Crime, Victims and Policy

International Contexts, Local Experiences

D. Wilson, S. Ross, D. Wilson, S. Ross

• Publisher: Palgrave Macmillan
• Year: 2015
• Print ISBN: 9781349677948, 9781137383921
• eBook ISBN: 9781137383938
• Topic: Social Sciences
• Subtopic: Criminal Law
• Index: Social Sciences

This book provides critically examines how recent international developments in victims theory and policy are experienced within specific local contexts. The chapters approach key criminological issues including the experience of criminal justice agencies, policy formulation, the construction of victim identities and the 'discovery' of new victims.

1

Decolonising Indigenous Victimisation

Chris Cunneen and Simone Rowe

There is no form of knowledge to which we can attribute, in general, an epistemological privilege. ... There is no global social justice without global cognitive justice.

– Boaventura de Sousa Santos, in Dalea and Robertson 2004, pp. 58–60.

This chapter is part of a broader project we refer to as the ‘penal/colonial complex’ – a project that seeks to delineate, decentre and challenge the dominant mechanisms through which law, policy and practice continue to subjugate Indigenous peoples, their cultures and their knowledges (Cunneen et al. 2013, pp. 186–187; Cunneen and Rowe 2014). We see the need to decentre victimology at both a theoretical and policy level as an important component of the broader project. Our intentions in this chapter are fivefold: to consider the current status of the victimisation (and, we argue, concomitant criminalisation) of Indigenous peoples in postcolonial Western settler societies; to establish the limitations of Eurocentric victimological approaches to understanding this phenomenon; to clarify how an alternative critical Indigenous analytic framework can transgress these limitations; to contrast Indigenous and state policy responses to Indigenous victimisation; and thereby to establish the analytical and decolonising¹ significance of critical Indigenous approaches.

Introduction: Indigenous victimisation

In the postcolonial Western settler societies of Australia, Canada, New Zealand and the United States, Indigenous peoples are grossly over-represented as victims² of crime. In Australia, rates of violent victimisation for Indigenous peoples are two to three times higher than for non-Indigenous Australians; the rates are four to six times higher in the case of family violence (AIC 2013). In Canada, some 35 per cent of Aboriginal people report being a victim of crime, compared to 26 per cent of non-Aboriginal people. Aboriginal Canadians are nearly three times more likely to be victims of violent crime than non-Aboriginal Canadians; they are five times more likely to be the victims of sexual offending (Department of Justice Canada 2012). In New Zealand, numerous surveys have shown that Maori peoples are more likely to be victims of a violent crime than non-Maori peoples (Statistics New Zealand 2010, pp. 20–30). And in the United States, rates of violent victimisation, for both males and females, are higher among Native Americans than among any other racial or ethnic group (CFCC 2012, p. 1).

Indigenous women’s victimisation rates are particularly high. To take Canada as an example, Aboriginal women are three and a half times more likely than non-Aboriginal women to be victims of violence. Aboriginal women ages 25–44 are five times more likely to die as a result of violence (Wesley 2012, p. 5). Violence against Aboriginal women in the home is prevalent: spousal violence against Aboriginal women and girls in Canada is more than three times higher than for other Canadian women; Aboriginal women are eight times more likely to be a victim of spousal homicide (HRW 2013, p. 25; Wesley 2012, pp. 5–6). Similarly in Australia, Indigenous women are disproportionately represented as victims of crime: they are more than ten times as likely to be a victim of homicide than other women are; 45 times more likely than non-Indigenous women to be a victim of domestic violence; and more than twice as likely to be the victim of sexual assault (ATSISJC 2006, pp. 337–341).

In the context of victimisation, one must also consider the over-representation of Indigenous children in child protection systems. In Australia, for example, Indigenous children are more likely to be the subject of a notification to a child protection agency (this rate is nearly six times greater than the one for non-Indigenous children); their cases are much more likely to be substantiated after a child protection agency investigation (this rate is eight times greater than the one for non-Indigenous children); and they subsequently have much higher rates of removal from their family and placement in care (at a rate 11 times higher than the one for non-Indigenous children). It is also important to recognise that these rates have been increasing over the last decade (SCRGSP 2014, pp. 15.12–15.15). Similarly in Canada and the United States, evidence suggests that Aboriginal and Native American children are disproportionately represented among child welfare reports, investigations, and out-of-home placements (Fallon et al. 2013, pp. 48–49). In the United States, despite representing just one per cent of the urban child population, urban Native American children under age 18 represent two per cent of all children placed in out-of-home care. This disparity is much higher in particular states (Carter 2010, p. 657).

Coinciding with an increased awareness of Indigenous victimisation rates has been the growth in Indigenous criminalisation and incarceration. Over the last two decades, the Australian Indigenous imprisonment rate has doubled, while the non-Indigenous rate has been both significantly lower and increasing at almost half the Indigenous rate (Baldry and Cunneen, 2014). There is evidence to suggest that the high levels of over-representation of Indigenous peoples in prison in Canada, the United States and New Zealand have remained constant or worsened over recent years (Cunneen 2014, p. 389).

Of particular interest in the context of the current chapter is the extraordinary growth in Indigenous women’s imprisonment rates, which has far outstripped the growth in Indigenous men’s imprisonment rates. It is a phenomenon explored by a growing number of critical scholars (see,e.g. Baldry and Cunneen 2014; Pollack 2013; Dell and Kilty 2013; Marchetti 2013; Ross 1998, 2004; Stubbs 2011). From these explorations, several key theoretical insights have emerged, including the inextricable connections between the categories of race, gender and class (see, e.g. Ross 1998, p. 264); the related importance of a nuanced intersectional analysis (see, e.g. Stubbs, 2011, p. 59); the enduring underestimation of the effects of colonisation, patriarchy and violence on the lives of victimised, criminalised and incarcerated Indigenous women (see, e.g. Baldry and Cunneen 2014); and the significance of the feminist notion of the victimisation-criminalisation continuum in explaining the over-representation of Indigenous women, both as victims and as offenders (see, e.g. Pollack 2013).

All of the above insights are important, however, with respect to understanding the over-representation of Indigenous women and men, both as victims and offenders, we wish to highlight the analytic significance of the victimisation-criminalisation continuum.³ To clarify, while we acknowledge the importance of the increasing emphasis on the disproportionate victimisation and criminalisation of Indigenous women, our focus henceforth is on the disproportionate contact of both Indigenous women and men with the criminal justice system – an issue all too frequently neglected in the theory and practice of victimology. In relation to Indigenous men and women, evidence continues to suggest that the separation between the categories of victim and offender are not at all clear. ‘In reality many Indigenous people in the criminal justice system are both offenders and victims’ (ATSISJC 2002, p. 149). The analytic importance of this concept becomes especially salient when one broadens current conceptualisations of Indigenous victimisation beyond the narrow confines of criminal victimisation, a practice we argue that is crucial to understanding and responding to the broader victimisation of Indigenous peoples. Indeed, it is only when we broaden our focus beyond criminal victimisation that we begin to see how discriminatory, unjust and oppressive colonial processes are in fact a form of victimisation. Similarly, when one broadens the category of Indigenous criminalisation, we begin to see Indigenous peoples’ law-breaking not as an indication of their so-called criminality, but rather as resistance to ongoing colonisation (Blagg 2008; Cunneen 2001; Ross 1998). The continuing criminalisation of Indigenous peoples’ survival strategies is thereby rendered problematic. Thus, a critical stance on the causes and categorisation of Indigenous victimisation and criminalisation and on the functions of criminal law in controlling Indigenous peoples is required. Achieving this aim, we contend, requires challenging the ‘epistemological privilege’ (de Sousa Santos, in Dalea and Robertson 2004, pp. 58–60) of Eurocentric approaches.

This then is the principal agenda of our chapter: to advance critical consideration and analysis of the victimisation and criminalisation of Indigenous peoples living in postcolonial Western settler societies. The discussion below unfolds in four sections. First, we establish the limitations of dominant Eurocentric victimological approaches to understanding and responding to the complex forms by which colonisation continues to impact the extraordinary over-representation of Indigenous peoples, both as victims and offenders. Building on the work of Indigenous scholars, we propose an alternative critical Indigenous analytic framework. The chapter proceeds by clarifying how a critical Indigenous lens can help decolonise hegemonic constructions of Indigenous victimisation and criminalisation by re-centring Indigenous peoples’ worldviews, understandings and responses. We then contrast these with an analysis of an Australian Government response to Indigenous victimisation – a policy initiative commonly known as ‘The Northern Territory Intervention’ (hereinafter the ‘NT Intervention’). We conclude that understanding and responding to the alarming rates of Indigenous victimisation demands recognition of critical Indigenous approaches, alongside a commitment to enhance Indigenous agency and control.

Limitations of Eurocentric victimology

Paul Rock (2012, p. 55) recently noted that ‘the poverty of victimological theory is a reiterated complaint’, and there is much that victimological theory cannot and does not reveal. For the increasing number of Indigenous victims living and dealing with the consequences of ongoing colonisation, there is much that a mainstream Eurocentric victimological lens serves to conceal. This concealment is further exacerbated when public policy actively derides Indigenous voices – a point we will return to later.

As a sub-discipline of criminology, victimology suffers from many of the same conceptual limitations underlying mainstream positivist/conventional approaches to the investigation of crime. Critical scholars have documented the broader conceptual limits of mainstream criminological and victimological approaches for at least four decades (see, e.g. Cunneen and Rowe 2014; Taylor et al. 1973; Stubbs 2008; Walklate 1990). Rather than rehearse these here, we wish to focus on the comparatively less developed conceptual restraints arising from the assumed superiority of Eurocentric approaches to the investigation of the victimisation and criminalisation of Indigenous peoples.

As many Indigenous and non-Indigenous scholars have argued, paradigm change is crucial to transgressing Eurocentric conceptual frames (see, e.g. Cunneen and Rowe 2014; Denzin and Lincoln 2008; Kincheloe 2006; Moreton-Robinson 2009a; Moreton-Robinson and Walter 2009). Such change can occur only when colonisation is brought ‘front and centre and named as the root cause’ of Indigenous over-representation, both as victims and as offenders (McCaslin and Breton 2008, p. 518). As Dipesh Chakrabarty (2006, p. iv) argues, ‘the colonial model’ should not be abandoned; it remains crucial to making sense of the position of Indigenous peoples.

While the process in which colonisation occurred and ultimately impacted the Indigenous peoples of Australia, Canada, New Zealand and the United States differed in some respects (see, e.g. Marchetti and Downie 2014, pp. 362–366), there are also manifold commonalities in the experiences of Indigenous peoples in Western settler societies derived from English common law traditions (Cunneen 2014, pp. 386–387). A significant part of this shared experience stems from the history of colonisation and the profound disruption caused to pre-existing traditional societies. In short, every part of Indigenous society was attacked during the colonial process. The long history of confining and imprisoning Indigenous peoples in Australia, Canada, New Zealand and the United States, denying their civil and political rights, and controlling behaviour both through and outside the law is far from finished. Rather, as Indigenous scholar Aileen Moreton-Robinson explains, ‘Colonisation has not ceased to exist; it has only changed in form from that which our ancestors encountered’ (2009, p. 11).

Perhaps one of the most underexplored forms through which colonisation continues to occur in criminological and victimological discussions of Indigenous peoples is the epistemic violence (Spivak 1995, pp. 24–25) arising from entrenched beliefs in the superiority of Eurocentric epistemologies and the concomitant marginalisation of the ‘subjugated knowledges’ (Foucault 1980, pp. 81–85) of Indigenous peoples. In the context of continuing colonisation, epistemic violence, or the violence of knowledge, operates ‘not by military might or industrial strength, but by thought itself’ (Chatterjee 1986, p. 11). In the case of criminalised and victimised Indigenous peoples, the epistemic violence that occurs through the ongoing imposition of Western conceptual frames on Indigenous contexts ‘risks reproducing the very colonial discourse we might have set out to unseat’ (Blagg 2008, p. 201).

The imposition of the dominant Eurocentric episteme to the issue of domestic violence in Indigenous contexts exemplifies this concern. Understanding the inappropriateness and inadequacy of these initiatives requires recognising the incongruity between Indigenous and Western ontological understandings of the self. Indigenous peoples understand the self as being centrally defined by relationships to kinship groups and the natural world. Western understandings by contrast generally see the nature of self in an individualised and autonomous context (Moreton-Robinson and Walter, 2011; Wilson, 2001). Indigenous people often define domestic violence in the broader and relational concept of family violence, a term reflective of the centrality of the relationality to Indigenous worldviews (for a discussion of the distinctio...

Table of contents

• Cover
• Title
• IntroductionVictims Research, Theory and Policy: The Role of Local Contexts
• 1  Decolonising Indigenous Victimisation
• 2  Environmental Victimology and Ecological Justice
• 3  Victimisation, Citizenship and Gender: Interrogating State Responses
• 4  Justice for Rape Victims? The Spirit May Sound Willing, but the Flesh Remains Weak
• 5  Competing Conceptions of Victims of Domestic Violence within Legal Processes
• 6  Care Bears and Crime-Fighters: Police Operational Styles and Victims of Crime
• 7  Victim Impact Statements, Sentencing and Contemporary Standards of Fairness in the Courtroom
• 8  Satisfied? Exploring Victims Justice Judgments
• 9  Victims in the Australian Criminal Justice System: Principles, Policy and (Distr)action
• 10  The Evolution of Victims Rights and Services in Australia
• Index