by ANNA KERR & DR. RITA SHACKEL
The increased incarceration of women for violence-related offences in some Australian and overseas jurisdictions points to pervasive systemic gender bias and discrimination in the criminal justice process. Emerging anecdotal and recent research and court-related data are disturbing and suggest that women’s fundamental human rights and freedoms are under attack.
The national imprisonment rate has increased faster for women than for men over the past decade: in the previous ten years, the national rate of imprisonment of women increased 40 per cent which was almost double that of men; while from 1995 to 2009, the number of female prisoners increased by 154.5 per cent compared with an increase in male prisoners of 63.9 per cent.1
Similar trends are evident in other countries including the US, the UK, and the Netherlands.2
According to NSW Bureau of Crime Statistics Director, Don Weatherburn, this trend is fuelled by a change in policing and toughness being exercised by the courts rather than an actual increase in the incidence of female crime.3
Rather than delivering justice, the police and judiciary would appear to be delivering ‘equality with a vengeance’. This approach fails to acknowledge the distinct characteristics of female defendants and the inherent dynamics of domestic violence – including women’s lower reoffending rates, their histories of trauma, increased suffering in custody and greater caregiving responsibilities.4
Further, domestic and intimate partner violence perpetrated against women is experienced very differently by women and children compared with men, due to a fundamental asymmetry and imbalance in power and control between men and women.5
While some acts of violence reflect escalation in couple conflict, much domestic and family violence is driven by a desire to subjugate.6
Violent behaviour is one of a variety of tactics that form a perpetrator’s pattern of behaviour directed towards gaining power and control of the victim.7
Violence towards women is therefore a product of male desire for control, influenced, facilitated and perpetuated by the male-dominated structures of the community.8
Judicial failure to consider this particular context and the impact of domestic and family violence means that individual acts of violence are often misunderstood.9
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