Why the Criminal Justice System is Failing Incarcerated Women
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Why the Criminal Justice System is Failing Incarcerated Women

Stories/292 , Issues/Women , Issues/Policy , Issues/Human Rights
Women's Justice Network, Sydney NSW 2000, Australia
27th Mar 2018
Why the Criminal Justice System is Failing Incarcerated Women
With more women entering prison than ever before, reforming the criminal justice system needs to become a priority.

Since 2007 there has been a marked upward trend in the number of women being imprisoned in Australia. According to the Australian Bureau of Statistics each year since 2007 there has been an average increase of 5.6 percent of women entering prisons. During this period, the years which saw the highest increase were 2014 (10.4 %) and 2015 (11.1 %). In contrast the average increase amongst men entering prisons during this same period is 4.3 percent.

Dr Carolyn Mackay, Deputy Director of the Sydney Institute of Criminology, says this trend is reflected in worldwide prison populations.

"There has been a massive increase in the number of women being imprisoned worldwide and that is reflected in Australia," Dr Mackay states.

Dr Carolyn Mackay, deputy Director of the Sydney Institute of Criminology
Dr Carolyn Mackay, deputy Director of the Sydney Institute of Criminology

As to why we are seeing these increases Dr Mackay suggests "it could be a number of factors. We could say that it is a combination of greater law enforcement and harsher bail requirements."

She added that "people are being more heavily policed especially in some communities such as some Aboriginal communities, it seems like some Aboriginal women are being over policed."

According to the Human Rights Law Centre (HRLC) Aboriginal and Torres Strait Islander (ABTSI) women represent 34 percent of the female prison population whilst only being 2 percent of the adult female population.

In May 2017 the HRLC released a report which stated that the majority of ABTSI women in prison are survivors of physical and sexual violence and many experience mental health issues, housing insecurity, and the effects of trauma.

Dr Silke Meyer, Lecturer in Family and Domestic Violence at Central Queensland University, says younger girls are catching up with the social behaviours of men and that includes anti-social behaviour.

"We know that women are more likely to be incarcerated more frequently for parole violations, they tend to come back [to prison] for not complying with community-based orders," Dr Meyer says.

Dr Silke Meyer, Lecturer of Domestic and Family Violence at CQU
Dr Silke Meyer, Lecturer of Domestic and Family Violence at CQU

"We see younger women being more active in criminal offending behaviour, and we have seen that in youth justice research for quite a few years now."

In relation to the Aboriginal and Torres Strait Islander (ABTSI) community Dr Meyer says that "we are seeing similar problems around youth violence, property offences... I think for older Aboriginal women it has a lot to do with their histories of victimisation, it has a lot to do with a history of domestic and family violence."

"In the context of ABTSI family violence it often means that women are often targeted or seen as perpetrators because they are more likely to fight back, they are more likely to use violence to defend themselves...when police intervene [these women] end up with more charges."

One of the big issues facing women in prisons is recidivism and Dr Meyer says that "we do not offer the right support for women transitioning out of prison into a life free of crime."

"Unless we start to look at, really look at what it is that makes it work for women when they transition back in to the community, we are never going to solve the problem, because we have a female prison population that has been highly traumatised, they have mental health issues that often takes to substance misuse as a poor coping mechanism,"

The Community Restorative Centre based in Sydney through its Miranda Project works with women before and after their release from prison and is filling a gap in facilitating community support to such women who previously were being managed by the criminal justice system.

Dr Mindy Sotiri of the Community Restorative Centre is involved with the Miranda Project which is an initiative offering a whole range of support and a women's centre with a safe space for women after release from prison.

One of the hardest things that women in prisons have to deal with is the removal of their children from their care or separation from their children.

Dr Sotiri says "parenting and separation from children is without a doubt the single greatest hardship for the women we work with, and many of the women we work with are in that situation."

Working from within the prison system for over 20 years, Dr Sotiri has known many incarcerated women. She identifies the problems many women face in gaining access to their children.

"We spend a lot of time supporting women especially when they have made significant changes in their lives, they might have struggled with drug and alcohol abuse for many years, they may have been in a number of violent relationships, they may have a had a number of children removed."

"The women we work with are remarkable in the number of changes they are able to make but advocating for that population to regain access to the child or the children or to hold on to their babies even if they are totally clean and their lives are totally reformed often that child will still be removed because of their history."

Jane Walker who recently completed her Phd at the University of New South Wales researching pregnancy in prison and the experience of pregnant women in prison estimates that "5 % who are received into prison each year in Australia are pregnant" and that according to 2014 data that amounts to 179 women.

According to Ms Walker most incarcerated pregnant women will be placed into institutions which are close to a tertiary hospital and they will receive antenatal care usually through share care arrangements with a local tertiary hospital.

In relation to her research Ms Walker says "the main concern of pregnant women and women with young children is how they will keep in contact with those children and exactly what will happen to them once they will go into prison."

All states in Australia have some legislative framework that allow children to reside with their mothers in prison but the provisions vary quite significantly. For example, in New South Wales the law states that for children to reside with their mothers full-time they have to be under the age of 6 and not be attending school whilst in South Australia the upper age limit is 3 years. The kind of approach a particular prison will take when dealing with pregnant women or women who are parents can be potentially harmful.

Ms Walker described the varying provisions on offer throughout Australia as "a bit of a postcode lottery."

"Some prisons have quite good facilities for children's play, non-government organisations will come into prison and do story time, children sometimes attend day care outside in the community but other prisons are far less well set up."

The idea that a child will reside in prison with it's mother may not sit well with some people in the community. A report released in 2016 by the Victorian Department of Justice and Regulation found that there is no evidence to suggest that children living with their parents in prison are being harmed. Rather the report suggested that with high level programming such initiatives will benefit mothers and their children.

An effective practice model has been put together by the Australian Institute of Criminology and it includes treatment programs that are culturally and gender sensitive and which account for the needs of mothers, pregnant women, breastfeeding mothers, and more generally women in prison. This practice model is based on the Bangkok Rules, the first UN standards for the treatment of women in prison. Though there is no determinative indication that this model has been implemented fully in Australia.

The problem with current practice and policy in relation to parenting and children according to Ms Walker is it "overlooks the idea that what benefits women benefits children, and [it also] overlooks women's custodial rights." In some cases, children are taken from their mothers after the post-natal period by child protection services, the predominant being ABTSI women.

The issue revolves around notions of risk and responsibility "having children in a prison environment is seen as a very risky practice and many prison staff and managers believe that prisons are not suitable environments for young children to be in."

There are a number of changes we can make states Jane Walker, "we can build a more supportive framework within corrections... we could take targeted officer recruitment and selection ... give them clearly defined roles and give them recognition and reward for working with mothers and children. From women's point of view we can put together individualised plans to support them with their mothering goals both in and beyond prison."

When it comes the disparity of services available to pregnant women and mothers Ms Walker says what she would like "to see is collaboration between states and territories and experts from the different services to ensure that we have a consistent system throughout Australia and remove this variability where you have women in some jurisdictions have access to reasonably good provisions and women in others that really have access to little or nothing."

The prison system is not meant to be a walk in the park. It is meant to be coercive and intimidating. But what are prisons for? Do they exist to rehabilitate or to punish? With massive amounts of money being poured into our prisons infrastructure Dr Mackay says that such spending is an investment in failure, as prisons have not proven to be very successful in stopping crime.

Keeping women out of prison and the criminal justice system is the best approach to decrease the number of incarcerated women. Dr Mackay says that "the majority of women do not commit violent crimes. [We should] actually try to keep them out of prison altogether and that is particularly critical when we look at the number of women who are actually parents."

For Dr Sotiri it is crucial that we "take an approach to incarceration that more generally looks at where people have come from and why people end up in the criminal justice system."

"We are locking people [up] often for crimes such as breach of parole and for minor matters but because there is nothing for them in the community often magistrates feel like they have no other option, especially if a person has a long history of incarceration and a long history of offending."

Dr Mindy Sotiri, Community Restorative Centre
Dr Mindy Sotiri, Community Restorative Centre

Many women experience traumas through violence, victimisation, or institutionalised racism before entering the prison system, thus it is important that such traumas are not exacerbated through poor decision making and prison management.

There are many other issues affecting women in prison beyond pregnancy and parenting. Sisters Inside, which advocates for the human rights of women prisoners, has pointed out that strip searching in prisons is tantamount to sexual assault and can re-traumatize women. Whilst the Women Justice Network, an organisation that seeks to advance the prospects of women and female youth affected by the criminal justice system, have pointed out even with stringent protections in place strip searching ignores the damaging effect on those women who have been victims of sexual abuse.

Our international obligations under the International Covenant on Civil and Political Rights require that those deprived of liberty be treated with humanity and respect, that no one be subjected to degrading treatment, and that states don't arbitrarily interfere with a person's family, home, and privacy.

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