JSB173 Week 7 Revision
The Criminal Courts, Indigenous Australians and Gender
Research has shown that women are less likely to appear in court and when they are
established as guilty they receive less harsh sentences, shorter imprisonment terms
and more likely than men to be granted early release on parole.
Research has also shown that Indigenous people are over-represented in the courts
and compared to non-indigenous people usually receive harsher sentences.
At first glance, one might say the criminal justice system is sexist, racist or biased
because of these sentencing and treatment disparities. However, it is easy to forget
that other issues such as social, economical etc. may be at play here and contribute
towards the overall disparities.
Criminologists have put forwards three possible hypotheses to explain the
differences in this court data:
o Differential involvement
o Negative discrimination
o Positive discrimination
Differential Involvement Hypothesis
Existing differences in other relevant factors which may influence sentencing and
contact with the system, for example the over-representation of Indigenous peoples
could instead be due to their higher rate of committing serious crimes. In this case,
there would be no discrimination on behalf of the court because other relevant legal
factors have influenced the decision.
Negative Discrimination Hypothesis
Some argue that a person’s race or other factors actually will contribute to
sentencing outcomes etc. and that ethnic minority groups are likely to be
This is because offender characteristics such as gender or ethnicity may influence
judicial decisions relating to offender blameworthiness and culpability as well as
assessment of risk to the community in future.
Increased pressure and shorter times to make decisions can influence judges to