realm of the material and symbolic (where. Efforts to explain the relationship between child sexual abuse and subsequent revictimisation have focused on the psychological effects of sexual abuse on women’s behaviour and functioning (Johnson. although perfidious. which incessantly confirms and re-activates the logic of masculine domination (Bourdieu 2001). as is often the case. Of the one fifth of Australian women who have been sexually coerced (that is. it can still be contested and disrupted by counterideological formations and practices) into the spaces of the imaginary. As previously mentioned. forced or frightened into unwanted sexual activity). where it seeks to reorder the victim’s relation to herself and delegitimise her lived experience of violence and inequity. Roodman and Clum 2001). whereupon the ways in which she comes to view herself and her relation to others consistently reproduces a subordinate and self-devaluing 345     . 2010). The concept of interpellation has considerable utility in explaining how child sexual abuse appears to insert the victim even more deeply into the ideological apparatus of masculine domination. 2003).

subjectivity and heightens her vulnerability to gendered violence across her lifespan. and it is the invalidating effects of this operation. that accounts for much of the psychological harms of gendered violence for girls and women. since a traumatic experience is one that invalidates self-efficacy and affirms negative selfperceptions. It may be that the insidious invalidation of female experience. Children and women face the dilemma that they are just as agentic as men but ideological apparatuses of interpellation persistently ‘hail’ them to recognise themselves as passive objects to be acted upon by others. When sexual abuse is amongst the earliest and most formative ‘hailings’ through which the individual is called to recognise herself as a subject. then it stands to reason that the invalidating operations of masculine domination will be all the more efficacious in shaping the ways in which the girl child comes to locate herself within the gender order. The subordinate feminine subject position determined by the logic of masculine domination is necessarily toxic to a coherent. Sonnega et al. including but not limited to gendered violence. 346     . whereby their own experiences and needs are overwritten by a culturally pervasive code. Irigaray (1985b) suggests that the concept of the ‘female subject’ is an oxymoron in the prevailing symbolic order in which the ‘feminine’ features perpetually as ‘other’ and never as ‘subject’. autonomous pattern of self-recognition and selfunderstanding. and they are more likely to develop trauma-related illnesses than men in the aftermath of traumatic events (Olff. 1995). and not as subjects. Naso (2008) suggests that invalidation is an inherent component of trauma and has an important role to play in the development of traumatic responses and illness. This is the symbolic order into which they are forcefully inserted by acts of gendered violence. might explain the fact that girls and women have twice the rates of trauma-related mental illnesses than men (Kessler.

2007. Thus invalidating acts can also be understood as masculinity acts. Breslau 2009). In doing so. since such acts operationalise masculine privilege in order to further consolidate the dominance of the perpetrator and to recode the worldview of the victim according to the prerogatives of 347     . and thus alienating her from her own identity and experience. events and relationships’ in order to contest and reshape women’s and children’s experiences of abuse and violence so that ‘his voice and his ‘truth’ seep into women’s and children’s minds and beings in complex and interlocking ways’ (Morris 2009: 417-18). self-determining subjects.Langeland et al. This creates an opportunity for him to impose a reconstruction of the event upon the victim that simultaneously reinforces his sense of masculine prestige whilst minimising the risk of disclosure or complaint. Through strategies of invalidation. since perpetrators of gendered violence capitalise upon the strategic utility of invalidation in the course of their violence. Men and boys are regularly exposed to physical violence but male victimisation typically involves one-off events rather than repeated incidents. and they are rarely subject to sexual violence. the perpetrator attempts to ‘other’ the woman to herself by crafting an image of her that she does not recognise. he draws on ‘the power (traditionally conferred on men) of defining people. Strategies of Invalidation Invalidation is an explicit as well as implicit characteristic of the experience of gendered violence. the attending invalidation and powerlessness is often ameliorated for male victims by the numerous interpellating moments that call them to recognise themselves as authoritative. whereas the contradictory subject-as-object position invoked by gendered violence for girls and women may intensify and became even more deeply embodied through the endless permutations and varieties of gendered inequity. Whilst such victimisation is harmful to men and boys.

support and protection. after a deliberately brutal assault.g. Plumpton et al. ‘there now. didn’t you?’ In the aftermath of gendered violence. It is well documented that the invalidating tactics of perpetrators are reproduced and compounded by the responses encountered by victims in their efforts to seek care. following child sexual abuse. the rapist sent text messages about their ‘great night’. well. Bostock. Schooler et al. Gager and Schurr (1976) stated that the most common utterance of the rapist to the victim is ‘You know you want it. or to the police and criminal justice system (Ullman 2003. ‘[And I thought] oh. Ahrens 2006. A perpetrator may deploy invalidation in an effort to negate the victims’ recollection out of existence. a perpetrator may tell the child that she ‘imagined’ what had taken place (e. I must have misinterpreted him. to health professionals. I must be in the wrong here’ (Clark and Quadara 2010: 33). One participant in a qualitative study of survivors of rape reported that. whilst 348     . In the criminal justice system. For example. whether they report their abuse informally to family and friends. She commented. In crafting their performance of gendered power. Shay 1992).masculine domination. 2009). it is evident that. and such denial may inhibit the encoding of memory for the abusive event (Sivers. invalidation is a common strategy utilised by perpetrators in order to sustain the masculine subject position that they have claimed through violence and to interrupt the victim’s efforts to formulate their own understanding of their victimisation. 2002). You all want it’ and afterward. you really enjoyed it. they seek to contest the validity of the child’s or woman’s experience of victimisation even as it is occurring whilst imputing upon them the role of the willing and/or culpable object of masculine fantasy. Perpetrators actively structure acts of gendered violence according to hegemonic narratives of masculine domination and feminine subordination.

even where an opportunity to testify is available. in accordance with cultural scripts of female enjoyment and complicity in masculine sexual aggression (Smart 1999). and the subsequent overwriting of female experience. Invalidation then compounds the harms of victimization by interrupting the efforts of girls and women to cognise and articulate their experience in ways that support resiliency and resistance. Invalidation operates to signify women and children as suitably disempowered objects for the performance and accomplishment of masculinity and thus renders them vulnerable to gendered violence. communities and systems deploy hegemonic frames and conventions of masculine domination to reconstitute women’s and girls’ accounts of gendered violence in ways that directly undermine and contest women’s and girl’s experience of the event. The patterning of gender relations with strategies of disbelief. they are also re-narrated in ways that conflate rape with romance (Philadelphoff-Puren 2005) and force women to ‘rub up’ against masculine fantasies of flight and seduction (Young 1998). serves to devalue girls’ and womens’ innermost experiences to themselves as well as to others. Conclusion The unity of strategy evident between the invalidating practices of perpetrators of gendered violence and the invalidating responses of communities and social institutions suggests that invalidation has an important role to play in the maintenance of masculine domination.women’s accounts of their own experiences of sexual violence may be silenced through discriminatory and exclusionary practices. as hysterical. Perpetrators as well as families. deceitful and deserving of harm. Accordingly many victims of gendered violence come to see violence as something that they deserve or invite 349     . victims’ testimony may be reinterpreted in ways that hold them responsible for the harms committed against them. minimisation and denial.g. and that call on girls and women to recognise themselves in the terms of feminine subordination e. Hence.

She suggests that the ‘hysterical’ responses of women subject to abuse and maltreatment can be recognised. Ullman 1996) and to question the value of their own thoughts. police and other agencies tasked to respond to gendered violence. and reinterpret their distress as evidence of feminine flaw and deficiency. institutions and systems collectively compromise the health and life outcomes of girls and women and differentially expose them to the harms of gendered violence across the lifespan. as a form of ‘indirect dissent’ that manifests the poorness of fit between women’s agency and notions of idealised femininity. Bronfen (1998) warns against conceptualising symptoms of invalidation and trauma solely as health deficits. However. in part. Prevention and intervention in gendered violence should uphold the rights of survivors to health. but in the aftermath of abuse and violence it can precipitate an overall self-negation that embeds gender inequity through a diminution in mental and physical health. increasing the likelihood of future victimisation and undermining the victims’ sense of independence and autonomy. The distress exhibited by girls and women subject to gendered violence are critical signs of inequity that should not be rendered invisible by ‘treatment’ whilst its sociopolitical antecedents remain unchallenged. communities. This is a perspective that can inform a range of responses from education and prevention strategies through to treatment. By understanding the multiple operations of invalidation. wellbeing and justice whilst recognising the challenges they face as the product of social conditions that systematically expose children and women to abuse and harm. beliefs and opinions. families. as well as the processes of the criminal justice system. Exposure to pervasive invalidation leaves girls and women differentially vulnerable to trauma-related mental illnesses. we can conceptualise the ways in which perpetrators. deny them recourse to natural justice or necessary care.upon themselves (Cascardi and O'Leary 1992. 350     .

Oxford: Polity Press. Melbourne. Violence. self-esteem. and other posttrauma disorders. Bostock J. PTSD. Princeton: Princeton University Press. Research Report No. Burman E (ed. Trauma. Available at: http://www. 18. Plumpton M and Pratt R (2009) Domestic violence against women: understanding social processes and women's experiences. Chicago: University of Chicago Press.au/institute/pubs/resreport18/rr18.gov.) (1990) Feminists and psychological practice. Bourdieu P (2001) Masculine domination. Lenin and philosophy and other essays. and selfblame in battered women. & Abuse 10(3): 198–210. London: Sage. Clark H and Quadara A (2010) Insights into sexual assault perpetration: giving voice to victims/survivors' knowledge. American Journal of Community Psychology 38(3): 263–274. Breslau N (2009) The epidemiology of trauma. Journal of Family Violence 7(4): 249–259. Althusser L (1971) Ideology and ideological state apparatuses. Journal of Community & Applied Social Psychology 19: 95–110. Australian Institute of Family Studies. Cascardi M and O'Leary K D (1992) Depressive symptomatology. Bronfen E (1998) The knotted subject: hysteria and its discontents.aifs.References Ahrens C (2006) Being silenced: the impact of negative social reactions on the disclosure of rape.pdf 351     .

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Governance and Ethics .Social Justice.

schools. This finding is significant                                                                                                                         107 We acknowledge the larger ARC research team’s inspiration for this project. However. hospitals and recreation facilities. 357     .increasingly reliant on non-resident. Governance and Ethics Abstract Until the 1970s mining leases were issued by state governments subject to conditions that companies build or substantially finance local community infrastructure. including housing. transport. fly-in. streets. Townships and communities went hand in hand with mining development. Queensland University of Technology Conference sub-theme: Social Justice. Faculty of Law. Russell Hogg & John Scott UNE. This paper presents the key findings of our survey into the social impacts of this kind of mining development in Qld. Based on the results we argue that the social license to develop new mining projects is strong for projects requiring a 25% or less non-resident workforce. drive-out (FIFO/DIDO) workers who typically work block rosters.Social Justice Impacts of the Resources Boom107 Kerry Carrington School of Justice. fly-out or drive-in. in the past thirty years mining companies have moved progressively to an expeditionary strategy for natural resources extraction . Queensland University of Technology Margaret Pereira School of Justice. reside in work camps adjacent to existing communities and travel large distances from their homes.operating a continuous production cycle of 12 hour shifts . diminishes significantly thereafter and is very weak for projects planning to recruit a non-resident workforce in excess of 75%. Faculty of Law. Kerry Carrington & Alison McIntosh QUT.

reside in work camps adjacent to existing communities and travel large distances from their homes. Based on the results we argue that the social license to develop new mining projects is strong for projects requiring a 25% or less non-resident workforce. Introduction Until the 1970s mining leases were issued by state governments subject to conditions that companies build or substantially finance local community infrastructure. The paper considers the policy implications of this growing social justice issue concluding there is a clear need for national leadership in formulating a national policy framework for guiding socially responsible and sustainable mining development into the next millennium. streets. The paper considers the policy implications of this growing social justice issue concluding there is a clear need for national 358     . transport. fly-out or drive-in. fly-in. diminishes significantly thereafter and is very weak for projects planning to recruit a non-resident workforce in excess of 75%. Townships and communities went hand in hand with mining development.operating a continuous production cycle of 12 hour shifts . and many it appears are planning to hire significant proportions of non-resident workers. This finding is significant because there are at least 67 new mining projects worth around $50 billion undergoing social impact assessment in Queensland.because there are at least 67 new mining projects undergoing social impact assessment in Queensland. However. schools.increasingly reliant on non-resident. drive-out (FIFO/DIDO) workers who typically work block rosters. hospitals and recreation facilities (Houghton. and many it appears are planning to hire significant proportions of non-resident workers. 1983). This paper presents the key findings of our survey into the social impacts of this kind of mining development in Queensland. including housing. in the past thirty years mining companies have moved progressively to an expeditionary strategy for natural resources extraction .

html) 359     . Human Service Agencies. management. local communities and small businesses are disadvantaged in not being able to afford consultants to conduct social impact research. print and radio advertising. Emerald. Blackwater. FIFO Families and Mining Family Matters). population change and community and social relationships that are likely to occur as a direct or indirect result of a development project  develop strategies for mitigation. Respondents were recruited through on-line. Dysart. industry and local business and community by conducting an independent non-industry funded survey of the social impacts of mining development. These guidelines require robust research. Compared to mining and resource companies. The on-line Social Impact of Mining Survey was completed by 559 eligible respondents residing or working in Queensland mining towns and regions.leadership in formulating a national policy framework for guiding sustainable mining development into the next millennium. Moranbah and Moura) which services most of Queensland’s coal mining and resources sector development. mining community organisations (Mining Communities United. government.gov. monitoring.qld.’ (www.dip.                                                                                                                         108 Social Impact Guidelines are designed to:  ‘collect and analyse information about key social and cultural issues. Shire Councils and Chambers of Commerce) and contacts randomly selected from community directories. and review.au/coordinator-general-projects/social-impact-assessment. The vast majority of survey responses came from localities in the Bowen Basin Region (Collinsville. Social Impact of Mining Survey: Summary of Results In September 2010 the Queensland Government introduced new social impact guidelines as part of an Environmental Impact Assessment process for assessing new mining and resource extraction projects108. civic institutions (such as Local Government. The aim of our research was to create a more level playing field for all key stakeholders.

Rolfe. the economy. amenities. Carrington et al. 59% regarded the impact on crime and justice as adverse 58% felt the impact on community safety was adverse 55% felt the impact on lifestyle was negative 360     . • 62% felt the impact on local employment opportunities was somewhat or very negative. community safety and wellbeing. 2001. • 75% felt the impact on housing availability and 79% on housing affordability was negative • 76% thought the impacts on local infrastructure was negative (and most very negative . 2007: Storey. local services. 2010).After answering socio-demographic questions to validate responses. Murray and Peetz. The list of impacts provided to respondents – was based on known key risks associated with mining development (Haslam et al 2008. housing. 63% felt the impact on amenities for recreation was either somewhat or very negative. participants were asked to rate their perceptions about the impact of non-resident mining workforces housed in temporary accommodation on a range of aspects relating to their community. infrastructure. Responses were overwhelmingly negative: • 75% felt mining developments with non-resident workforces housed in their communities had an adverse impact (47% very negative impacts and 28% a somewhat negative). • • • • 60% felt the impact on local business and economy was somewhat or very negative.55%) • • 76% felt the impact on local services was somewhat or very negative. and crime and justice. Variables included impacts on local employment. 2010.

employment and community wellbeing. infrastructure.Far fewer respondents felt positive about the social impact of non-resident mining workforces on their local economy. but most (82%) opposed the development of new mining projects planning to recruit a non-resident work force in excess of 75%. The highest ranking perceptions about positive impacts were as follows: • • • • 26 % thought the impacts on local economy would be positive 23 % thought the impacts on the local liquor outlets would be positive 21% regarded the impacts on local employment opportunities as positive 14% thought the impacts on local amenities for recreation would be positive Only : • • • • • • • 11% regarded the impacts as having a positive impact on their lifestyle 10% regarded the impacts as positive for overall community wellbeing 9% were positive about the impact on local infrastructure 9% were positive about the impacts on housing and rental availability 7% were positive about impacts on community safety 6% were positive about impacts on crime and justice 6% were positive about the impacts on housing and rental affordability Of particular originality and significance of the study is the finding that the majority of respondents (61%) supported new mining projects with an expected non-resident work force of 25% or less. These results confirm the study hypothesis that the social license to develop new mining projects is strong for projects 361     .

4 billion in 200809. and under the growing influence of global economic forces. The economic returns for the resources industry are gargantuan. the sector is growing at 15% per annum. processing and transportation and lucrative commodity prices. schools. Discussion and Policy Implications Until the 1970s mining leases tended to be issued by governments subject to conditions that companies build or substantially finance local community infrastructure. and with a total value of $118. has fuelled this boom. This new regime of resource extraction operates a continuous production cycle involving 12 hour shifts alternating day and night with each roster cycle. and has become increasingly reliant on nonresident workers. Global demand.. However. with developers investing $174 billion associated with new resource projects (New et al. especially from rapidly growing Asian economies. mining companies have moved progressively to an expeditionary strategy for natural resources extraction. streets. Townships and communities went hand in hand with mining development. The overwhelming majority of these new projects will be in the Bowen Basin of Central Queensland and many it appears will rely increasingly upon recruiting a non-resident supply of labour (McIntosh & Carrington 2011).requiring a 25% or less non-resident workforce. The mining boom 362     . diminishes significantly thereafter and is very weak for projects planning to recruit a non-resident workforce in excess of 75%. 1993). together with improved methods of extraction. hospitals and recreation facilities (Hougton. including housing. in the past thirty years. 2011). The resources sector is the largest contributor to Australia's export trade. This finding is particularly significant in light of plans for at least 67 new resource extraction projects worth around $47 billion in capital expenditure destined to undergo social impact assessment in Queensland. transport.

training and skilling. Research into these increasingly precarious employment conditions suggests they can adversely impact on worker health and well-being. government regional population. security and conditions for high wages. The National Resource Sector Employment taskforce has forecast a demand for 65. and skills development (Louis et al. occupational health and safety. In response the taskforce has recommended workforce planning projections including the proportion of resident and non-resident workers be included in project specifications at EIS stages to enhance workforce planning. 2011). union membership. job satisfaction.000 tradespeople by 2015. earlier in the year Rio Tinto had announced an annual profit of $14. family and community is giving way to a narrower.000 new jobs in mining and energy by 2015. more aptly described as global corporatism (Graham & Luke. In August 2011 BHP announced an annual net profit of $23.. According to Paul Cleary. 2006:456). Current economic returns for the mining corporations and their shareholders are staggering. More flexible work arrangements are part of a larger global trend in the pattern of employment in a post-industrial world (Louis et al.000 in construction (National Resources Sector Employment Taskforce.5 billion. an additional 45. necessary to attract local and overseas labour in a tight market. the resource investment stampede is 363     . A longer term. The shortfall in resource sector workforce is critical and expected to be met largely through escalating the recruitment of non-resident workers housed in temporary accommodation. The resources sector in Australia has been at the forefront of a trend to encourage the trading of rights. service and infrastructure planning.3 billion. shorter term focus on immediate economic benefits.has also produced high incomes for resource sector workers. more holistic view of the role of work in relation to well-being. personal identity. 2006: 466-67). (2011:1-3) and anticipated that the sector could be short of 36. gender equity.

the block roster system of 12-hour shifts can have profoundly disruptive effects on families and communities. at the expense of manufacturing and tourism industries and a more measured approach to harvesting resources in the long term interests of all Australians (Cleary. the erosion of community wellbeing. fostering tensions between residents (‘insiders’) and the non-resident workers (‘outsiders’) – some of which manifests itself as alcohol fuelled male on male violence (Carrington. of the kind highlighted by the qualitative responses. and the burden on local services soars along with housing costs and other local costs of living (Haslam McKenzie et al 2008. like many respondents to this survey obviously did. an ever-decreasing permanent resident workforce undermining economic diversification and long term sustainable community development (Gallegos. et al 2010). Residents of rural communities see themselves as having a long-term commitment to the community and as disproportionately bearing the social costs of resource developments. ‘Fly-over’ effects threaten the continuing sustainability of some towns (Storey. 2005). Where economic drivers 364     . The impact of rapidly evolving mining industry regimes on the social ecology of regional mining communities is substantial as the results of this survey illustrate. as the findings of this survey illustrate. processing and movement of resources are in regional and remote areas of Australia. In addition to the sheer number of nonresident workers with little prospect of developing a meaningful commitment to place. Insofar as new mines are being developed in or near existing communities it is typically the case. Rolfe. 2001).squandering Australia’s precious non-renewable fossil fuels and energy sources.. So those who look hopefully on the mining boom to revive services. 2011). Most mining sites and locations associated with the extraction. 2011). employment and community in rural communities may be disappointed (Carrington and Hogg. 2007). that few of the benefits accrue to those communities but they are lumbered with a whole new set of burdens. The stretch on infrastructure.

but still noteworthy. Efforts to address the adverse effects have been limited.” (Qld Government. increase rates of staff turnover. 2011:1) 365     .subjugate all else. reverse the trend of women entering the mining industry and adversely affect the wellbeing of non-resident workers and their families and add to local crime and safety problems (Murray and Peetz. While the Qld Government Social Impact assessment process and Resource Projects Housing Policy are steps in the right direction. unions and the state government to make sure that the liveability and sustainability of towns is protected and that workers have choice about where they live. The growth of non-resident labour housed in temporary accommodation is an integral feature of the contemporary mining boom and one set to soar in rural Australia. 1 June 2011). The projected cumulative social impact of this kind of mining development is anticipated to be substantially negative unless measures for mitigation are adequately planned. councils. 2010. These include Queensland’s social impact guidelines introduced in September 2010 and Major Resource Projects Housing Policy released 25 August 2011109. PR. 2006). While outside the scope of the survey. it is evident from other research that the accelerating trend to hire non-resident workers in the resources sector is likely to increase fatigue related car accidents and work injury. rural communities become less attractive places to live and enter into a spiral of ‘rural crisis’ (Hogg and Carrington. Western Australia’s ‘Royalties for Regions’ program and the Australian Government’s proposal for a Minerals Resource Rent Tax (MRRT) (Wayne Swan. resourced and urgently addressed for the region as a whole. Carrington et. al. 2010). Where a fly-in. where a sense of local community based on dense patterns of acquaintanceship. participation in local sporting and other activities and high levels of implicit trust is seriously eroded. alone these policy instruments are insufficient to address cumulative social impacts of mining                                                                                                                         109 Under this new policy: “The Queensland Government believes that resource workers should have a choice of where and how they live and work. fly-out workforce is proposed. the proponent must work with local communities.

or drive in drive out: ‘Whilst this enables greater flexibility and access to skilled workers.gov. Regional Development Australia (www. Nevertheless. it also places a great deal of extra stress on families and relationships. Chief Executive Leighton Holdings.’ (Sydney Morning Herald. p. This is the key to its unstoppable expansion. especially those reliant on non-resident workforces. Even some within the industry question whether these regimes.rda. Last year Qld and WA governments collected around $6 billion. State governments have a collision of self-interest with mining companies as both profit handsomely from the speedy extraction of resources. Along with this strategy has come newly formed body. The uneven distribution of the benefits and burdens of the mining boom is a national social justice issue that has received too little attention. Hence there is no honest broker in this mix to make decisions about mining projects in the long term best interests and prosperity of the nation (See Cleary. the 2011 budget strategy of leveraging off the resources boom to revitalise regional Australia gives some hope for optimism. Looking more broadly it also puts a strain on local communities and in some cases is stifling regional development… this is not sustainable in the long term. State governments who grant mining licenses also earn a share of the minerals extracted through royalties. commented on the accelerating trend toward fly in and fly out.Clearly there is a need for a national policy framework to guide the sustainable development of Australia’s resource stocks while at the same time harnessing some of the benefits and not just the burdens for rural communities. 2011 for an extended analysis). Regional Development Australia an Australian government initiative that brings together all levels of government in a shared responsibility model of federalism. The present mining boom is producing huge economic benefits and is widely regarded as safeguarding Australia’s prosperity. 8) 366     . The Australian Labor Government’s proposal for a mining super profits tax was initially driven by a desire to secure some of the wealth of the boom for future generations – but a watered down version has left commentators wondering whether sufficient funds will generated by the tax for this purpose (Cleary 2011). March 15. are sustainable in the long term110. 2011.developments on whole regions over time.au) also appears to the one                                                                                                                         110 David Stewart.

abs. Australia Cat No 6202.net. cat.gov. A proportion of the proposed MRRT could even be one way of providing the critical investment so desperately needed in Australia’s mining communities.nsf/DetailsPage/3218.0.htm Australian Bureau of Statistics (2006) Population by age and sex. 3218. http://www. 3235. 2006.0200809?OpenDocument Australian Bureau of Statistics (2008) Towns of the mineral boom (Cat.au/AUSSTATS/abs@. 6 November. References Australian Broadcasting Corporation (ABC) (2006) Mining boom blamed for basin housing shortages. families and communities adversely affected by the mining boom.abs. Canberra.nsf/DetailsPage/3235. Australia. However unless this strategy is accompanied by a self-enlightened resources sector acting in concert with mining communities to maximize their social license to operate.nsf/mf/6202.02006?OpenDocument Australian Bureau of Statistics (2011) Labour Force. one of the many escalating costs may be a continuing rise in burdens and other social harms among workers. no. Australia.http://www.gov.abs.au/news/stories/2006/11/06/1781965. Australian Bureau of Statistics (2010) Regional population growth. 4102).abc.0 367     .au/AUSSTATS/abs@. Retrieved 18 October 2010 fromwww.agency with the potential to engage all key stakeholders in such consultations with a view to consensus building solutions. Australian Social Trends. No. Cat. especially on infrastructure investment.0. Australian Capital Territory: ABS.au/AUSSTATS/abs@.0 http://www.gov. ABC News.

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National Resources Sector Taskforce (2011) Resourcing the future. Relations Industrielles Summer 2006: 61. The Geographical Journal 159(3): 281-290. McIntosh A and Carrington K (2011) Mining projects in rural settings: Some measures of the demographic mix. 2008 edition.Houghton D S (1993) Long-distance commuting: A aew approach to mining in Australia.gov.deewr. Office of Economic and Statistical Research (2010a) Workforce analysis of the Bowen Basin. 369     . Brisbane: Office of Economic and Statistical Research. Institute of Australian Geographers Conference. Keegel T. major development projects – April 2011 listing.au/Skills/Programs/National/nrset New R. Copeland A et al. Canberra: Australian Bureau of Agriculture and Resource Economic and Sciences (ABARES). 2010. Louis A. Queensland Department of Infrastructure and Planning (QDIP) (2008a) Queensland’s future population. University of Wollongong. Office of Economic and Statistical Research (2010b) Demographic analysis of the Bowen Basin. www. Sydney: University of New South Wales Press. 3-6 July 2011. 3. Quinlan M. 2010. Murray G and Peetz D R (2010) Women of the coal rushes. Brisbane: Office of Economic and Statistical Research. (2011) Minerals and energy. Brisbane: QDIP. Shoveller J and LaMontangne A (2006) Empirical study of employment arrangements and precariousness in Australia. Employment and Workplace Relations. Canberra: Department of Education. Ostry A. Ball A.

Australian Geographer 32(2): 133-148. Press Release. Queensland Department of Infrastructure and Planning (QDIP) (2010) Social impact assessment. Parity 23(6): 64-66. 1 June 2011. Petkova V. Ivanova G and Lockie S (2006) Assessing the social and economic impacts of coal mining on communities in the Bowen Basin. Mackay: Centre for Environmental Management.Queensland Department of Infrastructure and Planning (QDIP) (2008b) Resource community summits. Lockie S and Ivanova G (2007) Lessons from the social and economic impacts of the mining boom in the Bowen Basin 2004 – 2006. summary and recommendations. Brisbane:: QDIP. Rolfe J. Storey K (2001) Fly-in/fly-out and fly-over: Mining and regional development in Western Australia. Rolfe J. 370     .au/simp/ Robertson M (2010) Affordable housing in the boom. Australasian Journal of Regional Studies 13(2): 134-153. final report. Miles B. Brisbane: QDIP. Lockie S and Ivanova G (2007) Mining impacts and the development of the Moranbah Township (Research Report no 7). Rolfe J. CQU. Swan W (2011) Exposure draft – Minerals Resource Rent Tax.gov. Retrieved 2 October 2010 from http://www. Mackay: Centre for Environmental Management. November 2008.qld.dip. CQU.

which will enable comparison of preventive measures that impact on marginalised and excluded members of society. This paper will provide a mechanism for viewing prevention and preemption in law and governance. and to enable articulation of the scope and limits of preventive and pre-emptive action. the conceptual model of the preventive state. such as the criminalisation of preparatory acts. 371     . University of New South Wales. and terrorist suspects. Governance and Ethics Abstract The rise of prevention and pre-emption in the governance of crime and deviance signifies a shift in emphasis of criminal justice policy and practice. This paper presents a framework to conceptualise this prospective shift in governance. and the analytical tools of Foucault’s governmentality thesis. The framework draws upon three key perspectives: the theory of risk and modernity of Ulrich Beck. Of significant concern is how prevention and pre-emption may compound social exclusion through the criminal justice system. This shift is particularly evident in anti-terror measures. serious sex offenders. such as the mentally ill. and the introduction of control orders. particularly as scant consideration has been given to the scope and limits of this shift in governance. to a prospective focus upon intervention and aversion of harm. from the traditional retrospective orientation of reacting and responding to harm.Inside the Preventive State Tamara Tulich Faculty of Law. Sydney Email Address Conference sub-theme: Social Justice.

However. 2001. and a method to view these laws in operation. This raises the question of whether there is anything new or different about the operation of preventive anti-terror laws. This framework provides one way to view prevention and pre-emption in law and governance which may have broader implications for investigating preventive measures that impact on marginalised and excluded members of society. a central preoccupation of the Australian government has been how to anticipate and thwart a terrorist attack before it occurs. This paper will present a framework that draws upon the theory of risk and modernity of Ulrich Beck. such as by investigating and punishing criminal acts. these preventive measures are not unprecedented. I will argue that to begin analyzing whether anti-terror laws are new or different in form or operation.In the decade following September 11. These measures permit the state to preventively restrain an individual’s liberty on the basis of an anticipated future harm. the conceptual model of the Preventive State. for example in relation to breaches of the peace. 372     . and the analytical tools of Foucault’s governmentality thesis. The state has long employed strategies to control future conduct by restricting an individual’s liberty. and what we might learn from examining continuities and discontinuities between preventive measures. In this paper. This key policy objective of prevention has led to novel legislative developments that stretch the boundaries of the criminal law. This is in stark contrast to the traditional retrospective orientation of the criminal justice system where the state reacts and responds to harm that has occurred. and evade or erode protections within the criminal justice system. apprehended violence orders and the mentally ill. a framework is required that provides clarity regarding the terms and concepts employed to describe this type of anticipatory state action.

In Australia. As such. where the state intervenes after harm occurs. p. In his influential account of this process. 2009. 2010. Ruddock. the rise of the Preventive State can be understood as a function of the recent ‘overdevelopment’ of the state’s function to protect its citizens from harm (Ashworth and Zedner. This function is not new. Blackstone spoke of preventive justice at the turn of the 19th Century. Steiker. 1992). Australia’s anti-terror policy provides a good example of the recent emphasis placed on the function of the government to protect its citizens and prevent harm: (Department of Prime Minister and Cabinet. 43). ‘the Risk Society’. state. 2008). 2007). 2008). this shift is evident in relation to anti-terror laws. 50). and the rapid pace at which it has grown. and we can trace the Office of Justice of the Peace to the time of Richard I in the 12th Century (Dershowitz. 15-17) as part of a broader transformation of governance and society in the 21st century. p. to the preventive state. Much of Australia’s anti- 373     . and the key dilemma facing ‘the Risk Society’ is the prevention or management of risk (Beck. and also post sentence detention or restriction of liberty of serious sex offenders. p. 2010. 2006. What is new is the ‘overdevelopment’ of this preventive function (Ashworth and Zedner. One of the ways in which governance has been transformed is the movement from the ‘reactive’. 1998). Sociologist Ulrich Beck argues that risk has replaced wealth as the central organising principle of late modernity. The power of a Justice of the Peace to prevent breaches of the peace extended to incarcerating an individual who was suspected might commit a harmful or criminal act (Dershowitz.An Outline of the Framework: the Rise of the Preventive State We can understand the rise of prevention (loosely defined as state interventions that target an identified threat before it eventuates) and pre-emption (broadly describing state interventions to “target threats before they emerge” (McCulloch and Pickering. in which the state seeks to intervene before harm occurs (Dershowitz. or ‘punitive’. 2006.

2008. 487). such as ‘the bid to control future behaviour through strategies of self-governance’(Ashworth and Zedner. 2007). 105. More broadly. 2008. p. In contrast to the criminal justice system.terror legislation – now comprising some 46 laws enacted at a blithering pace in the years following 9/11 – were enacted in furtherance of this policy objective (Williams. and indeed well after. ‘Future law. It is possible to distil key features of law and governance of the Preventive State: its preventive rather than punitive nature. 2010.4). future governance permits the state to intervene and restrict a person’s liberty to avert an anticipated future harm. 819) are in vogue descriptions of this attempt to govern the future by imposing restrictions on the liberty of a person in the present. A contemporary example of future law is the power of police to preventively detain a person police suspect. p. p. on reasonable grounds. The future orientation also gives rise to new modes of governance. the Preventive State serves as an umbrella concept to describe and encompass state action which seeks to anticipate and avert or minimise harm. 42) and ‘Future Governance’ (Crawford. which he argues represents ‘a shift in regulatory style’ and the mode by which individuals are increasingly governed (Crawford. and at points in time well before. Contractual governance may be explained 374     . This intervention is permitted on the basis of a lower threshold of knowledge. such as suspicion. 2009. 21). that which is traditionally accepted in the criminal justice system. 2008. and its future orientation. p. This is what Adam Crawford terms ‘contractual governance’ or ‘regulated self-regulation’. Ruddock. prior to a terrorist act occurring (The Criminal Code Act 1995 (Cth) 'Criminal Code'. an attempt to govern the future by intervening to preventively restrain an individual’s liberty in the present. (Ashworth and Zedner.’ (Ashworth and Zedner. 2003. will engage in a terrorist act. that is. p. 41). s.

orders that are civil in nature. This form of analysis. and programmes through which we govern and are governed (Foucault. that is.so as not to incur the consequences of breach. in NSW pursuant to Crimes (Criminal Organisations) Control Act 2009 (NSW)). self police . yet attract criminal penalty on breach. what consequences this has and why. It is here that the governmentality perspective has much to offer. then. 2007. procedures. These orders are said to be self-regulating based on the assumption is that an individual subject to an order will. institutions. p. Dean. voluntarily comply with the order – that is. such as a control order. The governmentality perspective derives from Foucault’s lectures at the Collège de France in 1978 (Foucault. entails identifying: 375     . Inside the Preventive State A limitation of the Preventive State model is that it does not provide a means to analyse or critique what action is being taken within it. The relevant meaning of ‘governmentality’ for present purposes is an inquiry into the art of government. This is true of anti-terror and serious organised crime control orders (available.the complex practices. 2010. that is. 27-28). acting rationally in his or her self interest. it provides the analytical tools to step Inside the Preventive State. 2007). 108. for instance. into the craft of governing .as a way the state can control the future behaviour of an individual through a ‘contractual arrangement’ made in the present. and extended supervision orders in respect of serious sex offenders (such as is available in NSW pursuant to the Crimes (Serious Sex Offenders) Act 2006 (NSW) ). p. Many Australian examples of contractual governance are also hybrid orders.

and are seen through the techniques of prevention and pre-emption. prevention from future harm. a manner of looking.. The practices that direct conduct as part of this rationality include. the anti-terror legislative framework.. 11). and organising them in relation to a specific ideal of government. a specific orientation” into the art of government. Adopting a governmentality lens. p. it is the particular logic. such as a terrorist attack. rather than a prescribed and distinct methodological ‘inventory’: (Bröckling et al. their conditions of formation. 83) This governmentality approach stems from Anglophonic governmentality scholarship. the principles and knowldeges that they borrow from and generate. the practices they consist of. for example. 2011. The rationality guiding this governmental action is the precautionary principle. 376     . what has been referred to as a: “research perspective in the literal sense: an angle of view. 2006. style of thought or way of reasoning that governs or influences the operation of future governance inside the Preventive State. practices and personnel of government. What is common to the Anglophonic approaches is the analytical perspective. for example. The state intervenes by controlling the behaviour of an individual in the present either by deprivation or restriction of liberty. p. by the issuance of a control order. their contestations and alliances with other arts of governing (Rose et al. how they are carried out. the Preventative State serves as a mechanism for viewing the institutions.‘these different styles of thought. Our starting point is the particular activity of the Australian government in attempting to intervene to prevent harm occurring.

Nonetheless. Zedner. the animating idea behind all versions of the principle is that ‘regulators should take steps to protect against potential harms.The Precautionary Principle Let’s begin with the rationality. p. how the law operates inside the Preventive State. Furedi. 2009. 1999 . The precautionary principle has been the subject of much commentary. maps a shift from probabilistic to possibilistic thinking and risk management. this mode of thinking is identified as an application of the precautionary principle to terrorism (Furedi. 197). for example. has seeped to international law. yet its precise content is not settled (Ewald. 4). The principle. he argues. Ericson. 2009. and importantly comparing. When applied to security policies. although initially invoked in the context of environmental regulation and in relation to catastrophic and irreversible harms. Prevention and Pre-emption The practices that direct conduct as part of this rationality are seen through the techniques of prevention and pre-emption. p. 2005). p. prevention and pre-emption are conceptually distinct and can 377     . While sharing a precautionary logic. the rise of the latter. 2005. p. individually and collectively through governments. even if causal chains are unclear and even if we do not know that those harms will come to fruition’(Sunstein. in the 21st century (see. 197). What has occurred in the anti-terror context is the relaxation or watering down of the harm requirement: state intervention now occurs where harms are of lesser severity than catastrophic and irreversible (Zedner. Many commentators have observed a new precautionary logic governing how we think and act. 84). risk regulation and security studies. for instance. Sunstein. is the ‘distinctive feature of 21st-century lifestyle’(Furedi. 2007. 2009). 2009. By identifying and examining these two techniques we can start viewing.

and the potential nature of threats gives rise to potential politics and the subjunctive. 2007. 2007. The threat is indeterminate. pre-emption also ‘operates in the present on a future threat. 13). 17). Significantly. It does so in circumstances of uncertainty. identify its causes and adopt a method to neutralise it (Massumi. but rather because the threat has not emerged.be distinguished based on the point at which they permit intervention by the state. Massumi argues that what links prevention and pre-emption is a shared goal of neutralising threat. 5). what can be drawn from Massumi’s work and applied to an analysis of the Preventive State is the distinction between prevention and pre-emption in terms of the timing of intervention and the level of knowledge upon which intervention is based. para. para. ‘if’. in terms of epistemology (that is. ‘would have’ (Massumi. crucially for present purposes. 2007). yet they differ. para. Prevention achieves neutralisation of threat by developing the capability to prevent a threat. This assumes the ability to empirically assess a threat. knowledge premise). For Massumi. and the level of knowledge or belief required to found the intervention. Both pre- 378     . Uncertainty about the nature of the threat is insurmountable. para. uncertainty ‘is a function of lack of information’ and the trajectory of an event is predictable and linear ‘from cause to effect’ (Massumi. Here. but it does so with a vastly different knowledge. 2007.’ (Massumi. uncertainty does not result from a lack of information. 2007. para. ‘could have’. 5). The epistemological premise of prevention is that the world is objectively knowable. 13). The work of Canadian philosopher Brian Massumi on the distinction between prevention and pre-emption in International Relations provides key insights for distinguishing between these concepts in domestic legislation (Massumi. neither the threat nor the enemy can be specified (Massumi. 2007.

must either consider on reasonable grounds that the order would substantially assist in preventing a terrorist act or suspect on reasonable ground that the person has provided or received training from a listed terrorist organisation (s. 104. 1992). Intervention occurs when a threat of harm is emergent but not determinate. a senior AFP officer. and it relates to the possibility of assessing with accuracy and objectivity the risk an individual poses. and is organised around uncertainty. Prediction is the basis upon which the action is taken. 2007). upon which intervention is based can only be suspicion (Ericson. 2008). This translates. the mental state. Before a state may intervene. the threshold issue is whether the decision maker believes on reasonable grounds that the person 379     . and intervention to how strategies of prevention and preemption are conceived (Freeman. pre-emption licences action on the basis of intelligence and threat assessments. Australia’s control order regime is a prime example. 2008. in obtaining consent of the Attorney General to request an interim control order. Criminal Code). p. on the other hand. and this raises questions. Risk also serves as the logic or justification for intervention (Zedner.emption and prevention are a composite of prediction and intervention. Prevention. 2008). for example.2. Importantly. Prediction draws attention to the status of knowledge. or level of knowledge. a premise underlying risk assessments (Zedner. 2007. Because pre-emption permits interventions that are so far removed from the anticipated harm. 2007). but also prior to the formation of clear criminal intent (Ericson. 46). or the commission of a criminal act. In this way. provides a framework for a decision maker to assess the likelihood and degree of a threat before taking action (Zedner. about the use of intelligence as evidence within the criminal justice system. it presumes that the future is calculable. for example. Pre-emption rests on the knowledge premise that the future is incalculable. into intervention not only prior to harm occurring. MacDonald and Williams.

retrospective orientation of criminal justice system.1 of the Criminal Code is an example of prevention. is an example of the ‘punitive state’.has or is likely to commit an offence. and criminal intention (to engage in a terrorist attack) arises. 34). A Distinction Without Difference? Implications of the Framework The recent emphasis on prevention in anti-terror law is neither unique nor unprecedented. 2007. under s101. where the threat of harm is emergent but not determinate.1 of the Criminal Code is an example of pre-emption. or planning. This distinction may be drawn out in the following examples: • The offence of engaging in a terrorist act. The state intervenes after the act occurs. and • The preparatory or ancillary offence of doing an act in preparation for. and therefore after criminal intention is formed. The state intervenes before the crime occurs and before the commission of “acts more than merely preparatory” to the offence. This is also before the formation of clear criminal intent (MacDonald and Williams. This is the threshold at which the risk or likelihood of the offence justified intervention. The state intervenes before the crime occurs but after there have been “acts more than merely preparatory” to the offence.1 of the Criminal Code. a terrorist attack under s106.1 and 101. It may be understood as part of a broader shift in 380     . and the traditional. • The inchoate offence of attempting to engage in a terrorist attack under ss11. The rapid development of this preventive anti-terror regime does raise important questions about how we govern and are governed. An example of this is the power of constables to issue warrants without arrest under s 3A of the Crimes Act 1914 (Cth). p.

assumes a connection to outcome and masks ulterior motivations (McCulloch and Pickering. 191 . McCulloch and Pickering have argued that it is inappropriate to employ the term prevention in this context as it distorts how the term is employed and theorised in criminology. These authors raise important criticisms that may be mediated by clearly defining and providing content to prevention and pre-emption. Similarly. and a lens to examine its operation. 2010. and to provide a deeper examination (see. Zedner challenges the appropriateness of prevention in the context of control orders as underlying prevention is an assumption that it is possible to accurately assess the risk posed by an individual.governance that has significant implications for how we view and govern deviance. 381     . 15-17). 4).203). It should be noted that criticisms have been levied at the use of the term prevention in the anti-terror context. What this framework provides is a mechanism to view this broader shift in governance. One of the challenges in the literature and political discourse that has emerged following September 11 is a lack of clarity and inconsistent application of terminology employed. p. Whitehall's criticism of Dershowitz's account of pre-emption: Whitehall. 2007a. prevention. Mariana Valverde expressed it well when she recently reported that “[t]he term ‘security’ is now doing a great deal of work in a wide variety of fields” (Valverde. 2011. and for what we regard as the acceptable limits of state preventive action. One implication is that it may begin to provide content and clarity to the terms and concepts employed to describe anticipatory state action so as to enable meaningful analysis. Similarly. and to design measures that are effective in averting that risk (Zedner. Carefully mapping of these concepts may also go some way to alleviating the lack of clarity and consistency in the concepts and terms employed to explain and describe anticipatory action taken by governments. p. for example. 2010). p. pre-emption and precaution are doing a great deal of work in many disciplines.

Of concern is how prevention and pre-emption may compound social exclusion through the criminal justice system. However. Zedner. 2010). Moreover.This framework presented is still developing. where reliance cannot be placed on a federal bill of rights (Lynch and Williams. such as the mentally ill. 85-86). 2006. Zedner. Zedner. pp. 2010. Attention has rightly focused on the scale and pace of the enactment of Australia’s anti-terror laws and how these measures have realigned ‘our legal system through the extensive powers they grant to government and their impact on basic freedoms’ (Lynch and Williams. Williams. Ashworth and Zedner. 382     . Robert McClelland MP. Attorney-General Hon. 104 of the Criminal Code (1995 ) have been Muslim groups (McGarrity. 2007a. the civil liberties concerns raised by international commentators on the dangers of blindness to the limits of the Preventive State (Dershowitz. the overwhelming majority have been Muslim men and all but one of the ‘proscribed’ terrorist organisations under Div. 2009. 117. 2008. 2008) are amplified in the Australian context. 2006. Yet these measures are not unique. what it provides is a first step in conceptualising this shift in governance and drawing connections and discontinuities between the diverse set of preventive measures in Australia. as these measures predominantly affect marginalised and excluded members of society. 2007b. control orders in organised crime legislation and diversionary or therapeutic interventions such as involuntary detention of persons found to be suffering from mental illness. examples of future governance include post-sentence interventions in relation to serious sex offenders. 2011). The preventive push in anti-terror law forms part of a broader shift in governance that has implications for civil liberties and the regulation of deviance that warrant further research. and terrorist suspects. Of the 38 persons charged with terrorism related offences in Australia. serious sex offenders. p.

and whether insights may be drawn by comparing the diverse set of preventive measures. drawing connections between the diverse set of preventive measures may avoid dangers discovered in one measure being blindly reproduced in another (Zedner.Indeed. the lack of which Steiker argued resulted in blindness to the limits of Preventive State action in the USA. This may draw attention to and promote investigation of the broader issues of exclusion that inhere in this shift in governance. 2010. importantly. or charged with. 2007a. Appleby and Williams. Additionally. the Preventive State model has the potential to encourage and focus debate on this shift in governance and. on its scope and limits and the principles and values that should guide it (Zedner. terrorism related offences into the fold of the traditional deviances. p. 2009). It is by 383     . p. 189). Conclusion This paper has sought to touch on the broader implications of the rise of prevention and preemption. The question of the limits of the Preventive State is reinforced by the normalisation and modelling of anti-terror laws (McGarrity and Williams. 2010. one of the principal justification for adopting and pursuing the Preventive State model is normative. 190). Drawing connections and discontinuities between preventive measures is a critical step in engendering a broader preventive jurisprudence. This framework may also provide a useful vehicle for further investigation into whether preventive and pre-emptive measures lead to material differences in operation of the criminal justice system. particularly as part of Australia’s anti-terrorism framework. A further implication of collecting and analysing preventive measures is that it brings those suspected of. Lynch. The starting point for examining the diverse collection of preventive measures and investigating the significance of this shift in governance is by adopting the conceptual model of the Preventive State. 2007a.

References Appleby G and Williams J (2010) The anti-terror creep: Law and order. Attorney-General Hon. This may open up investigation of further issues such as the impact of the Preventive State on the criminal justice system and how prevention and preemption may contribute to social exclusion through the criminal justice system. and sanctions. Oxon: Routledge. New York/Oxon: Routledge. Lynch and G. London: Sage Publications. Criminal Law and Philosophy 2: 21. Robert McClelland MP (2011) Address to the United States Studies Centre. Drawing connections and discontinuities between preventive measures is a critical step in engendering a broader preventive jurisprudence. Lemke (eds) Governmentality: current issues and future challenges. In: N.stepping Inside the Preventive State and engaging a governmentality perspective that we can begin to view prevention and pre-emption in law and governance. McGarritY. Krasmann S and Lemke T (2011) From Foucault's lectures at the Collège de France to studies in governmentality: An introduction In: U. Beck U (1992) Risk society: Towards a new modernity. A. Sydney. through which the scope and limits of the preventive state may be considered and articulated. Ashworth A and Zedner L (2008) Defending the criminal law: Reflections on the changing character of crime. Williams (eds) Counterterrorism and beyond: The culture of law and justice after 9/11. Bröckling U. Abingdon. 384     . procedure. Krasmann and T. United States Studies Centre 2011 National Summit The 9/11 Decade: how everything changed. the States and the High Court of Australia. S. 'The 9/11 decade'. Bröckling.

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Courts. Law and Social Democracy .

One of the most visible and perhaps significant changes is the composition of the judiciary. South Australia. This empirical socio-legal research gives needed attention 389     .Courts and Social Change: Women in the Australian Judiciary* Corresponding author: Sharyn Roach Anleu School of Social & Policy Studies. but little empirical investigation.research@flinders. Email: Judicial.au Kathy Mack School of Law.edu. South Australia. ADELAIDE. SA 5001. with increasing numbers of women as judicial officers at all levels of the court hierarchy. in part related to developments and innovations in their broader environments. Conference sub-theme: Courts. Flinders University. which has conducted extensive empirical research into the attitudes. political and cultural contexts? What are some of the meanings for the courts and the public they serve? These questions will be addressed drawing on data from the Judicial Research Project at Flinders University. What has actually changed? How do these changes relate to different social. Australia. Flinders University. using a mix of research strategies. GPO Box 2100. perceptions and everyday work of the Australian judiciary over the past 10 years. Law and Social Democracy Abstract Courts and the judiciary have undergone a number of changes. Possible connections between social change and courts are subject to much discussion and theorisation.

Changes affecting courts as institutions include greater managerial accountability. Courts and the judiciary have themselves undergone a number of changes. greater emphasis on professional development. 2010). and the Judicial Appointments Commission [England and Wales. established in 2002]. Farole et al.. 1999. 2006.to the social. more active case management (Heydebrand and Seron. 2009) and recently some formalisation of judicial appointments processes (e. Introduction Courts and judges are essential for the administration and symbolization of justice in developed. the Judicial Appointments Board [Scotland. King et al. Roach Anleu and Mack.. 2007. 2009. 1990). 2001. Changes to judging include reduced emphasis on passive adjudication. especially in relation to sentencing decisions (Gelb.g. Rock. 1998. developing and transition countries (Messick. 2007). The magistracy in Australia has become professionalised (Mack and Roach Anleu. 1998). especially in the 390     . experiential and affective dimensions of judicial work and its connections with changing social. in part related to developments and innovations in their broader environments (Roach Anleu. political and cultural contexts. the rise of informal and nonadversarial processes and increased expectations of addressing social problems (Alford et al. 2005. 2008).. 2008). established in 2003]). the deployment of newer forms of judging (Bartels. The proportions of women judges remain small. One of the most visible and perhaps significant changes is in the composition of the judiciary with increasing numbers of women as judicial officers in all levels of the court hierarchy. Women’s entry to the legal profession has been followed by judicial appointment. Freiberg. Freiberg. Parker. 2004. Travers. There is more concern about public confidence regarding courts and judges. but there are considerable time lags.

Thornton. in Australia there is no legally mandated process of seeking application for judicial office or measuring candidates against formal criteria (Mack and Roach Anleu. over one in four (29%) of district/county court judges and almost one in four (24%) supreme court justices (http://www. 2006). 2011. that is to ensure the legitimacy of the judiciary as a whole’ (Rackley. However. 2007. 2008). Generally.superior courts.html <accessed 25 May 2011>. 1996. This pattern is similar across the judicial world. Increasing judicial diversity ‘is necessary in order to maintain public confidence and trust. 2005. Thomas. 2002: 609). More recent discourse about appointment to judicial office relies on arguments about fairness and equal employment opportunity (Kenney. 2010). Williams and Thames. 2007). The numbers and proportions of women in the Australian judiciary have grown slowly over the past decade. and is similar to women’s entry into other male-dominated occupations and professions.aija. The judiciary remains a male 391     . Courts and governments have been criticised widely for their role in the exclusion of women from public office and the casting of judging as an essentially male capacity (Schultz and Shaw. In 2000 women constituted 17% of all judicial officers. by 2011 this proportion was 33%. 2003. Schultz and Shaw.au/gender-statistics. Empirical research suggests that flows of information through personal. the increase is not the same at all levels of court. women constitute over one third (38%) of magistrates in Australia. The ‘trickle-up’ effect is limited (Malleson. 2005.org. 1999. 2004). 2010). ‘old-boy’ networks and secrecy about the judicial appointment process tends to privilege (some) men and disadvantage (many) women (Feenan. including law (Center for Women in Government & Civil Society. In 2011. 2003. Thornton. Mack and Roach Anleu. Such a gendered institution jeopardises its own claims of neutrality and impartiality (Malleson. 2003). 2007).

and relies on data directly collected from judicial officers. Here judging and judicial office are not conceptualised as a mystical status. rather than relying on ‘products’ of court activity such as reported judgements or quantitative data on decision making patterns. but as a form of employment. Even so. the direct association of masculinity.dominated institution in many respects. albeit very different from most other occupations (because of judicial independence and security of tenure). both numerically and in terms of occupational culture and practices. with judicial office and judging is no longer taken for granted (Collier. It empirically investigates the ways in which women’s and men’s entry into the judiciary and their experiences of judging and judicial work might differ. New developments emphasise empirical social research focussing on judicial officers themselves. using a mix of quantitative and qualitative research strategies. 392     . or different types of masculinity. 2010). 2007: 315). political and cultural contexts? What are some of the meanings for the courts and the public they serve? The Judicial Research Project has conducted extensive empirical research into the attitudes. It is timely to ask: ∗ ∗ ∗ What has actually changed? How do these changes relate to different social. perceptions and everyday work of the Australian judiciary over the past 10 years. as distinct from the courts as institutions. There is growing international interest in ‘the comparatively recent socio-legal terrain of empirical research into judges and judging’ (Moorhead and Cowan.

A substantial body of research and commentary considers whether women judges will make a difference to decision-making. Nearly all these women and men women spent their childhoods in Australia and had fathers in full time paid work. for equating female with feminist and for not being empirically supported (Malleson. The largest differential is between female magistrates (50) and male judges (61). 13% of male judges). at least in Australia. does not appear to increase diversity in terms of class. 393     . ethnicity. and should not be exaggerated (Rhode. Initial expectations that women would make a difference to the judiciary (and other male-dominated occupations) have been criticised for being essentialist and ignoring the diversity of women (and men). political and cultural worldviews. Greater numbers of women in the judiciary. On average women are younger (52) than the men (59). Most men and women in the Australian judiciary describe themselves as of Australian or British ancestry. Over a quarter of women magistrates (29%) and judges (28%) report that their mother was always or almost always in paid work when they were growing up. styles of judging and reasoning and judicial culture (Schultz and Shaw. compared with less than a fifth of the men (18% male magistrates. Data from two surveys (one of judges. 2003). What Has Actually Changed? Gender diversity has not necessarily been paralleled by diversity in other dimensions. 2003: 5). religion or regional background. one of magistrates) in 2007 provides information on the extent to which the increasing numbers and proportions of women judicial officers might impact on the relationship between evolving juristic institutions and changing social. The only social background characteristic that differs markedly is mother’s participation in paid work when the respondent was growing up. with at least one child. 2008). The personal and social differences between magistrates and judges or between men and women lie within a narrow band. Most are married or partnered.

also see Cowan et al 2006). How do These Changes Relate to Different Social. financial crises. and their children are older. declining real wages. personal. compared with only one-fifth (20%) of their male counterparts. economic. Courts necessarily confront these changes which impact on their daily work (Roach Anleu and Mack 2007). and two thirds of these women judicial officers report that their spouse/partner is currently in paid. political and cultural contexts. full-time work. increasing employment insecurity. Such changes include labour market transformations. 394     . different social. There is also greater geographic mobility and rapid advances in electronic communications. cultural and policy changes continuing since the last quarter of the 20th century (Roach Anleu. Political and Cultural Contexts? Social science research has documented widespread social. and incremental way’ (Roach Anleu and Mack 2007: 184. One way of thinking about courts and their external environments is to consider judicial officers’ orientation to change.Men and women judicial officers also appear to have different family structures and household responsibilities. which might suggest some awareness of. A lower proportion of women are married or partnered (80% of women compared with 93% men). On average men have more children than women. ageing populations and declining fertility as well as reductions in public welfare provision and privatization. Courts are a vital institution where social issues and legal authority intersect and where judicial officers have the capacity and opportunity to ‘contribute to progressive social change in a local. 2010). or commitment to understanding.

as women’s commitment to the impartiality of the judicial role remains very strong. and the same as their male colleagues at both levels of court (Mack and Roach Anleu. and whether women and men experience the work/family time pressures reported in other occupations and professions. What are Some of the Meanings for the Courts and the Public they Serve? This section considers two aspects: whether women and men value different skills and qualities related to the everyday work of a judicial officer. men and women. and consider their work important to the community.Regardless of level of court. are disappointed with scope for improving the court system. courts and society and of their role as judicial officers. compared with their male colleagues. higher proportions of women (80%) than men (63%) identify value to society as important or very important to their decision to take on judicial office. This should not be overstated. Overall. This is particularly the case for female magistrates. These findings indicate that women. 2010). though slightly more women. is similar: almost half of the women (49%) compared with a third of the men (36%) indicate this was a very important or important consideration in their decision to become a judicial officer. Judges and magistrates (no gender difference) overwhelmingly agree that 395     . Do Men and Women Value Different Skills? The most important type or category of qualities is what could be called legal or judicial values. This finding might suggest that these women adopt a wider view of the relationship of law. especially in the magistracy. have a stronger orientation to change than their male counterparts. The pattern for desire to improve the court system. judges and magistrates express high levels of overall job satisfaction. especially in the magistracy.

including criminal defendants. more than any other cohort. integrity and a sense of fairness are central in the performance of daily tasks. impartiality (99%). even including judicial mediation. These changes are the most salient in the lower courts. On the civil side. In recent years. though women are somewhat more emphatic in their assessments than their male counterparts. Judges and magistrates.impartiality. Women magistrates. more so than any other kinds of qualities or skills. For 396     . being a good listener. there has been much discussion about new approaches to judging that depart from the traditional conception of the passive. compassion and empathy. 2003). value managing the emotions of court users as a skill in their daily work. Newer forms of judging may entail greater reliance on qualities such as communication. 2010). Larger proportions of women assess these skills as essential while larger proportions of men consider them very important. These developments presuppose a more active role for the judge and direct engagement with the parties. listening. 2007. place high importance on communication. compared with more conventional legal (or judicial) skills such as legal reasoning or legal knowledge. men and women. and a sense of fairness (95%) as essential or very important to their everyday work. especially in the higher courts (Mack. empathy and an awareness of the defendant’s personal/social needs. courtesy and patience. judges and magistrates with regard to managing the emotions of court users. there is greater emphasis on judicial case management and ADR. Differences exist between men and women. New developments in the criminal jurisdiction include problem oriented courts. restorative justice and therapeutic jurisprudence. Roach Anleu. Nearly all respondents identify integrity/high ethical standards (99%). detached judge in the adversary system (Moorhead and Cowan.

especially if defendants or litigants do not have legal representation. Work/Family Time Pressures Long working hours. Sommerlad. limited workplace flexibility and conflict between domestic demands and expectations of open-ended availability for clients all constrain women’s careers in the legal profession (Edwards. followed by their male counterparts. A similar pattern emerges in relation to compassion and empathy. and that some women magistrates may bring greater awareness of the value of emotional labour to their work (Roach Anleu and Mack. 1994. 2007. 1999. It might be expected that daily life in the magistrates court entails more emotions than in higher courts. with greater proportions of women magistrates valuing these qualities as essential. 2005. While most judicial officers -. 2005). compared with just over a third of the men (36%). 2011.two-fifths of women magistrates (41%) managing these emotions is an essential skill. compared with less than one fifth of their male colleagues (17%) and of judges in the higher courts (men [16%] and women [20%] alike). These qualities are valued somewhat less by judges than by magistrates with no differences between men and women judges.men and women -. Hours was an important (including very important) factor for half (50%) of women judicial officers in becoming a judge/magistrate.. Seron.. Epstein et al. Judicial appointment may be an attractive career option or possibility for women. 2007). Webley and Duff. the majorities of men are larger than 397     . Heinz et al. Around half of men (48%) and women (52%) identify compatibility with family responsibilities as important or very important in their reasons for entering the judiciary.report satisfaction with their hours and the compatibility of their jobs with family responsibilities.

Half of all judicial officers. though is very demanding because is not family friendly. Limited recreation leave. limited support to take time off to attend a school function (because I’m not in a metropolitan court). Similarly. and often a proxy for time at work. is the most publicly visible part of a judicial officer’s work. her previous work as a barrister): It is a pretty interesting job. They seem to deviate from her perceptions of the magistracy as a family-friendly work environment (at least compared with legal practice. many tasks and activities related to core judicial work take place outside of the courtroom. and the other quarter do so once a week or less. While work in court. for whom hours was an important consideration in her initial decision to become a magistrate and is satisfied with the compatibility between work and family responsibilities. Four-fifths (79%) of the men and two-thirds (65%) of the women are satisfied with hours. These groups overlap: 78% of men and 63% of women are very satisfied/satisfied with both hours and the compatibility with family responsibilities. 79% of men and 64% of women are satisfied regarding the compatibility of work with family responsibilities. A female magistrate. particularly presiding at trial. report working outside regular work hours every day (before 9 am and after 5 pm Monday to Friday). can’t work part-time or job share. … Having to be in court every day is totally grinding! (Emphases in original). and in particular. Court hierarchy makes a difference to the frequency of out of court 398     . around a quarter do so a few times a week.of women. and one I chose so I could have children. indicates some disappointment with those hours. men and women.

but less than one in ten (8%) of their male counterparts. In contrast. Other findings from the survey suggest that gendered patterns of domestic life hold within the Australian judiciary. Approximately half of the women (49%) and the men (54%) report spending between 5 and 14 hours on domestic work. report after hours work every day. Very few women report rarely feeling rushed: only one female magistrate and only three female judges indicate this experience. whereas one in seven (15%) men report rarely feeling rushed. male or female. One third of the women judicial officers (32%). Two-thirds of the men (67%) and half of the women (51%) report sometimes feeling rushed. over one third (36%) of the men. compared with only one in five (20%) of the women. compared with about one-third of magistrates. Women judicial officers report feeling rushed far more often than their male colleagues. Almost half (47%) women judicial officers report always feeling rushed. reports spending more than 15 hours per week on this unpaid work. compared with less than one fifth (17%) of the men. ie spouses in full-time paid work and children under 18 years. Women in the judiciary still undertake conventionally women's household work.work: Almost two-thirds of judges (male and female). report undertaking less than five hours per week on unpaid domestic work. This is the case even when comparing men and women in the judiciary in similar circumstances. while the household work of men judicial officers is usually done by his wife or partner (nearly always female). Women’s high status occupation as judge or magistrate and high salary do not significantly reduce their domestic load. and certainly not to the same levels as their male colleagues. 399     .

forces many judges to work extraordinary hours & adopt unhealthy work regimes. seep into non-work time. married with two children under 18. and the requirement that a judge directly apply for time out-of-court to perform these important judicial functions during court hours. 1996). It also creates an environment in which judges seeking different listing arrangements to allow time to write judgments & sentences (other than at night or weekends or during leave) are viewed as less capable and inefficient. despite the increasing numbers of women judges (cf Thornton.The time demands of judicial work mean that many tasks. 1995: 41) and greater temporal autonomy than their female counterparts. The traditional view of the judge as male with few family obligations persists in court cultures. This. such as keeping up with the law and judgement writing. It is difficult to find a balance with family life as the system has largely been run by men whose 400     . describes recent increases in the number of women in her court then observes: This is a big change & it is an exciting time to be on the bench. A female judge with children over 18 and a spouse in paid part time employment describes the tension between work expectations and non-work obligations: A very strong male work culture continues to operate within courts. there is some hope for change. While numerous writers identify the intransigence of male workplace cultures. Male judicial officers have more ‘unbracketed time commitment’ (Seron and Ferris. One female judicial officer. This contributes to inflexibility in work practices.

Both political world views outlined in the session description -. prestigious. The next phase of the Judicial Research Project will entail in-depth. A further set of questions is how judicial officers mobilize their identities as men and women in certain circumstances and the extent of gender awareness in understandings of justice. at least regarding the work/life tensions shared with many other women.imply a greater role for members of the public in the justice system. it is still experienced as more demanding than that of their male colleagues in several ways. Social change and public expectations have entailed more judicial diversity. especially increasing proportions of women. Hopefully as the number of females on the Bench increases it will become a more ‘family friendly’ working environment. While their work/life balance as judicial officers may be better than experienced by women in other occupations. The power of gendered domestic roles persists even for women in an elite. Public confidence and public participation are increasingly seen as important for the courts. These interviews will provide a nuanced account of how judicial officers understand courts as institutions that can contribute to or resist social change and their role within that process. qualitative interviews with judicial officers nationally.the welfare/therapeutic approach and the liberal/individualistic orientation -. as well as revealing the ways in which gender might infuse 401     . Women judicial officers in this respect are not (entirely) out of touch with community concerns. though this is limited in its extent and impact on the composition of the judiciary and on other dimensions of judicial attitudes towards their work.wifes [sic] played a traditional role. highly paid occupation.

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