Media as pillory: the power to 'name and shame' in digital times

This article reports on research being undertaken with the support of the Victorian Law Foundation that looks into media shaming of 'ordinary' people who commit minor crimes and how it might be changing in digital times.

The role of verbal-textual hostility in hate crime regulation : final report

Verbal-textual hostility (VTH) plays a significant role in victims’ subjective perceptions of hatred and police officers’ assessment of a prejudice-related violence. Yet, to date, the role of VTH in ‘hate’ crime has been under-researched. The aim of this research has been to assess and evaluate the forensic possibilities contained in a closer reading of the words used in these crimes. Through a content analysis of incident characteristics and officers’ narratives of incidents, this report maps out how key speech-text indicators may assist to better evaluate the force and effects of prejudice-related violence. It is expected that this type of contextual analysis will lead to the development of more sophisticated risk assessment tools for use in frontline policing, and more targeted service enhancements for victims.

Australian police officers' perceptions of sex offender registries

Sex offender registration schemes exist in most English speaking countries to assist police in the investigation of new crimes and to deter known offenders. To date, however, very little research has examined the efficacy of these registers. This study addresses this issue by providing the first qualitative analysis of police officers' perceptions of registration schemes. Twenty-four Australian police professionals (whose jobs were primarily associated with the operation of sex offender registration schemes) participated in focus groups in groups of 2–5 officers. Officers were recruited across three jurisdictions where quite distinct registration schemes operated. They were asked to reflect on how their register operates, how effective and efficient it is, the challenges faced in its administration and how the registry process might be improved. The key challenges addressed included; limitations in risk assessment expertise, restriction in legislative powers, and inadequate opportunity for specialisation. The implications for current practice are discussed.

A Rational Approach To Sentencing White- Collar Offenders in Australia

There are no overarching (and few settled) principles governing the sentencing of white-collar offenders. This is especially the situation in relation to the relevance of public opprobrium to the sentencing calculus and the manner in which employment deprivations stemming from the penalty impact on the sentence. To the extent that there is general convergence in the approach to sentencing white-collar offenders, the approach is often not sound. This is the case in relation to the minor sentencing discount accorded for previous good character, and the prevailing orthodoxy which assumes that offences targeted at major institutions, such as banks, meaningfully impair community confidence in such institutions. Fundamental reform of the manner in which white-collar offenders are sentenced is necessary in order to make this area of law more coherent and doctrinally sound. These reforms include providing a significant and pre-determined discount for restitution, reducing the weight given to general deterrence in the sentencing calculus, and providing a greater discount for previous good character and employment deprivations suffered as a direct result of the sentence. Further, crimes against individuals should be regarded as being more serious than those committed against large corporations or the public revenue. The article focuses on the existing law in Australia, however, the reform proposals and doctrinal analysis could be applied to all jurisdictions.

Correlates of criminal victimisation among police cell detainees in Victoria, Australia

People with mental illness are more likely to be crime victims than others; however, little is known about the relationship between offending and victimisation among mentally ill offenders. This study investigated the rates and types of victimisation among people detained in police cells (N = 764), with and without histories of mental illness. Those with mental disorders were 1.56 times (95% CI = 1.11–2.17) more likely to be victims of violent crimes than other detainees. Some subgroups of people with mental disorders were not over-represented as victims, raising the possibility that they were less inclined to report certain types of crimes. Implications are discussed with reference to police practice.

International sex offender registration laws : research and evaluation issues based on a review of current scientific literature

In many jurisdictions, anyone convicted of a sexual offense is required to register with police, often for life. Nine different countries have now implemented sex offender registries in an attempt to protect the public from the perceived threat posed by sexual offenders. Yet such laws have been criticized as being overly inclusive, tying up limited law enforcement resources to track many offenders who pose little risk of sexual reoffending. This paper considers the available research evidence relevant to the effectiveness of such laws for the deterrence of sexual offending and the investigation of sex crimes. It is concluded that significant gaps persist in our knowledge of whether existing laws effectively reduce sexual offending or reoffending and that large-scale, well-designed studies of the impact of sex offender registration on rates of offending, the collateral consequences to offenders and their families, and the costs of such laws are needed.

The chaotic state of the law of rape in Victoria: a mandate for reform

This article is intended as a final commentary and sequel to two earlier articles in this journal that have examined the arcane and circular wording of s. 37AA of the Crimes Act 1958 (Vic) and its patent incompatibility with ss 36 and 38 of that Act that define the elements of rape. In particular, this article will revisit many of the essential points raised in the first two articles in order to afford readers with an appropriate backdrop against which the Victorian Court of Appeal’s decision in GC v The Queen will be examined. The article concludes with a strenuous recommendation that s. 37AA be repealed or substantially amended in order to comport with ss 36 and 38 as well as the Court of Appeal’s decision in NT v The Queen that significantly reshaped the Morgan principle.

The Mengistu genocide trial in Ethiopia

This article analyses the sentencing judgment issued on 11 January 2007 bythe Ethiopian Federal High Court in the case of Mengistu Hailemariam andhis co-accused who had been tried, among others, on charges of genocide andcrimes against humanity. This was the first African trial where an entire regimewas brought to justice before a national court for atrocities committed while inpower. Twenty-five of the 55 accused found guilty, including Mengistu, were triedin absentia (Mengistu remains in exile in Zimbabwe). The trial took 12 years,making it one of the longest ever trials for genocide. In December 2006, Mengistuwas convicted by majority vote of genocide and crimes against humanity pursuant toArticle 281of the1957 Ethiopian Penal Code, which includes ‘political groups’amongthe groups protected against genocide. A dissenting judge took the position that theaccused should have been convicted of aggravated homicide because the relevant part of the provision had been repealed. A few weeks later, the Court, by majority,sentenced the top tier of the accused to life imprisonment, taking into accountcertain extenuating circumstances. If not for these, the death penalty would havebeen imposed. In addition to ensuring some accountability, the judgmentis important for providing an official and detailed account of what happenedin those years in Ethiopia under Mengistu’s reign. Given that in Ethiopia there areno official gazettes where court judgments are published, it is unlikely that the publicwill be able to read the judgment and thus become aware of what had happened.In addition to analysing the reasoning of the court, this article also looks intothe prevailing political circumstances in the country and reflects upon the trialand the reception that this important decision has had, and will receive, in thewider community.

Looking for a needle in the haystack: arsonists with intellectual disability in Australia

Arson attracts substantial penalties in Australia, reflecting the serious consequences of the crime. It is often asserted that people with intellectual disability are particularly likely to commit arson offences, and yet it is difficult to establish the prevalence in this population. This study sought to describe the characteristics of those people appearing in Australian Courts who have an intellectual disability and have been charged with arson. A search of the AustLII, LexisNexisAU and WestLawAU databases over the 10-year period from 2003 to 2013 identified 50 arson convictions reported in case law. Of these, six involved an offender with an identified intellectual disability. These offenders were likely to have committed other crimes at the time, or to have prior offences and were likely to receive longer sentences of imprisonment than their non-intellectually disabled counterparts. These findings are discussed in terms of the barriers that exist to understanding more about this under-researched population.

Offending: drug-related expertise and decision making

Drug use is endemic within offender populations and, as a result, considerable heterogeneity can be found in drug-related crime. Expertise in drug-related offending covers an equally broad base from internal mental processes through skill acquisition to social interactions. This review considers decision making and expertise for crimes in the domains of direct causal effects (e.g., burglary) and non-causal relationships (e.g., apprehension avoidance, detection). Also considered is the notion of expertise as it applies to addiction, in particular the conscious and unconscious goal-directed behaviors articulated in the Selfish Goal model (Huang & Bargh, 2014) and a cool cognition/hot affect dual processing model of criminal decision making (Van Gelder, 2013). The review findings would suggest (a) the need for more focused research into whether expertise differs as a function of drug use and (b) a paradigm shift in terms of treatment for drug-using offenders.

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.

A non-stationary panel data investigation of the unemployment–crime relationship

Many empirical studies of the economics of crime focus solely on the determinants thereof, and do not consider the dynamic and cross-sectional properties of their data. As a response to this, the current paper offers an in-depth analysis of this issue using data covering 21 Swedish counties from 1975 to 2010. The results suggest that the crimes considered are non-stationary, and that this cannot be attributed to county-specific disparities alone, but that there are also a small number of common stochastic trends to which groups of counties tend to revert. In an attempt to explain these common stochastic trends, we look for a long-run cointegrated relationship between unemployment and crime. Overall, the results do not support cointegration, and suggest that previous findings of a significant unemployment–crime relationship might be spurious.

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.

Indelible shame? News reporting of non-convictions in digital space

This paper examines the role of media in publicising the names of people who receive a non-conviction for a minor crime. It positions the news media’s ability to “name and shame” people who appear before the courts as a powerful cultural practice, rather than adopt a widely celebrated Fourth Estate view of the press as a watchdog on the judicial process. The research draws on interviews conducted in two regional centres of Victoria, Australia, with those involved in news coverage of very minor crimes where non-convictions were imposed. Their spoken words reveal a range of tensions linked to reporting non-convictions in the digital age. In the eyes of the law, a non-conviction means that an offender has an opportunity to rehabilitate away from the public gaze. However, the news media ‘s ability to name such offenders online has the potential to impose a lasting “mark of shame” in digital space that can prevent them gaining employment or housing, and damage their social standing and relationships. We live in a media-saturated culture in which the vast majority of people rely on news media for information about judicial proceedings and in turn, the news media constructs public understanding of the law through the way it represents crime and court processes. This paper argues that traditional understanding of the nexus between the judicial system and the Fourth Estate fails to acknowledge the news media’s considerable power outside the officially recognised operation of the open justice relationship, and that this deserves attention in the digital age

The intoxication defence: toward a better understanding of current doctrine and reform

This article deals with the contentious issue of the extent to which an intoxicated person, particularly one who has become inebriated of his or her own volition, should be permitted to escape liability on the basis that the degree of inebriation was sufficient to preclude the fact-finder from finding a volitional act or omission on the part of the accused and/or that he or she acted with the required mens rea, if any, as defined by the common law or statutory definition of the offence. In addressing this issue, the article embarks upon a thorough analysis of the House of Lords seminal decision in Director of Public Prosecutions v Majewski (1977) AC 443 which, despite some very harsh criticism of late, continues to be the leading authority on the question in the United Kingdom, United States and Australia. As part of this analysis, the article examines and ultimately attempts to resolve the longstanding controversy over what has proved to be the elusive distinction between crimes of basic or general intent and those of specific intent. The article concludes by rejecting the Majewski principles in favour of those enunciated by the High Court of Australia in R v O'Connor (1980) 146 CLR 64; 54 ALJR. In reaching this conclusion, the article notes various legislative and academic proposals for reform as well as statutory reforms in the United Kingdom, United States, Canada and Australia.