Indigenous Courts, Culture and Partner Violence

My new book, Indigenous Courts, Culture and Partner Violence, published by Palgrave Macmillan in May 2019, considers what aspects of the sentencing process are most important in influencing a change in attitude and behaviour of Indigenous[1] offenders who repeatedly engage in abusive behaviour towards their partner, and what types of justice processes better meet the relationship, rehabilitative and safety needs of Indigenous partner violence offenders and their victims. These are not easy questions to answer and the findings presented in the book are the product of five years of research on the topic.

Indigenous sentencing courts have been in operation in Australia since 1999, the first having been established by a magistrate in South Australia who sought to improve court communication and understanding, and trust in the criminal justice system for Indigenous people (Daly and Marchetti, 2012). Some courts are under threat due to cuts in government funding and penal populism which pushes governments to support ‘tough on crime’ policies that result in more offenders being on remand or receiving prison sentences as opposed to community-based orders. Getting tougher on crime contradicts the ethos of Indigenous sentencing courts, which target offenders at risk of imprisonment. The focus of the courts is on making the sentencing process more culturally appropriate and sensitive by including Elders and Community Representatives in the discussion that takes place during the sentencing hearing. Community members, magistrates and lawyers involved with the Indigenous sentencing courts have seen what these courts can do and despite cut-backs in government funding in some jurisdiction, have continued their commitment and support of such processes to safeguard the continuance of the courts. Indigenous sentencing courts seem to strike a chord with Indigenous Australians who have been involved with their operation either as Elders, Community Representatives, offenders or victims. They see the courts as empowering their people and communities through giving them a voice and showing them respect.

How Indigenous sentencing courts work in sentencing Indigenous offenders convicted of domestic and family violence offences has not been the focus of evaluations or much of the research (other than my own) that has been conducted of the courts. This book is the first to consider how the transformation of a sentencing process into one that better reflects Indigenous cultural values and knowledges can improve outcomes for both victims and offenders of Indigenous partner violence. One of the most important and original contributions of the book is to map differences in outcomes between victim and offender pairs who stayed together after the sentencing court hearing and those who didn’t. For this comparison, I used data from interviews with 16 victim/offender pairs (32 participants in total), of which 11 were still in a relationship at the time of the interview and a further 14 offenders (whose victim partner or ex-partner was not also interviewed), and 13 victims (whose offending partner or ex-partner was not also interviewed). The findings in this book, however, offer more than an assessment of how sentencing courts can better address Indigenous partner violence offending. In recent times, there has been a greater emphasis on ensuring criminal justice programs are culturally appropriate and inclusive of Indigenous epistemologies, axiologies and ontologies when they are specifically targeting Indigenous offenders or victims of crime. However, when it comes to evaluating the Indigenous-focused programs it appears that little thought is given to how the measures and methods reflect Indigenous-centric values and knowledges. Research or evaluations of even the most thoughtful Indigenous-focused criminal justice programs continue to find that such programs have little or no impact on offending outcomes such as recidivism rates (Beranger et al., 2010), but we need to ask whether such findings are an accurate reflection of program ineffectiveness or the consequence of how the research was carried out. Although my book does not use quantitative statistical analyses of court and police data, it uses in-depth interviews and a pathways to desistance analysis to assess how culture and the criminal justice system can latch or ‘hook’ onto an offender’s internal sense of who they are to encourage Indigenous partner violence offenders to change. This choice of method was considered appropriate because it is able to accommodate the many complex and contributing factors that affect a person’s partner violence offending trajectory.

Like other First Nations people around the world, Australian Indigenous people are more likely to experience higher unemployment, chronic health conditions, and violent victimization, and to have fewer years of formal education. Changing offending behaviour in such circumstances, particularly in regional or remote towns, where access to jobs and services is more limited and where systemic and institutional racism can be more pronounced, is not easy. However, as this research shows, it is not impossible. With the help of Elders and Community Representatives, who act as cultural authority figures in court, Indigenous perpetrators of partner violence, with a readiness to change, can find the support and motivation to either desist from further offending or reduce the severity of their abuse in towns that have Indigenous sentencing courts. The cultural influence of an Indigenous court contrasts to the impersonal and efficiency-driven nature of mainstream courts. Indigenous sentencing courts have only been operating for a short period of time in Australia’s settler-colonial history and most of the courts are not adequately funded if it is acknowledged that to be properly resourced, the courts require culturally appropriate post-sentence support programs to be established. Nevertheless, the Australian Indigenous sentencing courts appear to effect change, even if it is not linear and immediate.

References

Beranger, B., Weatherburn, D., & Moffatt, S. (2010). Reducing Indigenous Contact with the Court System. NSW Bureau of Crime Statistics and Research: Crime and Justice Statistics Bureau Brief, 54, 1-4.

Daly, K. & Marchetti, E. (2012). Innovative Justice Processes: Restorative Justice, Indigenous Justice and Therapeutic Justice. In M. Marmo, W. de Lint & D. Palmer (Eds.), Crime and Justice: A Guide to Criminology (pp. 455-481). Sydney, Australia: Law Book Co.

[1] I use ‘Indigenous’ to refer to Australian Aboriginal and Torres Strait Islander people. I am aware that there is much cultural and language diversity between, not only Aboriginal and Torres Strait Islander people, but also amongst various communities and societies of both groups. If needed, I will make mention of those differences.

By Professor Elena Marchetti

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