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Public Interest Law Journal of New Zealand |
Last Updated: 21 October 2014
Violent Girls and the Youth Justice System: Why Current Systems are Failing this At Risk Population
Charlotte Best*
Current youth justice systems appear to be failing a specific group of offenders: violent girls. Violent girls are a unique group of offenders who are both underestimated and feared by society. Furthermore, they bring complex histories and problems with them to the system. The New Zealand youth justice system works on the assumption that what works for boys must also work for girls, and so gender specific provisions are not present in legislation. The same can be said about international instruments, which reference the ‘needs’ of the individual but never differentiate between girls and boys. Concern about the current approach to dealing with violent girls is rising amongst those in the youth justice community. This paper argues that more positive gender specific initiatives are needed to effectively cater for violent girls in the youth justice system.
This paper will evaluate the extent to which existing youth justice systems cater for violent girls. For the purpose of this paper the term ‘violent girls’ will be used to refer to girls aged 14 to 16 years who are involved in violent offending. I will begin by identifying and critiquing the legal and societal issues relevant to the construction of violent girls. I will then examine how violent girls would be catered for in a welfare based system and compare this with a justice based system. Next, I will analyse the legislative and policy framework of New Zealand’s youth justice system, so far as it pertains to violent girls, and finally, will compare and contrast it to what international instruments have to say about violent girls. I will evaluate this research question using critiques from feminist theory. This paper will focus mostly on violent girls aged 14 to 16 years as this is the age group dealt with under New Zealand Youth Court jurisdiction.
The starting point for evaluating the construction of violent girls is the Children, Young Persons, and Their Families Act 1989, which outlines New Zealand’s youth justice system. Under s 2(1) of the Act a ‘young person’ is a boy or a girl of or over the age of 14 years but under 17 years.[1] Girls and boys are lumped together under the single category of ‘young person’ and are at no point throughout the Act differentiated from each other. While this is good for simplicity, it implies that there are no significant differences between boys and girls. This in turn suggests that both boys and girls can be appropriately catered for under the overarching heading of ‘young person’ and programmes designed for young people will work effectively for both girls and boys.
Males consistently outnumber females for violent offending, and boys typically outnumber girls (aged 14 to 16 years) three to one for violence apprehensions.[2] As a result, violent offending by girls is often perceived as insignificant in comparison to boys. This has also influenced the direction of research on youth offending resulting in significantly less literature and resulting knowledge on violent girls than boys. The reality is that a number of girls do engage in violent offending, yet this continues to be overshadowed by that of boys.
Gender stereotypes about how girls should act have prevented an accurate picture of girls’ involvement in violence being drawn, with little consideration being given to what is actually occurring.[3] Images of a catfight involving hair pulling and pinching are common when considering young female violence and are a wholly inaccurate picture of what is involved.[4] Violence by girls is serious, and has the potential for far reaching consequences both in terms of harm to victims and apprehensions and legal action for offenders.
Violent girls are more likely than their male counterparts to have experienced a myriad of negative life experiences.[5] A significant number have experienced both physical and sexual victimisation and many come from dysfunctional family backgrounds. Violent girls often have substance abuse problems and many suffer from a wide range of mental health issues including depression and post-traumatic stress disorder. Experiences of suicidal ideation and attempts are also common.[6] Girls are also more likely than boys to have previously been notified to the department of Child, Youth and Family as in need of care and protection.[7] This has implications for the construction of ‘violent girls’ as it regards violent girls as an extremely vulnerable group in society which is often at odds with society’s reaction to their offending.[8]
Between 1998 and 2007, apprehensions of girls aged 10 to 20 by police for violence rose by 67 per cent in New Zealand.[9] Statistics such as this have led to increasing concern over the state of New Zealand girls and fears akin to moral panic.[10] Although there has been an increase in apprehensions, victim self-reports show no increase in violence over this time suggesting that girl violence has, in fact, been an on-going problem beneath the surface.[11] Rather than an actual increase in violent offending by girls, zero tolerance policies around bullying and ‘get tough’ approaches by police are likely the cause of this increase in apprehensions.[12] The implication of this is that violence by girls is an on-going problem which has so far failed to be dealt with.
These issues demonstrate the difficulties involved in the construction of violent girls. Violent girls are a unique group of offenders due to the risk they pose and the vulnerability they display, both of which have gone unrecognised. Violent girls have been overshadowed both by boys in the youth justice system and pre-existing gender assumptions. As a result, little is known about them. This has serious practical implications, as without a consensus on how ‘violent girls’ are to be understood and defined, it is near impossible to determine how to cater for them effectively.
A welfare based system of youth justice is often referred to as ‘needs’ based. The focus is on understanding how the individual circumstances and needs of the young person led them to offend. Young offenders are seen as vulnerable, and their actions as a response to the unmet needs in their life.[13] A welfare based system works on the assumption that once the needs of the young person are met and or their problems diagnosed and addressed, the offending will stop or at least diminish.[14] Discretion in decision making is a key feature while punishment has little importance in a welfare based system.
A welfare based system would be advantageous in catering for violent girls as it would allow consideration of their histories, including physical and sexual victimisation, dysfunctional family backgrounds and mental health issues as well as any other personal circumstances in decision making. It would recognise that their pathway into such violent offending is often different to that of boys, and that, consequently, different responses may be necessary. Rather than treating these girls as violent criminals, they would be viewed as products of their life experience and the focus would be on addressing these problems and finding the best possible outcome for them.
While a welfare based system has the significant advantage of being able to consider the special needs of violent girls, this system alone may not be entirely successful in catering for violent girls. Focussing only on the needs of a violent girl and not on her actions denies her personal autonomy and agency in the offence.[15] She is characterised solely as a victim who needs protecting. This marginalises violent girls and prevents them from taking control of their situation - and so is unlikely to lead to reduced offending. The considerable discretion allowed in a welfare based system may also serve to marginalise violent girls as decisions are made for them, often without their input, on the basis that others are better equipped to decide what is best for them.
In contrast to a welfare based system, a justice based system focuses on the ‘deeds’ of the young person. The emphasis is on the offence/the behaviour of the young person and holding the young personal responsible for their actions. This will almost certainly involve punishment. The outcome is largely dependent on the severity of the act as well as a desire to protect society from the young person and deter the young person from reoffending.[16] Responses are ideally determinative, proportional to the offence and consistent with other offences. The young person is viewed as independent and autonomous.[17] The needs of the young person are not ignored but rather it is assumed that the justice system is not the appropriate context for dealing with them (families and schools are seen as better contexts).[18]
In a justice based system violent girls would be treated much like any other violent individual. Their personal autonomy in offending would be recognised and they would be punished in a consistent and determinative manner regarding the nature and severity of their actions. Their history and negative life experiences would not be given consideration as it would be assumed that these could be dealt with in other spheres of the girls’ lives.[19] Unfortunately this is not the reality for many violent girls, whose issues are not discovered and consequently addressed until they enter the youth justice system.[20]
While a justice based system will provide violent girls with a procedurally fair outcome it is entirely unrealistic to assume that a successful outcome for both society and the violent girl can be reached without consideration of her needs and circumstances. Ignoring these will most likely serve to reinforce the systems that led her to offend thus perpetuating the problem.[21] A violent girl in this system will effectively be punished for her victimisation and negative life experiences. If the underlying needs of violent girls are given no recognition by the justice system, any outcome will likely only resolve the problem on a superficial level, and will be unsuccessful in ensuring the violent girl does not end up back in the system once again.
From the discussion above it is clear that while both welfare and justice based systems have advantages when catering to violent girls neither system implemented alone will be able to cater effectively and successful for violent girls. A system which is a combination of the two will have the greatest chance of success.
New Zealand’s legislative framework for youth justice is the Children, Young Persons, and their Families Act 1989. Under s 4(f) of the Act, one of the objectives is to ensure that where children or young people commit offences they are to be held accountable and encouraged to accept responsibility for their behaviour and also, that they are dealt with in a manner that acknowledges their needs and gives them an opportunity to develop in a responsible, beneficial and socially acceptable way. This reflects the combination of welfare and justice based approaches used in the New Zealand system (and the importance of addressing both the needs and deeds of the young person). The principles specific to youth justice are set out under s 208, part 4 of the Act.[22]
Under s 245 proceedings are not to be instituted against a young person unless a youth justice co-ordinator is consulted and family group conference held.[23] The family group conference (FGC) is the key method of dealing with young people who offend in New Zealand and is regarded as highly successful for the most part.[24] The family group conference is the method used for both boys and girls who have committed any offence under Youth Court jurisdiction and thus is the current way of dealing with violent girls.
There is evidence however, that FGCs are not as successful for girls as for boys. While recidivism rates after an FGC are typically lower for girls than for boys, individual responses tell a less positive story.[25] In a retrospective study on family group conferences, Gabrielle Maxwell and others found that girls were less likely to feel that they could say what they wanted at the conference with many feeling too intimidated to do so.[26] They were less likely than boys to report being treated fairly and were less likely to feel as though they would be able to put their offending behind them. Finally, girls were half as likely as boys to report that having an FGC had helped them to stop or reduce their offending. These results suggest that FGCs may not be effectively catering to the needs of girls who offend.
Violent girls are a significant concern to youth justice officials and the police and so effective measures for dealing with them need to be implemented.[27] If a system like the FGC is not viewed as successful by girls who offend generally, it is unlikely to be successful for violent girls who, as discussed earlier, bring with them a range of personal issues to the youth justice system. The FGC as part of the Children, Young Persons and their Families Act 1989 does not differentiate between boys and girls and thus is unable to provide a response that caters specifically to their needs. This leaves girls involved feeling unsatisfied with the process and no more likely to stop their offending behaviour. If the FGC is continued to be used as the only method of dealing with violent girls, without consideration of gender differences in the pathways of violence and necessary responses, it is unlikely that the current youth justice system will be catering to them effectively.
There is a degree of frustration among youth justice professionals regarding a lack of gender specific responses and programmes available for violent girls. New Zealand has multiple highly successful programmes for violent boys including ‘Youth to Men’ and the ‘Dove’ programme; the same cannot be said for violent girls.[28] As of 2010 there was only one programme, in Hastings, for violent girls who were victims of sexual abuse - this is not nearly enough.[29]
While the Act provides that consideration of the young person’s needs is necessary, and where practicable, causes of offending should be addressed, this is vague and does not guarantee that the special needs faced by violent girls will be addressed.[30] In order for violent girls to be effectively catered for, legislation needs to make a move to provide more gender specific initiatives.[31]
The United Nations Convention on the Rights of the Child (UNCRC) and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) provide guidance on standards to be applied in the administration of youth justice systems.[32] While both set out the importance of the child’s best interests and needs, neither of them specifically refer to the special needs of girls.
Article 37(c) of the UNCRC does not refer to violent girls specifically, but is still relevant when comparing New Zealand’s youth justice system and violent girls with international instruments. Article 37(c) of the UNCRC states that children deprived of their liberty should be separated from adults unless it is considered in the child’s best interests not to do so. Despite this, in New Zealand girl offenders are always detained in adult women’s prisons, as there are no female youth units.[33] This has been criticised by the United Nations Committee on the Rights of the Child and also the 2004 report of the Committee Against Torture.[34] This is a clear failing by New Zealand to cater to violent girls who have offended. The United Nations Committee on the Rights of the Child has stated that even where rates of female juvenile offending are low, it is essential that there are appropriate facilities in place.[35]
In the General Comments on the UNCRC, the United Nations Committee on the Rights of the Child recognised that because girls only constitute a small proportion of offenders they are at risk of being overlooked in youth justice systems. They made special note of the importance of giving attention to the special needs of girl offenders, for example, in relation to histories of abuse, in order to effectively provide for girls in youth justice systems.[36]
In a UNICEF report on guidance for legislative reform in the area of youth justice, Carolyn Hamilton noted that systems need to recognise the particular needs of girls. Specific and separate provisions are required in legislation to ensure that their needs are met.[37] Also covered in the same report are the ways in which, in order to remedy long standing discrimination, special measures may need to be taken to redress de facto discrimination in particular in situations where girls are accused of offences.
New Zealand’s practice of detaining girls with adult women offenders obviously does not measure up to the standards of the UNCRC. This is a clear example of the needs of girls who offend being overlooked. New Zealand needs to ensure that appropriate facilities are in place for girls who need to be detained in order to at least bring them to an equal status with boys.
Aside from this, when we turn to the wording of international instruments such as the UNCRC, it is hard to argue that New Zealand is failing to meet the standards on what is said about violent girls. This is not because of any great achievement by New Zealand, but rather reflects the fact that international instruments are also failing to provide for violent girls (and girls who offend generally). Very little, if any, distinction is made between boy and girl offenders. This has been criticised, and the problem is now coming to light. When New Zealand’s legislative framework is compared with the expectations of the international community, reflected in committees and reports, it is clear that New Zealand needs to do more to meet the needs of violent girls. This has however, been recognised by members of the New Zealand youth justice system.
Violent girls are a serious problem, both nationally and internationally. The risk they can pose to others, as well as the extreme vulnerability they often display, make them a unique group of offenders. In order to provide for them in youth justice systems more positive measures need to be implemented to recognise the special needs they possess. Explicit provisions and wording in international and domestic instruments, which go beyond mere reference to recognising ‘needs’ of offenders, are required to ensure that the special needs of these girls are catered for.
Existing youth justice systems are not currently catering effectively to girls who violently offend. Violent girls are a group of offenders who are both a threat to the safety of society as well as in need of special measures for protection and care. Both elements of this dynamic have gone unrecognised for much time, though there is growing concern in the youth justice community about the inadequacies of New Zealand’s legislation, programmes and responses in relation to violent girls. Similarly, there is increasing attention about that fact that international instruments do not positively ensure the protection of girls in youth justice systems. Violent girls would benefit from elements from both welfare and justice based systems, which New Zealand has tried to provide. However, what is essential, and unfortunately missing, is specific regard to their position as females in society and how this position has contributed to their violent offending. Until changes are made in legislation and official programmes and responses, violent girls will continue to be dealt with ineffectively
*Charlotte Best is in her fifth year of a BA/LLB conjoint at the University
of Auckland.
1 Children, Young Persons, and their Families Act
1989, s 2(1).
[2] Ron Crawford and
Peter Kennedy Improving Interventions to Reduce Violent Offending by Young
People in New Zealand (Ministry of Justice, August 2008) at 78; Tim Hall and
Linda McIver “Girls Offending” Court in the Act (New Zealand,
February 2010) at 12.
[3] Donna
Swift “Girl Fighting: An Investigation of Young Women’s Violent and
Anti-Social Behaviour” (2011) The Girls
Project
http://www.thegirlsproject.org.nz at
28.
[4] Swift, above n 3, at
32.
[5] Candice Odgers and Marlene
Moretti “Aggressive and Antisocial Girls: Research Update and
Challenges” (2002) 1(2) Int.
J. Forensic Ment. Health 103 at 109; Tim Hall
and Linda McIver, above n 2, at
12.
[6] Candice Odgers and Marlene
Moretti, above n 5, at 109.
[7]
Gabrielle Maxwell and others “Differences in How Girls and Boys Respond to
Family Group Conferences: Preliminary Research Results”
in Lode Walgrave
(ed) Repositioning Restorative Justice (William Publishing, Devon, 2003)
136 at 137.
[8] Candice Odgers and
Marlene Moretti , above n 5, at
180.
[9] Hall and McIver,
“Girls Offending,” above n 2, at
12.
[10] Sarah Goodkind
“Gender-Specific Services in the Juvenile Justice System: A Critical
Examination” (2005) 20 Affila 52
at
57.
[11] Goodkind, above n 10, at
57.
[12] Goodkind, above n 10, at
57.
[13] Claire McDiarmid
Welfare and the Children’s Hearing System: “Justice” Within
Welfare (Dundee University Press, Dundee, 2007) at 146.
[14] J Cashmore “Juvenile
Justice: Australian Court Responses Situated in the International Context”
in R Sheehan and A Borrowski
(eds) Australia’s Children’s Courts
Today and Tomorrow (Springer, New York, 2013) 197 at
199.
[15] Goodkind, above n 10,
at 63.
[16] McDiarmid, above n
13, at 143.
[17] Stewart Asquith
“Justice, Retribution and Children” in John Muncie, Gordon Hughes
and Eugene McLaughlin (eds) Youth Justice: critical readings (Sage
Publications, London, 2002) 275 at
281.
[18] Asquith above n 17, at
279.
[19] Asquith above n 17, at
279.
[20] Hall and McIver,
“Girls Offending,” above n 2, at
13.
[21] Asquith above n 17, at
282.
[22] Children, Young Persons
and their Families Act 1989, s
208.
[23] S
245.
[24] Maxwell and others,
above n 7, at 136.
[25] Maxwell
and others, above n 7, at
144.
[26] Maxwell and others,
above n 7, at 144.
[27] Tim Hall
and Linda McIver “Youth Justice Professionals Grow Frustrated at a Lack of
Programmes for Violent Young Females”
Court in the Act (New
Zealand, May 2010) at 7.
[28]
Hall and McIver, “Youth Justice Professionals,” above n 27, at 7.
[29] Hall and McIver,
“Youth Justice Professionals,” above n 27, at
7.
[30] Children, Young Persons
and their Families Act 1989 s
208(fa).
[31] Tracey Cormack and
Tim Hall “NCJFCJ Conference, San Francisco, California July 22-25 2007:
Ten Lessons Learned and Impressions
Gained” Court in the Act (New
Zealand, December 2007) at
2.
[32] Convention on the Rights
of the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into
force 2 September 1990); United Nations Standard Minimum Rules for the
Administration
of Juvenile Justice (the Beijing Rules) GA Res 40/33, A/Res/40/33
(1985).
[33] Judge AJ Becroft
“Time to Teach the Old Dog New Tricks? What the Adult Courts Can Learn
About Sentencing and Imprisonment from
New Zealand’s Youth Court”
(paper presented to CMJA Triennial Conference, Toronto, September 2006); Nessa
Lynch “Youth
Justice” in Julia Tolmie and Warren Brookbanks (eds)
Criminal Justice in New Zealand (LexisNexis, Wellington, 2007) at
376.
[34] Lynch, above n 32, at
376.
[35] Carolyn Hamilton
“Guidance for Legislative Reform on Juvenile Justice” (May 2011)
Unicef
<www.unicef.org/policyanalysis/files/Juvenile_justice_16052011_final.pdf>
at 108.
[36] Committee on the
Rights of the Child General Comment No. 10 (2007) Children’s’
Rights in Juvenile Justice CRC/C/GC/10
(2007).
[37] Hamilton, above n
34, at 108.
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