Opinion //

On a broken justice system

The failings of the justice system become clear when dealing with Indigenous peoples and people of colour.


It seems to be every other day that we log onto social media and find ourselves drowning in despair. April 7, 2020 proved to be a devastating day for survivors. Cardinal George Pell, the highest-ranking Catholic official in Australia, walked free after the High Court of Australia (HCA) ruled that the evidence did not establish Pell’s guilt beyond reasonable doubt. The prisons that released the cardinal are the same ones from which we see high numbers of Indigenous deaths in custody. On April 10, refugees in detention across Australia protested their indefinite detentions, a cruel and inhumane policy. Though it is a known fact that COVID-19 spreads like wildfire within tightly packed groups, no concessions have been made for refugees or the incarcerated. The justice system – with its courts, law enforcement and prisons – is cruelest to those that need it most, and it is time that we start questioning the ‘justice’ that it doles out.

Cardinal George Pell’s appeal has prompted significant scrutiny and public outrage. This historic case invites us to scrutinise the criminal justice system’s handling of sexual assault cases, and whether it can be considered a legitimate form of justice for survivors.

In 2015, allegations that accused Cardinal George Pell of the sexual abuse of two choirboys surfaced. Years after the alleged abuse, one of the choirboys died of an overdose that has been linked to depression and trauma. The survivor who launched the case has said: “I am a man who came forward for my friend, who, sadly is no longer with us.” From 2015 until now, Pell’s case has moved through the County Court of Victoria, the Court of Appeal of the Supreme Court of Victoria, before finally reaching the High Court of Australia. The five-year-long legal saga has culminated in his acquittal, meaning that Pell will not have a criminal record, nor be registered as a sex offender.  

Pell’s defence counsel made an appeal to the High Court on the grounds that the Director of Public Prosecutions left witness testimony unchallenged. It is prudent that we acknowledge that in sexual assault cases, witness testimony is often affected by trauma which can warp memory, leaving sexual assault survivors with fragmented recollections of traumatic events. This prompts the question: how can we reasonably expect survivors to provide unblemished accounts of some of the darkest moments of their lives, in the name of ‘justice’?

Pell’s acquittal also calls for consideration of innocent people languishing in our prison systems. Unfortunately, unlike Pell, these are people who do not have the full power and wealth of the Vatican behind them. Pell’s defence counsel fought against his convictions at every level, eventually reaching the highest court in Australia. Realistically, few people have this ability. While the right of appeal is a procedural right, it is not one which is accessible to many, due to the sky-high cost of legal representation and the exhausting process of the legal system. 

When discussing classism in the justice system, we must acknowledge that classism and racism are not separate forms of oppression, but ones that sustain each other under the settler-colonial regime that flourishes in ‘quiet’ violence. This fact is glaringly obvious when we situate our system of law and order within Australia’s colonial history; prisons built on stolen land, laws that continue to sanction Stolen Generations even years after Kevin Rudd’s ‘sorry’. It would be a mistake to believe that the racist zeitgeist that declared terra nullius and founded this ‘great nation’ does not persist to this day. 

If the justice system served as it has promised us, we would not see the racial profiling of black, Indigenous and people of colour (BIPOC), nor police brutality and intimidation, nor the senseless cycle of Indigenous deaths in custody. Tanya Day was a proud Aboriginal woman who was sleeping on a train when she was shaken awake by police after being assumed to be a drunken, unruly passenger. She died in custody 17 days later, the result of a brain hemorrhage that went unchecked, suffering that was dismissed. Eric Whittaker, who was a proud Gamilaroi man, suffered similarly; after suffering a brain hemorrhage, his repeated calls for help were dismissed by correctional officers. He died shackled to a bed in Westmead Hospital. When such horrific stories exist, we must question our belief in the justice system and see it for what it really is: an instrument of the ongoing ravages of colonial injustice.

It is no coincidence that Indigenous people experience higher rates of poverty and are also disproportionately incarcerated for minor offences. There is also a stark under-representation of BIPOC in law-making bodies. Historically, the justice system was not built to protect BIPOC, but rather to excuse and justify violence and the building of oppressive white-supremacist structures. Such colonial white-supremacist structures exist today, extending beyond the justice system and into all forms of government policy. The tale of Rakib Khan, a 24-year-old refugee who died in offshore detention, is a particularly harrowing one. In May 2016, Khan, a gay man fleeing homophobic persecution in Bangladesh, died on Nauru, two days after he went to the island’s hospital complaining about chest pain. The circumstances around his death are mysterious; the government has blocked access to internal reports that hold information about his death. Information from a whistleblower in the hospital claims that Khan’s condition was not taken seriously, and he was turned away without examination and told to take painkillers. Khan’s mother mourns his death four years later, with unanswered questions about the loss of her youngest son. Increasingly, we are forced to the realisation: this is not justice.

It is hard to hear these stories and not feel despair. The despair can be useful; it means that we find this violence unacceptable. How do we move forward?

The first step is to acknowledge that the justice system is broken, by which we mean it is working exactly as was intended: to bring everyone but the rich and powerful down. Survivors in sexual assault cases are frequently and thoroughly relegated to collateral damage by the callous processes of the courts. Only one in ten sexual assault cases ever result in a conviction. In questioning our justice system, we must believe survivors.

We must acknowledge that the justice system, and the entire system of law and order, is a part of the overarching colonial project which began with invasion and continues today. Indigenous deaths in custody are a crisis, but it is one that is oft overlooked because it does not directly affect us all. The illegal occupation of this land hypocritically asserts itself in its government-sanctioned abuse of refugees.

Now, the idea of prison abolition now becomes increasingly pertinent, when the system of law and order is, quite frankly, fucked. Thousands of potentially innocent people, many of them BIPOC, languish in prisons with no hope for appeal against a racist and classist justice system. Right now, in the midst of COVID-19, prisons and camps become grounds for the coronavirus to spread like wildfire, with prisoners and refugees as kindling.

Interestingly, feminist prison abolitionists are often met with the question: “What about the rapists?” The answer is simple: they already walk amongst us. Rapists not only live freely amongst us, but often occupy high perches of power, puppeteering justice while everyone else suffers. The justice system only presents the facade of protection, all the while hiding the quiet violence that rages beneath the surface. Peter O’Brien, a criminal lawyer who represented survivors in the Royal Commission into Institutional Responses to Child Abuse, wrote for The Guardian: “As a society, we have to ask whether there are other alternatives or a better use of our resources than the present criminal court process. Resources aimed at prevention, assistance in coming forward and healing of victims is a must.” This is exactly the argument made by prison abolitionists. Prisons and justice systems are another form of state-sanctioned violence and thus it is crucial that we, as a society, shift our priorities to assist the healing of survivors first and foremost.

Ultimately, we are a world divided if we do not acknowledge the intersectionality of lived experiences. Being an intersectional feminist means that you are necessarily anti-colonial, anti-capitalist and feminist. Justice cannot be found in courts or prisons. We must look for justice elsewhere, through community care and collective action. 

If you become distressed upon reading this article, please don’t suffer in silence. Lifeline is a 24 hour hotline for crisis support and suicide prevention and can be reached at 13 11 14. NSW Rape Crisis is a 24/7 hotline and online crisis counselling service for anyone in NSW, available at 1800 424 017.

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