Cross-Examination: Battered women behind bars and responses from our criminal justice system

Cross-Examination: Battered Women Behind Bars and Responses from our Criminal Justice System

 

Cross-Examination is a blog series about current legal issues in New Zealand produced by EJP Communications volunteers.

Erica Burke

At first glance, the prison system in New Zealand appears to adequately provide for the immediate needs of both genders.  Certain women’s prisons provide facilities for inmates and their children to live together, whilst still serving out their sentence. Also, there is work in the prisons themselves which is made available for qualified inmates.

However, a deeper look at how decisions are made within the criminal justice system with regards to prisoners’ needs and treatments reveals a male-orientated process that simply ignores the gender-specific needs of a specific type of female offender. Those “battered” women who have been victims of domestic violence, and who ultimately murder their abuser, occupy a unique position within the criminal justice system that challenges convenient assumptions of what it is to be prisoner.

It is understandable that the majority of behavioural research conducted on criminals is largely founded on male offenders. This is because historically, the correctional system has been male-dominated with female offender populations increasing only recently. However, a relatively recent proliferation in women-only prison facilities indicates not only the rising importance of female-specific research and assessment tools, but also the gaping hole in current approaches towards offenders’ ‘rehabilitation’.

Our current criminal justice system deals with an offender’s needs by prioritising those that are least likely to reoffend. The risk of recidivism (or reoffending) is essentially calculated by offender-assessment ‘tools’ that New Zealand adopted in 2007. These originated in Canada and have since been developed to become the LSI-R (Level of Service Inventory Revisited). How they work is straightforward; they identify the circumstances of an offender’s life that are directly causative to their offending and possible recidivism, to target prison rehabilitation programmes that aim to reduce offenders from returning. There is an obvious benefit to the use of such measurements, namely that they (ideally) rationalise the decision-making surrounding an offender’s treatment, that otherwise would be discretionary. However the database of offender profiles that contributed to the development of the LSI-R tool consisted solely of male prisoners in Canadian prisons. With no female representation in the preliminary stages of the tool’s research, the suggested programmes that purport to tackle reoffending can be expected to be ineffective and potentially detrimental to a female offender’s personal development.

The LSI-R model devotes treatment primarily to high-risk offenders, with the underlying rationale being that low risk offenders (typically females) are capable of coping without intervention. Treatment programmes are targeted towards commonly held dynamic attributes (i.e. those that can be changed, such as anger management) of an offender that have been causally linked to reoffending. Yet this approach is impractical with regards to abused females guilty of spousal homicide, as their former partner was the cause of the offending and is no longer present as a risk factor. Future abusive relationships would be a dynamic factor that may cause reoffending (of murder), highlighting the need for ‘healthy relationship’ workshops to ensure women do not fall back into similarly abusive relationships and patterns of violence.

Criticism of the LSI-R approach being used identically for both genders is that static needs are therefore not considered relevant or in need of addressing. Static needs are historical events that cannot be altered; for example, abuse. The risk-based approach integral to the criminal justice system does not give effect to holistic rehabilitation of offenders that may improve overall quality of life. The LSI-R model ultimately aims for efficiency within the Corrections system, thus the wellbeing of women offenders represents additional costs that are not seen as affecting recidivism. Narrow categorisation of needs that warrant treatment is supposed to increase efficiency by only including needs that are generically associated to reoffending. Further, privatised services can provide rehabilitation services, causing concern at the State’s removal from a process that is now difficult to hold (the private agencies) responsible for. However, this concern assumes a State is more receptive to public views; something that one can easily become idealistic about. Adopting the LSI-R model evidences a larger shift in the criminal justice system towards prioritising fiscal interests over an offender’s complete needs. Programmes providing a continuum of care and targeting multiple needs have been found to produce greater positive outcomes. In addition, programmes that incorporate services in the community following incarceration release could reduce recidivism and relapse into substance misuse, or abusive relationships.

The argument for gender-specific treatment services is strengthened in light of substantial academic support for notions of “gender-specific pathways to crime,” which affiliate women’s substance or partner abuse with entry into crime. Thus, a multifaceted treatment for female offenders focusing on drug abuse, trauma recovery, educational and employment training and parenting skills is imperative. Yet care is required, to distinguish between male and female prison rehabilitation programmes. The Ohio Gender Specific Services Work Group emphasise that merely implementing male-centric treatment programmes in exclusively female settings is not sufficient. “Gender specific programmes are not simply ‘female-only’ programs that were designed for males.” Women-only groups encourage the development of identity and independence amongst female participants. Confrontational modes of delivering treatment are routinely ineffective for women offenders, and interpreted as threatening particularly for those who have committed murder to escape daily violence.

Yet there are still mutually-held risks of reoffending that are common to all offenders, and care is needed when dealing with assumptions about the responsiveness of all female offenders to certain treatments, as it can depend on whether a participant identified herself as a survivor of violence and abuse, or a victim according to certain theorists.

Female offenders’ family or intimate relationships are more likely to be classified as abusive and exploitative. High prevalence of childhood abuse amongst female inmates often results in abusive relationships in adulthood. In light of the overwhelming majority of abused female offenders that have been subjected to relational abuse, often have their first experience of safety in a correctional environment.

Excluding an offender’s victimisation from the risk-needs assessment is perhaps because of a weak or unsupported link between their abuse and ‘victim’ status; and their offending. Victimisation can give rise to psychological and substance problems as well as criminal involvement, yet there is not necessarily a clear causative relationship between them. However criminal activity does coincide with “high risk manifestations of other difficulties…associating it with poorer treatment outcomes.” The behavioural problems and coping inadequacies suffered by victims can mutually reinforce each other and are therefore deserving of treatment. It is arguably unnecessary to actually determine the correlation between crime and abuse; that abuse should warrant treatment from the correctional system regardless.

Female offenders are generally primary caregivers of children, and thus male treatment programmes lack a focus on parenting training. The majority of such women expect or are required to return to caring for their children upon release, and often lack skills to secure employment, thus the added pressure of dependent children results in many reoffending. Placing an offender’s child with a family member as carer is problematic if the child is merely being moved into a dysfunctional environment. Foster care alternatives may also be detrimental for the child, due to separation anxiety. Separating the two can impede the development of a strong parental relationship, which can later cause damaging familial patterns upon prison release. A dysfunctional familial background is common amongst female offenders and there is a risk that without proper family-based programs, such dysfunction could perpetuate with the prisoner’s children upon release. Family therapy, parenting and birthing programmes are suggested responses. Positive family connections are essential to successfully reintegrating offenders and act as an ‘insulator’ against recidivism.

In New Zealand, in the Arohata Prison, multiple women and their children occupy self-care units. However, difficulties arise in determining a prisoner’s security level and associated suitability for the units, as only low-security prisoners who are pregnant or mother to a child under six months old are eligible. Some argue that women with infants should rarely live on prison grounds in the first place; or that incarcerated mothers will be inevitably be separated from their children if no units are provided.

Delivering the same treatment plans to male and female offenders can be ineffective for the latter. This is because the nature of the need (anger management or violence, for example) can be qualitatively different. This is particularly relevant when considering women who have killed their abusive partners, or ‘battered women’ that have physically harmed their abusers. Both criminal acts can be characterised as violent, or in response to anger or frustration at their situation. However they fundamentally contrast male committed offences such as assault, which are typically determined by their ability to control anger impulses. Traditional domestic violence programmes focus on power, control and negative attitudes towards women; clearly incompatible for victimised female offenders. This gap, as explained above, is attributable to the CNI knowledge base that has been primarily developed from male-offender specific research.

Women who have committed spousal homicide after suffering abuse occupy a unique “dual identity” within the criminal justice system, as both victim and perpetrator. This inherently conflicted status of the specific female offender that is the subject of this research paper exposes the rigid conceptions central to the corrections system. I.e. that there is heavy reliance within the system for victims to be portrayed and accepted within society as totally innocent; whilst simultaneously there is limited room for doubt about an offender’s guilt. Consequently, assigning culpability and blame on these female offenders complicates policy rhetoric that focuses on public safety.

The New Zealand criminal justice system does not adequately respond to the needs of women who kill their abusers. This is a significant failing of the criminal justice system that could be alleviated by employing gender-specific treatment services that address the recidivism risk factors and static needs of female-offenders. This indicates the need for female-centric programmes, as opposed to minor adaptations of interventions that are suited to male-offenders.

 

 

 

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