Newsroom

Connect with us to receive information on courses, news and events. Privacy Policy.

picture of Professor Mirko Bagaric

Professor Mirko Bagaric

Mirko Bagaric is an Alfred Deakin Professor and Chair in Law at Deakin Law School. His main work is in the area of punishment and sentencing. He has also written extensively in migration and refugee law and human rights law. His articles have been cited in over 50 court judgments, including the High Court of Australia and superior courts in Canada, Singapore, New Zealand and Ireland.

Originally published in The Conversation on 12 January 2016.

When it comes to committing crimes, humans have two distinct forms. Overwhelmingly, men perform most criminal acts. And, with only a hint of exaggeration, women never commit the most heinous offences.

As such, it is an egregious public policy disfigurement that all Australian jurisdictions have expansive and expensive prisons that are purpose built for imprisoning the portion of the community that nearly none of us fear. Worse still is that female incarceration numbers are at record highs and increasing.

Numbers don’t lie

Women constitute approximately 8 per cent of all Australian prisoners. However, the total number of women prisoners has grown considerably over the past decade.

In 2005 there were 1734 women prisoners, which amounted to 6.8 per cent of all prisoners. In June 2015, the total number of prisoners in Australia was 35,949 – of whom 2825 were women. This amounts to 7.6 per cent of the total prison population.

As women are less responsible for criminal law offences, they are inevitably imprisoned less than men. But the level of female under-representation in overall imprisonment rates is not nearly enough. It should be somewhere between 0 per cent and 1 per cent of the total prison population.

Women comprise one-fifth of all defendants who appear in Australian criminal courts. When it comes to the more serious forms of crime, female involvement drops considerably. Women comprise slightly less than 13 per cent of defendants in the higher courts.

Women are even less represented in relation to the most serious offences. They commit virtually no sexual offences. Women constitute 15 per cent of all defendants whose most serious crime is homicide or a related offence. However, the number of women charged with such offences is low given that only 955 such offences are reported annually.

When women do kill it is usually different to male killing. Women often kill against a backdrop of victimisation and hopelessness, not because they are angry or revengeful.

The offence types that women commit a reasonable portion of are fraud (35 per cent), theft (34 per cent) and traffic and vehicle regulatory offences (24 per cent).

The most recent figures relating to offence types for which people are imprisoned show that 9 per cent of women were in prison for homicide and related offences. The majority of women (more than 60 per cent) were in jail for non-violent and non-sexual offences.

The most common offences for which women are imprisoned are unlawful entry (10 per cent), theft (8 per cent), fraud and deception offences (8 per cent), drug offences (17 per cent) and offences against justice procedures (11 per cent). By contrast, the majority of men are in prison for acts of violence or sexual offences.

There is also a fundamental distinction in the manner in which male and female prisoners are categorised in Australia. One-third of male prisoners are classified as minimum security; more than 70 per cent of female prisoners have this classification.

Implications for policy

The undeniable difference between men and women when it comes to committing crime should be reflected in a fundamentally different approach to the sentencing of women. Not only should women generally receive more lenient penalties than men because they are normally more law-abiding, but women who commit the same crime as men should in most cases receive lighter penalties. This should be so for three reasons:

It is only an utterly perverse and misguided sense of equality that would suggest that female offenders should be treated the same as males.

The default position is that no woman should be sentenced to imprisonment. There are some incorrigibly bad women in the community who commit acts that seriously damage others. And yes, they require harsh treatment. But this justifies Australia having one female jail – not a dozen.

The number of women who should be subjected to the harshest sentencing option is so rare that it is verging on lunacy to establish and maintain extensive and expensive pitiable institutions in every jurisdiction to deal with them. Other solutions for serious female offenders should be developed, such as 24/7 CCTV and electronic monitoring, combined with other strict deprivations – like the inability to work or own property.

Effectively eliminating the threat of imprisonment from the female psyche will not encourage them to commit more crime. Empirical data establishes that there is no link between severe penalties and low crime. The only policing and sentencing approach that reduces crime is increasing the perception in people’s minds that if they commit a crime they will be caught.

Implementing changes to the sentencing system that will benefit women does not necessarily prejudice men. The opposite is the case. The reforms will prompt a reassessment of all sentencing principles so far as non-violent and non-sexual offenders are concerned.

This will logically result in less severe sanctions for men who commit crimes of this nature. It is the only tenable approach to dealing with Australia’s prison over-crowding crisis.