Abstract
The upward trend of incarceration rates persists among women in Victoria, with increasingly punitive sentencing and onerous new bail laws. At the same time, the complex needs of women in the criminal justice system are becoming the focus of greater study and documentation. This article presents the case for a specialist women’s list under the Magistrates’ Court of Victoria jurisdiction, based in principles of therapeutic jurisprudence and procedural justice. While the list aims to reduce offending by addressing criminogenic factors unique to women, the picture is far bigger; the Victorian Women’s Court ultimately promotes justice for women who commit crimes.
Keywords
The vast majority of women who offend are also victims. 1 Gendered violence is a complex, intersectional problem that does not discriminate but, regardless of its specific social, economic or cultural bases, one simple fact remains: a systemic problem warrants a systemic response. 2 If women are offending as a result of gendered trauma, gendered violence or gendered discrimination, systemic reform to the criminal justice system might better ‘do justice’ for these offenders. A decarcerative approach to women in the criminal justice system is a more achievable, and more appropriate, goal for criminal justice policy reform than attempting to engender reform at the social level.
Some concern about the ‘net-widening’ effects of combining a therapeutic approach to offending with the more traditional punitive approach is anticipated. It must be acknowledged here that it is not the role of the court to intrude unduly into the lives of its users, but it is also true that intrusions may in certain cases further the principles of specific deterrence and rehabilitation. 3 Criminal offending does not exist in a vacuum; a balance between ‘net-widening’ and the traditional demarcation between the criminal justice system and the outside lives of its users must be struck, particularly in light of the criminogenic factors relevant to women which are discussed below. A specialist women’s list could strike such a balance, treating the participant holistically, and preventing recidivism by addressing the social, environmental, health, and economic causes underlying her offending.
Women in the criminal justice system are often survivors of gendered harm or disadvantage, and mainstream courts cannot address the unique needs of these offenders. Existing specialist lists in the Magistrates’ Court of Victoria jurisdiction offer a blueprint for an additional list which might better provide justice for criminalised women. Given the widespread effects of gendered violence and trauma, we must consider the unique physical, economic and psychological impact on women who become offenders. 4 This article will evaluate the system as it currently operates and proposes the Victorian Women’s Court (VWC) List as a solution to the inherent shortcomings of the traditional system in its dealing with women.
Incarcerated women: A snapshot
The dramatic rise in the number of women imprisoned in Victoria in recent years is cause for serious concern. In its 2020 report on the driving factors behind offending by women, the Fitzroy Legal Service noted that access to data from courts is limited and the available statistics often do not differentiate between genders. 5 However, the data does suggest that, between 2012 and 2017, the total population of women in Victoria’s prisons increased by almost 50 per cent. 6 This is largely attributable to the increasing number of women being remanded for short periods of time, many of whom were subsequently released on bail or given a non-custodial sentence. 7 Many of these women came from backgrounds of drug abuse, mental illness, homelessness, family violence, unemployment or a combination of these factors. 8 In fact, 65 per cent of women on remand reported being a victim of family violence, but this number likely pales in comparison to the true prevalence of abuse as factors including fear of retaliation, economic dependence, and social disadvantage have been found to contribute to under-reporting of family violence in Australia, creating a barrier to the collection of accurate data. 9
The impact on criminalised women of the 2018 bail reform in Victoria cannot be overlooked. 10 The reform was largely a political reaction to the law and order ‘crisis’ in the wake of a spate of violent crimes committed by individuals on bail or parole. Its effect was to make the test for bail more onerous by inserting a two-step test, imposing higher, more onerous thresholds, including reverse-onus provisions. 11 Under the reform, a person who commits a crime while on bail is required to satisfy the two-step test, regardless of how minor their offence. 12 Data from Corrections Victoria coupled with the perceptions of lawyers interviewed by the Fitzroy Legal Service indicate an increase in the number of women charged with low level offences being incarcerated since the reform; the unsentenced population of women in prison has increased by approximately 11 per cent over that period. 13 It is possible that this trajectory began even earlier than the introduction of the bail reform legislation because between 2014 and 2019, the number of women in pre-trial detention increased by 81 per cent. 14 However, in light of the COVID-19 outbreak in 2020, the number of women in Victoria’s prisons has declined by 27 per cent, demonstrating a willingness by the courts to decarcerate during periods of crisis. 15
Criminogenic factors of criminalised women
The term ‘trauma’ as it relates to the present discussion is defined as the experience of ‘physically or emotionally harmful or life threatening’ events or circumstances, which may include both interpersonal and structural violence. 16 The experience of trauma often results in injustice and discrimination, and consolidates existing disadvantage. 17 The United Nations Office on Drugs and Crime (UNODC) identifies a number of criminogenic factors common to women across jurisdictions: victimisation from sexual or physical abuse; elevated mental health care needs; and high levels of substance dependence. 18 It is not uncommon for a criminalised woman to experience or have experienced multiple of these factors. 19
The experience of trauma is particularly problematic for criminalised women in Victoria. These women are more likely to report having experienced family violence as an ongoing issue (52 per cent), rather than those who report experiences only during adulthood (36 per cent) or childhood (11 per cent). 20 The effects, particularly where those experiences are recent or ongoing, can be exacerbated in women’s prisons, as the loss of agency, strip searches and loss of control can cause a woman to become retraumatised and experience anxiety, depression or increased substance dependence. 21 The traumatic effect of strip searches in particular was addressed by a Victorian Ombudsman’s report, in which it was recommended that the practice of strip searching before and after contact visits cease immediately, and be replaced by a system based in ‘intelligence and risk assessment.’ 22 If a woman’s trauma is not addressed, and if it is exacerbated by incarceration, her risk of future involvement with the criminal justice system is greater.
Inadequacies of incarceration
The incarceration of women does not promote rehabilitation, but rather ‘hinders … social reintegration’. 23 The experience of re-traumatisation and the failure to rehabilitate from prison may contribute to subsequent offending; traumatic events often trigger substance abuse, homelessness and mental ill-health. For incarcerated women, existing sexual trauma can be aggravated even where no actual sexual contact occurs, a crucial factor in preventing further violence in light of the UNODC findings discussed above. 24
The response to increasing incarceration of women in Victoria is largely inadequate. The argument that Victorian prisons do not rehabilitate, but in fact hinder rehabilitation and reintegration while promoting the criminogenic factors which precipitated incarceration, is perhaps most evident in the experience of Aboriginal and Torres Strait Islander (ATSI) women, whose comorbidities present a complex intersectional challenge to traditional methods of criminal justice as the experience of colonisation endures alongside issues of substance abuse, homelessness, family violence, and unemployment. 25
Indigenous women in the Victorian prison system
The incarceration of ATSI women is a compound issue, as the trauma associated with incarceration is overlaid with the ongoing experience of colonisation, dispossession, racism and discrimination. 26 Given recent and escalating media attention on the treatment of people of colour in the criminal justice system, both within Australia and overseas, the experience of incarcerated ATSI women should be addressed. 27 While the unique inequalities faced by Indigenous women in the Victorian criminal justice system are increasingly documented, academic inquiry has been slow to keep pace, and such a study is outside the scope of this article. 28
The complex and multidisciplinary needs of this cohort of the prisoner population does indicate the need for a list which can target criminal justice responses to those unique needs. This list, recognising the notion of intersectionality, might appropriately be embedded within the broader VWC, and it should be the intention of the VWC to incorporate research and training in the ways it might best serve women from the ATSI community. 29
Victorian Women’s Court
The VWC list is proposed as a specialist criminal list within the Magistrates’ Court of Victoria jurisdiction, utilising therapeutic jurisprudence and drawing on established alternatives to incarceration, with custodial sentences reserved as a last resort. It would be, in short, a ‘purposely designed, specialised jurisdiction’ which works to identify and address the underlying needs of women in contact with the traditional criminal justice system. 30
While it is acknowledged that not every woman offender is necessarily also a victim, the paternalistic nature of the traditional justice system does not naturally lend itself to principles of feminist jurisprudence. It is not a productive use of court resources, nor is it appropriate, for the court to determine whether a woman’s experiences meet a pre-determined threshold for suffering before she is permitted to access the VWC. This notion is inconsistent with the therapeutic, feminist and inclusive principles which underpin the VWC, and that are outlined in the following section. As such, participation must be made accessible to any person who identifies as female and has been charged with a summary offence or an indictable offence to be tried summarily within the jurisdiction of the Magistrates’ Court of Victoria.
A specialist women’s list must also recognise that it ‘might not be the right time in a person’s life’ for this level of commitment; as such, voluntariness is essential. 31 While the women involved in the VWC would elect to have their matter determined within the List, participants would then be required to commit to whichever programs, treatment, or orders the Magistrate considers appropriate. It would be for the Magistrate to decide on a case by case basis whether mandated measures focus on harm reduction or abstinence, as the circumstances of each participant beyond the criminal justice system will inevitably vary. However, Magistrates would be required to make their orders with the notions of procedural fairness and therapeutic jurisprudence in mind in order to promote compliance and completion of the program. All those involved in a woman’s matter would need to remain aware that if it she feels unable to commit to mandated participation, she would be transitioned into the mainstream system.
Jurisprudential basis of the Victorian Women’s Court
Fundamental to the VWC is acceptance of the feminist cultural/difference maxim: equality does not equal sameness. 32 In the delivery of justice, equal treatment of men and women does not result in equal outcomes, because men’s and women’s lives are defined differently. 33 Cultural/difference feminism accepts the inherent sexualisation of the person in society, but rejects the validity of the hierarchy. 34 In regarding men and women as possessing different traits and characteristics, feminist theory rejects the idea that their value should be similarly distinguished. 35 The same criminal act may require a very different response if committed by a woman than if committed by a man, as it requires consideration of the circumstances surrounding the offending. This notion is pertinent to the proposed VWC as it entails consideration of the unique disadvantages faced by women, particularly where gendered disadvantage intersects with other sources of disadvantage such as race or class. 36
Many, if not most, women who find themselves victims of gendered violence or trauma will not consider turning to the justice system for support. This explains, in part, why so many criminalised women are also victims; it is only once she has been unable to reach a solution by any other means that a woman might resort to unlawful methods of survival. If the VWC can provide a supportive environment for a woman to seek assistance in addressing the negative factors which precipitated her offending, she may be more likely to engage with mandated services such as: mental health services, including referrals for specialist treatment; financial counselling with a focus on fines, infringements and debt management; social work case management; and assistance in accessing government support.
Procedural justice, another principle fundamental to the VWC, is concerned with the process of justice, rather than simply its outcomes and effects on compliance and recidivism. The premise is that where legal processes are perceived as fair, negative outcomes are more likely to be considered acceptable. 37 While the consequences of a negative outcome for a woman in the current criminal justice system could hinder acceptance, the processes inherent to the VWC do fit within this vision. Incarceration would remain a sentencing option where alternatives have proved ineffective or are inadvertently facilitating further harm. However, where the woman who faces a custodial sentence perceives her treatment in the program as fair and reasonable, she is more likely to accept the outcome. By the same reasoning, it is hoped that criminalised women will view the alternatives to incarceration as similarly fair and reasonable and will thus be motivated to complete them successfully. 38
To further promote the perception of fairness and procedural justice, the VWC would be presided over by women magistrates and, to the extent possible, would be staffed by women court officers, support workers and prosecutors. It is hoped this positive discrimination would avoid the potential for retraumatisation, allow the participant to feel both empowered and understood in an otherwise patriarchal system, and increase the likelihood of her compliance.
Structure and funding
The location for the VWC in its early stages will be dependent on the target service user. In determining the location of the Neighbourhood Justice Centre (NJC) in the Melbourne suburb of Collingwood, the founders considered a number of factors identified by the New York-based Center for Court Innovation in planning their ground-breaking Red Hook Community Justice Center. 39 These factors included population density, concentration of crime, disadvantage and access to community services. 40 The proposed location for the VWC requires further research – in particular, an understanding of areas with a higher concentration of criminalised women.
It may be possible for the VWC to sit regionally, utilising community infrastructure and resources. This would provide access for a greater number of women and would reduce feelings of anxiety or intimidation that may come with attending a traditional courtroom. Situating the VWC in existing community infrastructure would have the additional effect of reducing operating costs while giving the VWC List a broader reach.
Greater analysis is also required to determine budget requirements for the VWC but, for the purpose of this article, it is sufficient to note that given the exorbitant expense of incarceration – the 2019-20 Victorian budget allocated $1.8 billion to meet the growing prison population – there is a strong argument to be made in favour of providing funding given the increasingly prohibitive cost of imprisonment in Victoria. In 2005, the Victorian government allocated $24 million to the NJC to promote access to justice; 41 the 2009-10 budget extended this commitment, such that the NJC alone was allocated a total of $50 million. 42 This indicates a willingness on the part of the Victorian government to engage with, or at least to explore, alternatives to incarceration. The VWC would also be well positioned to understand and identify preventative measures to divert at-risk women and girls, and the overall reductions in the cost of operating Victoria’s women’s prisons would strengthen the case for increased future funding.
Challenges
It would be naïve to assume that an innovation like the VWC would go without challenge; systemic change is inevitably met with resistance. This article does not purport to address each of the challenges that may be levelled at a VWC or its role in the community. However, it does address two significant challenges: essentialism and capacity. Before undertaking this discussion, it is worth mentioning, briefly, the absence of a guilty plea requirement as foreshadowed earlier. At the time of writing, many specialist lists require a plea of guilty in order to participate. 43 However, it is proposed here that granting the VWC jurisdiction to hear contested matters would allow for a greater depth of services and interventions rather than exposing women to the social, family and economic challenges associated with a guilty plea or criminal conviction.
The challenge of essentialism is one the VWC must accept and proactively address. By limiting participation to women, it might be asserted that the movement for women’s rights has gone too far, essentialising women as passive victims and men as aggressors. 44 This proposal of a women’s specialist list is not to diminish or deny the experiences of male victims of abuse, men from the LGBTIQ+ community, or any other person who identifies as male and who might themself benefit from a tailored approach to justice. The fact is, there is a need for a therapeutic approach to offending by men – just not the same as the one to offending by women. Therapeutic jurisprudence is available to any magistrate, but the concept is still relatively new and is not the dominant approach in Victorian courts. 45 Further, women constitute fewer than 10 per cent of the total number of people imprisoned in Victoria; the population is identifiable and outcomes can be more readily measured. 46
As suggested above, in defining traumatised women as possessing distinct and incomparable needs, there is a risk that these women are ‘de-individualised’ and ‘essentialised’ as victims. 47 In no way do the ideas presented in this article, or the proposed VWC, seek to essentialise women as victims. Rather, the List seeks to acknowledge that all women who are victims are also survivors, and that their experiences of gendered violence, trauma or discrimination mean that they require assistance different to that required by other users of the justice system. This is consistent with the cultural/difference feminist philosophy and, appropriately, is the founding principle of the VWC.
A final challenge that must be considered is of a more practical nature and concerns the capacity of the Victorian magistracy to manage a new list. In the years between 2007 and 2016, the number of magistrates in Victoria grew only marginally, but the caseloads of those magistrates increased almost fivefold. 48 In 2017, two magistrates took their own lives within six months of one another, and Magistrate Pauline Spencer identifies ‘oppressive’ caseloads as causing burnout and exhaustion among her colleagues. 49
With an increase in policing and the 2018 bail reform in Victoria leading to rapid growth in the prison population, capacity for a new list may be limited. Participants in the VWC would be in the system regardless, but specialist lists do require a higher degree of judicial monitoring and are more resource heavy. The aims of existing specialist lists, including the Drug Court, to reduce recidivism in unique population groups, necessitate greater expense in the short term. The initial time and resource investment in the VWC would aim to reduce future investment of the same resources, as women are diverted from reoffending and given a positive opportunity to make, and maintain, change.
Conclusion
It is true that the ‘law never is, but is always about to be’. 50 We cannot sit quietly, upholding a status quo which does not serve the people it impacts most. We cannot afford to watch as the number of women incarcerated in Victoria continues to climb. Criminalised women are almost invariably victims – punished and criminalised for the failings of our society. The VWC List seeks to change this. It seeks not only to provide each woman offender with a therapeutic, feminist framework within which to address the underlying factors behind her offending and to prevent recidivism, but also to show that justice can, and must, be done for her. In asking the question: what next for criminalised women? The answer: The Victorian Women’s Court.
Footnotes
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
Acknowledgments
I gratefully acknowledge the critical feedback, proofreading and support of Professor Bronwyn Naylor (RMIT University).
1
2
3
4
Women in the Victorian Prison System (Corrections Victoria, 2019) 12.
5
Emma Russell et al, A Constellation of Circumstances: The Drivers of Women’s Increasing Rates of Remand in Victoria (Fitzroy Legal Service, July 2020) 12.
6
Women in the Victorian Prison System (n 4) 5.
7
Ibid 8.
8
Russell et al (n 5) 13.
9
Women in the Victorian Prison System (n 4) 8; KPMG, The cost of violence against women and their children in Australia (Final Detailed Report, May 2016) 33.
10
See, eg: Bail Amendment (Stage 2) Act 2018 (Vic); Marilyn McMahon, No bail, more jail? (Parliamentary Information Service, Parliament of Victoria, 16 August 2019) 14.
11
Bail Act 1977 (Vic) 4D.
12
Ibid s 4AA(2)(c).
13
Russell et al (n 5) 29.
14
Ibid 29.
15
Ibid 8.
16
17
Ibid.
18
UN Office on Drugs and Crime, Handbook on Women and Imprisonment (United Nations, 2nd ed, 2014) 7.
19
Women in the Victorian Prison System (n 4) 12.
20
Ibid.
21
K P Moloney, B J van den Bergh and L F Moller, ‘Women in Prison: The central issues of gender characteristics and trauma history’ (2009) 123(6) Public Health 426, 428; Pamela Vest Valentine, ‘Traumatic Incident Reduction II’ (2000) 31(3/4) Journal of Offender Rehabilitation 17, 19.
22
Victorian Ombudsman, Implementing the OPCAT in Victoria: Report and inspection of the Dame Phyllis Frost Centre (Final Report, November 2017) 103; Human Rights Law Centre, Total Control: Ending the routine strip searching of women in Victoria’s prisons (Report, 2017).
23
UNODC (n 18) 105.
24
Ibid 14.
25
Victorian Equal Opportunity and Human Rights Commission, Unfinished business: Koori women and the justice system (Report, August 2013) 30.
26
Corrections, Prisons & Parole (Victoria), Strengthening Connections: Women’s Policy for the Victorian Corrections System (Report, 2017) 9.
27
See, eg, Lorena Allam, Calla Wahlquist and Nick Evershed, ‘Aboriginal Deaths in Custody: Black Lives Matter protests referred to our count of 432 deaths. It’s now 437’, The Guardian (online, 9 June 2020) https://www.theguardian.com/australia-news/2020/jun/09/black-lives-matter-protesters-referred-to-our-count-of-432-aboriginal-deaths-in-custody-its-now-437; Lorena Allam, ‘Aboriginal Deaths in Custody: 434 have died since 1991, new data shows’, The Guardian (online, 6 June 2020) 
; Australian Law Reform Commission, Pathways to Justice: Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (Final Report, December 2017) 21.
28
Julie Stubbs, ‘Indigenous Women in Australian Criminal Justice: Over-Represented but Rarely Acknowledged’ (2011) 15(1) Australian Indigenous Law Review 47, 49.
29
Nayri Black and Justin S Trounson, ‘Intersectionality in Incarceration: The need for an intersectional approach toward Aboriginal and Torres Strait Islander Women in the Australian prison system’ (2019) 22(1–2) Journal of Australian Indigenous Studies 45.
30
Claire Spivakovsky and Kate Seear, ‘Making the Abject: Problem-solving courts, addiction, mental illness and impairment’ (2017) 31(3) Continuum 485, 459.
31
32
James Penner & Emmanuel Melissaris, ‘Feminist Legal Theory’ in Penner and Melissaris (eds), McCoubrey & White’s Textbook on Jurisprudence (Oxford University Press, 5th ed, 2012) 232.
33
Margaret Corston, The Corston Report: A review of women with particular vulnerabilities in the criminal justice system (UK Home Office, 2007) 16.
34
Penner and Melissaris (n 32) 234.
35
Ibid.
36
Jill Marshall, Humanity, Freedom and Feminism (Routledge, 2017) 28.
37
Susan Miller and Kristen Hefner, ‘Procedural Justice for Victims and Offenders? Exploring Restorative Justice Processes in Australia and the US’ (2015) 32(1) Justice Quarterly 142, 142.
38
See, eg, UN Office on Drugs and Crime, Handbook of Basic Principles and Promising Practices on Alternatives to Imprisonment (2007).
39
Victorian Auditor-General’s Report: Problem-Solving Approaches to Justice (April 2011) 11.
40
Ibid.
41
Ibid 3.
42
Ibid.
43
‘Koori Court’, Magistrates’ Court of Victoria (Web page) https://www.mcv.vic.gov.au/about/koori-court; ‘Drug Court’, Magistrates’ Court of Victoria (Web page) .
44
Sarah Maddison, ‘Private Men, Public Anger: The Men’s Rights Movement in Australia’ (1999) 42 Journal of Interdisciplinary Gender Studies 39, 40.
45
Pauline Spencer, ‘From Alternative to the New Normal: Therapeutic jurisprudence in the mainstream’ (2014) 39(4) Alternative Law Journal 222, 224.
46
47
Janine Natalya Clark, ‘Transitional Justice as Recognition: An Analysis of the Women’s Court in Sarajevo’ (2016) 10 International Journal of Transitional Justice 67, 75.
48
49
Ibid.
50
Benjamin Cardozo, The Nature of the Judicial Process (Yale University Press, 1921) 126.