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Role Of Identity In The Australian Criminal Justice System



The are certain linkages that one can make with regard to the criminal justice system and the role identity plays within this system (where age, gender, sexual orientation or social class denote identity). The first link is that one’s identity has a direct effect on the access to resources of power. Also, it is plausible to assume that identity determines one’s punishments and rewards in the criminal justice system. The second aspect about identity is that it highly affects the nature of crime control dispatched upon various groups. Thirdly, these differences in crime control have an overall effect of changing the way of life of respective identities both within and without the criminal justice system. Lastly, it can be assumed that the nature of crime control can reinforce some of the inherent inequalities within society. (Andersen and Patricia, 1998)

The Australian criminal justice systems has grown by leaps and bounds over the past decades. This is because certain blatant cases of discrimination such as discrimination against gender and race have reduced dramatically. However, some institutionalised systems of discrimination still form part of the Australian criminal justice system. Specific social classes, races, sexual orientation receive fairer treatments than others. The essay shall examine the complexities of these identities with regard to the criminal justice system.

How sexual orientation is handled within the Australian criminal justice system

The criminal justice system is perhaps one of the most prominent areas of the Australian society that depicts negative sentiments to gays or lesbians. Statistics conducted on

how social class affects administration of justice by the Gay Men and Lesbians Against Discrimination (GLAD) in Victoria found that approximately eighteen percent of the male  respondents had ever experienced some form of harassment from law enforcement officers. It also found that police had harassed twelve percent of the female participants. Therefore, police officers had harassed thirty percent of the one thousand participants at one time in their lives. This is an alarming rate especially considering the fact that incidences of police harassment among the general public are at a much lower rate. (Baired et al, 1994)

The nature of response to gay related crimes also depicts discrimination. In the year 1999, a survey conducted by the Gay Men Community Action in South Australia found that a whooping forty four percent of gay/lesbian victims never contacted the police when they had been victims of hate crime. The same research also found that forty nine percent of the respondents would not report their cases to the police if the crime under consideration involved sexual issues. The same survey also found that seventy nine percent of the participants (who were all gay/lesbians) felt that police officers had a negative attitude towards homosexuals. These perceptions were not just founded on baseless allegations; it was found that twenty three percent of the homosexuals who had reported their cases to the police received homophobic reactions from them. As if that was not enough, these victims asserted that the same homophobic behaviour was prevalent in instances where they initiated contact or when the police themselves approached them for assistance.

Experts assert that the issue of inequality within the criminal justice system is simply and indication of the negative societal attitudes towards homosexuality. The Australian society despises, fears and ridicules the gay society. These attitudes have become part of society and consequently, the manifestations of inequality within the criminal justice system are reflecting these perceptions. The truth of the matter is that the Australian criminal justice systems places greater importance upon the rights of heterosexuals than it does that of homosexuals. By so doing, the system is making cases of sexual and physical abuse against this group seem justifiable yet this should not be the case. (Baired et al, 1994)

A deeper analysis into this matter reveals some four attitudes that could be the driving force behind these inequalities in the criminal justice system. The first is known as the ‘sin’ mentality. According to surveys conducted on the nature of the criminal justice with regard to sexual orientation, psychologists found that society perceives non-procreation sexual behaviour as immoral. Consequently, society tends to assume the same sex relationships undermine the family as the basic unit of the economy. The second theory behind these inequalities in the criminal justice system is the ‘illness’ mentality. According to this theory, society has a negative attitude towards the gay community because it assumes that such individuals are actually sick and are demonstrating some deviant characteristics. This mentality was reinforced after the Australian society embraced science and medicine in preference to religion during the nineteenth century.

Another theory is called the neutral difference theory in which some people believe that homosexuals should not be punished for their sexual orientation and should instead receive protection from the criminal justice system. This mentality started penetrating into the Australian society during the 1970s when laws were amended to incorporate some of these perceptions into the criminal justice system. The fourth concept is called the Social construct concept. According to this theory, some people believed that the view held by neutral theorists is wrong. When law enforcement officers go out of their way to protect gays and lesbians just because of their sexual orientation, then chances are that those same views, which they are trying to eradicate, will be reinforced. They assert that one’s identity is not merely determined by their sexual orientation but other factors also come into play. Consequently, when too much emphasis is placed on this issue, then it will enforce the stereotypes. (Takach, 1994)

All in all, attitudes towards homosexuals and gays within the Australian criminal system largely depict the perceptions held by society in general. Consequently, the reactions that these attitudes solicit from law enforcement officers and legal representatives also depict the same mentality. Many gays and lesbians are victims of inequalities within the criminal justice system and something ought to be done about it. The key to solving this problem is to challenge prejudicial perceptions to the homosexual society. This can be done by changing Australian laws so as to incorporate a tolerating society. It also means that law enforcement officers, magistrates and lawyers need to be educated about gay rights by understanding the theories behind their biases. Such actions can be implemented through law schools or policing schools and stricter cases of homophobic response imposed upon law enforcement officers themselves.

Role of gender in the criminal justice system

The response of the criminal justice system towards women is somewhat different depending on the circumstance under consideration. For instance, in cases where women take on the role of the accused, they are likely to receive less punitive punishments than their male counterparts. Consequently, it can be said that the criminal justice system favours women when one examines the system through the lens of the accused. The reason behind this leniency is the fact that most female offenders usually commit murder against their spouses as a result of abuse or agitation by the male spouse, Consequently, their actions may be deemed as justifiable in comparison to their male counterparts. (Easteal, 2002)

Another heated topic with regard to the role of gender in the criminal justice is the type of defence used by female offenders. Research has shown that certain female killers tend to use pre-menstrual syndromes as a defence for committing crimes in other countries like the US. This issue has generated a lot of debate within Australian criminal justice circles as some people feel that it can be considered as reasonable defence and should be accepted as such especially in cases of mitigation.

When women are taken to court to fight for parenting rights, the Australian justice system tends to favour men over women in terms of marriage rights. The legal definition of ‘sole parent’ in the criminal justice system tends to discriminate against women. This is especially so because women are often required to prove beyond reasonable doubt that they are not engaged in any relationship that resembles a marriage. It should be noted that this discrimination was not always the case but the government changed the definition of sole parents and has therefore made it harder for women trying to fight for the custody of their children.

Nature of sentences granted to women in the Australian criminal justice system also depicts some forms of discrimination. While these differences may not be visible at first sight, research has shown that women who are dependent on men tend to get shorter sentences than independent women do. For instance, when a woman has been accused of extortion and she is divorced, then the law tends to give stiffer penalties than if the same women has been married. This means that the criminal justice system has a leniency towards economically dependent women than women who seem to have made it for themselves. This system tends to discourage women from standing on their own two feet as they are likely to be victimised by the system. It can therefore be said that the degree to which a female victim is punished largely depends upon the degree to which she fits into the general stereotype on how typical females should be. The more she deviates from this stereotype, the more severe her penalty will be. (Andersen and Patricia, 1998)

The Australian criminal justice system has been very progressive in terms of admitting females within the legal profession and in law enforcement too. This is because statistics show that their percentages have risen continuously over the past few years. However, the criminal justice system is yet to warm up to them in reality. Research shows that women still earn less than their male counterparts in the field. On top of that, it has also been found that women have a harder time trying to make partner in a law firm. Besides these, the criminal justice system has been divided into certain areas that are deemed more feminine than others. Consequently, it likely to find more women acting as court clerks rather than legal counsels. Part of the reason behind this observation could have been brought on by the fact that recruitment processes are better understood by men than women. Also, work contexts are largely to blame for this bias as many position have been made a reserve for males.

The same pattern is present in the policing department. The Australian police department relatively accepts women under its wings, however, their accessibility to resources and positions are rather limited. For instance, a survey conducted in New South Wales revealed that most women held lower positions within the force while top or middle ranks were predominantly a male reserve. It was also saddening to note that while the numbers of female lawyers admitted into the Australian law profession were on the increase, the number of female police officers was stagnating. (Odgers and Yeo, 2005)

Perhaps the most important aspect about the role of gender in the criminal justice system is the way law enforcement officials respond to female offenders. Surveys indicate that police officers tend to minimise domestic assault cases. This means that those female victims who are brave enough to report the cases may not live to see any prosecution of their offenders. The same may be said of rape cases. Rape victims get minimal support from law enforcement officials and may have to look for support from other help centres or social organisations.

Role of race in the Australian criminal justice system

The issue of race has sparked off a lot of research with regard to Aboriginal offending. One such book was written by Tyler (1998) where he asserts that areas with high concentrations of Aboriginal people tend to report severe reinforcement of crime control than areas with other races. In his book, the author argues that these cases of punitive punishments are particularly visible in rural regions. Nonetheless, other individuals assert that Aboriginal Australians are over-represented within the criminal justice system because their crime rates are much higher than in other races. This is especially so owing to the fact that this society is experiencing a cultural shift brought on by modernisation. Also, high crime rates could have been as a result of economic and social stresses. This occurrence of crime has brought on a bias against the aboriginal people as they are more likely to be labelled as offenders without sufficient evidence. Aboriginals are also more likely to stay longer in prison once they have been arrested.

In close relation to this argument is the issue of social dominance orientation. Some psychologists argue that the reason behind candidate’s interests in the policing professions is to get some form of social dominance. This is the reason why law enforcement officers tend to express this social dominance more than other types of citizens. Consequently, the following characteristics have been observed with regard to the treatment of aboriginal Australians as they have;

1)      higher chances of arrest

2)      higher chances of facing criminal charges

3)      more susceptible to high bails

4)      higher chances of conviction

5)      higher chances of severe conviction

6)      less chances of getting plea bargains

Because there are certain racial groups that perceive themselves as superior or dominant to others, then the less dominant racial group is more likely to be the victim of inequalities within the criminal justice system.

The latter mentioned attitude has also led to a negative perceptions of these racial minorities towards law enforcement officers. Because the police tend to treat these groups inequitably, then those same groups become more cynical and suspicious about the law system. Most of them tend to either fear or dislike the criminal justice system compared to the dominant racial group in Australia. Some experts have asserted that the major reason behind these negative expectations of the racial minorities against the criminal justice system could be associated with the fact that there are higher crime rates in their communities. Therefore, these communities tend to interact more with law enforcement officers than any other groups. Consequently, they are more susceptible to brush shoulders wrongly with police officers. If this argument was true, then chances are that racial minorities living in communities with low crime prevalence may support the police. But this is not the case, almost all racial minorities still despise law enforcement officers even when they come from posh societies. This goes to show that the criminal justice system is reinforcing society’s negative perceptions of the aboriginal people and that much has to be done with regard to police response to this group and other racial minorities. (Weitzer. & Tuch, 1997)

Role of social class in the criminal justice system

The criminal justice system is guilty of reinforcing societal attitudes towards economically challenged citizens in Australia. There is an underlying mentality that some groups are in fact criminal societies. It is true that certain societies have been stigmatised by society and are therefore receive harsher treatments in comparison to their counterparts from other social classes. Actually, some psychologists argue that the system is tailored towards the upper class while the lower class has been marginalised by it. Taking the example of a minor offence committed by a single mother- if it happens that this parent was trying to look out for her son- it will not matter because she may get imprisoned for five years. However, a top executive who has engaged in money laundering proceedings may get away with the crime after restitution. Consequently, the problem with the Australian criminal systems starts with the roots. (Dunaway et al, 2000)

The issue of the prison systems also brings out some of the underlying differences within the Australian society. For instance some people assert that the reason behind increased arrests of lower classes could have been brought about by the lack of infrastructural facilities. Numerous prisons within the Australian landscape are found in areas with minimal infrastructural facilities. Consequently, funds required to build infrastructure are instead redirected into the criminal justice system hence starving people off the much-needed economic development. This eventually perpetuates the cycle.

There are certain offences within the criminal justice system that denote discrimination against social classes. For instance, the public order offence is clearly targeting the lower class or low income groups because they are almost always the victims. As if this is not enough, law enforcement officers are always on the look out for such offences yet there are more grave offences at stake.

The response of police officers to reported criminal cases among low-income communities is discriminatory. But even before examining the nature of police responses, the number of low income persons who report criminal cases to the police are staggeringly low. Low-income families experience discrimination in almost all spheres of their lives. For instance, during the reporting phase, lower income groups are more likely to be treated with suspicion than other groups. Also, when an individual has been accused of a crime that they did not commit, more often than not, they are forced to admit that they have committed it due to failure to access good legal representation. As if that is not enough, when low income suspects are taken into prison cells, most of them tend to spend more time than they are required to because they cannot meet bail requirements. Statistics show than in Australia, thirty three percent of female offenders remain in prison because of the bail issue. The police are particularly fond of targeting areas where low income families reside with the intent of suppressing their ‘rowdiness’. These institution’s inequalities serve to reinforce society’s negative perceptions and only serve to victimise the lower class.(Andersen and Patricia, 1998)


The Australian society is plagued by many inequalities that are quite visible within the criminal justice system. Statistics show that aboriginal Australians and other ethnic minorities in Australia tend to receive harsher penalties and more suspicion from law enforces than typical Australians do. Additionally, the criminal justice system tends to responds slowly to female related violence and to gay violence too. All these inequalities imply that the Australian criminal justice system is in dire need of reform. By allowing courts, police officers to continue with this practice, the country is denying these groups their due rights and is therefore hindering overall progress.


Tyler, W. (1998): Race, crime and region: the socio spatial dynamics of Aboriginal offending, Journal of sociology, Vol. 34, No. 2, pp 152-169

Easteal, P. (2002): Women and the criminal justice system, retrieved from http://www.aic.gov.au/publications/proceedings/16/intro2.pd. accessed on 26th Aug 2008

Odgers, S. and Yeo, S. (2005): Australian criminal justice; Oxford University Press, pp 67-85

Weitzer, R. & Tuch, S. (1997): Racial differences in attitudes toward the police; The Public Opinion Quarterly, Vol.3, No. 61, pp 642-663

Tonry, M. (1995): Malign neglect: Race, punishment and crime; Oxford University Press, pp 43

Andersen, M. and Patricia, C. (1998): Race, Gender and Class: An Anthology; Wadsworth Publishing, pp 13

Dunaway, R. et al (2000): The Myth of Social Class and Crime Revisited; journal of Criminology, Vol. 38, No.2, pp 589-632

Baired, B., Purcell, I. & Mason, K. (1994): The Police and You: A Survey of Lesbian and Gay Men in South Australia; Adelaide, Journal of Lesbian and Gay Community Action, Vol. 12, 3, pp 98

Takach, R., (1994): Lesbian and Gay Inequality: The Anti-Vilification Measures; Journal of Australasian Lesbian and Gay Law; Vol. 4



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