Sentencing, Domestic Violence, and the Overrepresentation of Indigenous Australians: Does Court Location Matter?

Abstract

The significant overrepresentation of Indigenous people in Australian prisons has been the subject of numerous studies. In this article, we build on recent research suggesting that sentencing in domestic violence cases might be an important contributor to this overrepresentation of Indigenous people. We broaden the existing research by examining differences for Indigenous and non-Indigenous defendants in domestic violence cases across a range of sentencing outcomes including imprisonment, probation, fines, and good behavior orders. We also consider whether the degree of geographic remoteness of the court influences these sentencing outcomes. To accomplish this, we use administrative court data from Queensland, Australia, and employ a multinomial hierarchical modeling strategy appropriate for nested court-level multilevel data. The findings further support recent Australian research suggesting that there are sentencing disparities for Indigenous and non-Indigenous people in relation to domestic violence, and in particular, that harsher sentences such as imprisonment are disproportionately reserved for Indigenous defendants. Our research demonstrates that these disparities in the likelihood of imprisonment occur irrespective of defendants’ domestic violence protection order (DVO) breach histories and the location of the sentencing court. Based on the findings, we conclude with a discussion of possible ways forward. Although there is no question that Indigenous women should be safe and free from violence, supporting a harsher sentencing regime for those who breach DVOs is not effective. Instead, we argue that flexible strategies that work within and for Indigenous communities in Australia are required.

A Culture of Consent: Legal Practitioners’ Experiences of Representing Women Who Have Been Misidentified as Predominant Aggressors on Family Violence Intervention Orders in Victoria, Australia

“…In these instances, participants spoke about magistrates having in-depth understandings of the gendered nature of family violence and the different ways in which women victim-survivors may present. These varying views speak to the inconsistency of practice across different court locations (see also Fitzgerald et al 2021 ).…”

Sanctions for Intimate Partner Sexual Violence: Is the Law on the Books the Law in Action?

“…The relative absence of quantitative empirical studies utilizing original court data also applies to resolution of interpersonal violence more generally. For rare exceptions, see Fitzgerald et al (2019) and Wasileski and Poteyeva (2019). The corresponding research void is disconcerting because insight into how the justice system addresses IPSV incidents is not only revealing of de facto legal attitudes toward IPSV, but also reflects the wider societal culture toward sanctioning and deterrence of these heinous forms of interpersonal violence. A quantitative understanding of how a society’s justice system addresses instances of IPSV thereby provides a lens into the society’s commitment to securing equality before the law for all perpetrators and victims of violent sex crimes.…”

“…The relative absence of quantitative empirical studies utilizing original court data also applies to resolution of interpersonal violence more generally. For rare exceptions, see Fitzgerald et al (2019) and Wasileski and Poteyeva (2019).…”