Without referring specifically to the situation for women, McRae et al, (2009: 503) discuss the types of offences that bring Indigenous people into contact with the criminal justice system, noting that these are generally 'trivial crimes' and arguing that 'curtailing police discretion to charge Indigenous people for minor offences such as offensive language would reduce Indigenous custody rates'.
Other research indicates the generally petty nature of most offending. The most frequent offences committed by Indigenous women are said to be fine default, drunkenness, offensive language and social security fraud (Behrendt 2000; Brooks 1996; Corbett & Paxman 1995; Payne 1993). It is conceded that although social security fraud is not necessarily petty in its magnitude, it is often a crime of necessity and driven by poverty. Hunter and Borland's (1999) analysis indicates that drinking in public was the most common reason for the most recent arrest for NSW Indigenous women (4.7%), followed by assault (2.1%) and drink driving (1.5%); similar data indicate that drinking-related arrests accounted for eight percent of the most recent arrests for Indigenous women aged 18–24 years (Hunter 2001).
The WA Crime Research Centre recently published information on types of offences, juvenile/adult status, sex and Indigenous status for all counts of police arrest, arrest events and distinct persons arrested (Fernandez et al. 2009). The data on all counts of arrest indicate that an Indigenous woman is most likely to be arrested for disorderly conduct (19% of arrests for Indigenous women), followed by a breach justice order (14%). Assault was the next most common offence, accounting for 10 percent of arrests, compared with five percent for non-Indigenous women, who were most likely to be arrested for fraud (16%), followed by TOMV (12%). For Indigenous female juveniles, the most common offences were TOMV (23%), followed by assault, breach of justice order and burglary (all 10%). Non-Indigenous female juveniles were most likely to be arrested for TOMV (23%) and assault (16%). Examining the distinct persons arrested reveals that Indigenous women were most likely to have been arrested for assault (22%), followed by disorderly conduct (15%). The figures for non-Indigenous women were TOMV (15%), followed by assault (14%); these data are also available broken down by age.
Gardiner and Takagaki (2002: 312) found that Indigenous women were over five times more likely to be processed for summary offences than non-Indigenous women and query whether
Indigenous Victorian women are more prone to public demonstrations of offensive language and 'bad' behaviour than their non-Indigenous counterparts?...to whom would such demonstrations be offensive? Or is it more likely... that the policing of Indigenous women is qualitatively different?...That it is police interventions with Indigenous women which actually create situations which lead to arrest for public disorder being made?
Mackay and Smallcombe (1996) also examined Victorian data to point to differences in offending patterns between Indigenous and non-Indigenous women, with the former more likely to be processed for 'crime against the person'. Gardiner and Takagaki (2002) found in respect of the offences committed by Indigenous women that:
- between 1993 and 1997, crime against the person rose 25 percent, crime against property fell five percent and other crime fell by 19 percent;
- crime against property was the most heavily-represented category, which was consistent with Indigenous men's patterns;
- the most common offence types were assault (indictable and summary), theft (shop-stealing and other), deception and other summary offending. Collectively, these accounted for 60 percent of incidents involving Indigenous women processed;
- breaches under 'other summary offences' accounted for the most common of all offence types;
- 'other' summary offences accounted for 18 percent of Indigenous women's matters, compared with 12 percent for non-Indigenous women, while the latter were more likely to be processed for shop-stealing (28% vs 16%); and
- the overwhelming body of offences processed were for relatively minor offences, with most matters relating to public order offences, such as indecent language and offensive behaviour.
This final point is relevant when the use of unofficial cautions and the impact of having a criminal record are taken into account, as discussed earlier in this report.
Table 10 sets out the offence profile for women appearing in a NSW court in 2001. As can be seen, Indigenous women are significantly over-represented for acts intended to cause injury (24% vs 14%) and public order offences (13% vs 6%), and are under-represented for driving offences (18% vs 30%).
The data provided by the WA Department of Justice in Table 11 shows similar results for 2008. These data indicate a higher level of over-representation for Indigenous women charged with public order offences than in the earlier NSW dataset. As with those data, Indigenous women are under-represented for traffic offences.
|Offence type (ASOC code)||Indigenous||Non-Indigenous|
|Acts intended to cause injury||24.1||13.9|
|Sexual assault and related offences||0.1||0.1|
|Dangerous or negligent acts endangering persons||1.1||4.3|
|Abduction and related offences||0.1||0.1|
|Robbery, extortion and related offences||1.2||0.6|
|Unlawful entry with intent||2.6||1.5|
|Theft and related offences||19.5||18.8|
|Deception and related offences||1.5||5.6|
|Illicit drug offences||4.2||5.4|
|Weapons and explosives offences||0.3||0.4|
|Property damage and environmental pollution||5.0||3.1|
|Public order offences||13.2||5.8|
|Road traffic and motor vehicle regulatory offences||17.9||30.0|
|Offences against justice procedures, government security and operations||8.0||8.0|
Source: Weatherburn, Lind & Hua 2003
|Offence type (ASOC code)||Indigenous||Non-Indigenous|
|Acts intended to cause injury||9.5||4.6|
|Sexual assault and related offences||0.1||0.1|
|Dangerous or negligent acts endangering persons||5.3||5.3|
|Abduction and related offences||0.3||0.2|
|Robbery, extortion and related offences||0.3||0.2|
|Unlawful entry with intent||1.0||0.7|
|Theft and related offences||7.0||8.0|
|Deception and related offences||0.7||2.4|
|Illicit drug offences||2.8||6.9|
|Weapons and explosives offences||0.4||0.5|
|Property damage and environmental pollution||2.1||1.1|
|Public order offences||15.4||2.8|
|Road traffic and motor vehicle regulatory offences||42.3||61.8|
|Offences against justice procedures, government security and operations||12.1||5.2|
Source: unpublished data from WA Department of Justice 2009
Ferrante, Fernandez and Loh (2001) found that in Western Australia, 40.5 percent of all Indigenous women entering prison in 2000 were there for reasons of fine-default.
The 2002 ATSISJC (2002: 141–142) report noted:
There are some limitations to the statistical information on crimes committed by Indigenous women. Prison census data, for example, records prisoners on the date of the census. Prisoners who served short sentences and are no longer present on the census day are not recorded. Therefore, these figures underestimate Indigenous women coming through the prison system on shorter sentences for more minor offences.
It was noted that prison census data record the most serious crime for which an inmate is convicted, but not other offences which might contextualise the criminal behaviour. For example, a person in possession of drugs at the time of an armed robbery will be recorded as an armed robber, but an apparent drug addiction is not represented in the figures. Furthermore, as the 2004 ATSISJC (2004: 17) report found,
While states and territories collect data on the number of Aboriginal women convicted, they do not at the same time publish data on the types of offences for which they are being convicted. While the Australian Bureau of Statistics publishes a range of data relating to prison populations, including a breakdown of offences committed by Indigenous and non-Indigenous inmates, there is no gender specific data available in this particular category.
Table 12 sets out data from the 2002 ATSISJC report on the most serious offence committed by Indigenous female prisoners between 1994 and 2001 (ATSISJC 2002). Differences in recording make it difficult to draw comparisons between these data and the information set out in Table 10, but it is clear that there has been a dramatic increase in the number of Indigenous female prisoners whose most serious offence was assault. It should be noted that the report regarded the increase in robbery as a matter 'clearly requir[ing] investigation to determine factors contributing to this increase' (ATSISJC 2002: 143), but this figure has since decreased somewhat (from 58, including extortion, to 48 between 2001 and 2008). The ATSISJC report referred to Victorian research on Indigenous female prisoners which found that property and robbery offences were the most commonly committed, with an increase in robbery and that such offences 'appeared to be directly linked to long term drug use' (Brenner cited in ATSISJC 2002: 145).
|Offence type (ASOC code)||1994||1995||1996||1997||1998||1999||2000||2001||1994–2001 % change|
|Assault and related||40||39||42||53||48||91||69||91||127|
|Break and enter||32||24||28||39||45||43||42||51||59|
|Theft and related||16||20||32||30||32||28||37||36||125|
|Driving and related||3||5||10||10||16||20||22||14||366|
Source: ATSISJC 2002
According to the most recent data on the most serious offence committed by female prisoners, acts intended to cause injury (ie violence not amounting to homicide) account for a greater proportion of offences for which Indigenous women were imprisoned, in comparison with non-Indigenous women (see Table 13). This confirms Behrendt, Cunneen and Liebesman's (2009: 16) assertion that the 'Indigenous women are more likely to be imprisoned for violence-related offences than non-Indigenous women', which they suggest may be in response to domestic violence and other forms of abuse. Indigenous women are generally over-represented for burglary offences, but under-represented for other property offences, namely, theft and most notably, fraud. They are also much less likely to have been imprisoned for drug offences (4% vs 19%). Contrary to general discussions in the literature, there was no evidence of over-representation for public order offences, which accounted for a very small proportion of offences.
|Offence type (ASOC code)||No||%||No||%|
|Homicide and related offences||49||8.6||163||11.9|
|Acts intended to cause injury||186||32.8||147||10.7|
|Sexual assault and related offences||3||0.5||27||2.0|
|Dangerous or negligent acts endangering persons||8||1.4||14||1.0|
|Abduction and related offences||4||0.7||12||0.9|
|Robbery, extortion and related offences||48||8.5||84||6.1|
|Unlawful entry with intent||71||12.5||116||8.5|
|Theft and related offences||43||7.6||109||7.9|
|Deception and related offences||12||2.1||187||13.6|
|Illicit drug offences||24||4.2||264||19.2|
|Weapons and explosives offences||4||0.7||9||0.7|
|Property damage and environmental pollution||9||1.6||21||1.5|
|Public order offences||6||1.1||16||1.2|
|Road traffic and motor vehicle regulatory offences||27||4.8||40||2.9|
|Offences against justice procedures, government security and operations||70||12.3||139||10.1|
Source: ABS 2008
Kerley and Cunneen (1995) refer to 1990 data showing that Indigenous women comprised 78 percent of all cases where women were detained in police custody for public drunkenness (rising to 97 percent in Western Australia) and that proportionately more females than males were detained for drunkenness and good order offences compared to other offences. They describe as 'problematic' the number of Indigenous women brought to court and imprisoned for minor offences. In addition, their examination of the 11 women whose deaths were reviewed by the RCIADIC indicates that the women were generally in custody for drunkenness (n=6) and/or fine default (n=3); none of the women was in custody for a serious offence. The 2002 ATSISJC also referred to data analysed by Cunneen (2001) indicating that '[n]ationally, Indigenous women comprise nearly 80 percent of all cases where women are detained in police custody for public drunkenness' (ATSISJC 2002: 143).
|35 and over||45.3||35.0|
Source: Taylor & Bareja 2005
Data analysed by the Taylor and Bareja (2005) indicate (without a gender breakdown) that custody incidents of public drunkenness were 42 times more likely to involve Indigenous people than non-Indigenous people per relevant population. Indigenous women who were detained for public drunkenness were also older than non-Indigenous women so detained, as set out in Table 14.
Assault and homicide
Data from Victoria (Gardiner & Takagaki 2002) and New South Wales (Baker 2001) indicate that Indigenous women are two to three times more likely than non-Indigenous women to be dealt with for assault. Baker's study also sheds light on imprisonment rates for the specific offence of assault. She examined all convictions in the NSW Local Court (ie minor assaults) in 1999 and found that NSW Indigenous women were more likely than non-Indigenous women to be imprisoned for all age groups except 31–40 years. Analysis on the basis of prior convictions indicates that eight percent of Indigenous women aged 41 years and over who were convicted of assault and had prior convictions were imprisoned, compared with zero percent for non-Indigenous women with prior convictions. By contrast, none of the 76 Indigenous women and 226 non-Indigenous women with no prior convictions was imprisoned, suggesting that the courts were equally likely to try to divert first-time offenders from custody. As part of the Drug Use Careers of Offenders (DUCO) survey conducted by the AIC, Johnson (2004) surveyed 470 adult female prisoners in six Australian jurisdictions, 27 percent of whom were Indigenous. Almost three-quarters of the Indigenous female respondents (73%) admitted to physically assaulting another person at some stage in their lives, while of these, 16 percent did so on a regular basis. These figures were much higher than those recorded by non-Indigenous females. The escalation rate, that is, the proportion who, having committed the initial offence went on to become regular offenders, was also much higher among Indigenous than non-Indigenous women (22% vs 13%).
The issue of family violence is discussed further below. It is important to note, however, that a higher proportion of Indigenous homicides involved a female offender (20% vs 12%) and when Indigenous women killed, just under three-quarters of their victims were male intimate partners (cf 44% for non-Indigenous women). It was also found that nearly twice as many Indigenous homicides (including both male and female offenders) occurred as a result of a domestic altercation (45% vs 24%; Mouzos 2001). More recently, Dearden and Jones (2008) found that Indigenous women were 14 times as likely as non-Indigenous women to commit homicide (5.3 per 100,000 vs 0.4) and that this ratio has stayed relatively constant since 1990. An examination of 15 cases of homicide by Indigenous women revealed that the victim was in an intimate relationship with the offender in 40 percent of cases, followed by family member (33%), friend or acquaintance (20%) and only rarely a stranger (7%; Dearden & Jones 2008).
The findings of a recent study by Stubbs and Tolmie (2008) are instructive in this context, although there is no breakdown of data revealing jurisdictional differences. They examined cases between 1991 and 2007 where Indigenous women killed their abusive partner and found that the battering the women had experienced and their disadvantaged circumstances were generally read as indicators of personal deficits and any evidence of structural disadvantage was muted. They also found that Indigenous women were commonly represented as either 'subordinate to and dominated by men in their communities' thus denying them agency, or 'where their agency is recognised, it comes with the risk of being labelled as dangerous, a label likely to deny them any prospect of having their actions or experiences judged dispassionately' Stubbs & Tolmie 2008: 143). Stubbs and Tolmie (2008) accordingly argue that the large number of Aboriginal women serving sentences in Australia for killing violent men in part may reflect a disjunction between their stories and dominant representations of battered women.
In a report released recently by the AIC on Indigenous risk factors for violent offending, Wundersitz (2010) observed that there has been a tendency to focus responses and interventions on Indigenous males, while paying less attention to the violent offending of Indigenous females. The report describes the rate of police apprehensions (per 1,000 people) for apprehensions data from Western Australia, South Australia and suspected offenders from the AIC National Homicide Monitoring Program. Although males comprise the bulk of those who commit offences, these data indicated that the Indigenous female rate of offending for homicide, acts intended to cause injury and dangerous/negligent acts were significant and actually higher than the offending rates for non-Indigenous females and males. This suggests that the incidence and nature of violent behaviour by Indigenous females requires closer scrutiny.