‘The Law Has a Resistance to the Mother’s Experience’: Sentencing Mothers in New South Wales
In the context of rapidly rising rates of incarceration of women in New South Wales and across Australia, this thesis considers the impact of New South Wales sentencing law on mothers and argues for law reform.
When a judicial officer is sentencing an offender in New South Wales, they are required to consider the objective seriousness of the offence and the circumstances of the offender in a process of ‘intuitive synthesis’. This process seeks to consider the life history and circumstances of an offender and the likely consequences of a sentence when determining an appropriate punishment.
However, there are specific limitations on the extent to which judicial officers can consider factors relating to mothering in sentencing, including the likelihood that children will be deprived of parental care. This is due to the common law principle that separation of parents and children is part of the ordinary operations of the criminal legal system, and that hardship to third parties can only be considered in sentencing where there are exceptional circumstances. This limits consideration of certain life circumstances, with profoundly gendered impacts.
This doctoral research applies key insights from critical feminist theory on mothering, in conjunction with legal analysis and qualitative research, to demonstrate that the consequences of incarcerating mothers are shaped by a gendered social order in which women still perform the vast majority of care labour associated with children.
Qualitative interview research was conducted with judges of the New South Wales District Court, magistrates of the New South Wales Local Court, legal practitioners, support and social workers and formerly incarcerated mothers. The interview data demonstrate that children whose mothers are incarcerated experience different consequences to children whose fathers are incarcerated. Furthermore, mothers must cope with both the pain of separation from children and the profound stigma associated with failing in the maternal role. These extremely onerous dimensions of punishment are gendered and they are not recognised in sentencing decision-making. They present a structural injustice in our sentencing regime that demands consideration.
History
Year
2024Thesis type
- Doctoral thesis