‘It’s a Gendered Issue, 100 Per Cent’: How Tough Bail Laws Entrench Gender and Racial Inequality and Social Disadvantage

Abstract

Women’s rates of remand, or pre-trial detention, have grown dramatically in Australia and the rates at which Aboriginal and Torres Strait Islander women are incarcerated without conviction are particularly high. However, there is little research examining bail and remand practices and their relationship to social inequalities. This article presents findings from research on the drivers behind women’s increasing rates of custodial remand in Victoria—a jurisdiction that has significantly restricted access to bail through legislative reforms. Drawing on data derived from interviews with criminal defence and duty lawyers, we outline how bail and remand practices systematically disadvantage women experiencing housing insecurity and domestic and family violence (DFV), increasing their risk of becoming trapped in longer-term cycles of incarceration. Our analysis reinforces the need to move away from ‘tough on crime’ approaches to bail. It also highlights unintended consequences of DFV reforms, including further marginalising and punishing criminalised women who are victim-survivors.

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Published: 2021-11-01
Section:Online First
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How to Cite
Russell, E. K., Carlton, B. ., & Tyson, D. (2021). ‘It’s a Gendered Issue, 100 Per Cent’: How Tough Bail Laws Entrench Gender and Racial Inequality and Social Disadvantage . International Journal for Crime, Justice and Social Democracy, 10(3). https://doi.org/10.5204/ijcjsd.1882

Author Biographies

La Trobe University
 Australia

Emma K. Russell is Senior Lecturer in Crime, Justice and Legal Studies in the School of Humanities and Social Sciences at La Trobe University. Her research examines criminalisation, incarceration and activism in social and political context. Her recent publications appear in journals such as Law Text Culture, Punishment & Society and Theoretical Criminology. Her first sole-authored book, Queer Histories and the Politics of Policing, was published by Routledge in 2020. She is also co-author of Resisting Carceral Violence: Women’s Imprisonment and the Politics of Abolition (2018).

Deakin University
 Australia

Bree Carlton is a Senior Lecturer in Criminology at Deakin University. Her research centres on two key areas: histories of anti-carceral protest and histories of punishment and institutionalisation. She seeks to explore intersections between the two areas and how these may help us to better understand collective visions, memories and struggles for penal change and social justice. Bree has published research papers in Theoretical Criminology and Punishment & Society, and is co-author of Resisting Carceral Violence: Women’s Imprisonment and the Politics of Abolition, published in 2018 by Palgrave Macmillan.

Deakin University
 Australia

Danielle Tyson is a Senior Lecturer in Criminology at Deakin University and Co-Convenor of the Deakin Research on Violence Against Women (DRVAW) Hub and the Monash Deakin Filicide Research Hub. She has undertaken extensive research and published widely in the field of gender and domestic/family violence, including legal responses in cases of intimate partner homicide, the impacts of law reform, and the nature and dynamics of filicide (the killing of a child by a parent or step-parent).