Sydney Institute of Criminology
CrimNet
16 September 2020
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The CrimNet newsletter is sponsored by the Sydney Institute of Criminology. CrimNet provides regular communication between criminal justice professionals, practitioners, academics and students in Australia and overseas. Share CrimNet with your peers and help grow the network.
We acknowledge the tradition of custodianship and law of the Country on which the University of Sydney campuses stand. We pay our respects to those who have cared and continue to care for Country.
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Human Rights Watch reports on prisoner deaths and mental health conditions
On 15 September 2020, Human Rights Watch released the report, “He’s Never Coming Back”: People with Disabilities Dying in Western Australia’s Prisons. The report examines the serious risk of self-harm and death for prisoners with mental health conditions, particularly Aboriginal and Torres Strait Islander prisoners, in Western Australia nearly 30 years after the 1991 Royal Commission into Aboriginal Deaths In Custody.
A Human Rights Watch analysis of coroners’ inquest and media reports between 2010 and 2020 found that about 60 percent of adults who died in prisons in Western Australia had a disability, including mental health conditions. Of the 60 percent, 58 percent died as a result of: a lack of support; suicide; or being targets of violence. Half of these deaths were of Aboriginal and Torres Strait Islander prisoners.
To prevent the overimprisonment and deaths in custody of people with disabilities, particularly Aboriginal and Torres Strait Islander peoples, Human Rights Watch calls on Australia’s governments to implement all the recommendations from the 1991 Royal Commission into Aboriginal Deaths in Custody, the Australian Law Reform Commission’s 2018 Pathways to Justice report, and the Change the Record Campaign, including:
- End the overimprisonment of Aboriginal and Torres Strait Islander peoples by repealing punitive bail laws; mandatory sentencing laws; and decriminalizing public drunkenness.
- Raise the age of criminal responsibility from 10 to at least 14 years.
- End racist policing.
- End the abuse, torture and solitary confinement of Aboriginal and Torres Strait Islander people in police and prison cells through legislative safeguards and by urgently establishing independent bodies to oversee the conditions of detention and treatment of people in accordance with Australia’s obligations under the United Nations Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT).
- In partnership with relevant Aboriginal and Torres Strait Islander organizations, set up Aboriginal Justice Advisory Committees.
Extract: This report examines the cases of eight people with disabilities who died in custody in Western Australia between 2015 and 2020, six of whom were Aboriginal people. Their cases are illustrative of the severely inadequate mental health support in prisons in Western Australia. The report is based on interviews, between September 2019 and August 2020, with 40 people including prisoners, family members, mental health professionals, lawyers, Aboriginal leaders, disability rights and death in custody experts in the cities of Perth and Broome. The report draws on an extensive study of the 102 cases of deaths in custody that occurred in Western Australia between 2010 and 2020.
Due to limited resources, mental health services in prisons are at times reduced to distributing medication through a slot in the cell door, monitoring prisoners to prevent self-harm, and acute crisis counselling. The quality of counselling varies across prisons and can often be limited to a perfunctory, “How are you doing?” through closed cell doors, allowing for the response to be heard across the unit, including by prison guards.
The Western Australian Office of the Inspector of Custodial Services, the independent agency that inspects places of detention and reports directly to Western Australia’s parliament, stated in 2018 that “the State is not meeting the mental health needs of prisoners” and “daily management of people with serious mental health needs is left to custodial staff who have limited training, few management options and poor access to information.”
Human Rights Watch found that corrective services’ approach has largely been to reduce access to tools that can be used to self-harm and keeping at-risk prisoners under strict observation. But little has been done to address the deteriorating conditions of confinement, the inadequate access to support or mental health services, and the overuse and harm of solitary confinement. The 1991 Royal Commission report found solitary confinement causes “extreme anxiety” and has a particularly detrimental impact on Aboriginal and Torres Strait Islander prisoners, many of whom are already separated from family, kin, and community.
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BOCSAR reports rise in sexual assault in Sydney and Regional NSW
The NSW Bureau of Crime Statistics and Research (BOCSAR) released the NSW Recorded Crime Statistics quarterly update June 2020 on 2 September 2020. While BOCSAR reports that crime across most of NSW has remained stable or fallen in the two years to June 2020, a major exception to this is sexual assault, which rose 9.4% year-on-year to June 2020. A similar upward trend was reported in the previous quarterly report.
Sexual assault increased in two of the 15 Sydney statistical areas: Blacktown (up 24.4%, or 71 additional incidents) and Sutherland (up 59.2%, or 45 additional incidents). In Regional NSW, three of the 13 statistical areas showed a significant increase in recorded rates of sexual assault: Hunter Valley excluding Newcastle (up 19.7% or 59 additional incidents); Illawarra (up 33.7% or 66 additional incidents); and Southern Highlands and Shoalhaven (up 63.9% or 62 additional incidents).
Commenting on the findings, Executive Director of BOCSAR, Jackie Fitzgerald, said the continuing increase in reported sexual assaults is a worrying trend. “It appears that at least some of the increase in sexual assault is related to an increase in secondary and mandatory reporting of child sexual assault. We will continue to closely monitor trends in this offence.”
The other major offence category with a significant upward trend in the Greater Sydney statistical area was domestic assault. Two Sydney regions had a significant increase in recorded rates of domestic assault in the past two years: Baulkham Hills and Hawkesbury (up 32.7%, or 123 additional incidents) and Parramatta (up 9.9% or 175 additional incidents). In Regional NSW, domestic violence related assault increased in the Murray (up 25.1% or 127 additional incidents).
The offences trending down were: robbery without a weapon (down 12.6%); steal from motor vehicle (down 12.1%); steal from person (down 25.4%); and malicious damage to property (down 5.4%). As previously reported by BOCSAR, crime patterns were significantly interrupted in April 2020 by the pandemic response. In June 2020, recorded incidents of break ins, car theft and retail theft were still considerably lower than the same period in 2019.
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Neurotechnology breakthroughs and the criminal law: emerging issues
Scholars consider the complex legal and ethical implications of neurotechnologies, such as those raised by Elon Musk's new brain-to-machine interface.
Elon Musk recently announced that one of his companies, Neuralink, had implanted an interface about the size of coin into the skull of a pig named Gertrude. Neuralink researchers wirelessly linked the brain to an external computer to establish a connection between the two.
Whilst the device is not yet approved for implantation into a human brain, the company also announced that it had obtained US Food and Drug Administration approval to expedite the regulatory process toward this goal.
This brain-computer interfacing technology might be thought of as another step on the road to a merger between humans and artificial intelligence. It could enable a human to control a cursor, wheelchair or drone by a mental act rather than a more conventional bodily action, like pressing a button or controlling a mouse by hand.
Dr Allan McCay of the Sydney Institute of Criminology, along with other scholars, has explored the complex ethical and legal issues triggered by breakthroughs in neurotechnology. For example, if a person were to commit a crime by way of brain-computer interface, what would the ‘criminal act’ be? If at some point in the future a person controls a drone by thought to kill someone, a court may have to respond to an unorthodox crime.
“Whilst there is an enormous range of very positive consequences that may result from developments in neurotechnology, not least of which is the promise of allowing those with disabilities to walk or communicate, there are many problematic issues to be considered,” Dr McCay said.
Aside from Neuralink, other so-called ‘neurotechnologies’ are available from, or under development by, other companies. These include brain stimulation devices aimed at altering psychological states, which also raises hypothetical questions about criminal responsibility.
“If companies like Neuralink and a host of others continue along their trajectories, the law may have to deal with strange new legal and ethical problems involving brain technologies. It is therefore vital that we address the legal, social and ethical ramifications of neurotechnologies now – before it’s too late,” Dr McCay said.
As well being a member of the Sydney Institute of Criminology, Dr McCay is a member of the Neurorights Network, an international group of researchers focussed on addressing these issues.
Dr McCay went on to say that, “whilst the implications of developments in artificial intelligence for the criminal law are receiving some attention, and many scholars have considered the implications of brain scans for determinations of criminal responsibility and for sentencing, criminal lawyers, theorists and criminologists have not yet devoted much of their efforts to considering a world in which some people take action by way of brain-computer interface, or they act impulsively because a piece of neurotechnology has malfunctioned and overstimulated part of their brain”.
Dr Allan McCay and others have addressed the legal and ethical consequences of neurotechnologies in a new edited volume, Neurointerventions and the law: Regulating Human Mental Capacity. The coedited collection has a significant focus on the criminal law, but also considers other areas of the law such as employment law. Dr McCay is a coeditor of the book along with Dr Nicole Vincent of the University of Technology Sydney and Associate Professor Thomas Nadelhoffer of the College of Charleston (US).
Published by Oxford University Press, the book considers neurotechnologies and other neurointerventions such as medications, and answers questions like: if people start committing crimes by way of brain-computer interface, what is the criminal act; what if there was a brain implant that could detect the neural patterns associated with impulsive aggression, then issue a warning to the person that they may be on the cusp of a violent outburst, or even automatically act on their brain to calm them down; should legal systems medicate those who break the criminal law by, for example, using anti-libidinal drugs for sex offenders; and can employers make their employees use neurotechnologies to monitor brain activities?
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Criminalising coercive control: Position Paper
On 15 September 2020, Women’s Safety NSW released a position paper highlighting the dangers of coercive control in a domestic abuse situation and calling on the NSW Government to prioritise criminalising the behaviour.
Women’s Safety NSW explains that coercive control is at the centre of domestic violence and is the use of coercive behaviours and tactics of fear and intimidation by a person to isolate, emotionally manipulate, monitor, and exploit their partner or family member over a period of time for the purpose of establishing and maintaining dominance and control over them. Victims of domestic and family violence characterised by coercive control live in a state of terror with undermined independence and self-worth and very little ability to escape and are at serious risk of domestic homicide.
“People tend to think of domestic and family violence as incident based, physical violence. But in truth, it is coercive control, a deliberate pattern of behaviours perpetrated towards a person over time for purpose of establishing and maintaining dominance and control over them that is the real disabling factor for victims and the biggest precursor of severe physical violence and homicide,” explains Women’s Safety NSW CEO, Hayley Foster.
Ms Foster says current incident-based laws fail to recognise the realities of domestic and family violence and leave far too many high-risk victims unprotected, a reality which is strongly reflected by domestic abuse survivors in the state-wide survey.
The Women’s Safety NSW paper, Criminalising Coercive Control: a position paper, draws on a 2020 survey of frontline workers and domestic abuse victim-survivors.
The results of the survey found that 100 percent of victim-survivors experienced psychological abuse and that coercive control is frequently identified as the worst part of domestic violence. 96% of survivors surveyed agreed that the definition of domestic violence in the NSW Crimes Act 1901 (NSW) should be amended so that coercive control is criminalised.
“We already have a significant problem with victims of domestic and family violence being misidentified as abusers in our civil and criminal justice system, and this is largely because it is so focused on single incidents and we haven’t invested enough in training and specialisation of law enforcement and judicial officers,” says Ms Foster “Criminalising coercive control as a course of conduct with the essential elements of fear, control and a subjective standard that the conduct would likely cause the victim harm would actually go a huge way to reducing the risk of systems abuse for victims.”
Women’s Safety NSW is calling for system reforms to accompany the legislative change, particularly the development of tools, resources and guidelines for police, prosecutors and judicial officers, as well as training and specialisation.
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NSW to amend concealment laws which can deter sexual assault survivors from seeking help
Christopher Knaus, The Guardian, 16 September 2020.
Extract: The NSW government is moving to amend laws that compel counsellors to report cases of sexual assault to the police because they can deter some survivors, who do not want the authorities involved, from seeking help.
The government is this week acting to reform the laws that carry a two to five-year jail sentence for failing to notify the police of a serious indictable offence. The push follows warnings from frontline rape and family violence services that the laws could be wrongly applied to their staff, or workers in companies or institutions, who receive complaints of sexual assault.
The Rape & Domestic Violence Services Australia executive officer, Karen Willis, said the law as it stands could force support workers to ignore the wishes of survivors and pass on their complaints to police. That not only robbed women of the agency to determine how their complaint was treated, Willis said, but also risked deterring women from seeking support or alerting institutions to wrongdoing.
“We know that less than 20% of those who experience sexual violence will report it to police, so overwhelmingly, unfortunately, people don’t [report],” Willis told the Guardian. “That is their choice and we must respect that.”
The reforms will create a new “reasonable excuse” for not passing on information where the survivor is an adult, the offence is one of sexual violence or family violence, and where the person with knowledge of the crime has a reasonable belief that the “alleged victim does not wish to have the information reported to authorities”.
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COVID-19 recession is 'trapping' women in violent households
Lucy Cormack in The Sydney Morning Herald, 14 September 2020.
Extract: Frontline domestic violence specialists say the economic impacts of COVID-19 are disproportionately affecting victims, trapping them in situations of abuse due to financial dependence, unemployment and a lack of affordable accommodation.
A survey of specialists at 34 community services across NSW found rising rates of women experiencing domestic violence since the onset of the pandemic, with more than 85 per cent recording an increase in the complexity of client cases.
“The biggest concerns being flagged by frontline specialists at the moment are that perpetrators are ramping up their use of violence and abuse in the context of excessive drug and alcohol misuse, unemployment, and financial pressures,” said Hayley Foster, chief executive of peak body Women’s Safety NSW, which conducted the survey. “The results emphasised the economic impacts, which are driving an escalation of violence and abuse, while at the same time leaving victims with less financial means to escape their abusers.”
In July the Australian Institute of Criminology confirmed the pandemic coincided with the onset or escalation of violence and abuse.
A survey of 15,000 women in May found 4.6 per cent experienced physical or sexual violence from a partner or former cohabiting partner in the previous three months. Almost six per cent of women experienced coercive control and almost 12 per cent experienced emotionally abusive, harassing or controlling behaviour.
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Explainer: Increased police powers and COVID-19
The Human Rights Law Centre has published a Factsheet on increased police powers and COVID-19, with a focus on Victoria and the declaration of a ‘state of disaster’.
Extract: In response to the COVID-19 public health emergency, most states across Australia declared a state of emergency and brought in new laws imposing severe restrictions on civil liberties and an increase in policing powers. In Victoria, the declaration of a state of emergency on 16 March 2020 (under the Public Health and Wellbeing Act) granted police powers to give directions regarding the movement of people, to enter any premises and to detain any person as considered necessary.
On 2 August 2020, Victoria went a step further, declaring a state of disaster (under the Emergency Management Act), which generally deals with emergencies such as natural disasters, acts of terrorism and can be used to deal with “a plague or an epidemic”.
Given that police have been granted extraordinarily wide powers, it is important that there is: transparency and accountability in the exercise of increased police powers; independent investigation of complaints of police misconduct during the pandemic; and an end date for the increased police powers, so that they don’t become the new normal.
This must all be accompanied by the Victorian Government engaging in a widespread public education campaign, with increased efforts to educate and provide accessible information to all communities. Relying solely on policing and enforcement measures risks exacerbating inequality and poverty. Likewise, when it comes to interacting with marginalised communities, rather than automatically fining people, police should first be helping them to stay safe and comply with the rules.
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New resources for young people to understand their legal rights
Legal Aid NSW has released two new resources to help young people understand their legal rights and identify where to get help. The first resource is an animated video, ‘How can the law help me?’, which encourages young people to recognise issues that can be classified as legal problems and explains how they can access free legal assistance. This video is part of a series of videos created to help young people understand what Legal Aid NSW is and how it can help. The second resource is a publication called What are my rights? A handbook for young people. This handbook looks at some of the common day-to-day problems that young people face like unpaid fines, debts, problems with a landlord and dealing with police, and explains their rights and how to get help.
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ANROWS collaborating on new national homicide report
A new collaboration has been announced between Australia’s National Research Organisation for Women’s Safety (ANROWS) and the Australian Domestic and Family Violence Death Review Network (the Network) to update the Network’s Australian Domestic and Family Violence Death Review Network Data Report 2018.
The collaboration will draw on the Network’s specialist teams in all Australian states and territories to identify, collect, analyse and report data on deaths related to domestic and family violence. The analysis will include information from Coroners Courts, Ombudsmans’ offices and government agencies to develop an understanding of the circumstances of each death that occurred in a DFV context.
The project will develop analysis of the common risk factors in DFV-related homicides in Australia based on the breadth of information that is available to the Network. The project will also develop a national dataset of the characteristics of the deaths of children by parents to inform prevention initiatives at a national level.
This study is part of a program of research led by ANROWS and funded by the Australian Government Department of Social Services under the Fourth Action Plan of the National Plan to Reduce Violence against Women and their Children 2010–2022.
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Body-worn images: Point-of-view and the new aesthetics of policing
Carolyn McKay and Murray Lee, Crime, Media, Culture. 2020;16(3):431-450
This article, published in Crime, Media, Culture, brings together Professor Murray Lee’s considerable body of research on police body-worn cameras and Dr Carolyn McKay’s immersion in visual criminology. “We adopted a novel approach to analysing the affective impact and aesthetic of the police body-worn video camera footage by deploying cinematic understandings of point-of-view (POV). We found that body-worn cameras present a singular perspective, that is, a single POV that may not capture the whole policing incident. This challenges perceptions of the body-worn cameras as producers of objective truth” said Dr Carolyn McKay, Deputy Director, Sydney Institute of Criminology.
Abstract: Police organisations across much of the Western world have eagerly embraced body-worn video camera technology, seen as a way to enhance public trust in police, provide transparency in policing activity, reduce conflict between police and citizens and provide a police perspective of incidents and events. Indeed, the cameras have become an everyday piece of police ‘kit’. Despite the growing ubiquity of the body-worn video camera, understandings of the nature and value of the audiovisual footage produced by police remain inchoate. Given body-worn video camera’s promise of veracity, this article is interested in the aesthetics of the camera images and the socio-cultural construction of the cameras as tellers of truth. We treat body-worn video cameras as image-making devices linked to techniques and technologies of power, which construct and frame police encounters in specific ways, and we suggest that the aesthetics and point-of-view nature of the image contribute greatly to the truth-value that the images acquire. This article begins by providing an historical context for the use of cameras and images in policing. We then introduce our framework of visual criminology and present theories of point-of-view as a construct in the diverse areas of gaming, pornography and the visual arts, as well as in television and cinema. The article deploys the cinematic use of point-of-view to unpack the affective impact and aesthetic of the police body-worn video camera footage. We suggest that viewers of the footage are placed in the position of the corporeally absent police officer whose experience has been recorded by a viewfinderless device. This generates a vacillating interplay between subjectivity and objectivity, given that the alleged faithful recording of the event by the body-worn video camera presents a singular perspective and incomplete document that may not necessarily capture the full context of the law enforcement event.
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Police Doorknocking in Comparative and Constitutional Perspective: Roy v O’Neill
Julian R Murphy (2020) Sydney Law Review 42 (3)
Abstract: Abstract Roy v O’Neill, currently before the High Court of Australia, raises the question of whether a police officer can knock on a person’s front door to investigate them for potential criminal offending, in circumstances where the police officer has no explicit common law or statutory power to do so. In order to resolve that question, the High Court will need to develop, or at least refine, the common law relating to trespass and implied licences.
This column explores two issues relevant to the development of the common law in this area, namely: the approach taken to implied licences in other common law jurisdictions; and the influence, if any, that divergent state and territory legislative positions in this area should have on the development of the single common law of Australia.
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Street-level drug law enforcement: An updated systematic review
Lorraine Mazerolle, Elizabeth Eggins and Angela Higginson. Trends & issues in crime and criminal justice no. 599. Canberra: Australian Institute of Criminology
Abstract: The Global Policing Database is used to update a 2007 systematic review of the impact of street-level law enforcement interventions on drug crime and drug-related calls-for-service. A total of 26 studies (reported in 29 documents) were eligible for this updated review. Eighteen of the 26 studies reported sufficient data to calculate effect sizes. The publication finds that, overall, street-level policing approaches are effective in reducing drug crime, particularly those involving partnerships, and that geographically targeted law enforcement interventions are more effective in reducing drug crime than standard, unfocused approaches. Approaches that target larger problem areas for intervention are more effective for reducing drug crime (but not calls-for-service) than approaches that focus on micro problem places.
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Care-experienced children and the criminal justice system
Andrew McGrath, Alison Gerard and Emma Colvin. Trends & issues in crime and criminal justice no. 600. Canberra: Australian Institute of Criminology
Abstract: The current study examines the factors underlying pathways from out-of-home care into the criminal justice system. Using a multi-method approach—specifically, court observations, file reviews and qualitative interviews—we found evidence of how histories of trauma and situational factors relating to the care environment interact to increase criminalisation. While many policy initiatives have been developed to address this criminalisation, in all parts of our study we found little evidence these are having an impact on practice in relation to care-experienced children. Some innovations we observed in our United Kingdom case study offer potential solutions to address this serious and ongoing problem.
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Research Officer, ANROWS
Australia’s National Research Organisation for Women’s Safety (ANROWS) is seeking a Research Officer to work together with the Australian Domestic and Family Violence Death Review Network to produce an update to the first Death Review Network Data Report. ANROWS and the Network are working in collaboration on a research project under the Fourth action Plan of the National Plan to Reduce Violence against Women and their Children 2010-2022.
The Research Officer will work together with the Network to produce an update to the first Death Review Network Data Report, develop a research report identifying common risk factors in relation to intimate partner homicide, and establish a minimum dataset for filicide.
This is a part time position (0.8 FTE), available until 31 March 2022. The successful applicant will be based at NSW Coroner’s Court, Lidcombe, Sydney. Applications close 20 September 2020.
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Professor of Criminology, Monash University
Monash University is advertising for a Professor of Criminology in its School of Social Sciences, Faculty of Arts. This is a Level E continuing, full-time position. This role will play a key part in shaping the future of Monash Criminology, providing strong and effective leadership for the expansion of the Faculty’s research strategy and HDR program. This will also be a key leadership role in the Faculty’s research income and industry agenda, ensuring the continual growth and diversification of its research income streams. Applications close 30 September 2020.
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Call for papers: LBGTQ+ Crime and Victimization
Women & Criminal Justice is now accepting manuscripts for a special issue on LBGTQ+ Crime and Victimization. This special issue will be published in 2022 and is devoted to LBGTQ+ research on crime and victimization. The issue will entertain papers on Queer Criminology and the social, cultural and political impact of crime and victimization among the LBGTQ+ community. International papers and papers concerning law and criminal justice policy responses are also welcome.
Paper topics may include, but are not limited to, research testing Queer Criminological Theory, Criminal Laws and Criminal Justice Policies impacting the LBGTQ+ community.
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