The criminal justice system is dynamic and has changed rapidly since the works of Cesare Beccaria and Cesare Lombroso during Enlightenment Period and this reflects in the issue of intersectionality with the changing approaches taken towards concepts of gender, race and class. Sexual assault will be a predominate study used throughout the essay to examine the different approaches and issues between traditional and non-traditional justices. This essay will first establish where are these intersectionalities found in terms of sexual assault cases and the challenges victims face in the legal process with traditional approaches then followed by a comparison to the transition towards non-traditional alternative justice system has responded with a deeper insight into restorative justices and its effects on resolving these challenges. The role of alternative justice and the key challenges in disproportionate crimes are also important aspects of intersectionality in Australia as they aim to resolve challenges women and the mentally disabled encounter during processing through court in the criminal justice system.Order now
Gender is predominating in the criminal justice system and sexual assault exemplifies the contrast found between the traditional and non-traditional justice systems employed over time. Sexual assault poses a social threat to all aspects of community, spreading insecurity in 43400 victims across Australia and 13300 victims in NSW alone as indicated in the recent Australian Bureau of Statistics Crime Victimisation Report. (ABS 2011, p. 40) There has also been an increase of sexual assault by 51% since 1995 with an average of 4% every year. (ABS 2010) Another major issue within the boundaries of sexual assault is that it holds one of the lowest prosecution rates with only 1 in 10 incidents able to prosecute the offender as guilty. (Fitzgerald 2006, Pg. 1) Sexual assault perpetrators adhere to this as they act towards their victims, women in particular to gain a sense of control especially from low socio-economic backgrounds compared to the middle and upper class. (Fitzgerald 2006) The abundance of statistics and reports conducted all imply that sexual assault is still a predominate issue with disproportionation of not only in gender of the victim but also in age and social class within the criminal justice system.
Beyond the victimisation of women in the criminal justice system there is an abundance of research indicating that intersectionality is evident in policing and judicial roles. With 63.1% of female officers compared to the 14.2% of male officers reporting to have been exposed to sexual violence during service. (Prenzler, 1995) The US has a long track record of male dominating roles in the judicial system since there has been only 4 female compared to 108 male Associate Justices in the Supreme Court and half of them were only recently introduced under the Obama administration. The policing and judicial roles in the criminal justice system are imbalanced in gender with high social backgrounds that does not reflect the demographics of sexual assault victims thus the intersectionality is widened with the contrast in understanding.
As seen with the issue of intersectionality in sexual assault cases, age is just as vital as gender in the criminal justice system. The victimisation rate of all sexually assaulted victims between ages 10 to 14 being 4 times greater than all the other age groups. (ABS 2010) These children similarly to women have several reasons for not approaching or not being approached by the criminal justice system. The fear of their identity becoming exposed to public knowledge, personal shame and embarrassment and reprisal from the offender especially in rural or isolated regions, victims prefer to disclose sexual assault incidents. (Borzycki 2007) With this it is estimated that only 30% of all sexual assault incidents are reported to police and only 20% of those reported incidents are investigated and undergo criminal proceedings. (AIC 2007)
In response to the injustice of sexual assault, the traditional approaches of the criminal justice system has performed minimal or negative impact in reducing this intersectionality. Labelling the offender through their gender during proceeding in the courtroom to the public and on the media would affect their behaviour and this reflected in sexual assault cases. Deviants who were previous offenders and become labelled by society as ‘rapists’ risk sexual assault in correctional facilities, loss of their housing, occupation and thus encourage deviancy amplification and recidivism in the process of identity transformation. (Lemert 2000) Sexual offenses including sexual assault are the second mostly predominant serious offence committed by men and this gender inequality affects the attitudes of the criminal justice system on victims and offenders. This sense of stereotypical gender labelling creates schemas and promotes power motives for sexual aggression in men (Meyer 2000). This stigmatisation of gender which poses aggressive behaviour towards women is indicated through strategies employed to maintain this control by the offender include the isolation of the victim, humiliation and manipulation of the victim or her environment. (Clark & Quadara 2010) The labelling of gender roles and criminalising offenders publically does not reduce the occurrence of sexual assault and instead provokes its recidivism and creating this ‘revolving door’ in the criminal justice system to past offenders.
Traditional approaches to resolving sexual assault focused upon retribution of the victim to the offender but upheld no partake in intervening or aiding victims discriminated by their mental capacity. A particular weakness in low prosecution rate is caused by the attitudes and biases of jurors in the criminal court system. High acquittal rates are often association with the victim’s credibility in correlation with guilt from the attitude of the jurors towards the victims, this is often followed by the degree of empathy and personal knowledge of sexual assault victims. (Taylor 2007, Pg. 4) This is again established by interviews of Crown Prosecutors that revealed several factors that influence the prosecution’s judgment to continue or suspend adult sexual assault cases with conditions such as ‘memory affected by drugs’ or ‘psychiatric history of delusions’ which often halted these cases. (Lievore 2004) Human aggression is considerably linked to alcohol consumption and that accounts in up to 75% of acquaintance sexual assault cases. (Meyer 2000) Over one-third of drink spiking incidents eventuate into sexual assault and less than one-sixth of these alleged incidents are recorded to the police. (AIC 2004) Substance use or abuse can affect social misconceptions and the understanding through cues of sexual intents making the person more likely to risk offending. This also renders victims unable to set boundaries to protect themselves from these situations and places their testimony in court under question. Aspects of the sexual assault offenders’ intelligence that might be affected by psychological upbringing or altered by alcohol could results in the limitation of participant to obtain proper defence prior to trial for the jury.
The limitations of intellectual are found in their mistreatment as they are going through the legal system. They are more likely to be arrested or questioned over minor public offences and in additionally they are even more likely to admit or confess to these crimes that they did not commit to prevent further questioning from the police or did not acknowledge that they did not understand. (Austlii 2001) In court, clients with mental disabilities which is established an a person with an IQ lower than 70 are more likely to be charged with longer and severe custodial sentences due to the absence of effective support in the community and legally without the aid of carers. (Austlii 2001)
The intersectionality behind the mentally disabled is extended in correctional facilities as prisoners are affected by the revolving door of the traditional criminal justice system by developing a mental illness and obtaining a dependency on public services.
Alternative justice involves alternative dispute resolutions through out-of-court settlements, self-help and dispute settlement centres in sexual cases. For victims this resolves issues of financial burdens, alienation of clients during court hearings and the long legal process which are the main causes for victims to withdraw cases and account for the failures of underreporting to the police. The counter argument against the use of alternative justice is that sexual assault victims could fail to obtain the same level of protection on rights, victims will not be able to obtain appeal process and personalised treatment to each sexual assault case produce inconsistent sentencing to offenders. As a double edged sword, alternative justice has the capacity to help sexual assault victims by allowing better access to legal services and provide flexible aid but they lack the full extent of legal protection in rights with the fall backs of not obtaining the justice they believe the offender deserves. Closer examination of restorative justice as a form of alternative justice will provide a better insight into whether the justice system has the ability to correct intersectionality found with sexual assault cases.
Restorative justice aims to punish sexual assault deviances through means of resolving the needs of the offender and the victim inclusively. This is applied practically in several forms including victim offender dialogues, family group conferencing and balanced restorative services. (White & Cunneen 2002) These approaches responded to the criminal justice system as a revolving door for recidivism and have made a strong impact integrating rehabilitation for both parties despite the intersectionality found within the system. The therapeutic aspect of restorative justice is much more appealing than traditional justice to victims as it allows resolution to be built by understanding the offender and personally accepting apologies provide close comfort for both parties. Critiques of restorative justice is that the process is high maintenance with the cost of running such programs for sex offenders, that further exposer of the offender to victims may instigate further psychological damage and that the distribution of these services in practice will not be evenly proved in rural areas compared to cosmopolitan and denser areas. This power imbalance in the application of the restorative justice approach is just as evident with the traditional justice system but on a much lighter form and with good intentions. What victims want and can obtain from this system is a less formal process, more information and participation in their case, respect, material restoration and emotion restoration in a form of apology which were previously left out of the traditional criminal justice system. (Strang 2002) Restorative justice attempted to resolve issues that the traditional justice system ignored from the victims behalf and although having minor implications, has become a better method of resolving challenges victims particular those from sexual cases undergo.
One of the biggest flaws in the criminal justice system in tackling intersectionality is seen in the series of cases of sexual assault. Victims influenced by their gender or mental health are greatly undermined with traditional approaches taken. Non-traditional and alternative justice systems have provided some more benefits in aiding victims with increase in awareness and prevention efforts but the issue is still widely evident today and will continue to shadow the criminal justice system. There has been a movement to simply treating victims as property during the Medieval Period, origins of feminism in movements of the 1970’s, the institution of legislations to increase accountability including the ‘Violence Against Women Act’ in the United States and the ‘Declaration on the Elimination of Violence Against Women’ on an international level to the current focus of criminology in crime prevention. There have been radical changes since the 1940’s victims’ movement that instigated alternative justice which has resolve some but not all of the challenges due to intersectionality faced by women and the mental disabled in the criminal justice system.
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