The Impact of Offender–Victim Cultural Backgrounds on the Likelihood of Receiving Diversion

• Published date: 01 April 2022
• Author: Linda Ashford,James Ogloff,Stephane Shepherd,Rebecca Fix,Bella Warner,Ben Spivak
• Date: 01 April 2022
• DOI: 10.1177/08874034211046313
• Subject Matter: Articles

https://doi.org/10.1177/08874034211046313

Criminal Justice Policy Review

2022, Vol. 33(3) 298 –316

© The Author(s) 2021

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DOI: 10.1177/08874034211046313

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Article

The Impact of Offender–

Victim Cultural Backgrounds

on the Likelihood of

Receiving Diversion

Bella Warner1, Ben Spivak2, Linda Ashford2,

Rebecca Fix3, James Ogloff2,

and Stephane Shepherd2

Abstract

The extent to which both an alleged offender and victim’s cultural background

influences how one is processed through the Australian criminal justice system

is largely unknown. Such information would provide some insight into the extent

of discrimination within the system. To address this question, this study aimed to

ascertain whether offender/victim pairings across Indigenous and non-Indigenous

cultural backgrounds predicted the likelihood of receiving diversion for first-time

offenders. The sample comprised 5,616 young people aged between 10 and 17 years,

from the state of New South Wales, charged with (a) an offense eligible for diversion,

and (b) a crime against a person. Chi-square analyses and binary logistic regression

were employed to determine proportions of inter- and intra-cultural offending and the

likelihood of receiving diversion dependant on cultural grouping. Results demonstrated

that charges for intra-cultural crime (within cultural group) were more likely to occur

than charges for intercultural crime (between cultural groups). Indigenous subjects

were more likely to receive a court summons. An Indigenous subject charged with

an offense against an Indigenous victim was more than 2 times more likely to receive

a court summons compared with a non-Indigenous offense against a non-Indigenous

victim. An Indigenous subject charged with an offense against a non-Indigenous victim

was also more likely to receive a court summons compared with a non-Indigenous/

1Swinburne University of Technology, Hawthorn, Victoria, Australia

2Swinburne University of Technology & Victorian Institute of Forensic Mental Health, Alphington,

3078 Victoria, Australia

3Johns Hopkins University, Baltimore, MD, USA

Corresponding Author:

Stephane Shepherd, Centre for Forensic Behavioural Science, Swinburne University of Technology &

Victorian Institute of Forensic Mental Health, 1/582 Heidelberg Rd., Alphington, Victoria 3078, Australia.

Email: sshepherd@swin.edu.au

1046313CJPXXX10.1177/08874034211046313Criminal Justice Policy ReviewWarner et al.

research-article2021

Warner et al. 299

Indigenous offender/victim dyad. Findings indicate that Indigenous status is clearly

impacting decisions to divert regardless of the victim’s cultural background. Further

research is recommended to explore the situational reasons that underpin decisions

to divert on the ground.

Keywords

Indigenous, young offenders, diversion, inter- and intra-racial offending

Aboriginal and Torres Strait Islanders (hereon referred to as Indigenous Australians)

account for approximately 28% of the adult prison population (Australian Bureau of

Statistics [ABS], 2018) and approximately 50% of the youth prison population

(Australian Institute of Health and Welfare [AIHW], 2020) despite comprising 3.3%

(ABS, 2018) and 6% (AIHW, 2020) of the general and youth population, respectively.

This level of justice-involvement continues to be an issue of national concern and has

engendered several public policy agreements and strategies over the past 30 years (i.e.,

Australian Government, 2020; Australian Law Reform Commission, 2017; Johnston,

1991) to reduce the number of Indigenous Australians in custody.

Prior literature notes that historical injustice, characterized by land dispossession,

cultural disruption, government-sanctioned child removal, social exclusion, and

discrimination are distal contributing factors for Indigenous overrepresentation

(Cunneen, 2006; Lockwood et al., 2018; Shepherd et al., 2014; Weatherburn, 2014).

This has underpinned proximal factors for justice-involvement, including socioeco-

nomic disadvantage, unresolved grief, mental illness, substance abuse, unemployment,

low levels of education, violence, family dysfunction, and other behavioral issues

(Malvaso et al., 2017; Pfeifer et al., 2018; White, 2015).

Indigenous overrepresentation has been linked to the notion of differential selection

where, on average, the group experiences structural discrimination within the criminal

justice system—meaning they receive more severe criminal justice outcomes as a

result of conscious or unconscious bias expressed by justice authorities. Much of the

Australian research on differential selection focuses on youth diversion. Youth diver-

sion is a series of programs and mechanisms that can be employed by police and the

courts to address the underlying drivers of a young person’s offending—if deemed

eligible and programs are completed successfully (i.e., engage with support services,

write a letter of apology), a young person may not be proceeded against and can be

directed out of the system. Several studies across different states have found that

Indigenous young people are more likely to be processed rather than diverted through

the criminal justice system compared with non-Indigenous young people (Allard et al.,

2010; Luke & Cunneen, 1995; Snowball, 2008). This effect has remained despite con-

trolling for relevant factors and/or solely considering individuals charged with their

first ever offense. A body of scholarship has contended that high rates of Indigenous

Australian justice-involvement in the criminal justice system can be partly explained

by racism within the criminal justice system, in particular unfavorable treatment by

law enforcement (Anthony, 2018; Blagg et al., 2005; Cunneen, 2006).