Seeing Children's Suffering: Feminist Legal Methods, Sentencing Decisions and Incarcerating Mothers Who Offend

The child comes firstIn 1992, Helena Kennedy QC criticised British officials' indifference to children's suffering when sentencing a mother to prison:in our Family Courts the philosophy is that the child comes first in any dispute. Children need their parents, and only in the most extreme circumstances do we break that bond. Yet in the criminal courts officials wash their hands of responsibility by saying that if her children suffer it is the criminal woman who is to blame. (1992, p. 79)The assumption behind Kennedy's position promoting the child comes first principle is that criminal law courts should consider offenders' parenting responsibilities when deciding to incarcerate a mother who has "bonded" with her dependent child. My immediate response to Kennedy's concern is to query whether her criticism applies twenty years later to officials in Australian criminal courts. Do sentencing judges strive to preserve "that bond" or, to use Abramowicz's (2012, p. 320) phrase, "the bonding process"? My task in this paper, then, is to clarify how that bond is dealt with for a small group of female offenders in Australian criminal law courts. In so doing, I emphasise elements of a feminist legal method."How Australian judges have dealt with offenders who are mothers of dependent children, particularly pre-school aged children, matters for a range of reasons. It matters because the number of female prisoners rose from 5% in the mid-nineties to around 8% of the prison population nationally and 12% in Western Australia in 2008: 53% were Aboriginal women in 2008 and most of these women have dependent children (Department of Corrective Services, 2009, pp. 11, 26, 63; Bond & Jefferies, 2010). Sisters Inside, a community organisation working on improving services for women in the criminal justice system, cite statistics showing that 85% of women incarcerated in Australia are the primary carers of children and incarcerating their mother is a "destabilising and emotionally traumatic experience" (Australian Law Reform Commission, 2006, p. 189). It matters because women retain, for the large part, responsibility for caring for young children, despite some sharing of parental and household tasks in some families. It matters because, some have argued, breaking that bond does incalculable damage that breeds the next generation of offenders (see Abramowicz, 2012) or possibly contributing to, as Judge Patricia Wald (1995, p. 138) posited, the "next generation of unloved, unnourished, sociopathic criminals". It matters finally because offenders' children often require State care if they cannot stay with their mothers or with family and that adds to the social burden.Listing statistics and generalisations hardly captures the details of female offenders' lives. Such information though confirms that gender and ethnicity issues remain alive and relevant enough for me to consider how feminist legal methods help uncover how courts have sought to protect the bond. I refer here to the bond to denote the complex and often thwarted mother and child relationship as an amalgam of emotional, social and physical responses, and demands. Many women in multi-cultural Australia assume primary responsibility for caring for young children (see Miranda (2011, p.19)), a responsibility that seems resistant to change. I limit the discussion here to cases involving non-violent offending mothers for pragmatic reasons. That way, the discussion will proceed without the complex overlay of having to explore how the criminal justice system responds to violent offenders. That topic deserves special attention beyond this article's concerns.I have selected several court cases to explore how mothers who offend and their children are considered in criminal law courts. I begin by outlining my position as a necessary requirement of positionality, the epistemology that Bartlett (1990) argued, affirms feminist legal methods. Secondly, I introduce Bartlett's feminist methods and apply these to several cases. …