Indigenous Sentencing Courts and Partner Violence: What Happens to Gender Power Imbalances During the Sentence Hearing?

Abstract

This paper goes some way in mapping and assessing the processes of Indigenous sentencing courts when dealing with family violence offences. In particular this research focuses on intimate partner violence (rather than other forms of family violence) since it is the most frequent form of family violence in Indigenous communities. Rates of intimate partner violence and intimate homicide in Indigenous communities are widely documented as being much higher than that in non-Indigenous communities, despite the fact that measuring these rates is not straightforward. The use of the courts for sentencing family violence offenders has been supported and encouraged by many of the key players and Elders involved with the courts. However, others, including key players and Elders involved with the Koori Courts in Victoria, consider the dynamics surrounding the offence of family violence to be too complex for consideration by the Elders which sit on the Indigenous sentencing courts. The presence of gendered power imbalances in a hearing concerning domestic and family violence is often identified as being a particularly problematic aspect of alternative justice processes. Victims who are present at hearings held in alternative justice forums often lack proper support to counter the risks of further abuse and control continuing during such hearings. The main focus of this paper is the extent to which gendered power imbalances are present in sentencing hearings conducted in Indigenous sentencing courts and how such power imbalances are addressed by the presence of Elders. The research specifically focuses on the courts in New South Wales and Queensland, and on the views of Magistrates, Elders, court workers and domestic violence support workers associated with those courts. Feminist critical race theories that have explored the complexities involved in responding to family violence in Indigenous communities, are used as the theoretical framework from which to consider whether the processes of the Indigenous sentencing courts are suitable for dealing with offenders and victims of intimate partner violence. In particular, emphasis will be placed on studies that have focused on critiquing the different types of court processes that are used for resolving matters involving family violence. The paper firstly describes the different processes of the Indigenous sentencing courts in Queensland and New South Wales. Next, it outlines what feminist and critical race scholars have said about using alternative justice forums to deal with family violence offences and whether these alternative justice forums are able to rectify any gender power imbalances which exist during the hearing itself. Finally, findings from an analysis of data collected from 39 interviews and eight observations of intimate partner violence sentencing hearings in the courts is presented to discuss whether the presence of Elders in Indigenous sentencing courts is able to provide a buffer for the victim against experiencing gendered harms during the hearing.