Author:	Rachael Field BA, LLB, LLM, Grad Cert Ed Lecturer, Queensland University of Technology School of Justice Studies Faculty of Law
Subjects:	Alternative dispute resolution (Other articles) Restorative Justice (Other articles) Victims of Crimes - Australia
Issue:	Volume 11, Number 1 (March 2004)
Category:	Refereed Articles

Contents

• Introduction
• Juvenile women and the criminal justice system
• Juvenile victim-offender conferencing – a specialist form of dispute resolution for the criminal justice context
• Juvenile women and victim-offender conferencing
• Young women offenders and their capacity to participate effectively in conferences
• Imbalances of power that operate against young women offenders in conferences
• Neutrality or lack of bias in third parties such as convenors
• Other issues for young women offenders in conferencing
• Conclusion
• Notes

Introduction

1. The criminal justice system is a difficult place for young women to find themselves. Clearly still in a minority, traditional systems of court processing and detention have failed to deal with the social and gender issues that contextualise their presence in the system. The introduction of alternative, informal processes, such as juvenile victim-offender conferencing, has created a greater potential for juvenile women offenders to be involved in more appropriate processes that could possibly result in their long-term diversion out of the criminal justice system. These processes are now increasingly being used,[1] which positively indicates that alternatives like conferencing are moving “away from the margins and closer to the mainstream of how we do justice in our society.”[2] With this move, however, and as more referrals and conferences occur, the imperative to protect vulnerable participants increases. This means that the need for analysis and critique of issues relating to the practice and procedure of conferencing in terms of just outcomes for young offenders is now more pressing than ever.[3] In particular, young women can face a number of gendered practical and process disadvantages in victim-offender conferencing which impact on their effective participation and consequently can result in unjust outcomes from the process.

2. This paper provides a feminist critical analysis[4] of important power-based participation issues for young women offenders in a current model of victim–offender juvenile conferencing.[5] It considers issues that impact on the appropriateness for both genders of juvenile victim-offender conferencing, and argues that young women participants have special needs and issues arising out of additional gender-related power imbalances.[6] These issues need to be confronted if conferencing is to offer just outcomes for young women offenders.

   Juvenile women and the criminal justice system

3. To set the context for considering issues for young women participants in juvenile conferencing, some consideration needs to be given to general issues for juvenile women in the criminal justice system.

4. First, young women offenders are a minority group in the juvenile justice system and as such continue to be misunderstood and are often described as “difficult” or “troublesome”.[7] Whilst adolescent antisocial behaviour is itself often referred to as “a serious social problem”,[8] the broader societal and political perception of that problem is exacerbated in relation to juvenile women offenders as a result of persistent patriarchal constructs about what behaviour is appropriate for young women. As Sandor notes, juvenile offenders “have historically been the ‘problematised’ object of social anxiety” even though “their offending behaviour is for the most part minor and short-lived.”[9] As a subset of this problematised group, juvenile women offenders are “forced to cope with daunting and shocking conditions, (and) manage accommodations at tremendous cost to themselves.” [10]

5. Related to the fact that the number of young women in the criminal justice system is low and the system’s understanding of young women and their issues is limited, is the dilemma that programs available to young women continue to be inadequate.[11] Moore comments on the “strong evidence that girl-specific services are needed which can support the policies of diversion”.[12] The persistent emphasis on young men in the system also means that existing programs are inadequate in terms of responding to the heterogeneous nature of young women offenders.[13] The tendency in the system to essentialise young women to some extent means that those programs that do exist, are not always able to recognise or accommodate issues of cultural and social difference. For example, there is “a paucity of empirical data which considers specifically the issues relating to Aboriginal young women”.[14]

6. Another important contextual issue is that of a persistent bias against young women in the criminal justice system.[15] For example, Krisberg and Austin comment that “young women continue to be arrested and incarcerated for behaviours that would not trigger a similar response for young males.”[16] This bias is reflective of the broader patriarchal nature of law in general, and the male-centricity of its form, language, and substance.[17] The gendered approach to juvenile justice is merely an extension of the law’s overall paternalism.

7. Further, without homogenizing juvenile women offenders, research has been able to tell us something about the nature of their experience within the criminal justice system. We know, for example, that “the vast majority of offences committed by young women are poverty related,”[18] that there are overt connections “between violence, family break-up, negative contact with welfare agencies and police, and the move from welfare needs to eventual criminalization,”[19] and that many young women offenders contemplate or attempt suicide on the basis that they feel nobody cares and they are tired of being angry and frustrated.[20] Many young women offenders also live in a world where being ‘good’ makes them unpopular and boring,[21] where they feel displaced, and where they remain unable, for example, to pay for their bus or train ticket.[22]

8. Finally, it appears that, whilst young women continue to be a minority group in the criminal justice system, statistics indicate that their numbers are increasing.[23] In Queensland, there was an expectation that the Juvenile Justice Act 1992 would “substantially reduce the number of young women in the justice system because they could no longer be brought before the court for ‘status offences’ such as homelessness or sexual promiscuity.” [24] However, this reduction has not eventuated; rather it would appear that the net has actually widened and consequently the level of state control increased.[25] Further, research suggests that the “extent of offending involving young women is much more significant than their rate of apprehension indicates.”[26] The issues raised in this paper therefore have ongoing and possibly increasing relevance to addressing justice for women in informal processes in the criminal justice system.

   Juvenile victim-offender conferencing – a specialist form of dispute resolution for the criminal justice context

9. Victim offender conferencing programs “reject traditional methods of juvenile justice that are deemed to be ‘stigmatising’, and substitute instead a process of negotiation and reparation whereby the offender is (ostensibly) appropriately shamed for the offence that has occurred.”[27] Conferencing aims include diversion from traditional criminal justice processing,[28] and the creation of a “more decent, less oppressive criminal justice system.”[29] Essentially, conferencing is designed “to bring victims and offenders together to talk about what happened and develop agreements to ‘make things right’.”[30] In this way, the victim and the offender reclaim the offence from the state, and it becomes in this alternative forum more like a dispute between them as individuals which is capable of negotiation and private resolution.

10. Conferencing advocates usually claim that the process incorporates “equally the needs and perspectives of both offenders and victims.”[31] And that the process is positively future focused,[32] in a context that safely allows a discussion of the past offence. This in turn is said to provide the offender with an opportunity to take responsibility for her actions,[33] and to make a commitment that they will not re-offend.[34] The generally positive aspects of conferencing for juveniles have been articulated as follows (note the emphasis on the empowering nature of the process, a quality that has contributed to assertions that the process has “something to offer for everyone”):[35]
    • Offenders are empowered through active participation in a non-stigmatising and re-integrative process;
    • Families are strengthened through their involvement and focus on their responsibilities;
    • Victims are empowered through active involvement and enhanced possibilities of reparation;
    • The community is empowered through taking back control of resolving conflicts from the state;
    • And yet the process can still be said to take crime seriously.

11. Conferencing participation and outcome statistics tend also to be positive. For example, one study in the United States has found that “most victims and offenders chose to meet face to face with the other party” when contacted by the mediation service.[36] In this study 48% of conferences reached a written agreement.[37] “Of all cases in which agreement was reached, 96.8% of the contracts were completed or were current; only 3% failed to be fulfilled.”[38] The base line, however, of success in relation to conferencing is a less easily measured variable of whether “victims and offenders feel involved in the process and in the decision” and whether “victims feel better as a result of the process and if offenders make amends to the victims.”[39]

12. Whilst the theoretical benefits of conferencing are persuasive, and are supported by some (although still not enough) empirical evidence; there remain some substantial issues and problems to be addressed. For example, in the conferencing environment, it is certainly possible for offenders and victims to remain uninvolved in the decision-making process, or to use the process inappropriately.[40] In what remains an alternative forum that is still developing, young offenders do not always have the information they need to contribute fully, and professionals can become paternalistic,[41] or have inadequate standards of professional practice.[42]

13. Conferencing can be argued also as possibly simply extending the stigma circle to an alternative, or rather additional, environment.[43] Polk has commented that because processes like conferencing are still very connected with the criminal justice system and the state (for example in Queensland referrals are made only by either the arresting police officer or the court), they are more a process of diversion “into a program” than “out of the system”.[44] Auerback has expressed concern that the “search for justice without law has deteriorated beyond recognition into a stunted off-shoot of the legal system”.[45] And Zehr comments that “unless underlying traditional assumptions and values are transformed to alternative assumptions and values, alternative processes will rarely end up as real alternatives.”[46]

14. In addition to these more general issues there are some particular concerns relating to juvenile offender participation in conferencing; for example, issues relating to possible breaches of due process, pressure on young offenders to plead guilty, power imbalances deriving from age, and the possibility of harsh, disproportionate or inconsistent penalties negotiated in the private conferencing environment.[47] These issues are discussed briefly below as they apply to both young women and men who participate in conferencing. Some of the concerns, as Warner has pointed out, can also be raised in relation to the way that other diversionary processes operate.[48] The seriousness of these issues in the conferencing context is exacerbated, however, by the vulnerability of the young participants and the implications attaching to unjust or inappropriate process outcomes. There is consequently a particular need to emphasise, articulate and address concerns that relate to juvenile conferencing environments as they potentially impact so significantly on young people’s lives and futures. As Polk has commented, “there is a particular obligation to assure that young people are not worse off as a result of this diversion process.”[49]

15. The first significant concern for juvenile offenders of both genders in relation to participating in victim-offender conferencing is the informal and private nature of the conferencing process. In the conferencing environment, young offenders do not have the benefit of the safety net of public scrutiny and formal accountability measures.[50] Decisions by young people to admit guilt to avoid formal criminal justice processes,[51] to plead guilty to lighten their sentence,[52] or to agree to inappropriately harsh outcomes due to inadequate knowledge and information, impact on the broader public interest of the welfare of our young citizens. Removing these decisions to a process where they are out of the public view, and are perhaps made without the benefit of legal counsel, jeopardises the legal and human rights of juvenile offenders.[53]

16. The private nature of conferencing has the potential also to reverse the positive effects of the work of juvenile offender advocates by relegating their issues to an environment with no formal or public protections, and no ability to set precedent or reinforce developing societal and legal norms that support young citizens. In contrast, the public nature of the legal system ostensibly ensures that coercive legal powers are used appropriately and that there is at least some form of safety net for the possibility of inappropriate actions on the part of those involved in processing young people through the criminal justice system.[54]

17. Related to this issue are concerns about the ‘voluntary’ nature of young offenders’ participation in conferencing. The National Alternative Dispute Resolution Advisory Council (NADRAC) identifies a participant’s ability to “make a free and informed choice to enter” an informal process like conferencing and the absence of any “threat, compulsion or coercion to enter or stay in the process”,[55] as important in terms of the fairness of the process. Braithwaite, too, asserts that it is critical that “at any point up to the signing of a final agreement, defendants should have the right to withdraw, insisting that the matter be either adjudicated before a court or dropped.”[56] This is an important theoretical right, but many young participants may not perceive that they have any real power to terminate the process, particularly for example, if they consider themselves to be subject to coercion from the victim, their family,[57] or other authority figures in the process such as the convenor or the police. The voluntary nature of a participant’s choice both to enter and to remain in an informal process is one that has been much debated in alternative dispute resolution circles.[58]

18. We can also be critical of the claim of conferencing that offenders are empowered through participating actively in the process[59] and through taking responsibility for their actions. Meaningful, and therefore empowering, participation by young offenders can be compromised in a number of ways. Young offenders may think, for example, that there is little point in fully engaging with the process if they don’t see on the part of the victim, convenor or police a convincing understanding of the general social, familial and political realities of their world.[60] The focus on the misdeeds of the young person can be meaningless if they are forced to take responsibility for them and are shamed for them without any full contextualisation of the social and political framework in which they occurred - for example, school influences, family violence, poverty, unemployment, homelessness, and discrimination.[61] As Marshall has said: “If society is to expect active responsibility on the part of the offender, then it must be able to balance the offender’s efforts with acceptance of responsibility on the part of the community to support such efforts.”[62]

19. Further, we know that many young offenders are victims themselves of family or social abuse.[63] For example, of the young offenders interviewed in a study by Chesney-Lind and Shelden all had experienced some form of abuse.[64] In this context the possibilities of empowerment are lost to the potential for conferencing to “reinforce the ‘blame-the-victim’ syndrome (in relation to offenders as victims of social justice)”.[65] Sandor has therefore referred to the futility of the victim/offender dichotomy,[66] and to the need for a better articulation of the “ways in which young women and young men portrayed as victimisers are victimised themselves.”[67] In addition, of particular concern is the possibility that a young offender’s empowerment in a conference will be severely diminished if they are accompanied and ‘supported’ by a member of their family who is in fact their abuser.

20. This is not to say that “the intellectual practice and the political practice of the people who have been involved in promoting conferencing in Australia” has ignored the social and political exigencies of young offenders.[68] But rather that in the instance of conferencing, the claim of empowerment of offenders illustrates a potential divide between conferencing theory and the realities of its practice. It is important that this divide be bridged through the development of a better understanding of juvenile conferencing that is situated in its broader context. Sandor’s view is that in order to achieve this we need to “keep three themes in high public profile: the structural determinants of offending; the need for policy measures which are based on such a structural perspective; and the way in which young offenders are victimised by units of the juvenile justice system.”[69]

21. Finally, NADRAC’s comprehensive consideration of issues of fairness and justice in alternative dispute resolution has identified significant issues of disadvantage for adolescents in processes such a mediation and conferencing on the basis of factors relating to their age and place in the life cycle.[70] Adolescents can suffer from a lack of access to, and availability of, information, paternalism on the part of process convenors, stereotyping, the impact and consequences of family dysfunctionality, and power imbalances relating to their lack of experience and expertise in negotiation. NADRAC’s paper notes that “adolescents can also be exploited because their level of articulateness is not fully developed and they generally lack experience in managing disputes.”[71]

22. Whilst these are general concerns that have application to juvenile offenders of both genders, the next sections of the paper elaborate on additional concerns that are specific to young women in the process. Although these issues cannot be discussed without acknowledging that informal processes such as conferencing address a number of matters on the feminist agenda, they nevertheless confirm the great need for caution and care in our approaches to promoting juvenile conferencing, and to ensuring that its practice is appropriate for young women.

    Juvenile women and victim-offender conferencing

23. Kitcher has commented that “conferencing with young women raises many ethical, political and social considerations which differ from those which may arise (with participants from other demographics).”[72] In particular feminists are concerned that informal processes such as conferencing risk the perpetuation of gendered power imbalances, and the reinforcement of the subordination of young women within families and communities.[73] Although it is true that the liberal legalist’s notion of equality before the law is limited and problematic – it is in some ways safer than the way power is dealt with for women in private environments such as conferencing. At least, as was noted above, before the law we have relative public accountability and an appeal process.

24. For a process like conferencing to be perceived as ‘fair’ or ‘just’ there must be both procedural fairness as well as substantive fairness; that is, fairness in relation to the way the process operates and justice in terms of the process outcomes.[74] In informal processes, any lack of procedural fairness is likely to mean that substantively fair outcomes will not be possible. The two notions of justice are therefore inextricably linked.

25. NADRAC lists a number of factors that are emphasised generally in relation to informal justice processes in terms of defining fairness.[75] These issues reflect the interconnectivity of procedural and substantive justice issues in the conferencing environment. Three of the issues have a particular relevance to the participation of young women offenders, and the appropriateness of the process for them in terms of its ability to provide just outcomes. The first is “that all parties have the capacity to participate effectively,”[76] the second is that there is “a balance of power between the parties,”[77] and the third is that “any third party who is involved in the process is unbiased, and that lack of bias is apparent.”[78]

    Young women offenders and their capacity to participate effectively in conferences

26. The social and political context of gendered relations and perceptions of young women offenders affects their capacity to participate effectively in conferences. Otto says of the ‘new’ juvenile justice system that “rather than reducing the extent of control exercised … over young women’s identities and lives, aspects of the new system have the potential, directly or indirectly, to reinforce young women’s subordination.”[79] In this context, Bargen has called for more empirical information on the “nature and level of the participation of young women in various forms of conferencing”.[80] In particular she notes that issues relating to police based referrals to conferencing and also police involvement in the process are important considerations in terms of issues that may affect or compromise effective participation by young women.[81]

27. The capacity of young women to participate effectively in conferences is also affected by narrow constructions of appropriate conduct by girls and leads to potentially inequitable outcomes for them.[82] Stubbs has said that in terms of how girls’ behaviour in conferences might be judged or controlled that “we shouldn’t presume that the informal is necessarily benign or even neutral.”[83] In fact the limited definition of family and community as they are represented in individual instances of conferencing can potentially allow free reign to even the most restrictive constructs of what is appropriate behaviour for women and girls. As Stubbs comments, “conferences may simply reproduce such practices in the absences of checks and balances of the formal system.”[84]

28. Another issue that potentially impacts on young women offenders’ capacity to participate effectively in conferences is the “gendered meaning and experience of shame.”[85] As Sandor has noted, Australian culture is one in which “shame has been a powerful tool of domestic control over women”,[86] and the process of self-harm rather than violence towards others is known to be a particularly likely response among young women to emotional pain and frustration.[87]

    Imbalances of power that operate against young women offenders in conferences

29. Power, who has it and how it is used, in the context of informal justice processes is a difficult and vexed issue. Conferencing environments are not sanitised from the continuing patriarchal structures in society and families. The strength of the disadvantage that women can suffer in informal dispute resolution contexts is related directly to gendered power issues that affect their general ability to advocate effectively for their own interests.[88] As a result, it is anathema to many feminist writers, for example, that mediation is used in domestic violence matters,[89] and yet Braithwaite and Daly have promoted conferencing in this context on the basis that it offers the potential to create a space for feminist voices, to restore power imbalances and empower victims of violence.[90]

30. Certainly young women offenders face different power imbalances in relation to potentially all the other participants in a conference; the victim, the police officer, the convenor and also even their support person or family member. For example, the victim has a moral power over the offender which is extended through a power deriving from their choice to be present in the process and their choice to come face to face with the young person who has harmed them. Of course, the police have the inherent coercive authority and power of the state behind them. Indeed, the current practice of the shame and reintegration model of conferencing unavoidably represents a state-derived form of control over young women that plays, in particular, on their submission to family and community authority.[91] As such, the model represents an opportunity for the continuation of structural abuse and subordination of young women.[92]

31. The convenor of a conference is in a significant position of power and influence. In a 1995 study conducted by the Family Conference Team in South Australia, 30 young women were interviewed and when asked who had the power in the conference their response was: “the Coordinator.”[93] Kitcher comments that of those 30 young women “all agreed that a conference was ‘better than going to court’, but they also agreed that in the actual conference, they felt that they were the least empowered in terms of negotiating the outcome.”[94]

32. The convenor’s power derives particularly from their authority and control over the process itself. They decide who will speak, when and for how long. They have the power to use process interventions and to interrupt in an environment where other participants are required to hear each other out. They also have the power to terminate the process. And as the research of Greatbatch and Dingwall has shown, they have the power to influence the final outcome of the process through their choice of interventions and control over the direction of negotiations and their content.[95]

33. The young offender’s support person or family member is also a participant who potentially has a relationship of power in relation to the young women. Their power is of a more personal nature, deriving from their familial or support relationship and their consequent intimate knowledge of the offender, her personal history and her private identity. Sandor identifies family involvement as raising issues of concern because we now better understand the extent, and family-based nature, of the shadow of violence and abuse that is part of the history of young women offenders.[96] In a context where many young women offenders are victims themselves of abuse, conferencing can place them in a situation where the perpetrator of abuse against them, a member of their family, is in fact directly involved in the conference and in determining its outcomes.[97]

34. These considerations indicate that the positive claims about conferencing relating to self-determination and offender empowerment are significantly undermined in relation to young women’s participation. They also evidence that the practice of juvenile justice conferencing may work to entrench and exacerbate the ability of family, community and the state to exercise patriarchal control and domination over young women.[98] Indeed it is acknowledged in critiques of other informal processes, such as mediation, that their emphatic focus on party empowerment can potentially result in ignoring “the power differences between men and women that put women at a disadvantage in negotiating with men.”[99]

35. Parity in the negotiating environment is therefore not a reality for many young women offenders who participate in conferencing. Further, the disempowerment they can experience is of a particularly insidious nature if it is achieved, as it might be by police or by abusive or controlling family members, predominantly through making the young woman fearful. As Kelly, a strong proponent of informal dispute resolution, has said, “When parties’safety is threatened, or they are too fearful to voice their ideas, or fear reprisal outside of mediation, they do not belong in the mediation process.”[100]

36. These problems relating to power in procedural issues connect directly to substantive outcomes. As Stubbs has noted, gender-related power imbalances can put into doubt any ability for a process to result in genuine consensus in terms of outcome.[101]

    Neutrality or lack of bias in third parties such as convenors

37. It is said to be fundamental to perceptions of conferencing as a fair and just process, and convenors often claim, that they are neutral and that they specifically avoid judgment and notions of blame in terms of the parties’ conflict.[102] These claims of neutrality are made notwithstanding the fact that neutrality is increasingly being recognised as a myth,[103] and despite what we know about how mediator (and therefore also convenor) values and judgments do enter the process and influence outcomes.[104] The danger for young women offenders in the context of conferencing is that under the veil of false neutrality, convenor values can drive the direction of negotiations and resultant agreements. If, for example, the convenor is a misogynist, or if they are unimpressed by what can be viewed as ‘difficult’ behaviour on the part of the young woman, then she is likely to be significantly disadvantaged by the convenor’s influence over the outcome.[105]

38. It is therefore potentially very problematic for young women offenders that the reality of the power of the convenor is not accurately reflected in the rhetoric of neutrality. That this happens in a private environment where the offender is struggling with other factors that compromise her ability to represent and fight for her own interests merely exacerbates the potential for injustices to occur.

    Other issues for young women offenders in conferencing

39. Added to these concerns is the fact that convenor training does not yet include sufficient focus on analysis of gendered issues in conferencing to ensure the truly safe participation of juvenile women offenders in the process. And as long as the mediation profession remains unregulated and relatively unaccountable, and convenor training is not uniformly or consistently provided, there is no way of ensuring that all conferences are convened by someone who is trained adequately on gender issues.

40. Interestingly, feminist advocates for young women offenders can find themselves, as a result of these issues, “in the traditionally right-wing position of advocating law and order, amidst an outpouring of humanitarian sentiment favoring use of informal techniques such as mediation.”[106] This does not have to be the case however. Rather, the positive aspects of conferencing for juvenile offenders, and in particular young women offenders, need to be capitalized on and we need to seek ways of ensuring that the process is practised in a fair and just way, and that it results in appropriate outcomes. One possible approach in terms of achieving this is perhaps through a better articulation of convenor ethics in relation to their use of power in the process. This proposal represents the author’s current doctoral work in progress.

    Conclusion

41. Polk has commented that “What has been learned above all else from the past is that our best intentions efforts can go very wrong.”[107] Whilst the intentions of conferencing are to empower young women offenders and allow them to make things right, the application of the concept of shaming and any decontexualised requirement for young women to take responsibility for their misdeeds, can have negative, intimidating and disempowering consequences for young women offenders. In a private negotiating context where imbalances of power work against the interests of young women participants, the ability of the conferencing process to deliver procedurally just practice and substantively fair and appropriate outcomes is potentially seriously compromised.

42. It is important to recognize, however, the realpolitik that juvenile victim-offender conferencing involving young women has come in from the margins and will persist. In the light of this the emphasis should be on developing appropriate practice and procedures.[108] The focus of this development must be on enhancing the ability of conferences to provide justice – particularly to vulnerable participants such as young women offenders. Central to achieving this aim will be a better articulation of ethical practice for convenors, particularly relating to their use of power in the conferencing process.