Policy trajectories : treading the discursive path of policy analysis

This paper is concerned with theorising the nature of policy and its production. It takes as its starting point the work of Stephen Ball,1 particularly his writings within the pages of this journal (13(2), 1993)—later reprinted as Chapter 2 in Education Reform (1994a)—as well as his earlier writings in Politics and Policy Making in Education (1990) and Reforming Education and Changing Schools (Bowe, Ball & Gold, 1992). More broadly, the paper is located within a 'new' sociological interest in education policy often referred to as 'policy sociology'2 (Payne, Dingwall, Payne & Carter, 1981; Ozga, 1987, Ball, 1990; Bowe, Ball & Gold, 1992); a concern that is 'rooted in the social science tradition, historically informed and drawing on qualitative and illuminative techniques' (Ozga, 1987, p. 144) and 'united by the conviction that "things", especially policy discourse, must be pulled apart' (Troyna, 1994, p. 71) to determine whose interests they serve.

At what age can females consent to sexual activity? A survey of jury-eligible Australians

One suggested reason for the low conviction rates of alleged child sexual abuse offenders relates to the attitudes and beliefs the public hold about such victims; sexual interactions starting at an earlier age; and because the oversexualisation of children and teenagers portrayed in the media may have affected perceptions as to when females are capable ofgiving consent to sexual interactions. A sample of 580 jury-eligible participants completed six implicit questions via an online survey regarding females' capacity to consent. While participants had similar perceptions in response to the type of question asked, there were some differences due to respondent group. When significant differences were observed, women had significantly lower estimates of the age at which female adolescents can make informed decisions about sexual activity than men, as did respondents who had children and were older. Working with children had little impact. The legal implications of these findings are discussed.

Professionals' perceptions of a new model of sexual assault investigation adopted by Victoria Police

This article presents a qualitative evaluation of a new method of operation for sexual assault investigation developed by Victoria Police. The model is characterised by two core components: the establishment of specialist teams of investigators responsible for investigation and victim support; and the establishment of service sites, referred to as 'Multidisciplinary Centres', where all key services are located in a single building separate from police stations. The research approach consisted of in-depth interviews with 90 stakeholders (police, counsellors, medical officers, child protection workers and prosecutors). Collectively, these interviews revealed strong, unanimous support for the ideologies that underpinned the new reforms. Reported outcomes included the following: improved collaboration; increased victim satisfaction, referrals between professionals and reporting rates; reduced response and investigation times; better quality briefs; and higher prosecution and conviction rates. These findings, along with the stakeholders' suggestions for further improvements, are discussed.

A mystery to the medical world : Florence Nightingale, Rosendo Salvado and the risk of civilisation

In 1860 Florence Nightingale conducted a study on the mortality rates of indigenous children attending native colonial schools across the British Empire. Her study was driven by the question: ‘Can we civilise the natives without killing them?’ One colonial school that participated in the survey was New Norcia Benedictine mission in Western Australia. When Rosendo Salvado, the mission’s superintendent, responded, he drew on his daily encounters with the Yuat people, his statistics on the mission residents and his Benedictine philosophy of civilisation and conversion of colonised peoples. The correspondence between Salvado and Nightingale took place in the climate of intense debates about Aboriginal health, colonisation and extinction in Britain and the colonies. While many settlers and colonial observers understood Aboriginal depopulation to be the result of either the vices and diseases of unprincipled Europeans or an unstoppable destiny, whether Divine Providence or natural selection, Nightingale and Salvado shared a belief in practical solutions to what they understood to be a practical problem. Their collaboration is an example of the humanitarian opposition to the racial pessimism of Social Darwinism. They both sought to use the recently influential intellectual discipline of social statistics to support their conviction that Aborigines, if patiently and carefully handled, would survive the admittedly risky process of civilisation.

Medical evidence in child sexual assault cases

Purpose – Previous studies suggest that the presence of medical evidence is rare in child sexual assault (CSA) cases, and if present at all, such evidence is unlikely to identify a specific assailant. This study aims to examine the role medical evidence plays in criminal cases of CSA. Specifically, the prevalence of medical evidence in CSA cases, its impact on decisions to prosecute CSA cases, as well as its effect on conviction rates are examined.

Design/methodology/approach – A systematic literature review was conducted on the impact of medical evidence in criminal child sexual abuse (CSA) cases.

Findings – The results of the review suggest medical evidence increases the likelihood of prosecution; however the impact of medical evidence on conviction rate is equivocal.

Research limitations/implications – The implications of these findings for legal and psychological practice, government policy and future areas for academic research are discussed.

Originality/value – To the authors' knowledge, no other review has systematically examined the role of medical evidence on the prosecution and conviction of CSA cases.

Ignorance of the law as a defence to rape : the destruction of a maxim

In DPP v Morgan, the House of Lords correctly concluded that an accused who entertained a genuine belief that a woman was consenting to carnal knowledge of her person could not be convicted of the common law crime of rape as such a belief and the requisite mens rea to convict were mutually exclusive of one another. Though England and Wales have resiled from this position by virtue of the Sexual Offences Act 2003, s. 1 (b), which allows for conviction upon proof that the accused did not reasonably believe that the complainant was consenting, the Morgan principle has retained its vitality at common law as well as under the various statutory crimes of rape that exist throughout Australia, most notably the provisions of s. 38 of the Crimes Act 1958 (Vic). Despite a long line of Victorian Court of Appeal decisions which have reaffirmed the Morgan principle, the court has construed s. 37AA(b)(ii) of the Act as leaving open the possibility of an acquittal despite the fact that the accused acted with an awareness that one or more factors that are statutorily deemed as negating consent under s. 36(a)-(g) of the Act were operating at the time of his or her sexual penetration; specifically, the court held that the foregoing factors do not necessarily preclude a jury from finding that the accused acted in the genuine belief that the complainant was consenting. This article endeavours to explain how the accused could be aware of such circumstances at the time of penetration, yet still entertain such a belief. The article ultimately concludes that such an anomaly can only be explained through a combination of the poor drafting of s. 37AA(b)(ii) and the court's apparent refusal to follow the longstanding precept that ignorance of the law is never a defence to a crime, ostensibly prompted by its adherence to the cardinal precept that legislation is not to be construed as superfluous.

The Queen v Getachew : rethinking DPP v Morgan

In The Queen v Getachew, a recent decision of the High Court of Australia that was soon followed by the Victorian Court of Appeal, the High Court correctly noted that there is a fine line between the mens reas of belief and knowledge which turns upon the degree of conviction with which a belief is held. In particular, the court emphasised that a belief in the existence of a fact or circumstance that contemplates a real possibility or perhaps a higher degree of doubt as to the existence of that fact or circumstance is tantamount to knowledge or awareness that such fact or circumstance may not exist. When applied to the principle enunciated in DPP v Morgan, that type of belief would not be mutually exclusive with the alternative mens reas that require the Crown to prove that the accused was aware that the complainant was not or might not be consenting to the penetration at issue. In Getachew, the High Court merely pointed out that the mens reas of knowledge and belief, though similar in certain respects, are separate and distinct mental states that were incorrectly and inexplicably treated as though they were identical in Morgan and innumerable decisions that have followed and relied upon Morgan since it was decided by the House of Lords in 1976. In the aftermath of Getachew, therefore, the principle that an accused can act with a mental state that is mutually exclusive of the mens rea for rape remains intact. What has changed is that it is knowledge, rather than a mere belief that the complainant is not or might not be consenting, that is mutually exclusive of the requisite mens rea for rape.

The demand for sentence discounts: some empirical evidence

Sentence discounts are now routinely used by Australian courts to encourage guilty pleas. In this article, the authors examine three populations of not on bail defendants who went to trial and were convicted in New South Wales in 2004 for the offences of aggravated robbery, burglary and murder respectively, with the objective of estimating the percentage reduction in sentence quantum that would have induced them to plead guilty. Since conviction (acquittal) probabilities following a trial are likely to be uniformly distributed between 0 and 1, the expected mean probability of conviction (acquittal) for a defendant pleading not guilty was 0.5. The average reductions in the prison sentence corresponding to this probability were: 21%, 23% and 27% respectively. The maximum (minimum) values were: 39% (1.3%), 40% (1.9%) and 39% (1.5%). This range of values reflects the wide dispersion of actual prison sentences handed down by the courts. The distribution of actual sentence discounts offered by the judges in exchange for a guilty plea is not available, consequently the authors cannot comment on why these defendants chose a trial.

Rewriting history

 Rewriting History is a contemporary political story about taking action in the face of seemingly insurmountable odds – a David Vs Goliath tale that bears testament to the power of conviction and the importance of fighting for the historical truth. SCREEN HISTORY : 14 May, 20 May, 3 Jun., 15 Jul. 2012, The Sydney Jewish Museum, Australia 28 Jun. – 3 May 2012, Classic Cinema Melbourne, Australia SBS TV, Australia 14 Sep. 2012 16 Apr. 2013, George Washington University, in conjunction with the Washington DC Jewish Community Centre, Washington DC, USA 18 Apr. 2013, Jay Ipson Holocaust Lecture Series, Richmond, Virginia, USA 28 Apr.2013, American Jewish University, in conjunction with LA Holocaust Museum and Survivor Mitzvah Project, Los Angeles, USA 10 Jun. 2013, Limmud Oz, Sydney, Australia 10 Jul. 2013, Borehamwood & Elstree Synagogue, London 16 Jul. 2013, Simultaneous United Synagogue Screenings across the UK: Scotland, Newcastle, Leeds, Manchester and multiple locations in London, to coincide with the Jewish day of mourning of Tish B’Av 4 Aug. 2013, Limmud South Africa, Cape Town 7 Oct. 2013, Jewish Eye Film Festival, Israel “Official Selection"

Mock jury attitudes towards credibility, age, and guilt in a fictional child sexual assault scenario

Low conviction rates of child sexual assault (CSA) remain a persistent social problem in Australia. One reason for this may be the impact of attitudes regarding the victims when the evidence is weak. This article examines the effects of victim age on perceptions of credibility and verdict in a CSA case. Eleven electronic focus groups deliberated a fictional CSA case, in which the age of the child was systemically varied between 6 and 15 years. Deliberation transcripts were analysed with NVivo (Version 9, QSR International Pty Ltd., Burlington, MA, USA), from which thematic clusters were derived. Results showed that as the child's age increased, credibility and guilty verdicts decreased. In addition, testimony alone had little impact in influencing the verdict. These findings suggest that in lieu of corroborating evidence, increasing supporting information, such as expert testimony, and providing structured deliberation for the jury may reduce the influence of victim blame, particularly when the child victim is older.

Naming and shaming: a report on media shaming for minor crimes in Victoria

This exploratory study examines the power of the news media to publicly name ordinary people who receive non-convictions for committing minor crimes. If a magistrate imposes a non-conviction, it means the offender is guilty, but gets a chance to reform away from the public gaze. They are not required to reveal the crime in any job application, and it does not restrict them from overseas travel. This report argues that the power of media to report non-convictions is an issue of national importance in this changing digital landscape because the news media can impose relatively permanent public records, especially in digital space, that detail's one's minor misdemeanour.

Singh v The Queen: A Path Toward Confusion, Redundancy and Doctrinal Inconsistency

In Walkington v The Queen, the English Court of Criminal Appeal enunciated criteria fordetermining whether a building contains parts thereof for purposes of ss 76 and 77 of the CrimesAct 1958 (Vic): burglary and aggravated burglary respectively. In Singh v The Queen, the VictorianCourt of Appeal was confronted with a situation in which a trespassory entry had been made into abuilding that, according to the principles enunciated in Walkington, did not consist of any part orparts. Recognizing that there was scant evidence with which to prove that the accused’s entry hadbeen accompanied by an intention to commit one of the crimes specified in ss 76 and 77, the courtnonetheless affirmed the applicant’s conviction for aggravated burglary under s 77. In so doing,the court reaffirmed its earlier decision in The Queen v Chimirri which held that a trespassoryentry into a building results in continuing trespass for as long as the accused remains in thebuilding. In Chimirri, it was further held that if an accused forms an intention to commit one ofthe specified crimes subsequent to the initial trespassory entry and enters a part of the buildingwith that intention, he or she has committed burglary, aggravated burglary, or both by virtueof the continuing trespass doctrine. The discussion to follow will demonstrate that the court’sreasoning in both Chimirri and Singh is not only flawed, but flies in the face of the very passagesfrom the judgment of Lane LJ in Walkington that were quoted with apparent approval in Singh.The discussion will further demonstrate that the continuing trespass doctrine adds nothing of valueto the law of burglary as it existed prior to Chimirri and Singh; rather, its only effect is to addconfusion and uncertainty to what had been a settled area of the law.

Jurors' consideration of inadmissible evidence: A motivational explanation

Procedural justice research suggests that, as decision makers in a trial, jurors may be unwilling to disregard inadmissible evidence if they believe it will lead to a just outcome. In an experimental study, three hypotheses were tested: participants reading trial evidence while assuming the role of a juror (rather than observer) would report stronger motivations to protect the community; motivations to protect the community would be associated with higher conviction rates; and participants would be more likely to follow judicial instructions to disregard inadmissible evidence when they assumed an observer (rather than juror) role. Findings indicated that participants were more likely to convict the defendant when they experienced higher motivations to protect the community, reinforcing the importance of studying juror motivations. However, results revealed a complex pattern of factors affecting juror motivations as well as verdict decisions. Results are discussed in terms of the effectiveness of the curative instruction, and key directions for future research.

Skilling’s martyrdom: The case for criminalization without incarceration

This paper restricts itself to crimes involving corporate fiduciaries taking bad decisions at the expense of shareholders (corporate governance offenses). The arguments do not apply to fraud as moral wrongfulness exists in that case. To the extent that the actions covered by this paper are blameworthy, I argue that this determination must be disentangled from punishment. Disentanglement of blame from deserts suggests a via-media between criminalization and decriminalization - criminalization without incarceration. Accordingly, the legal process stops at the determination of guilt. The paper advances the criminalization debate because it does not get bogged down in the irreconcilable quarrel about whether corporate governance misbehavior ought to be criminalized for deterrence, retribution, or rehabilitation reasons, and whether it achieves any of these purposes. For these offenses, I argue that whichever theoretical justification underpins the decision to criminalize, imprisonment must not follow conviction. The conviction, despite the lack of incarceration, and the consequential sanctions likely to be imposed on the wrongdoer are sufficient to satisfy the three main justifications for criminalization. In appropriate cases, disgorgement of the offender’s gains will aid in the achievement of these objectives. The model proposed by this paper would yield significant savings by reducing prison costs. It would also allow the state to take advantage of the disproportionate cost/burden of conviction on corporate governance offenders. Owing to the offenders’ high earning potential, deterrence can be achieved at lower cost by conviction alone because the cost of incarceration does not have to be borne by the state whereas the destruction of capacity to generate similar (or indeed, any) income has to be suffered by the offender even without going to jail. If the cost of incarceration is the same for offenders with different earning capacities, imprisoning those with very high earning capacities is a waste of social capital if the objectives sought to be achieved by incarceration can be achieved through other means. Further, the cost of a conviction can be predicted with sufficient certainty in the case of white-collar criminals by looking at their earnings history, and in many cases this can be a significant sum. Unlike the common criminal who may not have a similarly predictable earning capacity and therefore suffer the same extent of monetary loss from a conviction, this loss ought to serve the deterrence function without the need for the state to spend money imprisoning the offender. In addition to loss of earning capacity, clawing back ill-gotten gains significantly adds to disutility. The paper is set out as follows: Part II briefly outlines the scope of the wrongs tackled as stemming from the principal-agent relationship in corporate law, and the inability of the law to overcome effectively problems resulting from the collectivization of the principal in that relationship. In Part III, I argue that conviction without imprisonment is a second-best alternative to decriminalization in cases where the conduct is blameworthy, and results in non-consensual harm. Part IV demonstrates the disutility caused by conviction alone to show that the objectives of criminalization can be satisfied without the need for imprisonment. Part V asserts that consequential sanctions like shaming add to the disutility of conviction. Part VI ties the thesis to Skilling’s conviction for bad business judgment devoid of moral wrongfulness to illustrate the problems with conflating blame and punishment. Part VII concludes.