Assessing the Risk of Australian Indigenous Sexual Offenders Reoffending: A Review of the Research Literature and Court Decisions

Abstract

The assessment of offenders' risk of reoffending, particularly sexual reoffending, is a core activity of forensic mental health practitioners. The purpose of these assessments is to reduce the risk of harm to the public, but they are controversial and become more contentious when Australian practitioners who want to undertake such assessments in an ethically responsible way must use reliable validated instruments, disclose the limitations of their assessment methods, instruments and data to judicial decision-makers and understand how decision-makers might use their reports. The purpose of this systematic literature review was to explore the practices of Australian practitioners and courts in respect of the assessment of Australian Indigenous male sexual offenders' risk of reoffending. We could not identify an instrument that has been developed for the assessment of this population group. Australian courts differ in whether they admit and give weight to practitioners' evidence and opinions based on data obtained with non-validated instruments. We could only identify three possible predictor variables with enough quantitative support to justify including them in an instrument that could be used to assess Indigenous sexual offenders. There is a need for research regarding the validity of the instruments that practitioners use.

Forensic Experts’ Perspectives on Australian Indigenous Sexual Offenders and Factors Important in Evaluating the Risk of Recidivism

“…Decision-makers in the justice system routinely make sentencing, intervention and discharge decisions in respect of sexual offenders (Allan et al, 2006). These decisions impact on offenders’ interests and legal rights and, indirectly, the interests of members of the community, especially those in the communities where the relevant offences took place (Allan et al, 2018). Decision-makers must in all these cases consider the likelihood that offenders will reoffend, and they frequently rely on mental health evaluators’ assessments of offenders’ risk of reoffending.…”

“…Allan et al (2018) found that Australian evaluators who assess sexual offenders from Aboriginal and Torres Strait Island or Indigenous communities use a range of available assessment instruments. The development of these risk assessment instruments can be traced back to the finding in Baxstrom v Herold (1966) that clinical judgments of the risk of reoffending were not better than chance (Hunt & Wiley, 1968; Steadman, 1973, 1980).…”

“…Modern evaluators have a variety of instruments to choose from (see Kelley et al, 2020; Neal & Grisso, 2014) and Allan et al (2018) identified 11 instruments Australian evaluators use, including actuarial (e.g., the STATIC-99; Hanson & Thornton, 1999) and structured professional judgment assessment (e.g., The Risk for Sexual Violence Protocol [(RSVP]; Hart et al, 2003) instruments. Researchers nevertheless consistently find that ancestry (i.e., line of descent) and/or culture influence the predictive accuracy of these instruments (e.g., Allan et al, 2006; Babchishin et al, 2012; Gutierrez et al, 2013, 2016; Långström, 2004; Lee et al, 2020; McCuish et al, 2018; Perley-Robertson et al, 2018; Smallbone & Rallings, 2013; Spiranovic, 2012; Wormith et al, 2015).…”

“…First, judges must by law consider the ancestry of Indigenous communities in Australia (e.g., Director of Public Prosecutions [WA] v Mangolamara, 2007; R v Fuller-Cust, 2002), First Nations, Inuit and Métis communities in Canada (e.g., Ewert v Canada, 2018) and Māori communities in New Zealand (e.g., R v Peta, 2007) if it is relevant. Second, judges in these countries are sensitive to ancestry because Indigenous people are over-represented in their criminal justice systems (e.g., Allan et al, 2018; Gutierrez et al, 2013; Wormith et al, 2015) due to the ongoing influence of colonization and intergenerational trauma (e.g., Blagg, 2016).…”

“…The Supreme Court of Canada held in the Ewert-decision (2018) that correction authorities must take reasonable steps to make sure their assessment instruments gave accurate and complete results for Indigenous offenders. Australian courts are not bound by this decision, but Allan et al (2018) found in their review of Australian cases that judges approached evaluators’ reports regarding Indigenous offenders’ risk of reoffending cautiously. Judges for example require evaluators to base their opinions on evidence from several sources (e.g., instruments, interviews and records) and to use batteries of complimentary assessment instruments.…”