Asher Flynn

Plea-negotiations, prosecutors and discretion: An argument for legal reform

Unlike the cynicism and accountability concerns applied to the use of discretion by police and judicial officers, prosecutorial discretion in plea-negotiations operates essentially free from external scrutiny or transparency. Globally, there is a scarcity of data and research on plea-negotiations, meaning we do not have the capacity to accurately measure their frequency, the contexts in which agreements are reached or to identify patterns in the types of offenders/offences most commonly involved. Additionally, in almost all Australian jurisdictions, plea-negotiations are not recognised as a legitimate legal process in statute, despite empirical evidence from the legal community suggesting their overtly encouraged and common use. Drawing from research in which 51 Victorian prosecutors were observed engaging in plea-negotiation practices over several months, and 54 interviews were conducted with prosecutors, defence counsel, judicial officers and policy advisors, this article intends to reignite discussions of the nontransparency of plea-negotiations in Australia, including highlighting the need for increased criminological research in this underexamined field. The article contends that all Australian jurisdictions should define plea-negotiations in legislation and record data on how often plea-negotiations occur, similarly to the current process of recording guilty pleas. Without such reform, plea-negotiations will remain nontransparent and misunderstood, as there will be no adequate mechanism to understand or examine how negotiations operate in practice or what their true impacts might be.

Meanings of 'sex' and 'consent': The persistence of rape myths in Victorian rape law

Since the 1980s, laws regulating the meaning and interpretation of sexual consent have been substantially reformed across Australian and international jurisdictions. Of particular note in an Australian context are the significant changes to the definition of consent introduced in Victoria in 2006 and 2007, which were informed primarily by the Victorian Law Reform Commission’s review of legislative provisions relating to sexual offences. In this article, we explore the persistence of traditional rape discourses in the courtroom following the 2007 Victorian reforms by examining meanings of ‘sex’ and ‘consent’ in a pilot sample of rape trials. Our analysis suggests that although deeply entrenched societal myths or discourses about rape continue to pervade Victorian courtrooms, there is some evidence of a shift towards a legal focus on the accused’s state of mind, in addition to that of the victim-complainant. This shift, however, is only prominent in cases in which the accused testifies. In light of these preliminary findings, we suggest that further comparative analyses of the qualitative impact of law reform on discursive constructions of ‘sex’ and ‘consent’ in rape trials may provide alternative measures of the impact of rape law reform.

Sentence Indications for Indictable Offences: Increasing Court Efficiency at the Expense of Justice?: A Response to the Victorian Legislation

Abstract In September 2007, the Victorian Sentencing Advisory Council released a report (2007c) recommending the introduction of sentence indications for indictable offences in Victorias intermediate court. In response, on July 1, 2008, a legislated sentence indication process was implemented into Victorias intermediate and Supreme Courts in s 23A of the Crimes (Criminal Trials) Act 1999 (Vic). This process is now governed by s 208-s 209 of the Criminal Procedure Act 2009 (Vic). Drawing upon national and international commentary and experiences with sentence indications, this article examines the potential benefits and disadvantages of the Victorian legislation, including its limited capacity to attract early guilty pleas and its potentially negative impact on victims and defendants. This article contends that the desire for court efficiency has led to the implementation of reforms across criminal justice systems that, while seeking to apply the benefits of reduced delays and early guilty pleas, ultimately prioritise efficiency gains above the interests of the public, victims and defendants. The Victorian Sentencing Advisory Councils proposal (2007c) and the subsequent provisions introducing an indictable indication scheme in s 208-s 209 of the Criminal Procedure Act 2009 (Vic), are used to inform this argument.

The Promise and Paradox of Justice: Rape Justice Beyond the Criminal Law

Justice for victim-survivors of sexual violence is marred by a series of intersecting paradoxes, predicaments and contradictions. On the one hand, sexual violence is commonly understood as a ‘trauma’ under increasingly medicalised and individualised psychological frameworks (see Gavey & Schmidt, 2011). Rape is often rendered incomprehensible and taboo to others; seen as the ‘worst of crimes’, ‘an assault on the soul’ (Sharratt & Kaschak, 2013) or ‘the ultimate violation’ (Rowland, 1985). Yet on the other hand, victim-blaming cultural attitudes, stereotypes and myths continue to normalise sexual violence and trivialise victim experiences (Heenan & Murray, 2006), particularly when the perpetrator is a person known to the victim and/or when the victim is in an intoxicated state (Lynch et al., 2013; Richardson & Campbell, 1982). Indeed, cultural, structural, institutional and social values about sexual violence have been identified as part of a phenomenon which is commonly yet controversially referred to as ‘rape culture’, defined as ‘a complex set of beliefs that encourage male sexual aggression and supports violence against women’ (Buchwald et al., 2005, p. xi; see also Brownmiller, 1975; Horvarth & Brown, 2009). Arguably an outcome of these prevailing forces — between the pathological trauma of rape and the minimisation and trivialisation of rape — is to contribute to the construction of a ‘spoiled identity’ (Gavey & Schmidt, 2011, p. 451) and a reinforcement of stranger rape as the prototype of ‘real rape’ (Estrich, 1987; Williams, 1984) — both a form of misrecognition and representational injustice (Fraser, 1998).

Sexual Violence and Innovative Responses to Justice

Within law, the desired outcome is purportedly obtaining justice. Yet on a global scale, the law has consistently failed in providing justice, empowerment, status or control to sexual violence victims, while simultaneously failing to adequately consider the complexities and individuality of sexual violence experiences. A key problem for the law in responding to these failings has historically been the dominant cultural, political and social narratives around what constitutes ‘real rape’, what is consent and who fits into the normative sexual victim and offender labels. However, as the capacity for conventional legal processes to achieve or provide ‘justice’ in cases of sexual violence has been increasingly critiqued, and attention has shifted towards better integration of victims’ needs in legal proceedings, these same failings have facilitated opportunities for the interruption of the recognisable narratives of rape, justice and the lived, versus stereotyped, experiences of women. In response, we have witnessed a range of initiatives — official and unofficial; within and beyond the criminal law — explored and implemented, with the aim of providing alternative forms of justice for sexual violence victims.

Policing image-based sexual abuse: stakeholder perspectives

ABSTRACT Image-based sexual abuse (IBSA) refers to the non-consensual recording, distribution, or threat of distribution, of nude or sexual images. Over the past five years, numerous jurisdictions have amended their criminal laws to respond more effectively to this growing phenomenon, yet increased criminalization has not automatically translated into increased prosecutions. Drawing on stakeholder interviews with 52 Australian legal and policy experts, domestic and sexual violence advocates, industry representatives, police, and academics, this article examines law enforcement responses to IBSA in Australia. We argue that although there is evidence to suggest IBSA is being treated more seriously by police, there are five primary barriers to responding to IBSA, including: inconsistent laws; a lack of resources; evidentiary limitations; jurisdictional boundaries; and victim-blaming or harm minimization attitudes. Suggestions are made for how to respond to these challenges to facilitate more effective policing of IBSA.

The honeymoon killer : plea bargaining and intimate femicide : a response to Watson

In October 2003, US citizen Christina Thomas died while scuba diving on Queensland’s Great Barrier Reef. Following over five years of delays, her husband David Watson accepted a plea bargain to which he pleaded guilty to manslaughter on the basis of criminal negligence. Watson was initially sentenced to four and a half years imprisonment, suspended after 12 months, however this was later increased on appeal to suspension after 18 months. Using Watson as a framework for analysis, this article examines some of the limitations of an inefficient justice system, with a particular focus on the private nature of the plea bargaining process, and the potentially favourable representations and sentencing of men who kill a female intimate partner. The authors argue that the need to respond to court inefficiency and under-resourcing in the criminal courts creates pressures that can result in a desire for increased efficiency being prioritised above other justice concerns, and this allows for existing flaws within the operation of the criminal justice system to be exacerbated, and excused.