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Matthe, Sibella --- "Girls in juvenile detention: Deprioritised and re-traumatised" [2018] PrecedentAULA 42; (2018) 147 Precedent 14

GIRLS IN JUVENILE DETENTION

DEPRIORITISED AND RE-TRAUMATISED

By Sibella Matthews

Girls in custody have high and differing needs that are only exacerbated by the punitive and isolating nature of detention facilities. The majority have experienced abuse, trauma and neglect prior to entering detention, at greater rates than do boys in custody. Yet, the small number of girls in detention means that they are subjected to inferior standards of care, conditions and programming compared with boys. Recent reports have revealed the traumatising impact of detention on youth, but girls’ experiences remain obscured. They are the hidden victims of a failing system.

INTRODUCTION

Kiara^[1] began running away from home because it was her only escape from sexual abuse at the hands of her stepfather. In her mid-teens she was placed in a Queensland youth detention centre, where she was the only girl among 17 boys. She begged to be moved, rather than be isolated in her cell, segregated so that the boys could use the recreation spaces. Kiara told the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission) that her isolation made her a target. Over a period of three years in detention she was again sexually abused, this time by an officer responsible for her care and protection, who told her ‘no one will believe you’. Kiara was a child but blamed herself for the abuse, believing that in some way she attracted ‘these sorts of people’.^[2]

Each day, there are about 90 girls living in secure juvenile detention facilities across Australia.^[3] Kiara’s story is one of many in which the justice system opted for imprisonment instead of treating the trauma that drove her criminal offending. And while this is also true for many boys in the juvenile justice system, girls represent a particularly vulnerable population due to the high levels of abuse and neglect they experienced prior to entering detention, only to be wedged into solutions and programming designed for boys. Kiara’s experience of being deprioritised and re-traumatised in detention is typical for girls in Australia’s juvenile justice systems.

HIGH RATES OF ABUSE, TRAUMA AND NEGLECT

There is an inherent cruelty in a government incarcerating girls for behaviour that stems from the same government’s failure to shield them from abuse, trauma, and neglect. Girls involved in Australian juvenile justice systems are 1.5 times as likely as boys to have been involved in the child protection system.^[4] Over half the girls in detention facilities are also in the child protection system (56.7 per cent of Aboriginal and Torres Strait Islander females and 60.2 per cent of non-Indigenous females), compared with about 40 per cent of boys.^[5]

These figures are closely correlated with the high levels of self-reported abuse experienced by girls prior to entering detention. A 2015 survey on the health of young people in custody in NSW found that nearly half of the girls in detention reported experiencing severe childhood abuse or neglect, compared with about a quarter of the boys in detention.^[6] Girls are not only more likely to be victims of abuse, they are also more likely to develop post-traumatic stress disorder following significant trauma,^[7] which is associated with a range of other negative health outcomes for girls, including substance use and self-harm.^[8] The same survey reported that girls are three times as likely to report self-harm than boys in detention.^[9]

The abuse-to-prison pipeline is a real phenomenon where girls who experience sexual or physical abuse are then routed into the juvenile justice system.^[10] The offences committed are an externalisation of untreated trauma, and are rarely violent or threaten public safety. Abuse and neglect suffered by children can disrupt the emotional, cognitive and interpersonal development processes throughout adolescence, which in turn impedes emotion and behaviour regulation, interpersonal trust and complex problem-solving abilities.^[11] As a result, girls resort to coping strategies and self-preserving behaviour, such as relational aggression, running away and substance use. The juvenile justice system is then used as a response for their ‘uncontrollable’ behaviour, often for relatively minor crimes. For example, a study of a random sample of NSW Children’s Court criminal matters involving girls in out-of-home care found that half were facing the court for only property damage offences – including one case where a girl had put several small holes in the wall of her room after an argument with a carer.^[12]

The combination of high rates of prior abuse and overly punitive responses to low-level offending leads too many girls to incarceration, where the system offers more harm than help. Children with histories of trauma require environments where they feel physically and psychologically safe, which is often at odds with what a child can expect in a punitive environment like a juvenile detention facility. Inherent aspects of detention, including physical restraint, seclusion, loss of privacy, control over their bodies, violence among peers, intrusive search procedures, and staff insensitivity, can exacerbate the trauma previously experienced by girls in detention.^[13] Unsurprisingly, the same NSW study mentioned earlier found that over 80 per cent of girls in detention reported having a psychological disorder.^[14] As seen in Kiara’s case, detention settings also present elevated situational risks for further incidents of abuse. While there is no cross-jurisdictional collection and public reporting of incidents of child sexual abuse in Australia’s juvenile detention facilities, the Royal Commission reported that from January 2005 to June 2015 there were 121 incidents that appeared to amount to child sexual abuse in Victorian youth detention settings.^[15]

WEDGED INTO SOLUTIONS DESIGNED FOR BOYS

Because the stereotypical juvenile offender is ‘a violent young male’, theories about delinquent behaviour are often based on adolescent boys. In turn, programming within the juvenile justice system has been developed to meet the needs of male offenders, such as learning how to self-regulate aggression, rather than developing self-esteem, building one-on-one relationships and addressing mental health needs, all of which are crucial for girls. Numerous reports into Australian juvenile detention centres have exposed how girls, being a small minority of the detained population, are wedged into facilities designed for boys, where their needs are deprioritised. For example, an independent review of youth detention ordered by the Queensland Attorney-General in 2016 found that ‘it is not clear how, or if, the needs of young women are taken into account in program design and development’.^[16] Similarly, an independent review of Victoria’s youth justice system published in 2017 found that ‘these environments can be highly intimidating for young women and negatively impact on their rehabilitation’.^[17] The conditions of the three detention facilities detailed below further illustrate these findings.

Banksia Hill is one of 16 juvenile detention facilities across Australia, but it is the only facility in Western Australia, one of the largest jurisdictions in the world by land area. In 2015, the Inspector of Custodial Services reported that some Banksia Hill Youth Custodial Officers expressed openly ‘hostile and dismissive’ attitudes towards working with the female residents, with one officer stating that ‘it would be preferable if the girls solved their issues by fighting like the boys did’.^[18] In late 2016, the operators of Banksia Hill abruptly decided to move all the girls from their purpose-built, self-contained female accommodation precinct to a unit designed for short-term behaviour management of boys. The Inspector of Custodial Services found that the unit was designed to be oppressive and punitive, strewn with graffiti, had minimal outdoor space and contained temporary screens that prevented visual but not verbal interaction with the boys in nearby cells.^[19] The Inspector held that it was ‘totally unsuitable accommodation’.^[20] The behaviour and wellbeing of the girls plummeted. One young girl was found soaked in her own urine after spending 72 hours in an observation cell.^[21]

Even more disturbing are the recent findings of the Northern Territory Royal Commission regarding girls in Don Dale Detention Centre. The Commissioners found that girls had less access than their male counterparts to basic amenities, recreation areas and education.^[22] The co-location of girls and boys meant that girls were more frequently locked in their rooms so that the male residents could engage in activities throughout the centre.^[23] For a period of time, the girls’ education at Don Dale consisted of colouring-in worksheets in a small back room, while the only teacher taught the boys.^[24] Girls’ daily attendance at school was also frequently delayed due to having 11 girls share only one shower and toilet, and they often had to go without showers when no female staff were rostered for a shift.^[25] The most concerning finding was that girls were stripped by male staff members and subjected to sexualised touching and comments by the youth justice officers in charge of their wellbeing.^[26] On one occasion, a youth justice officer sent unsolicited sexualised Facebook messages to a teenage girl upon release. She later returned to Don Dale while the officer was still employed in a position responsible for her care.^[27]

The last of the all-girls facilities in Australia, the Juniperina Juvenile Justice Centre in NSW, is no longer in operation, having closed in 2016. The girls are now housed in Reiby Juvenile Justice Centre, a nearby boys’ facility. Despite being purpose-built for girls, even Juniperina offered fewer opportunities and programs to its residents than boys’ facilities. A 2015 report by the NSW Custodial Inspector found that girls were not given the same access to transitional services and work readiness schemes, nor the same access to digital and technology facilities.^[28] Also, the Inspector found that girls at Juniperina were strip-searched before changing into overalls for visits (including non-contact visits), which was not practiced in the boys’ facilities and served no security purpose.^[29] The NSW government has not had a specific policy on girls in the juvenile justice system since the Girl’s and Young Women’s Action Plan expired in 2004. This is despite research funded by NSW Health demonstrating that girls in custody have far higher rates of unstable accommodation, head injury, sexual abuse, and traumatic events prior to entering detention than their male peers.^[30]

OPPORTUNITIES FOR REFORM

In recent times, the rates of girls involved in crime has increased at a faster rate than boys. Girls were involved in only one in 13 criminal matters in the NSW Children’s Court in 1960, and one in four by 2007.^[31] Changes in the way society perceives girls along with legislative and policy shifts have meant that behaviours which would once have received a welfare-oriented response are now being punished in the Children’s Court.^[32] The reality is that courts lack the resources or capacity to identify and recognise the trauma that is often the catalyst for girls’ criminal offending, and instead allow those girls to further penetrate the juvenile justice system where their needs go unaddressed. Given their role as the gatekeepers to juvenile detention facilities, enhancing the capacity of the Children’s Court to better identify and understand histories of trauma and abuse has the potential to change the trajectories of system-involved girls. For example, Children’s Court judges could use the ACE (adverse childhood experience) scores assessment tool, which provides a snapshot of a child’s trauma history, to justify a more welfare-oriented response.

In addition, Australia’s over-reliance on detention for children on remand must change. Australia is a signatory to the UN Convention on the Rights of the Child, which states that children shall be deprived of their liberty only as a last resort.^[33] Despite this commitment, the majority of children in detention are unsentenced, and are merely awaiting a court date or the outcome of their case.^[34] This hurts girls in particular, with a higher proportion of the girls than boys in detention being unsentenced. In 2017, 75 per cent of girls in detention on an average night in Australia were unsentenced compared with 63 per cent of boys.^[35] The reason that so many girls are sent to detention on remand is not because they are a greater threat to public safety or a flight risk. Instead, detention is often the only feasible option available to the Children’s Court when a girl does not feel safe or comfortable in her own home or in an out-of-home placement.

Greater investment in community-based alternatives to detention, such as non-residential treatment facilities and shelters, would prevent courts from sending girls to detention merely because of a lack of options available and would also be more effective in reducing recidivism. A report by the Australian Institute of Health and Welfare (AIHW) suggests that community-based alternatives are more effective for girls compared with boys and that detention in secure confinement is less effective for girls compared with boys. The AIHW findings suggest that girls are far less likely than boys to re-offend after completing a sentence of community-based supervision, with less than 42 per cent receiving another sentence within a 12-month period.^[36] In comparison, if girls had instead completed a sentence of detention, they were more likely than boys to be re-sentenced following release, with the vast majority returning within a 12-month period.^[37] It appears that when compared with boys, girls may re-offend less following a period of community-based supervision and re-offend more following a period of detention.

The need for community-based alternatives to detention is particularly necessary to allow Indigenous girls to maintain their inherent connection to country. Despite Indigenous children representing less than 6 per cent of children aged 10-17 years in Australia,^[38] Indigenous girls made up 53 per cent of the female youth detention population in 2015-16, and were nearly 20 times more likely to be in detention than their non-Indigenous counterparts on any given day.^[39] Yet, juvenile detention facilities often lack crucial links to community and culture for Indigenous young people. For example, the Inspector of Custodial Services in Western Australia recently found that the skills and community connections of Aboriginal staff at Banksia Hill were under-valued, under-used, and not co-ordinated into the centre’s operations, nor was there any ongoing Aboriginal cultural awareness training.^[40] A further reform to help address the systemic racial inequalities is the expansion of the Koori Court, which currently only operates in NSW and Victoria for Aboriginal and Torres Strait Islander youth. A recent evaluation by the University of Western Sydney found that the NSW Koori Court cut the average number of days in youth detention in half by deferring sentencing for a period of intensive case management and monthly round-table hearings.^[41]

CONCLUSION

Australia’s juvenile justice systems rarely consider the needs of girls who criminally offend despite their high rates of unaddressed abuse and neglect. Contact with the juvenile justice system and time in detention is a traumatic experience for youth of any gender and system reform is desperately required for all. But any reform of Australia’s juvenile justice systems will only serve to perpetuate the profoundly masculine status quo unless the reforms are designed with girls in mind. Only a system that considers the individual needs and experiences of girls could have recognised Kiara’s years of sexual abuse and provided her with the treatment that she needed and deserved.

Sibella Matthews is a solicitor and juvenile justice policy specialist, recently graduated from the Master in Public Policy program at the Harvard Kennedy School of Government. EMAIL sibella_matthews@hks18.harvard.edu TWITTER twitter.com/sibellam.

^[1] Name changed by the Royal Commission in Institutional Responses to Child Sexual Abuse.

^[2] Royal Commission into Institutional Responses to Child Sexual Abuse, ‘Kiara’s Story', Private Sessions, 17 July 2018, <https://www.childabuseroyalcommission.gov.au/narratives/kiaras-story>.

^[3] Australian Institute of Health and Welfare, Youth Detention Population in Australia 2017 (Canberra, AIHW, 2017) 1, <https://www.aihw.gov.au/reports/youth-justice/youth-detention-population-in-australia-2017/contents/table-of-contents>.

^[4] Australian Institute of Health and Welfare, Young People in Child Protection and under Youth Justice Supervision 2015-16 (Canberra: AIHW, 2017) 15, <https://www.aihw.gov.au/reports/youth-justice/young-people-in-youth-justice-supervision-2015-16/contents/table-of-contents>.

^[5] Ibid, 18.

^[6] Justice Health & Forensic Mental Health Network and Juvenile Justice NSW, 2015 Young People in Custody Health Survey: Full Report (Sydney, 2017) 74, <http://www.justicehealth.nsw.gov.au/publications/2015YPICHSReportwebreadyversion.PDF> .

^[7] K B Nooner et al, ‘Factors Related to Posttraumatic Stress Disorder in Adolescence', Trauma, Violence & Abuse, Vol. 13, Issue 3, 2012, 153.

^[8] P K Kerig and J D Ford, ‘Trauma among Girls in the Juvenile Justice System’ (Los Angeles, California: National Child Traumatic Stress Network Juvenile Justice Consortium, 2014) 7, <https://www.nctsn.org/sites/default/files/resources//trauma_among_girls_in_the_jj_system.pdf>.

^[9] See above note 6, xxii.

^[10] Human Rights Project for Girls, Georgetown Law Center on Poverty and Inequality, and Ms. Foundation for Women, The Sexual Abuse to Prison Pipeline: The Girls’ Story (Washington, 2015) 5, <http://rights4girls.org/wp-content/uploads/r4g/2015/02/2015_COP_sexual-abuse_layout_web-1.pdf> .

^[11] See above note 7 and note 8.

^[12] K McFarlane, ‘From Care to Custody: Young Women in Out-of-Home Care in the Criminal Justice System', Current Issues in Criminal Justice, Vol. 22, 2010-2011, 347-8.

^[13] M Hennessey et al, ‘Trauma among Girls in the Juvenile Justice System’ (National Child Traumatic Stress Network Juvenile Justice Working Group, 2004) 5, <https://www.gvsu.edu/cms4/asset/903124DF-BD7F-3286-FE3330AA44F994DE/trauma_among_girls_in_the_jj_system.pdf>; See above note 8.

^[14] See above note 6, 68.

^[15] Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report, Volume 15: Contemporary Detention Environments (Commonwealth of Australia, 2017) 64, <https://www.childabuseroyalcommission.gov.au/final-report>.

^[16] K McMillan QC and M Davis, Independent Review of Youth Detention (Queensland Government, 2016) 227.

^[17] P Armytage and J Ogloff AM, Youth Justice Review and Strategy: Meeting Needs and Reducing Offending (Victoria State Government, 2017) 299, <http://www.justice.vic.gov.au/home/justice+system/youth+justice/youth+justice+review+and+strategy+meeting+needs+and+reducing+offending> .

^[18] Office of the Inspector of Custodial Services, Report of an Announced Inspection of Banksia Hill Juvenile Detention Centre (Government of Western Australia, 2015) 89, <http://www.oics.wa.gov.au/wp-content/uploads/2015/06/OIC-Banksia-Report-97.pdf> .

^[19] Office of the Inspector of Custodial Services, Behaviour Management Practices at Banksia Hill Detention Centre (Government of Western Australia, 2017) 37, <http://www.oics.wa.gov.au/wp-content/uploads/2017/07/Full-report.pdf> .

^[20] Office of the Inspector of Custodial Services, 2017 Inspection of Banksia Hill Detention Centre (Government of Western Australia, 2018) 31, <http://www.oics.wa.gov.au/wp-content/uploads/2018/04/Banksia-Hill-Report-116-FINAL.pdf> .

^[21] See above note 19, 38.

^[22] M White and M Gooda, Report of the Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory: Volume 2A (Commonwealth of Australia, 2017) 437, <https://childdetentionnt.royalcommission.gov.au/Documents/Royal-Commission-NT-Final-Report-Volume-2A.pdf>.

^[23] Ibid, 438.

^[24] Ibid, 439.

^[25] Ibid, 437.

^[26] Ibid, 449.

^[27] Ibid, 448.

^[28] Inspector of Custodial Services, Making Connections: Providing Family and Community Support to Young People in Custody (New South Wales Government, 2015) 34–35.

^[29] Ibid, 25.

^[30] See above note 6, xx–xxii.

^[31] Australian Institute of Health and Welfare, Girls and Young Women in the Juvenile Justice System (Canberra: AIHW, 2012) 5, <https://www.aihw.gov.au/reports/youth-justice/girls-and-young-women-in-the-juvenile-justice-syst/contents/table-of-contents>.

^[32] Ibid.

^[33] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS (entered into force 2 September 1990) <http://www.refworld.org/docid/3ae6b38f0.html> .

^[34] See above note 4, 12.

^[35] See above note 3, 9.

^[36] Australian Institute of Health and Welfare, Young People Returning to Sentenced Youth Justice Supervision 2015-16 (Canberra: AIHW, 2017) 16, <https://www.aihw.gov.au/getmedia/c390dd1b-a900-4f06-b398-18399dc10ccb/21027.pdf.aspx?inline=true>.

^[37] Ibid.

^[38] See above note 15, 73.

^[39] Human Rights Law Centre and Change the Record, Over-Represented and Overlooked: The Crisis of Aboriginal and Torres Strait Islander Women’s Growing over-Imprisonment (2017) 10, <https://static1.squarespace.com/static/580025f66b8f5b2dabbe4291/t/59378aa91e5b6cbaaa281d22/1496812234196/OverRepresented_online.pdf>.

^[40] See above note 20, 35.

^[41] C Wahlquist, ‘Indigenous Elders Urge Expanded Koori Courts to Help Cut Juvenile Detention Time', The Guardian (online), 6 May 2018, <http://www.theguardian.com/australia-news/2018/may/07/indigenous-elders-urge-expanded-koori-courts-after-juvenile-detention-time-cut> .