Julie Stubbs

Feminist Engagement with Restorative Justice

We analyse five areas of feminist engagement with restorative justice (RJ): theories of justice; the role of retribution in criminal justice; studies of gender (and other social relations) in RJ processes; the appropriateness of RJ for partner, sexual or family violence; and the politics of race and gender in making justice claims. Feminist engagement has focused almost exclusively on the appropriateness of RJ for sexual, partner or family violence, but there is a need to broaden the focus. We identify a wider spectrum of theoretical, political and empirical problems for future feminist analysis of RJ.

Battered Women Charged with Homicide: Advancing the Interests of Indigenous Women

Abstract This article examines legal responses to women charged with a homicide offence arising from killing an abusive partner and reviews Australian cases over the period 1991–2007. We focus on cases involving Indigenous women, due to their very substantial overrepresentation as victims and offenders in intimate homicides in Australia. We find that the Australian case law to date has not developed principles adequate to reflect battered womens interests. Our analysis of cases involving Indigenous battered women indicates that the battering they had experienced and their disadvantaged circumstances were commonly read as indicators of personal deficits, and any evidence of structural disadvantage was muted. This research suggests that the limited impact of battered womens litigation in Australia is in part attributable to the psychological individualism of the criminal law identified by Norrie (2001, 2005), which is not confined to the trial stage but also shapes prosecutorial discretion and sentencing. We urge future research to shift the focus beyond battered woman syndrome and the trial process to examine plea bargaining and sentencing, and we suggest that advocates on behalf of battered women cannot rely on case law developments to deliver change but need to pursue multiple strategies.

Male Violence, Male Fantasy and the Commodification of Women through the Internet

This article considers the construction of particular forms of masculinity and femininity in the context of a new global market for sex and marital trade via the Internet. The work arose from research conducted on disproportionate levels of violence against Filipino women in Australia; in particular, high victimisation rates in cases of spousal homicides compared to other Australian women. The research led to a consideration of the intersection between gender, ethnicity and first world/third world relations. Violence against Filipino women in Australia is examined with reference to the material and symbolic dimensions which shaped their experiences as immigrants and their postcolonial identities. The gendered and racialised nature of the movement of women across national boundaries, and their subsequent exposure to more extreme levels of violence, gives the research a broader focus than simply the experiences of Filipino women in Australia. We pay particular attention to the Internet as a site for the representation of Filipino women and as a marketplace for buying and selling women. The Internet now represents a significant international site through which Filipino women are represented as partners for sex or marriage. The Internet also exemplifies the manner in which economic privilege and access to technological knowledge and resources reinforce hierarchies based in ‘race’ and gender and reproduce inequality within and through cyberspace.

Re-Examining Bail and Remand for Young People in NSW

This article examines the substantial growth in the number of young people remanded in custody in New South Wales (NSW) and the increasing number of young people granted bail but unable to meet the conditions of bail. It points to the inadequacies of the Bail Act 1978 (NSW) for dealing with young people, and highlights the ways in which recent developments in law and practice and the politicisation of bail mark a substantial departure from the well-established purposes of bail and remand. It also identifies an agenda for future research concerning bail decision-making for young people.

Battered women charged with homicide in Australia, Canada and New Zealand: How do they fare?

This article examines trends in the resolution of homicide cases involving battered women defendants from 2000 to 2010 in Australia, Canada and New Zealand. Australia and Canada appear to have some commonalities in their treatment of such cases with higher acquittal rates and a greater reliance on plea bargaining to produce manslaughter verdicts, as compared with New Zealand. Although New Zealand’s small number of cases makes it difficult to generalise, its overall trends appear to be different from those observed in Australia and Canada, in both the high proportion of cases proceeding to trial and those resulting in conviction for murder. The authors conclude that there is a need to re-examine prosecutorial practices of proceeding to trial on murder rather than manslaughter charges even when manslaughter would be ultimately satisfactory to the prosecution, and of accepting guilty pleas to manslaughter verdicts in circumstances where the battered woman appears to have a strong self-defence case.

Divergent Directions in Reforming Legal Responses to Lethal Violence

Over the past three decades, debates about legal reforms to lethal violence have been evident across Australia and in other jurisdictions. While these debates have often arisen from shared concerns, the resulting reforms have taken different approaches to reformulating the defences to murder. This article considers the divergent approaches taken to reform and the process of law reform itself, documenting the significance of localised histories and high profile cases. It also questions whether reforms to the defences to murder have responded adequately to the varying contexts within which men and women kill. The analysis reveals the limitations of law reform inquiries that fail to take a comprehensive approach to considering the operation of the laws in this area. The article calls for ongoing critical analysis of homicide within and beyond the law.

Australian Perspectives on Domestic Violence

This chapter provides an overview of the historical and contemporary responses to domestic violence in Australia. The idea that domestic violence is a private matter largely prevailed until the 1970s, when feminist activism and governmental inquiries emphasised that it is a social problem mostly affecting women. Contemporary policy responses in Australia draw on a gendered analysis of domestic violence although some groups challenge that approach. The terms domestic and family violence are often used interchangeably in Australia, in part because many Indigenous communities prefer family violence as it encompasses Aboriginal kinship. The term family violence does not necessarily signal a gender-neutral approach. Legal responses to domestic violence include civil protection orders which were introduced in Australian States and Territories from the 1980s. Police have a central role in civil protection order systems which marks out Australian approaches as distinctive. The chapter examines the available evidence concerning the prevalence of domestic violence in Australia, and legal responses to domestic violence. It also discusses the experiences of marginalised women, particularly Indigenous women whose experience of family violence is mediated by the ongoing effects of colonisation and discrimination. The chapter looks beyond the traditional legal focus of civil and criminal law and includes information about other measures to respond to domestic violence, such as emergency accommodation, perpetrator programs and recently introduced multidisciplinary groups tasked with responding to high risk victims. It concludes by identifying areas that require greater attention in Australia.

How Has Justice Reinvestment Worked in the USA

As more US states have taken up justice reinvestment to deal with ballooning corrections populations and the budgetary realities that go with them, justice reinvestment has taken a range of shapes. Cumulatively, these strategies have contributed to a change in the political climate whereby lowering imprisonment rates can be seriously entertained by public officials (Austin et al., 2013: 1). Moreover, according to Gary Dennis of the BJA, JRI initiatives have led to improvements in levels of professionalism within the not-for-profit sector and faith-based organisations as their work gets drawn into a framework involving stronger oversight and evaluation.

Indigenous Women and Penal Politics

Introduction Since the Royal Commission into Aboriginal Deaths in Custody reported in 1991 (RCADIC, 1991), rates of incarceration of Indigenous women have grown substantially, to a greater extent than for Indigenous men. However, despite their substantial over-representation in prisons, Indigenous women too rarely feature as subjects of penal discourse or penal politics. RCADIC was of enormous significance in providing detailed analysis of the underlying factors that contributed to the over-representation of Indigenous people in custody and to deaths in custody (RCADIC, 1991). However, the official reports ‘lacked a gender-specific analysis’ (Marchetti, 2007: 8) and the experiences of Indigenous women were largely overlooked and subsumed in a generalised understanding of Indigenous experience, based on the experiences of men (Marchetti, 2008). The failure to examine the criminalisa- tion and incarceration of Indigenous women1 continues today in research, policy and criminal justice practices. References

How Does Justice Reinvestment Travel? Criminal Justice Policy Transfer and the Importance of Context: Policy, Politics and Populism

The previous two chapters raised a series of challenges to some of the often taken for granted claims made on behalf of justice reinvestment policies. Chapter 3 looked behind the claims of locality and community and in particular interrogated how they may or may not work for over-represented and vulnerable groups, including people with mental illness and/or cognitive disability, women, and Indigenous and other racialised peoples. Chapter 4 examined some of the problematic features behind the methodological and measurement claims of justice reinvestment as ‘data-driven’ and ‘evidence-based’, asking what is counted and what counts, and drawing out tensions between ‘evidence-based practice’ and social justice concerns. This chapter addresses the issue of the portability of justice reinvestment as a form of ‘policy transfer’, an investigation which places the issue of context centre stage. It looks briefly at the issue of criminal justice policy transfer more generally and through some specific examples in the UK and Australia, before examining some of the key pre-conditions for and barriers to, the successful adoption of justice reinvestment policies in Australia. This is followed by a discussion of various dangers and misconceptions in processes of policy formation, including what we call the ‘rationalist fallacy’ which is exemplified in the common ‘roll out’ metaphor and the susceptibility of criminal justice policy to populist backlash.