When it comes to women before the justice system, small biases and large precedents are contributing to false prosecutions and wrongful imprisonments.
Women are too often lost in the national conversation about the criminal justice system and incarceration, particularly when the conversation does not acknowledge problems around intersectionality. This means that women coming before the justice system are “subjected to vulnerabilities that others don’t necessarily face” in the courts.
Speaking at the Australian Women Lawyers (AWL) National Conference, Law Council of Australia president Pauline Wright said that the justice system tends to overlook the way that women are treated compared to the way men are treated in judgements.
“Often male standards are applied where the women are the alleged perpetrators of the crimes of violence. Women face more serious charges than the men would in the same circumstances because women choose, for instance, to use a weapon,” she said.
To break this down, Ms Wright pointed to one of her own cases. Her client was abused by her de facto partner with an iron. The client picked up a small vegetable knife sitting next to her and stabbed him once, out of self-defence. It happened to hit his heart and he died, leading to a murder charge “when it was clear she had been attacked”.
“Where male standards are applied to women when they come to the justice system, sometimes that creates biased outcomes for women. What we see when the attacker is male is it is not uncommon for women to reach for a weapon to defend themselves, for instance in domestic violence situations,” said Ms Wright.
“It’s harder for them to fight off a man who is attacking them with a weapon. When this comes to self-defence, the question of whether their use of a weapon is in excessive force is raised, whereas men who have used their hands don’t face that same issue.”
Law and Advocacy Centre for Women principal legal adviser Jillian Prior said it is often a “real struggle in the judiciary to accept that when women are charged with violent offences, there is a story behind those charges”, leading to greater charges than necessary.
Women – particularly Aboriginal women and any disenfranchised by the system – are often asking prosecutors through to judges to “digest a discourse” of violence that does not fit in with the legislation the courts are ordered to abide by. This then impacts how women respond to threats, either with their own violence or by not consulting police.
“Despite royal commissions, we’re still facing the same issues. We are asking people to respond in a way where the groundwork hasn’t been laid out for that call of response and we ask the judiciary to change the language of their story into a legal language to make a decision about behaviour. It’s one of the biggest challenges of our system,” she said.
“We as practitioners, prosecutors and on the bench have not come to a position where they can digest that information as it sits within the legislation they must follow.”