Violence Against Children in the Criminal Justice System

Global Perspectives on Prevention

Wendy O'Brien, Cédric Foussard, Wendy O'Brien, Cédric Foussard

• Publisher: Routledge
• Year: 2019
• eBook ISBN: 9780429804083
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Children who come into conflict with the law are more likely to have experienced violence or adversity than their non-offending peers. Exacerbating the deleterious effects of this childhood trauma, children's contact with the criminal justice system poses undue risks of physical, sexual, and psychological violence. This book examines the specific forms of violence that children experience through their contact with the criminal justice system.

Comprising contributions from leading scholars and practitioners in children's rights and youth justice, this book profiles evidence-based prevention strategies and case studies from around the world. It illustrates the diversity of contexts in which various forms of violence against children unfold and advances knowledge about both the nature and extent of violence against children in criminal justice settings, and the specific situational factors that contribute to, or inhibit, the successful implementation of violence prevention strategies. It demonstrates that specialised child justice systems, in which children's rights are upheld, are crucial in preventing the violence inherent to conventional criminal justice regimes.

Written in a clear and accessible style, this book will be of interest to students and researchers engaged in studies of criminology and criminal justice, youth justice, victimology, crime prevention, and children's rights.

Part I

Problematising the (in)visibility of children in conflict with the law

Chapter 1

Youth justice ‘crises’ and the role for children’s rights in ending cycles of violence against children in conflict with the law

Wendy O’Brien

Introduction

Dylan Voller’s name has been splashed over newspapers both nationally and internationally; the image of him strapped to a restraint chair and hooded has been etched onto screens worldwide.

(Lawford 2017)

Dylan Voller, the Indigenous child¹ who repeatedly endured abuse at the hands of prison guards in an Australian youth detention centre (‘Don Dale’), is now a young adult and, coinciding with this milestone, he has become a household name in Australia, if not internationally. Closed circuit television footage shows Voller, as a child, being subjected to dehumanising abuses by prison guards, including being hooded and bound to a mechanical restraint chair, as well as incidents in which he was kicked, grabbed around his neck, or thrown across the room by prison staff. The vision also shows several incidents in which Voller was forcibly stripped naked, including an occasion in which the child, already in a state of compliance, was stripped and pinned to the ground under the weight of an adult prison guard (ABC 2016a). These disturbing images also make visible the profound psychological impact of these abuses, as Voller is observed alone, crying, or coiled in a foetal position in his cell. Voller’s fear is palpable in one scene, in which he cowers unable to escape a prison guard’s rage (ABC 2016a).

Evidence of such abuses against child detainees created shockwaves nationally and internationally when the Australian current affairs programme Four Corners first broadcast their investigative report in July 2016. Within 12 hours the Australian Prime Minister had announced a royal commission into the care and protection and youth justice systems in the Northern Territory (‘NT’) (Prime Minister of Australia (Cth) 2016). The relevant NT Minister was swiftly stripped of responsibility for corrections (Chief Minister (NT) 2016), and the Special Rapporteur on Torture expressed concern that the footage depicted acts likely to violate Australia’s obligations pursuant to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Méndez, quoted on ABC Radio National 2016).

This chapter is concerned with the eruption of ‘crises’ in child prisons, and the role that commissions of inquiry play in efforts to redress (and prevent) violence against children in places of detention. Focusing primarily on recent youth justice crises in the Australian jurisdictions of Victoria and the Northern Territory, the chapter comprises documentary analysis of reports from various youth justice inquiries, independent monitors, the media, and politicians, identifying that in a highly charged environment, such as a youth justice ‘crisis’, political interests and the role of the media significantly compromise the prospects for introducing principled or evidence-based criminal justice reform. The moral panics that arise at specific moments of ‘crisis’ divert attention from the fact that the underlying structural conditions in youth justice detention pose enduring risks of violence for children. Noting that the imprisonment of children is a model that ‘fails typically, not idiosyncratically’ (Schiraldi 2018, p. 378), the chapter closes with recommendations for a national approach to child justice that aligns with the international legal framework on children’s rights.

Creeping ‘crises’ in youth justice

The crisis in the NT

While the Four Corners footage may have shocked the nation, the ‘crisis’ conditions in youth justice were already well known to those with responsibility for the administration of youth justice in the NT. The deteriorating infrastructure, the overuse of solitary confinement, and the violence used by prison staff were clearly foreshadowed by children’s commissioners, ombudspersons, and legal stakeholders, including in multiple formal reports to government.

At the time that the Four Corners programme aired, in 2016, the NT government was in receipt of no less than three separate reports which detailed profound concerns about the Don Dale infrastructure, staffing, the use of isolation and, quite specifically, the treatment of children in detention, including the longstanding ill-treatment of Dylan Voller in particular (Vita 2015; Office of the Children’s Commissioner Northern Territory 2015; The Office of the Children’s Commissioner Northern Territory also prepared a confidential report for the NT Government, the contents of which are discussed in ABC 2016a). These three reports identified profound deficiencies in protocol and practice within Northern Territory youth justice settings, and made robust recommendations for improvements to infrastructure, strategies to address staffing issues, and a reduction in the use of lockdowns as necessary reforms to mitigate the risk of riots by young detainees.

Indicative, therefore, of a ‘creeping crisis’ (Nash 2010) for which there were clear warning signs, the rolling youth justice crises in the NT could have been prevented were it not for deficiencies in transparency and accountability; a preparedness to provide meaningful opportunities for children’s voices to be heard; and the political will to implement the recommendations of independent monitoring mechanisms.

The ‘crisis’ in Victoria

Coinciding with the ‘crisis’ in the Northern Territory, a separate youth justice ‘crisis’ was unfolding in Victoria. In November 2016 children detained in the Parkville youth justice precinct in Victoria embarked on a destructive protest in which they caused an estimated AU$2 million in damage to facilities, halving the usable capacity of the precinct from 120 beds to 60 beds (Victorian Ombudsman 2017, p. 14). In response, the Victorian Premier fronted the media to announce swift disciplinary action against the children involved: ‘You want to behave like that? Then I’m sick of that. Victorian tax payers are sick of it, and you’re going to adult prison’ (Victorian Premier quoted in Housten, Willingham, & Vedelago 2016).

Following the November riots, and contemporaneous to the chapter in which children were housed in the maximum-security adult prison at Barwon, the Victorian Government initiated an inquiry into the detention of children in the state of Victoria (Parliament of Victoria Standing Committee on Legal and Social Issues 2016). Adding to the wealth of information on the youth justice situation in Victoria, detention practices in that state were the subject of no less than six separate reviews or reports within a two-year period (Muir 2015, 2016; CCYP 2017; Victorian Ombudsman 2017; Comrie 2017; Armytage & Ogloff 2017). Indeed, reports by independent monitors from as early as 2010 indicate that Parkville had long been unsafe, with ‘numerous hanging points’ within the centre, detainees with ‘overly long shoelaces’ that pose risks for self-harm, overcrowding, and serious reports of staff misconduct including excessive use of force, staff introducing contraband, and children being assaulted by staff (Victorian Ombudsman 2010, p. 24). The riots that ultimately triggered the Victorian Government’s decision to transfer children to adult jail were the third such riots at Parkville in a 13-month period. Despite the precedent set by these earlier riots, and the multiple warnings contained in the independent reports over a period of more than six years, successive governments in Victoria presided over a deteriorating youth justice precinct which posed clear dangers for the children detained there.

Youth justice inquiry and reform

Scholars have long identified the complex interplay between public anxieties about the social order, and the role criminal justice crises play in regimes of control (Acland 1995; Rose 2000; Innes 2003; Pratt 2007; Simon 2007). Literature of this kind identifies, inter alia, the risk that crises result in symbolic, rather than substantive, reform (Butler 2016). While relatively common mechanisms of response to incidents of crisis, there is some debate as to whether formal inquiries perform anything greater than a symbolic political function (Weller 1994; Bulmer 2015). Seminal work by Burton and Carlen (1979) sees commissions of inquiry as mechanisms of discursive closure, or political instruments that seek to achieve a public message of crisis control. Less skeptical analyses of inquiry mechanisms nonetheless confirm that the tensions inherent to inquiry processes contribute to the complexity of evaluating inquiry outcomes (Wright 2017).

Compounding concerns about the difficulty of evaluating inquiry outcomes, is the contention that crises (even constructed crises) cultivate populist anxieties and political rhetoric about the need for increasingly punitive sanctions and expressive forms of punishment or vengeance (Garland 2001; Pratt 2007; Simon 2007). While concerns of this kind pervade the literature of critical criminology, in a general sense, the punitive response to constructed ‘crises’ is particularly evident with respect to children who are perceived to have breached the law. Barry Goldson (2011b) provides an eloquent account of the ways in which public anxieties about crime, and about children, converge in media representations of ‘crises’ about youth crime (and ‘gangs’), for which increased surveillance or control is often the putative solution (see also Santos Pais in the Foreword to this volume).

Research on youth justice inquiries in comparable jurisdictions casts doubt as to whether the outcomes of formal inquires make substantive progress on redressing the injustices of youth justice policy and practice. Schiraldi’s analysis of the outcomes of formal inquiry processes in the United States raises concerns about a culture of impunity for the institutional actors and processes that perpetrate violence against children in child prisons (Schiraldi 2018). In the United Kingdom, the Commission on Youth Crime and Antisocial behaviour called for a ‘fresh start’ and an ‘effective, just, humane and coherent’ approach to youth justice (Independent Commission on Youth Crime and Antisocial Behaviour 2010, p. 4). While the Commission did usefully reiterate several of the key failures of youth justice policy and practice at the time, the outcome was ultimately of questionable significance due to the narrow and uncontested parameters of the inquiry (failing to problematise the ‘antisocial’ behaviours of children), the commission’s insistence that ten is a suitable age at which to criminalise children, and the conceptual reliance on an undue and unrealistic responsibilisation of children (Goldson 2011a).

Part of the difficulty in relying on commissions of inquiry to address issues as pressing and as complex as crises in youth justice, is that the formal criteria by which inquiries operate play a significant role in shaping both the scope and outcome of inquiry. Legally prescribed Terms of Reference (‘TOR’) pre-determine the scope of review, and have the potential to impede sustained attention to unanticipated, but important, issues that emerge during hearings. The strict timelines imposed on commissioners may also limit comprehensive analysis of extant problems and evidence-based solutions. The legal parameters within which inquiries are conducted, the coercive powers, and the provision, in many cases, that referrals be made for criminal charges in instances involving breaches of the law, have the potential to mire commissions in a quest to find someone, or something, to blame. This approach has the potential to elicit polarised responses from witnesses, and result in acrimonious proceedings that focus only on the specific actions of individual actors, and divert attention from underlying structural problems.

The NT inquiry was beset by challenges of this kind from the start. While the Prime Minister’s swift action in announcing a royal commission into youth detention in the NT was broadly welcomed, there was a powerful public backlash to the appointment of a non-Indigenous Commissioner in a territory where 97 per cent of the children in detention are Indigenous (Vita 2015). Indigenous leaders held that this meant that the commission was ‘compromised from the start’ (Northern Land Council, Central Land Council, & the Aboriginal Medical Services Alliance NT 2016). Responding to community sentiment, the Commonwealth Government allowed CJ Martin to resign only four days after his appointment, replacing him with two Commissioners: former Supreme Court Justice, Margaret White, and prominent and respected Indigenous leader Mick Gooda (Murphy & Davidson 2016). Nonetheless, a related limitation persisted. The TOR failed to specifically authorise Commissioners to examine the circumstances that contribute to the chronic over-representation of Indigenous children in the criminal justice system (Secretary to the Federal Executive Council 2016).² Critical oversights such as these engage doubts as to whether commissions of inquiry are adequate mechanisms for achieving either: accountability for those who perpetrate violence against children; or meaningful change for children enmeshed within the criminal justice system (O’Brien 2016; Schwartz & Cunneen 2016; Antony 2017).

Youth justice ‘crises’ and the public interest

In the case of inquiries into youth detention, the legal and logistical complexities of inquiry and reform initiatives are further complicated by broader social and political tensions about the proper purpose and functioning of youth justice. Much of this complexity stems from the manifold and ostensibly conflicting aims of the youth justice system. Youth justice is an issue that ‘finds itself in the very heart of public interest and debate’ largely because the objectives of youth justice are plural (Liefaard 2015, p. 235). When children are accused or recognised as having breached penal law, a range of public interests are engaged, including the needs and rights of victims and concerns about community safety; as well as ensuring that children are treated in a manner that is consistent with their equal human dignity and which promotes their prospects for assuming a constructive role in society. While often understood to be oppositional, the Committee on the Rights of the Child sees these considerations as mutually supportive:

the Committee acknowledges that the preservation of public safety is a legitimate aim of the justice system. However, it is of the opinion that this aim is best served by a full respect for and implementation of the leading and overarching ...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• List of figures
• List of contributors
• Foreword
• Introduction
• PART I: Problematising the (in)visibility of children in conflict with the law
• PART II: Strategies to ensure the implementation of protective statutory and procedural safeguards
• PART III: Realising children’s rights through prevention
• Index