by Fernanda Dahlstrom
‘The prison … functions ideologically as an abstract site into which undesirables are deposited, relieving us of the responsibility of thinking about the real issues…’
When I was six, I spent a morning in the foyer of the old Melbourne Magistrates’ Court eating fruit tingles. I ate them in reverse order of preference, starting with green. My mother came out of the courtroom to check on me every so often. There had been some problem with the car that morning. We’d had to get a taxi and she had worried about the expense. I remember being surprised by this. I had thought that transport would be provided because people always talked about being taken to court. No one ever said anything about having to get there yourself.
It was many years before I connected that boring day at court with my mother’s arrests and protestations of innocence and the increasing tension between my mother and her parents that I had always believed started when I was eight. The first time I visited my mother in Fairlea Women’s Prison, I stood in the prison yard and looked up at the concrete wall that loomed around us and thought to myself: My mother’s in jail. The two of us had lived a low-key life until then and the event seemed to have come out of nowhere, without context or foreshadowing.
Over the following years — as she was arrested, bailed or remanded, and sentenced time and time again — I came to learn the mores of prison life. I knew the officers were called ‘screws’ and someone who told on someone else was a ‘dog’. I learned to recount the sentences women received and the circumstances of their offences with the same almost ritualistic indignation as my mother. I knew how the women were strip-searched unnecessarily, and of the petty, day-to-day cruelties inflicted by screws and cops. Being so thoroughly versed in these injustices, it was easy to believe my mother’s claim that every allegation of fraud or stealing she faced over a decade was a fabrication. After her release on parole in 2002, thirty months into a forty-two month sentence, I waited for the other shoe to drop. For the arrests and house searches and denials to start up again. But this time, they didn’t.
It wasn’t until I was in my thirties that I unearthed court decisions detailing the abundance of evidence against my mother and understood that I had been mistaken in believing her innocent. Unlike most women who go to jail in Australia, she is educated, middle class and white. Some women prisoners with previously untreated mental illnesses obtain assessment and treatment for the first time while in prison.¹ Perhaps this is where the explanation for my mother’s incomprehensible decade of crime, and its subsequent abrupt ending, lies.
There are far more men in prison in Australia than women, but the incarceration rate for women is increasing much faster, with 75 per cent more female prisoners now than fifteen years ago. 34 per cent of women in prison in Australia are Indigenous², a notorious statistic given Indigenous women make up only around 2 per cent of the country’s total. In a less well-known statistic, 65 per cent of female prison entrants report a history of mental illness.³
After moving to the Northern Territory in 2009, I worked as a criminal lawyer, representing clients for whom jail was an almost inevitable outcome. The NT’s prisons lacked programs to address drug and alcohol addiction, education and training and other issues that contribute to crime – for many of my clients, prison achieved nothing other than to defer their re-offending. Later, I worked in domestic violence, representing victims of violent crimes for whom the imprisonment of a repeat offender could represent a welcome respite; then he would be released, and the pattern of violence would resume.
In 2015 I sat with a local woman, Alicia⁴, in the cluttered spare room of the Wadeye Women’s Safe House. Like many other clients before her, she told me the story of her partner’s violence. ‘That’s where he stabbed me with a knife,’ she said, indicating a jagged scar on the black skin near her shoulder. She pointed out other scars. ‘That’s where he cut me with scissors.’ ‘That’s where he hit me with a star picket.’
I noticed a scar on one of her legs. ‘Was that him too?’ I asked, hesitant. You never want to assume.
‘Oh, no, no, no,’ she said, looking horrified at the suggestion, and I felt immediately abashed. ‘No,’ she said again. ‘That was my ex.’
There are far more men in prison in Australia than women, but the incarceration rate for women is increasing much faster, with 75 per cent more female prisoners now than fifteen years ago.
For a domestic violence lawyer travelling to the remote Aboriginal communities of the Top End, a bleak task lies ahead. Horrific stories are told matter-of-factly. Shoulders are shrugged when women are asked what they want to do.⁵ A woman like Alicia can get a Domestic Violence Order (DVO) against the offender. She can apply for financial assistance for her criminal injuries, but she will be entitled to compensation only if she has ended the relationship with the offender — something that is virtually impossible for many women in remote communities. Even if the relationship has ended, there may be little point in claiming compensation; for cultural reasons, it is common for key cards along with other property to be shared among extended family. I remember one client — whom my organisation had assisted with a compensation claim — finding to her dismay that the money had been used by other people before she had any chance to benefit from it.
Furthermore, it’s often impossible to prove who inflicted an injury, or when it occurred, as many women do not go to the police or the clinic after being assaulted, for fear of retribution. Interventions focussed on removing the woman from harm are rarely a realistic option for women in remote Indigenous communities for whom family, culture, language and country are all bound up in the small area that they share with their abuser. When a woman has little education and no work history, the private rental market is out of reach. Public housing, in some communities, has a ten-year waiting list. Sending an offender to jail in these circumstances can give his victim a break, and it is with this most minimal gain in mind that courts often resort to imposing it.⁶
The majority of women who go to prison do so not for violence, but for property and drug offenses. The vast majority of women prisoners in Australia are themselves victims of violence.⁷ Western Australia has only just amended its draconian laws⁸ under which hundreds of fine defaulters (most of them poor single mothers) were jailed every year to ‘work off’ their unpaid fines. It is well known that children of mothers who go to jail often wind up in the care of the state.⁹ A large majority of women in prison — be it youth detention or adult prison — were themselves in state care.¹⁰ More than once, in my work in the Children’s Court, I saw the state carer for a juvenile client turn up to court when my client was making a bail application to voice their opposition to the child’s release, seemingly oblivious to the cycle of criminalisation and disadvantage they were helping to perpetuate.
What is less commonly noted is the way that court procedures, from the very first mention, can serve to further marginalise women. Victims of domestic violence often bemoan the fact that criminal matters are listed in court by the name of the defendant, their own centrality unacknowledged. Relatedly, child protection matters are generally listed by the name of the child’s father, who is often not involved in either the court proceedings or the life of the child. I was once involved in a matter which was given an adjournment so the department could attempt to track down and serve court documents on six East Arnhem men the mother had named as possible fathers. In a situation like this, the mother and her children must wait, their lives in a state of limbo, while parties comply with a procedure that fails to reflect their reality.
Around 2011, I assisted a 14-year-old Indigenous girl who had been charged with shoplifting. The girl was supported by her mother at court, and it quickly became evident that their family unit was just the two of them. As the child of a single mother, there are certain questions one grows indescribably weary of answering. At the top of the list is, ‘Where’s your father?’ The girl described to me her life with her mother, her school progress and sporting interests, and I proceeded into the Children’s Court to present a plea in mitigation.¹¹
The majority of women who go to prison do so not for violence, but for property and drug offenses. The vast majority of women prisoners in Australia are themselves victims of violence. Western Australia has only just amended its draconian laws under which hundreds of fine defaulters (most of them poor single mothers) were jailed every year to ‘work off’ their unpaid fines.
A few sentences into the plea, I was abruptly interrupted. Her Honour scowled down at me from the bench and demanded, ‘Where’s her father?’ A long moment passed in which I felt what Audre Lorde has called ‘that atavistic fear of an articulated power that is not on your terms’.¹² I momentarily considered trying to justify my omission to the very privileged person sitting up on a higher level than me but the distance between my life experience and hers gaped and my protestations died on my lips. Instead, I leaned down to the teenager’s side and a little part of me was killed off as I whispered in her ear, ‘Where’s your father?’
Fernanda Dahlstrom is a writer, editor and lawyer who lives in Brisbane. Fernanda has worked as a solicitor in criminal law, family law, child protection law and domestic violence law in the Northern Territory and Queensland. Her writing has appeared in The Guardian, Overland, Kill Your Darlings and Art Guide.
¹ Australian Institute of Health and Welfare ‘The Health of Australia’s Prisoners’, 2018, pp.27-28.
² Australian Law Reform Commission ‘Pathways to Justice—An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples’, 2019, p8.
³ Australian Institute of Health and Welfare. ‘The Health of Australia’s Prisoners, 2018’, p.27.
⁴ Not her real name.
⁵ On one of these visits, my colleague stopped to reprimand a child she found hitting another child. ‘We’re just playing,’ the kid reassured her. ‘She’s the mum and I’m the dad.’
⁶ Men’s behavioural change programs may offer more hope than sentencing options. Jess Hill’s book, See What You Made Me Do, (Black Inc, 2019) describes the successes achieved by an innovative counsellor who recognised the role that shame plays in driving male violence.
⁷ Kilroy, Debbie. ‘Women in Prison in Australia’ Current Issues in Sentencing Conference, 2016, p.1.
⁸ Fines, Penalties and Infringement Notices Enforcement Amendment Bill (WA), 2019.
⁹ Op cit Kilroy, p 5.
¹⁰ Op cit, Kilroy, p. 2.
¹¹ A plea in mitigation is delivered in court when a person pleads guilty to an offence. It consists of a description of the circumstances of the offence, the circumstances of the offender, and submissions about the sentence the court should impose.
¹² Lorde, Audre. Sister Outsider, Crossing Press, 2007, p.107.
Australian Institute of Health and Welfare ‘The Health of Australia’s Prisoners’, 2018.
Australian Law Reform Commission ‘Pathways to Justice—An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples’, 2019.
Kilroy, Debbie. ‘Women in Prison in Australia’, Current Issues in Sentencing Conference, 2016.
Davis, Angela. Are Prisons Obsolete? Steven Stories Press, 2003.
Lorde, Audre. Sister Outsider, Crossing Press, 2007.
Hill, Jess. See What You Made Me Do, Black Inc, 2019.
Fines, Penalties and Infringement Notices Enforcement Amendment Bill (WA), 2019.