Run The World 2021: Inside Injustice

ISSUE 3

RUN THE WORLD 2021

INSIDE INJUSTICE

INSIDE INJUSTICE: The experiences of females and non-cisgender males in the criminal justice system

ACKNOWLEDGMENT OF COUNTRY We would like to acknowledge the Traditional Custodians of the land on which our editorial team and readers reside, and pay our respect to their Elders past and present.

We extend that respect to the Aboriginal and Torres Strait Islander people reading this publication.

CONTRIB CONTRI EDITORS-IN-CHIEF Lavanya Kumar Noor Chirenian

MANAGING EDITOR Maha Rauf

EDITORS Gopika Aryad

Arshdeep Kaur

Emily Calbert

Stephanie McCann

Emily Chang

Isabella Newton

Kate Darby

Emily O'Brien

Prisha Dave

Maha Rauf

Ella Davidson

Nashita Samy

Isabelle Doan

Bianca Tolic

Ellie Gordon

Nicola Tu

Matilda Grimm

Oviya Wadhwa

Anita Huang

Jessica Wang

Bette Huang

Vanessa Wishalim

Adriana Ishac

Angela Zhang

BUTORS ISSUE EDITORS Lavanya Kumar Maha Rauf Bette Huang

WRITERS Talah Al-Jelani

Juwariya Malik

Sandra Ang

Alifa Monjur

Nayonika Bhattacharya

Emily O'Brien

Emily Calbert

Paris Spennato

Bouchra Chehimy

Tilda Stafford

Ella Davidson

Jessica Wang

Vanessa Wishalim

GRAPHIC DESIGNERS Sandra Ang Reena Chen Isabelle Doan

TABLE OF CONTENTS Editors-in-Chief's Address

Lavanya Kumar and Noor Chirenian .........2

From the Court to the Cell: A Pop Culture __Analysis

by Sandra Ang and Emily O'Brien ..............................................................4

A Silent Scream

by Talah Al-Jelani .....................................................................9

The Forgotten Children

by Jessica Wang .................................................18

This Shouldn't Be What the Right to Silence __Means by Emily Calbert ..............................................................................................21 Plastic Bags

by Ella Davidson ...................................................................................26

A Walk Through the Experiences of __Women in the Australian Criminal __Justice System by Bouchra Chehimy .............................................................32 The Forgotten Prisoner

by Juwariya Malik ..............................................34

Signing Away the Right to Justice

by Paris Spennato ................38

Extreme Provocation: A Double-Edged __Sword by Alifa Monjur.................................................................................................41 On Trial

by Vanessa Wishalim ......................................................................................44

Support links ..............................................................................................................49 References ....................................................................................................................50

1

- I N - CH S R I O EF T I ' R E D S D S D S E A Trigger Warning: This publication discusses and portrays experiences of sexual assault, physical and family violence as well as psychological trauma. If you experience any distress whilst reading this publication, we have included some resources you can seek help from on page 49. If you have any questions or feedback on the contents of this publication, please don’t hesitate to contact us directly at women@unswlawsoc.org.

Dear Readers,

On behalf of everyone in the Run the World Team, I hope that you are well and keeping safe and healthy (both physically and in terms of your mental health)!

Welcome to the third issue of our Run the World Magazine for 2021! Yes, ‘2021’ is not a typo- we’re just running a ‘little’ late! This magazine is dedicated to exploring and sharing the experiences of and issues concerning women and non-cisgender males. This issue will explore various aspects of the criminal justice system and how they intersect with, concern and impact female and non-cisgender maleidentifying people.

The criminal justice system encompasses a lot of different entities including perpetrators, victims and their loved ones, judges, lawyers, courtroom staff, police, correctional services, the media, legislators, the government, and the community. Of course, it’s easy to merely list the various justice system actors and leave it at that. However, we believe that this list glosses over the nuances of each actor’s experiences - which are fundamentally informed by factors such as gender, cultural or racial background, sexual orientation, education level and socioeconomic status. These factors are not mutually exclusive, and we therefore find ourselves with a system which often fails to achieve justice on so many levels due to an inability to reconcile these factors and inequities both within the justice system and in wider society.

2

The difficulties in the system are also further exacerbated by the fact that ‘justice’ itself is so difficult to define. This could be ‘justice’ for victims and their loved ones by sanctioning perpetrators’ conduct or by including the voices and perspectives of victims and the community. This could also include achieving justice for the community by sanctioning behaviour deemed to challenge the legal and social institutions of the community, or justice for perpetrators by considering a range of sanctions beyond incarceration.

We cannot say that the justice system does not ‘try’. For example, with the introduction of victim impact statements, separate criminal justice objectives for young offenders and the recognition of Indigenous cultural practices within criminal trial and sentencing processes, it is clear that the system is recognising its deficiencies and is working towards achieving systemic improvements. However, the justice system continues to fail some of the most vulnerable groups impacted by the system including Indigenous communities (in particular, Indigenous women), females and non-cisgender individuals.

We have just provided a brief outline of what’s to come in this issue. Through the following articles and creative works, our incredible team of writers and editors will be taking you on a journey ‘Inside Injustice’, where we hope to inspire you to speak up about these issues of concern and facilitate meaningful change within society and the criminal justice system.

So, dear readers, we’ll stop our tirade now, but will leave you with this message: The justice system is a double-edged sword - its impact may not always be physically perceivable but is still etched in the hearts and minds of us all.

- Lavanya Kumar and Noor Chirenian (Editors-in-Chief)

3

By: Sandra Ang & Emily O'Brien Edited by: Nashita Samy & Maha Rauf

Trigger Warning: Sexual Harassment The dynamics depicted in media and on screen are directly informed by issues and biases commonly experienced within the real world. Although gender equality exists in theory, it is still lacking in certain areas of legal practice. Legally Blonde and Lawless Lawyer are both prominent forms of media which delve into the disadvantages faced by women in pursuit of their legal careers, and shed light on the stereotypes that act as a detriment to their success. Further, Netflix series, Orange is the New Black, provides insight into the Trans and Gender Diverse character experience through the representation of transwoman Sophia Burset. Burset’s presence and her treatment provoke thought on the treatment of Australia’s Trans and Gender Diverse communities. Such shows harness pop culture power to intricately explore these experiences and reveal the reality of what our media reflects.

The Impossible Standards Throughout her law school experience, Elle is chastised for embracing her femininity and perceived as being a ‘dumb blonde’. When attempting to join Vivian and Warner’s study group, she is rejected and mocked by Enid who says, “Hey, maybe there’s, like, a sorority you could, like, join instead, like?” Thus, corresponding with how feminine traits are trivialised or vilified in the courtroom, ultimately fostering a culture in which females are compelled to reject ‘girly’ attributes. For example, in the US, it was found that women felt they had to contain their emotions during witness examinations in order to not be denounced as being ‘emotional’.[1] However, males who exhibit assertiveness towards the same witnesses are praised as being shrewd and salacious. Moreover, women’s appearances in court are heavily scrutinised in comparison to men. The make-up can't be too heavy, the skirts can't be too short, the heels can't be too high, the list goes on and on.

In Lawless Lawyer, after the conclusion of the trial, Jae Yi protests to the judge that his ruling is unfair. However, the judge contests that the only reason why she perceives it as unfair is because she’s a woman too. Therefore, diminishing her pursuit of justice to an illogical opinion based on gender. The judge then perfectly perpetuates the gender bias with his bigoted comment, “You’re making the court smell like makeup.” This encapsulated the ways in which women are pariahs in the legal industry and that femininity is often considered mutually exclusive to being a legal practitioner.

All these requirements force women to strike an almost impossible balance in order to succeed in the corporate world.

5

Imbalance During their internship with Professor Callaghan, Vivian points out how she is always told to fetch his coffee while Warner (the only male intern) is never assigned that task. Instead, he is able to work on the murder case and gain valuable experience whilst Vivian loses out on learning opportunities. This is a reflection of the current legal environment in which women are more likely to perform ‘office housework’, ranging from planning parties to cleaning up food after meetings, alongside legal work.[2] Furthermore, women are more prone to taking on familial responsibilities. The greater likelihood of women taking time off work to care for young children, or opting for a part-time position are used as ‘justifications’ by higher-ups to exclude women from promotions and career progression.[3] Ironically, they are anything but just.

In addition to this, there are more female than male solicitors across Australia (53% compared to 47%), but a lack of female representation in senior legal positions (only 25.65% in 2021).[4] In comparison to other countries, in 2020, the UK had 38% of women at the bar,[5] whilst the US had 37.4%.[6] These statistics convey how globally, we are lagging behind the rest of the world and that change must be imposed in order to right the inequality. However, solicitor - Carby Webbing believes that if there are more ‘women at the top’, this can enable a business culture that supports women to thrive.[7] This could be achieved by introducing female quotas and fostering an environment where familial duties are taken into consideration and are not made taboo.

Taken at Face Value In the midst of the criminal trial, Elle is pulled aside for a private talk with Professor Callaghan where it is revealed that she was chosen for the internship as a result of her attractiveness and not her critical thinking or legal skills. This incident highlights the unfortunate experience of women who are not only objectified but sexually harassed in the workplace. In 2019, over 70% of women in NSW reported incidents of sexual harassment but only 18% reported it to their employer.[8] What’s worse is that approximately half of the respondents stated that the perpetrator was their manager or a judge - those in a position of power and trust. One respondent divulged how she was constantly referred to as ‘secretary’ or ‘angel’ instead of her name, reducing all the accomplishments she’s made as a lawyer. The Women Lawyers Association of NSW also discovered that one of the main reasons for unreported cases is a fear of it damaging their career. Hence, once again illustrating the power imbalance in favour of men in the legal industry.

6

It is undeniable that pop culture media reveals significant truths, a mirror reflecting our milieu. However, how inclusive is the media as a mirror, how many truths does a slanted mirror hold? Not everyone is captured in the media, their absence in being represented on screen reveals a darker reality. Jumping further than the Court Room there is the experience of the Prison system. Television shows such as Orange as the New Black and Wentworth proved groundbreaking in their representation of women in prison, in 2019 Orange is the New Black was the most watched Netflix Original Series, with 105 million households having watched at least one episode, and when Wentworth first aired in 2013 and was Foxtel’s biggest debut. Orange is the New Black and Wentworth, respectively, provided dignity and humanity to its characters, something which is not afforded to individuals incarcerated in real life.

Film Media is a soft tool of discursive power which can provoke discussion due to the strength or weakness of its representation of the diverse experiences of women.

Orange is the New Black highlighted the experience of transgender women Sophia Burset portrayed by Laverne Cox, an experience which is limited in its representation. Burset’s presence catalysed reflection on Australia’s treatment of trans and gender diverse inmates. Within Australia, there is no national standard which determines which prison trans and gender diverse inmates are assigned to. It is unclear how many inmates currently in the prison system identify as transgender or a diverse gender identity. In The Health of Australia’s Prisoners 2015 report, six of the 1011 people entering prison across Australia indicated that they were transgender, but it is not clear if this is representative of the prison population more generally.[9]

New South Wales, the Australian Capital Territory and Tasmania all have an explicit self identification policy, trans and gender diverse people are to be placed in a facility which aligns with how they identify themselves.[10] NSW has to follow the NSW Justice and Corrective Service’s Custodial Operations Policy 3.8: Transgender and Intersex Inmates Policy which asserts that transgender inmates are to be addressed by their chosen names and pronouns.[11]

7

Queensland, the Northern Territory and South Australia which do not have clear cut policies, people can indicate which prison they would like to go to and it is assessed on a case by case basis.[12] Most troubling, however is Western Australia which does not have a policy dedicated to how transgender inmates should be placed.

Queensland, Northern Territory, South Australia and Western Australia demonstrate a lack of decisive action to develop policy.[13] The absence of such policy which serves to facilitate respects of gender identity and protects transgender and gender diverse inmates is distressing as these inmates are exposed to an elevated risk of harm, including ‘inadequate and inconsistent medical treatment, as well as higher risks of self-harm and sexual assault whilst in prison’. [14]

Pop culture and the production of media are inextricably linked to issues and prejudice which are widespread in the community. Media is an elevated reality which provokes discussion on the treatment of women from the Courtroom to Prison Cell.

Orange is the New Black’s inclusion of Sophia Burset was significant in providing a minority community with represented, it reveals the underbelly of the prison system and the lack of a cohesive response to treating Trans and Gender Diverse people.

8

A SILENT SCREAM By: Talah Al-Jelani Edited by: Vanessa Wishalem & Angela Zhang

Trigger Warning: Depictions of Domestic Violence and Animal Cruelty.

THE WOMAN At one point, being home felt like the soft caress of sunlight as it cascaded through the windows. A soft touch to the soul. It was warm. A wrap forged from the fairy tales she coveted as a child. The woman blinked, focusing her eyes on the wall where a small crater lay. It was not an alien sight to behold. But still, as she brought her hands up to her face, she noticed that they were slightly shaking. She pressed them to her face firmly, grounding herself.

This was no fairy tale castle. This was Bluebeard’s fortress. A house made for two, but reigned over by one. This was a home, with doors forged from her wounds.

Yet she bore none on her body. No physical indications that would scream at anyone who dared to suggest otherwise that she was not safe. Her heart bled on the floor and all he ever did was complain about the mess.

You asked for this, she thought. You wanted this. You had smiled as his words held you in a loving embrace, coaxing you not to leave the home unless it was with him. How touching, how sweet. He cared enough to worry about your safety. To make sure you were safe. The soft caresses made you pliant. A bitter laugh tore through her and she fought to tamp it down.

She was expected to remain quiet. She had to. She lifted herself off the floor and started towards the stairs.

When he told her to hand him her phone, she expected him to hand it back. He rarely ever did.

He locked it away in his room, far from her yearning hands. He told her, as he held her in a tight embrace, that she didn’t need anyone but him. So, he told her, she didn’t need to have a phone on her. The warmth of the hug was dulled by the threat that the choking hold provided.

This wasn’t a choice. She would love him, or she would suffer for it. She resigned herself to her fate.

You wanted a prince charming to carry you. To hold you. To possess you. This was what you wanted.

Somewhere deep inside she had heard herself screaming.

But she had stayed.

She stayed and he decorated her cage. For all the times he called her stupid, worthless and dumb, he would return with sweet nothings and extravagant gifts. He even gave her a beautiful bird. It became her only friend.

10

At that thought, she choked back a sob as she gripped the handrail and dragged herself upstairs towards his room. She needed her phone. She couldn’t stay here. Not anymore.

Earlier, he hadn’t just damaged the walls—punching them inches from her face to assert himself. No, that wasn’t enough. This time he saw the defiant gleam in her eye. In return, he had turned towards the bird cage.

The moments played before her slowly like a horror movie she couldn’t pause or turn off. She watched his hands enter the cage, reaching for her companion. She screamed as they wrapped like a vice once they locked in on their intended target.

He turned towards her and smiled maliciously. He continued to smile as the bird squawked despairingly. It struggled to escape. It could not take flight, hell it couldn’t even take a full breath. She had scrambled towards him, sheer desperation driving her forward, but it was too late. She hadn’t made it in time. He squeezed so hard that the bird’s heart gave out.

She had fallen to her knees. He had laughed as he threw her dearest friend at her feet. Limp and lifeless. As she cradled it to her chest, reality unbearably bore down on her neck. Death was more truthful than the lies she had spun to accommodate her reality. At that moment she knew that she was next.

So she couldn’t stay. Not anymore.

She needed to call for help. He was satisfied that she wouldn’t leave, so he was taking his time as he grabbed some beer from the garage. She needed to call for help while he was distracted.

She paused outside of their room and rubbed her hand down her face. The police were wolves in sheep’s clothing, she knew this. She had seen it herself. She began pacing back and forth, cradling her head in her hands.

Between her partner and the police it was likely she would die anyway.

Two steps forward.

But she was desperate.

Two steps back.

Was he really that bad? She stopped in front of the door again.

11

And then she heard the front door slam and her heart leapt out of her chest. Deep down she knew he was.

She heard her partner calling out her name. It was only a matter of time before he found her.

She was running on borrowed time.

She didn’t have a choice. She pushed open the door and locked it behind her.

He didn’t think she knew where he hid her phone, but she did.

She went to the bathroom, stood on the toilet seat and pushed the ceiling panel aside. She prayed that her phone was charged.

It was.

With shaky fingers, she dialled 000 and prayed for salvation.

POLICE The alleged aggressor was very forthcoming in his language and behaviour, freely showing him around the home.

There were no signs of a struggle.

He had watched as the man walked towards the staircase where he called to his partner, “A police officer is here, do you know what this is about?” Once he did, he had moved back towards the officer. He tapped his foot and sighed, turning to smile tightly at the officer. He detected nothing more than reluctant acceptance of the progressing situation.

And now the woman stood before him like a deer caught in headlights. She shifted uneasily from foot to foot as she clutched her phone. The officer looked, again, towards her partner but saw no significant shift in his demeanour.

The officer decided he wouldn’t separate them.

He began to speak. “Ma’am, what seems to be the matter?” he asked, staring at her expectantly.

12

Her partner sighed and returned to the staircase. His watchful gaze remained on them, but he remained silent.

The officer returned his attention to the woman standing before him. He watched her eyes focus momentarily on his face, before darting around again. And she remained silent. The officer’s eyes quickly scanned her profile, assessing her for any visible injury.

He tried again, “You look fine, has he hurt you?”

She quickly shook her head and stuttered out a quick, “N-no, he hasn’t laid his hands on me Officer, but— “ “Ma’am, I was called here to address an emergency,” he cut her off, his frustration visibly mounting. He didn’t like his time being wasted. “Can you tell me what’s wrong?”

She opened her mouth to speak, when her partner suddenly stood up and waltzed towards the officer. “She’s free as a bird here. In fact, it doesn’t seem like she herself knows why you’re here. You know how women are sometimes,” he casually shrugged his shoulders at the officer.

He heard her sharp intake of breath. “Free as a bird,” she echoed. “I’ll show you how free birds are here,” she began walking to the lounge and gestured for him to follow her. So, he did.

She briskly walked to the lounge and stared at the floor. He followed her gaze and saw nothing.

He looked back at her face, finding it painted in confusion.

“She was right here, Officer,” she kept looking around. “Ma’am, what are you talking about?”

Her eyes were watering now as she looked back at him. “Officer, he killed my bird earlier, she was right here.” She gestured towards where she was standing. There was nothing there.

She abruptly turned to a nearby trashcan and tore the lid off. She paused, staring into the bag for a few moments. She then slowly turned her body towards them both, a fire crackling in her eyes. It was her first time making direct eye contact with her partner.

“Where did you put her body?” She took a step forward.

He responded slowly, “I have no idea what you’re talking about”.

“Where DID YOU PUT HER BODY!?” She took another step, her hands shaking by her sides.

13

She drew nearer and the officer thought it fit to intervene. He took a step forward and held his arm out. “Ma’am, I am going to have to ask you to calm down”.

Her next step faltered but she continued towards him. “Officer, I swear he killed her. I saw him squeeze the life out of her with his bare hands.”

He peered over at her partner, who wore a concerned look on his face.

She needed the officer to listen. His attention had to be on her.

“He killed her, he killed her, HE KILLED HER!” she started yelling again as she closed the space between them. Uneasily, the officer held his arm out again. “Ma’am, I am going to have to ask you to step back. Please calm down.”

But she couldn’t seem to hear the words. She kept screaming, “If you would just listen, I’m telling you my bird is dead!” Her finger raised in accusation at her partner, “He killed her!”

“I can’t stay here in this cage. Officer, I really need your help! Can’t you see that I’m next?”

At the outburst, the officer spoke calmly, enunciating the words carefully. “Unfortunately, I have seen no evidence of an altercation or any untoward behaviour here tonight.” Besides yours, he thought to himself.

Her face crumpled in despair. She knew he didn’t believe her.

“He never lets me leave without him. Sir, he doesn’t even allow me to use my phone without permission. Please, you have to believe me!”

He looked pointedly at her left hand, which was still clutching her phone. He cocked an eyebrow at her. “Surely you do not mean that phone, the one you happen to be holding?”

She was lying, the officer deduced. A terrible lie at that. But most importantly, she was wasting his precious time.

He shook his head. “Ma’am, I am afraid I must inform you that it is an offence to make false allegations. You need to be sure you are telling me the truth because you could be in trouble if you don’t.”

“

14

She closed the remaining distance between them, grasping his shoulders tightly. “You need to arrest him!” He angled his head away from her and pushed backwards, “Ma’am if you do not let go of me I will arrest you for assaulting a police officer.”

Her grip tightened.

He forced his words out through gritted teeth, “Ma’am, I will not repeat myself again. Let. Go.” He continued to push away from her.

“Please Officer, you have to listen to—“ He had warned her. He grabbed her arm and spun it behind her back in a swift movement. A well-positioned kick to the back of the knee brought her crumbling to her knees.

You are under arrest for assaulting an officer and making false allegations about your partner.”

“

The State as Abuser: The Criminalisation of Coercive Control “Victims themselves may appear very irate, irrational, overwhelmed and not very credible either, and that’s very typical. The offender on the other side can be very clear, calm, coherent and very convincing.”

- Hayley Foster, CEO of Women’s Safety NSW [1] The NSW Labour Party has proposed the 'Crimes (Domestic and Personal Violence) Amendment (Coercive Control) Bill 2020' which aims to criminalise coercive control. They define “coercive control” as:[2] A form of domestic abuse involving repeated patterns of abusive behaviour – which can include physical, sexual, psychological, emotional or financial abuse – the cumulative effect of which is to rob victim-survivors of their autonomy and independence. The impact of this abuse is abhorrent, but the appropriate response to this behaviour remains an ongoing challenge for law enforcement and legal minds alike.

15

A fundamental shift in the approach to family and domestic violence within the legal system is necessary to appropriately respond to coercive control as a form of violence. It must be viewed “not as a series of separate events but more the way victims experience it: cumulatively, and comprehensively”.[3] Despite its innocent intentions, the proposed Bill has been met with sustained critique from a range of Indigenous women, academics, activists and frontline workers. They argue such a solution would result in more women being imprisoned than protected, especially for women from already marginalised communities.[4] To begin with, the definition of domestic and family violence lacks inclusivity, in terms of its inability to capture all forms of sexual and gender-based violence against women, rather than just intimate partner violence. It is important to understand that coercive control can occur in a wide variety of relationships beyond intimate partnerships. For instance, women with a disability are highly susceptible to violence and control perpetrated by their carers and service providers, which often go unrecognised and unaddressed.[5] Additionally, there are a broad scope of behaviours that may constitute coercive control. As such, defining the scope of the conduct covered, and the interplay between the conduct and the context in which it occurs, will be a significant challenge. This may inadvertently criminalise relationship behaviours which are generally socially accepted, or behaviours accepted in the context of one relationship but not another. There is also a risk that the over-criminalisation of unhealthy relationship behaviours may unfairly impact on vulnerable cohorts by exacerbating underlying social issues.

Available data on the impact of family and domestic violence does not sufficiently capture experiences of women who are already experiencing compounded discrimination in Australia and have a history of marginalisation, especially when dealing with police and other systems such as child protection.[6] In particular, Indigenous women are calling into question the function of Indigenous women's trauma in narratives by carceral feminists, that view state institutions such as police and prisons as appropriate solutions to gender-based violence.

Familial and intimate partner violence arguably does not decrease through broadened criminalisation and the violence of policing. In fact, it has serious ramifications for victims, and allows policymakers to avoid confronting and addressing the underlying issues that drive and enable violence.[7] Furthermore, the relationship dynamics of domestic and family violence make investigations particularly susceptible to interference and manipulation by perpetrators. A 2018 study by No to Violence [8] found that there were significant problems with primary aggressor identification by law enforcement, meaning survivors were at risk of being mistakenly arrested and charged. In NSW, around 25 per cent of women surveyed by the domestic violence advocacy group Women’s Safety NSW in 2021 [9] reported being misidentified as the 16

primary aggressor, while over 90 per cent of frontline domestic violence services said they saw the victim being misidentified as the primary aggressor sometimes, often or very often.

Misidentification of female victims as primary aggressors is particularly acute in the Aboriginal and Torres Strait Islander communities.[10] In Queensland, nearly 50% of Indigenous women murdered in domestic violence contexts have previously been named by the state as perpetrators.[11] The NSW Government Discussion Paper itself offers an explicit acknowledgement of the strong likelihood of increased incarceration of Indigenous people through the implementation of the proposed Bill.[12] Ultimately, the criminalisation of coercive control is an extension of the state’s power which, if unaccompanied by significant and far-reaching changes in police culture and meaningful system reforms, could lead to further over-criminalisation of already marginalised groups of women.

17

r o g o F t e t e h n T d l r i en h C

By: Jessica Wang Edited by: Emily Chang & Isabella Newton

Australia’s harsh sentencing policies continue to send people to prison at an astronomical rate - currently the highest they have been in a century,[1] despite a steep fall in crime rates.

As Productivity Commissioner Stephen King explains, misguided ‘tough on crime’ government policies have positioned carceral solutions as the answer to social ills even though there is clear evidence to the contrary, and no positive causal link between the two.[2] We live in a society where nine out of ten of the women who end up being imprisoned are mothers,[3] either with dependent children from before they have entered prison or who have entered the system pregnant and are forced to raise a child from behind bars. This farce of a justice system has drastically negative effects on not just the women who are imprisoned but the children who face significant emotional and physical obstacles during an important developmental stage of their lives.

Thus, we need to question the roots of our carceral justice system, which disproportionately affects people who are already marginalised in our society and traps them in a system that drastically reduces their opportunities. In addition, the effects on children are unspeakably damaging. The crushing, traumatic loss and the social stigma surrounding having a parent in prison drastically increases the risk of mental health problems, including elevated levels of anxiety, loneliness and depression. The lack of stability that this engenders in one’s childhood - the shuffling between grandparents, family friends, or foster care systems - leads to lifelong issues such as lower educational achievement, behavioural problems and learning disabilities.

[4]

In most of Australia, women with babies or young children can apply to have that child live with them in prison - a tempting option given the alienation and difficulty of raising a child who you rarely get to see.[5] They are given their own bedroom with a communal living, kitchen and bathroom area with fellow mothers in a living situation not unlike a student sharehouse; a purpose-built space separate from the main prison complex. When pregnant, they are given access to prenatal care and taken to the hospital for childbirth.

Post-childbirth, prison staff try to make the environment as safe and normal as possible by enacting measures such as facilitating mothers’ groups to encourage bonding amongst the inmates and their children.

However, it still is not exactly an idyllic mother-child utopia. The sheer amount of very young children and stressed mothers crammed into a small space means that women are often kept awake at night, and they are subject to heightened surveillance and judgement from prison staff. The threat of termination of parental rights is one that is constantly looming over the heads of these women. Being together with your children is seen as a privilege rather than a right and it is commonly understood that they can easily be separated if their parenting skills are deemed inadequate.

Furthermore, children are forced to endure the continual missing of milestones, leading to the resentment, and the distance during crucial formative years that can ultimately never be bridged.

19

However, the other option - to condemn your child to a childhood apart from you - is almost unfathomable. With phone calls being scarce and face-to-face visits even rarer (particularly in the wake of the pandemic), mothers are relegated to a sidelined character in the lives of their own children.[6] This lack of bonding is virtually impossible to repair later in life.

We need to interrogate our ingrained stance of policing and imprisonment as the default punishment for those we have labelled as wrong-doers. In particular, we need to look towards the historical origins of the prison system as a whole, and its proven record of being an oppressive tool to target and neutralise minority groups within society. This particularly affects Indigenous women, given that they make up more than one-third of the female prisoner population yet only account for 3% of Australia’s women as a whole.[7]

Additionally, under the current system, the government should take accountability to help ex-prisoners get back on their feet after they have exited the system. If we truly want to reduce recidivism and keep people out of unnecessarily punitive systems that upend their lives, we should be investing in rehabilitative programs designed to help ex-prisoners find stable employment and housing. According to an AIHW report, 54% of people being released from prison were expected to be homeless.[10] Given that the majority of women in prison are single mothers, they are in dire need of financial support to avoid ending up in unstable housing situations that often lead to relationships with abusive men. Implementing services that offer social support, health care, economic security and stable accommodation would drastically reduce these situations by providing women with a safe environment in which to rebuild.[11] The effects of incarceration are felt by entire families long after a sentence ends. Regardless of the crimes somebody may have committed, children need to have the right to see their parents - otherwise, the effects of the emotional trauma from abandonment can be extreme.

It’s clear to see that there is a pressing policy need to address these often socioeconomically disadvantaged individuals with dependent children whose lives are upended by a prison sentence.

When we look at the demographics of mothers in prison, the proportion who come from unstable homes, low socio-economic status, abusive relationships and the like is staggering.

[8] In particular, for a non-violent offence, we should be interrogating whether such carceral measures are necessary at all - or, at least, if we are doing enough to avoid them by implementing community-based solutions instead.[9]

We need to take these into account, and treat prison truly as an absolute last resort for those with dependent children. By doing so, we can look towards a future that is less carceral and focuses more on genuine rehabilitation.

20

Written By: Emily Calbert Edited By: Nicola Tu & Stephanie McCann CASE FILE NO. 5

This Shouldn't Be What the Right to Silence Means

The opportunity to make a victim impact statement (‘VIS’) is nowadays a right available for victims under s 16AAAA of the Crimes Act 1914 (Cth)[1] and, in a state jurisdiction, the Crimes (Sentencing Procedure) Act 1999 (NSW).[2] Gleeson CJ in Porter v R[3] further highlighted the common law requirement that judges consider how the crime has affected the victim. Has the legislation surrounding VIS actually assisted victims and their experiences in being adequately heard by the courts? Making a statement does fundamentally reverse how the adversarial system reduces the victim to a passive party in the courtroom.

Being involved is essential for the victim believing justice has been served, leading to greater satisfaction with the criminal justice system alongside psychological healing from the harm.

However, despite the assumption that the prosecutor will act on their behalf, the grim reality is that the public interest often overshadows the victim when a conflict of interest arises.

TRIGGER WARNING: This piece discusses sexual assault victimisation A victim impact statement seems straightforward in theory. An oral or written statement voluntarily presented to the court during the sentencing of the defendant. Read by victims directly impacted, secondary victims who witnessed the crime, or family members of victims. The opportunity for the victim’s harm – both at the time of the incident and in the aftermath since – to be heard, recognised, validated.

However, a victim impact statement is certainly not as straightforward in practice.

From the witness box, a brave victim reads aloud the words they have mulled over; words deliberately chosen to try convey their horrors. Their voice quivers, their hands tremble. The paper slips in and out of their grasp as the handwriting blurs before them.

How do you even begin to talk about an incident that stripped you of your autonomy, your safety, your dignity?

The victim musters the strength from deep within. They know that they need to do so for themselves – they need to get through it if they want to be heard. The victim impact statement is the only way for the judge – whom the ultimate power is vested in – to begin to understand how the crime has affected them emotionally, physically, psychologically.

22

If the concern is the fear of seeing the offender, special provisions – such as excluding certain people from the courtroom or enabling a support person to accompany the victim throughout the reading – can be enforced.[6] Sexual assault cases are especially sensitive to the vulnerability of victims and thus mandate that the statement is to be read in a closed court; the only exception being in situations where the victim consents to the court remaining open.[7] The courts have additionally endeavoured to minimise harm through accepting the delivery of statements via video link, allowing the victim to avoid direct confrontation with the offender.

You had no right.

A prominent limitation of making a VIS is how the trauma from speaking about the experience may outweigh the cathartic potential of making the statement.

Despite the possibility of causing more harm than good, confronting the offender is a pivotal step in reclaiming control. Victims often perceive justice as being achieved upon confrontation occurring,[4] especially in circumstances where the offender and victim had a preoffence relationship.

VIS are therefore of particular importance in sexual assault offences, where approximately one-third of all cases take place within family or domestic relationships.[5] A VIS allows the victim to grieve and ultimately move forward from the loss of their autonomy, their safety and their dignity.

I did not deserve it.

Despite aiding in rehabilitative prospects, sexual assault cases can nonetheless lead to subsequent revictimization. Lawyers of female sexual assault victims advise their clients not to wear makeup or tight clothing which draws attention to the chest;[8] unintentional choices which might give the judge the wrong impression that the victim is in some way responsible for the harms inflicted upon them. In this respect, women are evidently doubted by the courts in subtle ways – something that should never occur. Moreover, judges ultimately bear the power over the courtroom and can downplay the experiences of the victim as articulated through their statement.

The criminal justice system does make positive exceptions if speaking about the experience is too onerous for the victim. In no way are victims pressured into making a statement, with the choice always being voluntary. A family member may read the statement aloud on the victim’s behalf or the VIS can alternatively be submitted to the judge prior to the proceedings without being read before the court.

23

The statements are only allowed to include truthful details about the harm endured – economic, emotional, physical and psychological – with the potential for censorship if the tone is angry, intimidating or inappropriate.[9] A calm and professional demeanour must be maintained notwithstanding the content of their statements.

Although prioritising objective factors ensures that the law is applied consistently and is not excessively swayed by the victim’s raw insight, disillusionment with the system can arise when victims feel that their VIS had no impact on the sentence.[13] Such dissatisfaction can be especially prevalent in sexual assault cases, where the grim reality is that most offences do not result in a conviction – which is needed for a VIS to be heard in the first place.

[14] Sexual assault victims are once again silenced. Unrecognised.

Without validation.

Contrarily, victims who are eager for opportunities to voice their experience may be denied as a result of many not being informed of their right to make a statement.

[10] The missed opportunity ends up being another letdown within the criminal justice system which largely maintains a status of being opposed to victim involvement. Even when victims are informed of their right to make a statement, they may turn down the option due to ongoing trauma or fear of retaliation from the offender.[11]

I am determined that my story will not end here.

Making a VIS is straightforward in theory. A victim knows what harms they have endured during and following the crime, yet how do you begin to articulate this continuing trauma before a courtroom orientated on objectivity and factfinding? Each victim has a unique experience when making a statement, ranging from revictimization to healing as a direct consequence of sharing their testimony. Bravely confronting the offender can be vital in grieving the loss of their former self and thus contributes to long-term recovery.

An additional limitation of making a VIS is that the statement may exercise limited influence on the sentencing outcome in practice.

Whilst a VIS does increase the likelihood of incarceration, a study of VIS in sexual assault cases found that the most noticeable effect was when the testimony from the victim aligned with the judge’s independent view of a just sentence.[12] The severity of the offence – including aggravating and mitigating factors – and any prior convictions of the offender are considered substantially more in sentencing decisions.

24

The current approach to VIS is certainly not without its flaws, with a growing need for greater communications between the criminal justice system and the victims it represents. Marginalising victims to passive bystanders, ignored and forgotten, should not be what constitutes the right to remain silent. Victims need to be heard, recognised, validated. A VIS is the first step to victims reclaiming the former self they once were, taking it back from the offender who wrongly stripped them of their autonomy, safety and dignity.

I am stronger than this.

25

plastic bags

BY ELLA DAVIDSON

EDITED BY ANITA HUANG BIANCA TOLIC

“you wanna help me out?” and it's always gotta be a yes, so i’m coming down with the hammer scooping up the coke, thinking that they made it look so easy to be in a gang is all you ever wanted to live your life on overdraw, doing deals, shaking hands but i can’t drop it ‘cept it speckles down a summer snow, fresh on the lino floor where i wish i could make an angel, fly me home to the motherland cos its always“hurry the f up, we gotta go”

“f coppers didn’t get us” look at us, we got outta there, plastic bags in hands guess now were free to wonder what were gonna eat where were gonna sleep while you drive off into the sunset your wheels, your woman 27

youre McHappy and i’m lovin it ‘cept for my crippling anxiety did i make the right decision, choosing to be the dealer’s girl?

driving thru coonamble, wingadee, walgett thru open plains that really make you think katy perry didn’t know shit plastic bags dont need to start again they can float to wherever the hell they want but i just want to“shut the f up” cos yeh, we’re in a back-of-moree burn-out, while the stars smile down menacingly on this town full of strangers, we’re here to sell crack to strangers, but my humming is so bloody criminal

but now you are, the cops found you one night, ‘public nuisance’ they called it ‘til it was called dealing when they found em packets and i called it a long-time-coming when they called me to the station

28

and called you to the dock and theres one on the way and he wont ever call you “daddy” ‘cept through these bars

least DoCs called the shelter cos they took us in fed, clothed, housed us us ‘women and children’, drifting in lifeboats ‘cept its wasn’t some heroic rescue them bitches aint some united sisterhood, theyll sell you their stolen ciggys, nappies, perfume and its easier to deal in bank notes than trust otherwise you drown den women’s crocodile tears but when i say ‘women’ i mean us girls aged by every night lost to the drink, every night taken by another man, every one of us mothers don’t wanna stay, and if we go theres nuthin to do ‘cept to say goodbye so i don’t know how i did it, but now we got our own Housing, a little sunshine for my little sunshine, cos there aint much of it now in walgett aint much of it working at Cold Rock ‘cept when i feed him spare M&Ms and his face lights up at me

29

least he likes jumping in puddles, peppa pig wellies and Bluey hat, cos those muddy splashes, theyre a gift they wash me clean from the anger at bringing a child into a dump like this

i get to visit you on sundays and its like seeing a rainbow, “soon ill be out” soon we'll get to the leprechaun and pot of gold for now theres only stormclouds, you dissolve when the minute hand turns and im shuffled back to the waiting room and i wait four years, and for some more years, cos dem parole officers should “shut the f up” like what else you meant to do, ange beat up or get beat?? and as i wait mr. peppa pig wellies grows up, goes to “big school” now can count to a hundred, maybe more but wont say “daddy”, not one more time or give his dad, just one more chance.

i visit this prison like church every sunday visit your holiness, set apart from society 30

bringing my body to the altar, fresh meat, free from adultery keep forever faithful until the night that forever ends when hope is no longer enough; his name is simon and hes a plumber, “used to being in shit situations” that makes me laugh and cry “yeh it do be real shit” i find my voice but lose your vision i really wish i could see it adam, but that pot of gold and the leprechaun, theyre no longer there time stands still for you in there but the minute hand keeps shuffling me on and i’ve finally figured it out: they took more from me than they did you, this sentence is nothing you deserved and its everything i don’t.

31

A walk through the experiences of women in the Australian Criminal Justice System By: Bouchra Chehimy Edited by: Ellie Gordon & Arshdeep Kaur

Women have played a major and prominent role in the criminal justice system (‘CJS’), all of which is most unequivocally inspiring and motivational.

deviating from it going forward.”

As one of the few culturally diverse members of the judiciary, Her Honour indubitably continues to inspire countless female law students to continue their interest in social justice.

Her Honour Judge Dina Yehia SC is a prime example of this.

From representing thousands of Indigenous individuals across country towns to highlighting the failures of the Australian CJS in relation to Indigenous Australians, her Honour's involvement in the CJS is undoubtedly one of a kind.

Extending beyond judicial officers, the experiences of women in the CJS are further elucidated through accused female persons in the CJS. Women have often faced social and institutional barriers to accessing justice, with one of the factors being a consequence of gender discrimination. As a result, out of the 53% of women who have reportedly experienced a legal problem within the last two years, only 13% turned to an authority or third party to help resolve the problem.[2] Unequivocally, gender based discrimination in the CJS has led to significant obstacles to achieve justice for women as victims, witnesses, alleged offenders, or prisoners. This is because the CJS tends to focus on the needs of a predominantly male population of offenders and prisoners, despite the global number of women in prison growing at a faster rate.

Her Honour chaired the Walama Court Working Group which is designed to divert Indigenous Australians away from the CJS and further involve Elders in the decision-making process within the District Court of NSW. The Walama Court Working Group thereby aims to have a proper focus on rehabilitation rather than punishment.[1] Her Honour therefore worked on improving the CJS rather than merely pointing out inefficiencies.

Further, her Honour's work in the social justice field has been strongly motivating, and what is particularly inspiring is her journey within the legal field, and from where she derives inspiration for her work. In an interview with the Law Society of NSW, her Honour states, “I don’t really know where it came from but I do know that it came in a very big way at a very young age. I may have been influenced by stories I heard coming from Egypt to Australia, about what had happened to my father, when he was arbitrarily detained in Egypt. But if those stories influenced me, it was unconscious. All I know is that from age 13, I knew what I wanted to do, and there was no

The experiences of women in the CJS remain significant, both of which are inspiring and must be improved upon.

Bringing light to the experiences of women in the CJS allows us to, hopefully, address common misconceptions while also working towards a better outcome for society.

"In a chronically leaking boat, energy devoted to changing vessels is more productive than energy devoted to patching leaks”.

33

THE FORGOTTEN PRISONER Indigenous women and their experiences with healthcare while incarcerated

THE FORGOTTEN PRISONER By: Juwariya Malik Edited by: Jessica Wang & Gopika Aryad

“The degree of civilisation in a society can be judged by entering its prisons.”

- Fydor Dostoevsky It is no secret that the treatment of Aboriginal and Torres Strait Islander peoples has been the subject of much controversy, media spotlighting and political debate since colonisation. This has ranged from legislated dispossession and forced separation of Indigenous children,[1] the limited recognition of Indigenous sovereignty and agency by the Mabo and Wik decisions,[2] to contemporary debates around Indigenous

deaths in custody. These have included notable individuals including Frank Coleman who was among 474 deaths in custody since 1991.[3] Indigenous peoples are disproportionately arrested, remanded and imprisoned, leading to their over-representation in our justice system wherein they are ten times more likely to die while incarcerated than a non-Indigenous person.[4] 35

While there are a variety of reasons for increased Indigenous deaths in custody, including a lack of criminal charges or investigations into prison systems themselves, reformists have campaigned for increased mental health screening and treatment of Indigenous people within prison. The Royal Commission into Aboriginal Deaths in Custody highlighted mental health as one of the underlying factors of concern for those in custody.[5] Since then, federal and state-wide prison programs and initiatives, such as the National Aboriginal and Torres Strait Islander Health Plan have been implemented to improve the mental health of Indigenous peoples in custody.[6] However, the question remains of whether they have successfully addressed the root causes of a lack of mental wellbeing in Indigenous prisoners. Specifically, whether the concerns surrounding the mental health of incarcerated Indigenous women have been addressed, or if they have been simply ignored.

These poor health outcomes are exacerbated by limited access to existing healthcare services while incarcerated. Despite the existence of organisations such as Aboriginal Community Controlled Health Organisations, Aboriginal Medical Services and government funded health assessments, prisoners have restricted access to them, for several reasons including a lack of orientation and information and gatekeeping of medical services by custodial officers. The rate of women affected by poor mental health is alarming, with 93 percent of Aboriginal women experiencing some form of mental illness in jail, including 33 percent suffering from post-traumatic stress

"Indigenous women...face stereotyping as well as higher levels of psychological distress from familial separation while imprisoned"

In order to evaluate the treatment of Indigenous women’s mental health in custody, it is important to first address the causes of poor mental health in Indigenous women. Incarcerated Aboriginal women experience far worse health outcomes when compared to non-Indigenous women and Aboriginal women.[7] Much of this unequal access to healthcare stems from institutional racism and discrimination experienced by Indigenous women who face stereotyping as well as higher levels of psychological distress from familial separation while imprisoned.[8] The trauma experienced is associated with removal of their children, lack of access to secure housing upon release to regain access to their children and cyclical substance abuse to cope with trauma, as well as the transgenerational impacts of colonisation.[9]

disorder. When Indigenous women do access those services, they face an added hurdle of racism and discriminatory treatment in the quality of care received. Often, they are not taken seriously and their symptoms are ignored, highlighting a clear inequality of treatment when compared to non-Indigenous women.

An instance of this was a Ngunnawal woman, who has serious health conditions including a pacemaker and a collapsed lung, being forcefully strip-searched while incarcerated.

Her pleas for help, complaints of being unable

36

to breathe and having chest pains were ignored by a team of up to 12 nearby prison officers, as she was searched. There was no medical assessment conducted prior to the strip search to ascertain whether such conduct was safe for the woman. The search was conducted due to a prison officer’s suspicion at the woman’s hands being in her ‘crotch area’, however it was found after the search that she had been menstruating. Her pleas were not taken seriously by the nearby staff and caused her to experience humiliation and shame in what became a traumatic event for her.[13] The prevalent issue remains that Indigenous women face specific and systemic injustices compared to non-Indigenous women, thus requiring targeted, culturally sensitive and effective reform.

unfortunately limited in availability for Indigenous women, compared to the higher availability for Indigenous men. This depicts a recurrence of the Australian pattern for Aboriginal and Torres Strait Islander women, showing the multiplicity of oppression faced by those who are targeted by misogyny as well as racism.

Overall, it is clear that Indigenous women are the forgotten demographic when it comes to implementing culturally sensitive health reforms, yet ironically overrepresented in incarceration. They exhibit poorer outcomes than their Indigenous male, and all nonIndigenous counterparts, and it is clear we need urgent reform to address mental and physical health concerns or risk a cycle of dispossession, incarceration and poor health outcomes for future generations of Indigenous women. The only way to measure our society’s level of civilisation and advancement is by providing its most vulnerable the same quality of healthcare as its most privileged. If not, we risk the extinction of the oldest living culture in the world.

"Her complaints of being unable to breathe...were ignored.

Her pleas were not taken seriously..."

It is necessary to expand, increase awareness of, and facilitate greater funding towards these projects to provide holistic and culturally sensitive emotional support for healthcare, housing and education services.

[14] Such programs could be modelled on programs such as the Pathways Unit program piloted in Canada. The purpose of the Pathways Unit was to establish an environment for Aboriginal offenders where they could opt for a traditional path of healing, including counselling with elders and participating in Aboriginal cultural practices and ceremonies.[15] This program, like other Canadian programs is

37

Signing Away the Right to Justice

Harvey Weinstein’s case highlights how NDAs are used to legally bind victims to silence.

Weinstein, a prominent former American film producer, known for his films ‘Pulp Fiction’, ‘Scream’ and ‘Paddington’, amongst others, boasted an affluent and wealthy status.[6] His immense power and eminence almost enabled him to escape justice and accountability for 11 charges of sexual assault which occured in California from 2004 to 2013, and involved five women.[7] The charges included “rape, forcible oral copulation, sexual battery by restraint and sexual penetration by use of force”.[8]

Trigger warning: sexual assault.

Non-disclosure agreements (NDAs) are commonplace throughout the Australian legal system. They ensure that confidential or sensitive information is not disclosed to a third party.[1] NDAs are essential for entities such as Coca Cola, whose iconic recipe has remained a secret for over 100 years.[2] Similarly, only a handful of KFC employees have been let in on its secret recipe of ‘11 herbs and spices’, each of whom have also reportedly signed NDAs.[3] Thus, NDAs are essential in the realm of business and commerce. We need them to ensure that notable ideas, recipes, and formulas are not stolen and unfairly used. However, NDAs also have the potential to be misapplied and exploited, which can occur when they are deployed to silence victims of sexual assault.

Weinstein’s former assistant, Zelda Perkins, signed an NDA in return for not pursuing a case against Weinstein for sexual harassment, as well as a monetary settlement. Weinstein reportedly “asked for a massage while in his underwear, wanted her [Perkins] in the room while he bathed and often tried to pull her into bed when she woke him up”.[9] The NDA allowed Weinstein to effectively buy his victims’ silence and evade scrutiny from the law. For a man who at one point boasted a net worth of $300 million and was co-founder of a business reportedly worth $600-800 million in its prime, the $17 million fund which was divided amongst more than 50 claimants hardly seems like the achievement of ‘justice’.[10]

When victims of sexual assault sign NDAs, they are prohibited from discussing the matter, in return for a monetary settlement.[4] This is an institutionalised method of condemning victims of sexual assault to silence, and constraining them to sign away their right to justice. Further, it often breeds a professional environment of hostility and unforgivingness, as rather than being supported and having their experiences validated, victims of sexual assault within the workplace are shunned and outcasted. Hence, Speak Out Revolution’s study revealed that 21% of individuals who were subjected to sexual abuse in the workplace had signed an NDA, and 90% of these individuals reported that it had a negative impact on their mental health.[5] Thus, the pertinent question is whether NDAs, which enforce confidentiality, protect the victims or the perpetrators of sexual assault.

Despite being legally bound to silence, Perkins spoke out about her experience of sexual harassment, inciting discourse about the unjust nature of NDAs. She powerfully stated that “Unless somebody does this there won’t be a debate about how egregious these agreements are and the amount of duress that victims are put under. My entire world fell in because I thought the law was there to protect those who abide by it. I discovered that it had nothing to do with right and wrong and everything to do with money and power”.

[11] 39

Since breaking her silence on Weinstein’s sexual abuse of his employees, Perkins has started a global campaign, alongside Professor Julie Macfarlane, called ‘Can’t Buy My Silence’.

[12] This campaign fervently advocates for the elimination of NDAs, except when used to protect commercial proprietary information.

[13] The ‘Can’t Buy My Silence’ campaign has inspired other victims of abuse to speak out. It also publishes testimonies of those who have been coerced into signing NDAs, thus empowering victims who were previously silenced. One victim who was sexually assaulted by a hospital emergency room technician, described mediation as “a hellacious process”, stating that she “was so mentally exhausted from the whole mediation process that [she] didn’t even understand the scope of [her] NDA”.[14]

Accordingly, a victim of sexual assault whilst working for a tech company, who was subsequently forced to sign an NDA, stated that “there was no justice, no accountability, not even an apology”.[15] She raises that the retribution of perpetrators, and the validation of victims’ experiences are imperative to the legal paradigm of justice.

Without accountability or consequence, NDAs will continue to “uphold a culture of abuse”, according to Maria Miller, Member of the United Kingdom Parliament.[16] It is clear that paying victims in exchange for confidentiality and silence breeds a dangerous culture in which those with structural power can weaponise litigation to diminish their victim’s agency and voice. Perkins described NDAs in these contexts as “dreadful, demoralising things” providing “no justice”.[17] Therefore, whilst NDAs may be essential to protecting the trade secrets of billion-dollar companies, such as Coca Cola and KFC, they are unequivocally inappropriate when dealing with the real and traumatic experiences of victims of sexual assault, demonstrating how wealthy and powerful perpetrators pay for their crimes with their wallets, whilst victims pay with their lives.

This highlights the fallibility of the systematic and institutionalised power dynamics underpinning the foundations of our legal system, enabling sexual predators to evade law enforcement and public scrutiny. When the very institution that purports to protect those who are most vulnerable, instead invalidates and suppresses their right to justice, how can women feel anything but disillusioned and disheartened? Why is the law designed to protect wealthy and powerful men over victims of abuse and harassment? And, if the law cannot provide these victims with justice, then what, or who, can?

By: Paris Spennato Edited by: Emily O'Brien & Matilda Grimm

40

Extreme Provocation:

A double-edged sword By: Alifa Monjur Edited by: Adriana Ishac & Isabelle Doan In the 2012 case of Singh, a man who killed his wife with a box cutter raised extreme provocation in court.[1] This partial defence, when raised successfully, convicts the defendant of manslaughter where they would otherwise be convicted of murder. While not a complete acquittal, instead of facing a maximum penalty of life imprisonment, the defendant faces a maximum of 25 years.[2] The NSW Supreme Court accepted Singh's argument that the provoking conduct in question was enough to cause an ordinary person in his position to lose self-control.

So, what had provoked the man to kill his wife? Suspicions of infidelity, insults about

his mother, and thinking that the marriage would end and result in his deportation out of Australia. In the end, his murder conviction was discounted to manslaughter and he received a mere 6year non-parole sentence for brutally taking the life of another.

Similarly, in the 2004 case of Ramage, a Victorian man strangled his wife because she wanted to leave him. His charge, too, was ultimately discounted from murder to manslaughter; he was sentenced to a mere 11 years.[3] As Betty Green, the convenor of NSW Domestic Violence Coalition, poignantly put it - women have 41

been historically blamed for the violence they suffer. [4]

deleted the words “in the position of the accused”, replacing it with the ‘ordinary person’ test, which looks at how an ordinary person would react to the provoking conduct.[8] It is fundamentally inaccurate and unfair to hold abused women to ordinary standards. As clinical and forensic psychologist Dr Kenneth Byrne explained, battered women are typically hypersensitive to any signal of danger from their partner.[9] This means what an ‘ordinary’ person may brush off as insignificant, a battered woman might see as a real threat of violence from their abusive partner.

Extreme provocation has routinely been weaponised by abusive men who kill their female partners out of jealous rage. The narrative surrounding extreme provocation has long been that of a romanticised ‘crime of passion’ rather than a horrific act of domestic violence.

Things needed to change.

“Women have been historically blamed the the violence they suffer...”

Further, as Thomas Crofts and Arlie Loughnan noted, domestic violence may not manifest as one singular act amounting to a ‘serious indictable offence’ but rather a pattern of ‘coercive control’ that forms the provoking conduct.[10] Rather than culminating in one major event, this type of abuse manifests as consistent and constant abusive or controlling behaviour.

In response, Victoria abolished extreme provocation entirely in 2005, and NSW introduced major reform in 2014. The NSW reforms significantly restricted the defence’s application to where the provoking conduct amounted to a ‘serious indictable offence’.[5] That is, it needed to be a crime punishable by at least 5 years.

[6] Had this law existed before, Singh and Ramage, and the countless other cases just like them, would never have resulted in a charge discount. The reform sent a clear message: domestic violence cannot be legitimised. As the then AttorneyGeneral Brad Hazzard remarked during the 2014 Second Reading Speech, leaving a relationship or being unfaithful will “never provide a foundation” for extreme provocation.[7]

While Section 23 does acknowledge the “slow burn” of domestic violence – and removes the common law requirement for the defendant to act immediately after the ‘provoking conduct’,[11] it remains inadequate. It fails to consider ‘coercive control’ and as a result, many domestic violence victims who are driven to kill those who subjected them to long-term abuse may be incarcerated for an unjustly extended period.

“[D]omestic violence may not manifest as one singular act, but rather a pattern of 'coercive control'...”

However, bringing justice to domestic violence victims is not as easy as simply narrowing extreme provocation laws. In fact, narrowing these laws can also work to condemn victims. After the 2014 reforms, the options available to ‘battered women’ who kill their abusers were also restricted. In particular, the reforms 42

Paradoxically, extreme provocation laws can both protect and condemn victims of domestic violence. Hence, it is not surprising that Victoria and NSW have drastically different approaches. Victoria abolished extreme provocation, with the Victorian Law Reform Commission rebuking the defence’s victim-blaming, gender-bias and complexity. Similarly, Kate Fitz-Gibbon also argues that provocation should instead be a sentencing consideration as this alternative framework affords sentence discounts where needed but without the element of victim-blaming.[12]

the complexity of extreme provocation law. While imperfect, the 2014 NSW reforms were a well-overdue step in the right direction. The law cannot return to a position where it discounts the murdering of women by their abusive partners.

Extreme provocation laws cannot address both sides of the domestic violence issue.

Instead, further developments must be made in areas of law outside extreme provocation to allow appropriate adjustment for domestic violence victims who kill their abusers. Only then can NSW law claim to provide adequate protection to domestic violence victims.

“The law cannot return to a position where it discounts the murdering of women by their abusive partners.”

However, Elizabeth Sheehy, Julie Stubbs and Julia Tolmie argue that the complete abolition of the defence in NSW would further restrict the legal options available to domestic violence victims who are driven to killing their abusers.[13] Likewise, the NSW Law Reform Commission has emphasised that there are moral and practical reasons for keeping extreme provocation as a defence, explaining that the label of ‘murderer’ should not be given to those who are less morally blameworthy.

They recommended, however, that the extreme provocation defence be merged and combined into excessive self-defence laws.

There are many differing opinions on how domestic violence victims and the law should interact - a testament to the 43

l

T r n i a O

BY: VANESSA WISHALIM EDITED BY: ELLA DAVIDSON & OVIYA WADHWA

TRIGGER WARNING: DEPICTION AND DISCUSSION OF NON-CONSENSUAL SEXUAL ACTIVITY (RAPE AND SEXUAL ASSAULT).

The sound of his heels resounds through the courtroom. The clack clack clack makes her flinch slightly as he paces in the same spot, over and over again.

To her, his dark beady eyes are focused on only one thing. She doesn’t feel like a person when his gaze is fixed on her. He doesn’t notice her hands shaking in fear, nor her anxiety. He doesn’t hear her deep swallow as her mouth runs dry. What he does see is a young woman, no different to the others that have been in her position, who doesn’t seem ready for the proceedings that are bound to occur.

He readies himself to defend his client.

He doesn’t see her inability to look his client in the eyes. He doesn’t see the way she has slowly shifted her body to face away from the man sitting opposite to her; the eyes that slowly rake over her figure. The eyes that linger too long and seemingly make her skin crawl under the thick jacket she wears as protective armour.

Instead, the man dressed in a pristine suit, probably more expensive than everything in her closet, readies himself. He smoothly buttons his vest and stops pacing only to fix his gaze once again on her. She wonders what he sees when he does that.

Does he see her as an obstacle to his case? A challenge? An irksome hurdle standing in the way of him establishing the innocence of his client? Does he too see a liar?

She sees nothing and everything at the same time. Her view shifts from the empty chairs at the front of the room to the upset eyes of her family. She notices the tears that collect as they too understand her turmoil. She’s never been much of a heartbreaker but she broke all of their hearts that day. Her parents’ faces at breakfast were painted with the knowledge that she had cried herself to sleep. That look will forever be imprinted in her mind. Her little sister doesn’t go anywhere alone anymore. What a fate to be forever chaperoned.

She notices the pristine emblem that sits at the head of the court. The kangaroo and emu mock her as they hold the shield that offers her no protection. She wishes she wore more comfortable shoes so she could run out of that room without tripping.

She wishes she believed that they would believe her. All she wants them to know is how she feels at that very moment.

Anger. Fear. Trepidation. Anxiety. Disgust. Anticipation. Hatred.

Shame.

45

Guilt.

She wishes they understood how sometimes her own skin doesn’t feel like it belongs to her. That she can’t wear that sweater anymore because that’s what she wore when it happened. That she can’t smell his cologne without nearly dry heaving. That she struggles both to sleep and to get out of bed. That her life is not the same anymore. That her life is not hers anymore.

Instead, she’s asked how she can prove that she didn’t give consent. They tell her that he’s a good person and he would never have done something like that deliberately. That he has a bright future ahead of him, and that this would ruin his life.

Did she fight back, did she scream, did she say no? What was she wearing? Was she asking for it?

She’s picked apart, analysed and scrutinised under a microscope and her story becomes distorted. They seem to compare her to what a victim “should” look like.

Why was she out so late anyway? Was she looking for someone to spend the night with? What type of underwear was she wearing?

Breathe in.

“You didn’t take any physical steps or action to stop the intercourse from occurring.”

[1] “The victim was probably as much in control of the situation as was the defendant.”

[2] Breathe out.

In. “That night, he wasn’t himself. This isn’t who he is.” [3] "He is not your typical sex offender."[4] “A prison sentence would have a severe impact on him."[5]

46

Out. In. “You have to look at the way she was dressed.”[6] “Maybe you weren’t necessarily willing but you didn't put up a fight."[7] Breathe out again as the court room fills with a heavy silence following the last word uttered. Slowly, a room that once seemed convinced by her account, convinced of her innocence, begin doubting her.

Guilty beyond reasonable doubt.

What a joke.

Fight. Fight. Fight.

How would they know?

How could they know that she wasn’t screaming in agony on the inside? That her mind was being torn apart by the very thought that her “no no no” was being ignored; that her tired hands couldn’t push his heavy weight off her. That the soreness in her arms for the rest of the week was a painful and physical reminder of the whole ordeal.

That no matter how much of a fight she had shown, his mind was made up and he wouldn’t stop until he got what he wanted, even if it was the last thing she ever believed would happen.

They don’t know that she continues to bear the marks of that night, though they may no longer be physical.

Was she really and truly asking for it? Does anyone ever ask for it? Why would anyone even want to ask for it? Whatever it is. Did her cotton sweater arouse him?

Was it her ragged old sneakers that did the trick? Maybe it was her denim jeans that just showed the slightest bit of skin at her knees. She looked the same as everyone else on the street.

The seat beneath her feels harder than ever, her feet ache in the uncomfortable heels and her nail beds are close to blood as she continues to pick at her hangnails.

She knows it’s over.

47

The lawyer across from her looks as if he’s going through a routine, as if he’s said the same things before. That’s probably why they hired him. Are you sure the sex was non-consensual? Did you give any sign that you said no? That you didn’t want this? Over and over again.

She doesn’t know what she was expecting. She should have just kept her mouth shut. She should have just moved on and lived with what happened to her. Others have done the same.

Maybe, just maybe, she thought she could win. She thought that this would help.

That maybe he would be punished and maybe that the law was on her side. That her voice was louder than that of the one sitting across from her.

But, ultimately, at the end of it all, she was on trial for someone else’s crime.

48

For mental health support, please visit: UNSW Psychology and Wellness (formerly Counselling and Psychological Services (CAPS)): https://www.student.unsw.edu.au/counselling/247 BeyondBlue https://www.beyondblue.org.au/get-support/get-immediate-support

49

References Front cover art: 1. Themis (Painting, Natalia Socolnicova, 2021) From the Court to the Cell: A Pop Culture Analysis (pg. 4) 1. . Kim Elsesser, ‘Female Lawyers Face Widespread Gender Bias According to New Study’, Forbes, (online, 1 October 2018) <https://www.forbes.com/sites/kimelsesser/2018/10/01/female-lawyers-face-widespreadgender-bias-according-to-new-study/?sh=4d60e6634b55>.

2. Karen Engstrom, 'Gender Bias - Courtroom Overcoming Perceptions and Data Could Displace Bias’, Alvarez and Marsal (Blog Post, March 8 2019) <https://www.alvarezandmarsal.com/insights/gender-bias-courtroomovercoming-perceptions-and-data-could-displace-bias>.

3. Australian Pro Bono Centre, ‘What Needs to Change in the Legal Profession so that Women Can Thrive?’, Australian Pro Bono Centre (Web Page, November 2018) <https://www.probonocentre.org.au/apbn/women-inlaw/>.

4. The Law Society of New South Wales, 'Gender Statistics', The Law Society of New South Wales (Web Page, 2021) <https://www.lawsociety.com.au/advocacy-and-resources/advancement-of-women/gender-statistics>.

5. Jo Delahunty, ‘Women at the Bar in 2020’, Council Magazine (Web Page, 2020) <https://www.counselmagazine.co.uk/articles/women-at-the-bar-in-2020>.

6. Statista, 'Share of Lawyers in the U.S. in 2020 by gender', Statista (Web Page, 2022), <https://www.statista.com/statistics/1086790/share-lawyers-united-states-gender/>.

7. Housnia Shams, ‘Female lawyers outnumber males, but advocates say more women are needed in senior roles’, (News article, 21 July 2021). <https://www.abc.net.au/news/2021-07-21/women-lawyers-australia-genderequality-newlaw-law-society-/100309294>.

8. Lorna Knowles, ‘70 Per Cent Female Lawyers Report Sexual Harassment Survey Finds’, ABC News (online, 8 March 2019). <https://www.abc.net.au/news/2019-03-08/70-per-cent-female-lawyers-report-sexualharassment-survey-finds/10880632>.

9. Sam Lynch and Lorana Bartels, ‘Transgender Prisoners in Australia: An Examination Of The Issues, Law and Policy’ (2017) 19(183) Flinders Law Journal 187.

10. Meghna Bali, ‘Why are transgender women jailed in men’s prison around Australia?’ ABC News (online, 3 July 2020). <https://www.abc.net.au/news/2020-07-03/why-are-transgender-women-jailed-in-mens-prisons-inaustralia/12416562>.

11. ‘Health and Gender Affirmation in NSW. III Prison’, Transhub (Web Page, 2021) <https://www.transhub.org.au/prison>.

12. Bali (n 10), ‘Why are transgender women jailed in men’s prison around Australia?’ ABC News (online, 3 July 2020) <https://www.abc.net.au/news/2020-07-03/why-are-transgender-women-jailed-in-mens-prisons-inaustralia/12416562>.

50

13. Ibid.

14. Lynch and Bartels (n 9), ‘Transgender Prisoners in Australia: An Examination Of The Issues, Law and Policy’ (2017) 19(183) Flinders Law Journal 192.

A Silent Scream (pg. 9) 1. Hagar Cohen and Raveen Hunjan, ‘Rosie told police she was a victim of domestic violence. She was the one arrested’, SBS News (online, 19 May 2021) <https://www.abc.net.au/news/2021-05-19/rosie-toldpolice-victim-of-domestic-violence-she-was-arrested/100112832>.

2. Department of Communities and Justice (NSW), ‘Coercive Control: Discussion Paper’ <https://apo.org.au/node/309001>.

3. Dr Paul McGorrery and Marilyn McMahon, ‘Coercive control is a key part of domestic violence. So why isn’t it a crime across Australia?’, The Conversation (online, 27 February 2020) <https://theconversation.com/coercive-control-is-a-key-part-of-domestic-violence-so-why-isnt-it-acrime-across-australia-132444>.

4. ‘‘In no uncertain terms’ the violence of criminalising coercive control. Joint statement: Sisters Inside &Institute for Collaborative Race Research’ Sisters Inside (online, July 30 2021) <https://www.sistersinside.com.au/author/websitesistersinside-com-au/>.

5. Dr Paul McGorrery and Marilyn McMahon, ‘Coercive control is a key part of domestic violence. So why isn’t it a crime across Australia?’, The Conversation (online, 27 February 2020) <https://theconversation.com/coercive-control-is-a-key-part-of-domestic-violence-so-why-isnt-it-acrime-across-australia-132444>.

6. Pam Rugkhla and Tina Dixson, ‘Criminalisation of Coercive Control’ (Discussion Paper, Australian Women Against Violence Alliance, January 2021) 15.

7. Leigh Goodmark, Decriminalizing domestic violence: A balanced policy approach to intimate partner violence (University of California Press, 2018).

8. ‘Predominant Aggressor Identification and Victim Misidentification’ (Discussion Paper, No To Violence, November 2019) 6.

9. Women’s Safety NSW, Submission to the NSW Joint Select Committee, Coercive Control in Domestic Relationships (12 February 2021) 88.

10. Australian Law Reform Commission, Pathways to Justice - an Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples: Final Report (2017) <https://nla.gov.au/nla.obj-2828007948> (‘Pathways to Justice - an Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples’).

11. Heather Nancarrow et al, ‘Accurately Identifying the “Person Most in Need of Protection” in Domestic and Family Violence Law’ 134.

12. Department of Communities and Justice (NSW), ‘Coercive Control: Discussion Paper’ 44-45 <https://apo.org.au/node/309001>.

51

The Forgotten Children (pg. 18) Image used: Untitled (Digital illustration, Dofa Li, United Daily News, 2021).

1. World Prison Brief, Australia (30 September 2021) <https://www.prisonstudies.org/country/australia>.

2. Jackson Graham, Productivity Commission calls for alternative policies as prisoners reach ‘historic highs’ (1 November 2021) The Mandarin <https://www.themandarin.com.au/173690-productivity-commissioncalls-for-alternative-policies-as-prisoners-reach-historic-highs/>.

3. Morgan Liotta, Majority of women in prison are mothers: Report (30 May 2019) NewsGP <https://www1.racgp.org.au/newsgp/clinical/majority-of-women-in-prison-have-dependent-childre>.

4. Dan Levin, As More Mothers Fill Prisons, Children Suffer ‘A Primal Wound’ (28 December 2019) The New York Times <https://www.nytimes.com/2019/12/28/us/prison-mothers-children.html>.

5. Walker et al, Babies and toddlers are living with their mums in prison. We need to look after them better (17 May 2019) The Conversation <https://theconversation.com/babies-and-toddlers-are-living-with-theirmums-in-prison-we-need-to-look-after-them-better-117170> 6. Levin (n 4), As More Mothers Fill Prisons, Children Suffer ‘A Primal Wound’ (28 December 2019) The New York Times <https://www.nytimes.com/2019/12/28/us/prison-mothers-children.html> 7. Walker et al (n 5), Babies and toddlers are living with their mums in prison. We need to look after them better (17 May 2019) The Conversation <https://theconversation.com/babies-and-toddlers-are-livingwith-their-mums-in-prison-we-need-to-look-after-them-better-117170> 8. Liotta (n 3), Majority of women in prison are mothers: Report (30 May 2019) NewsGP <https://www1.racgp.org.au/newsgp/clinical/majority-of-women-in-prison-have-dependent-childre> 9. Walker (n 5), Babies and toddlers are living with their mums in prison. We need to look after them better (17 May 2019) The Conversation <https://theconversation.com/babies-and-toddlers-are-living-with-theirmums-in-prison-we-need-to-look-after-them-better-117170> 10. Liotta (n 3), Majority of women in prison are mothers: Report (30 May 2019) NewsGP <https://www1.racgp.org.au/newsgp/clinical/majority-of-women-in-prison-have-dependent-childre> 11. Walker et al (n 5), Babies and toddlers are living with their mums in prison. We need to look after them better (17 May 2019) The Conversation <https://theconversation.com/babies-and-toddlers-are-livingwith-their-mums-in-prison-we-need-to-look-after-them-better-117170>

52

This Shouldn’t Be What ‘The Right to Remain Silent’ Means (pg. 21) 1. Crimes Act 1914 (Cth).

2. Crimes (Sentencing Procedure) Act 1999 (NSW).

3. Porter v R [2008] NSWCCA 145, [54].

4. Danica McGovern, ‘The Therapeutic Potential of Victim Impact Statements for Sexual Violence’ (2013) 5(2) Sexual Abuse in Australia and New Zealand 21, 22.

5. Australian Bureau of Statistics, Recorded Crime – Victims, Report (2017).

6. Commonwealth Director of Public Prosecutions, ‘Victim Impact Statement’, CDPP (Web Page, date unknown), <https://victimsandwitnesses.cdpp.gov.au/prosecution-process/prosecution-process/victimimpact-statement>.

7. Sally Croswell, ‘Victim Impact Statements (VIS) (NSW)’, Armstrong Legal (Web Page, date unknown), <https://www.armstronglegal.com.au/criminal-law/nsw/court-processes/victim-impact-statements-vis/>.

8. Rebecca Makkai, ‘The Power and Limitations of Victim-Impact Statements’, The New Yorker (Web Page, 8 June 2016), <https://www.newyorker.com/culture/culture-desk/the-power-and-limitations-of-victimimpact-statements>.

9. Susan L. Miller and M. Kristen Hefner, ‘Procedural Justice for Victims and Offenders? Exploring Restorative Justice Processes in Australia and the U.S.’ (2015) 32(1) Justice Quarterly 142, 150.

10. Ibid 149.

11. Danica McGovern, (n 6), 27.

12. Edna Erez, Trends & Issues in Crime and Criminal Justice, Discussion Paper No. 33 (1991) 5.

13. Ibid 6.

14. (n 2).

A walk through the experiences of women in the Australian Criminal Justice System (pg. 32) Image used: RBG Tarot Poster (Digital Illustration, Lily Williams, 2020).

1. Sharon Verghis, ‘Lunch with Judge Yehia’, Law Society Journal (Web page interview, 2 November 2021) <https://lsj.com.au/articles/lunch-with-judge-yehia/>.

2. World Justice Project, ‘Women’s Access to Justice: A Global Snapshot’, World Justice Project (Web Page, 8 March 2019) <https://worldjusticeproject.org/news/womens-access-justice-global-snapshot>.

The Forgotten Prisoner (pg. 34) 1.. Human Rights and Equal Opportunities Commission, Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (Sydney, NSW, 1997).

2. Mabo v Queensland (No 2) (1992) 175 CLR 1; Wik Peoples v Queensland (1996) 187 CLR 1.

3. Ashleigh Jordan, ‘NSW Deaths in Custody Report’, ANTaR (Web Page, 15 June 2021) <https://antar.org.au/news/nsw-deaths-custody-report>.

53

3. Ashleigh Jordan, NSW Deaths in Custody Report , ANTaR (Web Page, 15 June 2021) <https://antar.org.au/news/nsw-deaths-custody-report>.

4. Lorena Allam, Calla Wahlquist and Nick Evershed, ‘Aboriginal deaths in custody reports to be increased to every six months after years of delays’, The Guardian (Online, 26 May 2021).

5. Royal Commission into Aboriginal Deaths in Custody (Report, April 1998) vol 3.

6. Department of the Prime Minister and Cabinet, Review of the implementation of the Royal Commission into Aboriignal Deaths in Custody (August 2018 <https://www.niaa.gov.au/sites/default/files/publications/rciadicreview-report.pdf> 7. Sacha Kendall et al, ‘Incarcerated Aboriginal women’s experiences of accessing healthcare and the limitations of the ‘equal treatment’’ (2020) 19(48) International Journal for Equity in Health (‘Incarcerated Aboriginal women’s experiences of accessing healthcare’).

8. Sacha Kendall Jamieson et al, ‘Aboriignal mothers are incarcerated at alarming rates - and their mental and physical health suffers’, The Conversation (Online, 22 May 2019).

9. Ibid.

10. Incarcerated Aboriginal women’s experiences of accessing healthcare (n 7).

11. Jens Korff, ‘Mental Health at its Worst in Prison’ Creative Spirits (Web Page, November 2020) <https://www.creativespirits.info/aboriginalculture/law/mental-health-at-its-worst-in-prison>.

12. Incarcerated Aboriginal women’s experiences of accessing healthcare (n 7).

13. Christopher Knaus and Lorena Allam, ‘Indigenous woman sues ACT over forced strip search her legal team alleges amounts to ‘torture’’, The Guardian (Online, 26 November 2021).

14. Sacha Kendall et al, ‘Holistic conceptualizations of Health by Incarcerated Aboriginal Women in New South Wales’ Australian Qualitative Health Research Journal (2019) 29(11) 1549.

15. ‘Marginalized: The Aboriginal Women’s experience in Federal Correction’ Public Safety Canada, (Web Page, 2012) <https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/mrgnlzd/index-en.aspx>.

Signing Away the RIght to Justice (pg. 38) 1. ‘Non-disclosure agreements, confidential information, and trade secrets’, Australian Government IP Australia (Web Page) <https://www.ipaustralia.gov.au/ip-for-digital-business/idea/non-disclosureagreements>.

2. Ibid.

3. Ibid.

4. Tony Nagy, ‘The legal advice enabling sexual abuse’, Broad Agenda (Web Page, 5 September 2020) <https://www.broadagenda.com.au/2020/the-legal-advice-enabling-sexual-abuse/>.

5. Alexandra Topping, ‘‘I had to start over, alone and silenced’: the fight to end NDA abuse’, The Guardian (online, 21 September 2021) <https://www.theguardian.com/law/2021/sep/21/i-had-to-start-over-aloneand-silenced-the-fight-to-end-nda-abuse>.

6. ‘Harvey Weinstein Net Worth’, Celebrity Net Worth (Web Page) <https://www.celebritynetworth.com/richest-businessmen/producers/harvey-weinstein-net-worth/>.

54

6. ‘Harvey Weinstein Net Worth’, Celebrity Net Worth (Web Page) <https://www.celebritynetworth.com/richest-businessmen/producers/harvey-weinstein-net-worth/>.

7. Carolyn Thompson, ‘Harvey Weinstein extradited to California to face sexual assault charges’, Sydney Morning Herald (online, 21 July 2021) <https://www.smh.com.au/world/north-america/harvey-weinsteinextradited-to-california-to-face-sexual-assault-charges-20210721-p58bh5.html>.

8. Ibid.

9. Michelle Kaminsky, ‘The Harvey Weinstein Effect: The End Of Nondisclosure Agreements In Sexual Assault Cases?’, Forbes (online, 26 October 2017) <https://www.forbes.com/sites/michellefabio/2017/10/26/theharvey-weinstein-effect-the-end-of-nondisclosure-agreements-in-sexual-assault-cases/? sh=10f8de512c11>.

10. ‘Harvey Weinstein Net Worth’ (n 6).

11. Kaminsky (n 9).

12. ‘The Campaign’, Can’t Buy My Silence (Web Page) <https://cantbuymysilence.com/the-campaign/>.

13. Ibid.

14. ‘Testimonies: Story 33’, Can’t Buy My Silence (Web Page) <https://cantbuymysilence.com/story-33/>.

15. Jane Wheatley, ‘‘It’s the gagging that causes further trauma’: the growing crusade against NDAs’, Sydney Morning Herald (online, 15 October 2021) <https://www.smh.com.au/business/companies/it-s-the-gaggingthat-causes-further-trauma-the-growing-crusade-against-ndas-20210916-p58s9m.html>.

16. Ibid.

17. Ibid.

Extreme Provocation: A Double-Edged Sword (pg. 41) Image used: Untitled (Digital Illustration, Stefania Infante, The Sunday Times, 2022).

1. Singh v R [2012] NSWSC 637.

2. Crimes Act 1900 (NSW) s 18(1)(a).

3. R v Ramage [2004] VSC 508.

4. Paul Bibby and Josephine Tovey, ‘Six years for killing sparks call for law review’, The Sydney Morning Herald (online, 8 June 2012) <https://www.smh.com.au/national/nsw/six-years-for-killing-sparks-call-for-lawreview-20120607-1zz2r.html>.

5. Crimes Act 1900 (NSW) s 23(1)(b).

6. Ibid s 4.

7. New South Wales, Parliamentary Debates, Legislative Council, 8 May 2014, 60 (Brad Hazzard, Attorney General, and Minister for Justice).

8. Crimes Act 1900 (NSW) s 23(2)(d); R v Turnbull (No. 2) [2016] NSWSC 678.

9. Osland v The Queen [1998] HCA 75 [51].

10. Thomas Crofts and Arlie Loughnan, ‘Provocation, NSW Style: Reform of the Defence of Provocation in NSW’ (2014) (2) Criminal Law Review 109.

55

10. Thomas Crofts and Arlie Loughnan, ‘Provocation, NSW Style: Reform of the Defence of Provocation in NSW’ (2014) (2) Criminal Law Review 109.

11. New South Wales, Parliamentary Debates, Legislative Council, 8 May 2014, 60 (Brad Hazzard, Attorney General, and Minister for Justice) 62; Crimes Act 1900 (NSW) s 23(4).

12. Kate Fitz-Gibbon, ‘Homicide Law Reform in New South Wales: Examining the Merits of the Partial Defence of ‘Extreme’ Provocation’ (2017) 40(3) Melbourne University Law Review 769.

13. Elizabeth Sheehy, Julie Stubbs and Julia Tolmie, ‘Defences to Homicide for Battered Women: A Comparative Analysis of Laws in Australia, Canada and New Zealand’ (2012) 34(3) Sydney Law Review 467.

On Trial (pg. 44) 1. Tolson J in JH v MF [2020] EWHC 86 (Fam).

2. G. Todd Baugh J in State v Rambold (2014) MT 116.

3. Andrew Lazarus to the NSW District Court in R v Lazarus [2017] NSWCCA 279.

4. Charlotte Alter, “Dallas Judge under Fire for Sentencing Teen’s Rapist to 45 Days in Prison,” Time (May 5, 2014) <https://time.com/88184/dallas-judge-rape-sentence/>.

5. Aaron Persky J in The People of the State of California v. Brock Allen Turner (2015).

6. Valeriya Safronova, “Lawyer in Rape Trial Links Thong with Consent, and Ireland Erupts,” The New York Times (online, November 15, 2018) <https://www.nytimes.com/2018/11/15/world/europe/ireland-underwearrape-case-protest.html>.

7. Derek Johnson J in People v. Metin Riza Gurel (2008); Tupman J in R v Lazarus [2017] NSWCCA 279.

56

© RUN THE WORLD 2021 ISSUE 3 For further information, to submit, or to get involved with the publication, please contact: women@unswlawsoc.org