Giving Voice to Diversity in Criminological Research: ‘Nothing about Us without Us’ 9781529215540

Citation preview

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH ‘NOTHING ABOUT US WITHOUT US’ EDITED BY ORL A LYNCH, JA MES WINDLE AND YA SMINE AHMED

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH ‘Nothing about Us without Us’ Edited by Orla Lynch, James Windle, and Yasmine Ahmed

First published in Great Britain in 2021 by Bristol University Press University of Bristol 1-​9 Old Park Hill Bristol BS2 8BB UK t: +44 (0)117 954 5940 e: bup-​[email protected] Details of international sales and distribution partners are available at bristoluniversitypress.co.uk © Bristol University Press 2021 British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library ISBN 978-​1-​5292-​1552-​6 hardcover ISBN 978-​1-​5292-​1553-​3 ePub ISBN 978-​1-​5292-​1554-​0 ePdf The right of Orla Lynch, James Windle, and Yasmine Ahmed to be identified as editors of this work has been asserted by them in accordance with the Copyright, Designs, and Patents Act 1988. All rights reserved: no part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise without the prior permission of Bristol University Press. Every reasonable effort has been made to obtain permission to reproduce copyrighted material. If, however, anyone knows of an oversight, please contact the publisher. The statements and opinions contained within this publication are solely those of the editors and contributors and not of the University of Bristol or Bristol University Press. The University of Bristol and Bristol University Press disclaim responsibility for any injury to persons or property resulting from any material published in this publication. Bristol University Press works to counter discrimination on grounds of gender, race, disability, age, and sexuality. Cover design by Liam Roberts Front cover image: ooddysmile Bristol University Press uses environmentally responsible print partners. Printed and bound in Great Britain by CPI Group (UK) Ltd, Croydon, CR0 4YY

Contents List of Figures and Table Notes on Contributors Acknowledgements

v vii xiii

PART I    Conceptualizing ‘Nothing about Us without Us’ and Researching Marginalized Peoples 1 Introduction: ‘Nothing about Us without Us’, a History and Application for Criminology Yasmine Ahmed, James Windle, and Orla Lynch 2 Working Together to Create Change: Theory, Experience, and Praxis Maggie O’Neill and Rosie Campbell 3 Whitewashing the White Collar Ciaran McCullagh

3

17

43

PART II  Insider Voices 4 Institutional Abuse in Ireland: Lessons from Magdalene 67 Survivors and Legal Professionals Maeve O’Rourke, Jennifer O’Mahoney, and Katherine O’Donnell 5 Re-​storying Offending Behaviour: A Normal Response to 89 an Overdose of Trauma? Jane Mulcahy 6 Sexual and Gender-​Based Violence against Refugee 111 Women as a Continuum of Violence Dimitra Mouriki 7 Reconsidering the 1991 Blackbird Leys Rioters as an 133 Underclass: An Insider Perspective James Windle 8 An Autobiographical Account of Desistance and Recovery 149 James Leonard

iii

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

PART III  Policy Responses and Reforms 9 Access Denied: Sex Worker Health and Well-​Being in the Context of Criminalization Kathryn McGarry, Paul Ryan, Adeline Berry, and Belle Guarani 10 Care versus Crime: Safe Injecting Facilities as a Legal Crossroads in Ireland Marcus Gatto and Sarah Bryan O’Sullivan 11 Giving Voice to Convicted Perpetrators of Sexual Harm: Assisted Desistance in the Community Clare B. Cresswell 12 Reforming Ireland’s Adversarial Trial for Victims of Crime with Intellectual Disabilities Alan Cusack 13 The Inside-​Out Prison Exchange Program®: Its Origin, Essence, and Global Reach Lori Pompa Index

161

185

209

233

253

267

iv

List of Figures and Table Figures 2.1 2.2 2.3 2.4 2.5 2.6 2.7

If this is what our children see... Drugs taking the lifeblood from our community  Safe and protected behind glass Protecting my family He went for my face Bad weather Tools of the trade

30 30 31 32 34 36 36

Research data collection process

22

Table 2.1

v

Notes on Contributors Yasmine Ahmed is a PhD student in Criminology, research assistant,

tutor, and module co-​ordinator for the PG Dip in trauma studies, all at University College Cork. Her most recent book is entitled Reflections on Irish Criminology (2020). Adeline Berry is an intersex and transgender researcher, sex worker, and a board

member of SWAI and Intersex Ireland. Previously she has collaborated on an Eisner award–​nominated comic book, owned tattoo shops in both Florida and Texas, dungeons in both Texas and Dublin, earned a second-​degree black belt in Uechi Ryu karate and a BA (Hons) in psychology from Dublin Business School. She has spoken at conferences in Stockholm, London, Limerick, Cork, and Dublin on the intersection of gender, sex work, and the law. Her extracurricular pursuits include art, reading, and spending time with friends and family. Rosie Campbell OBE is a freelance researcher and fundraiser. She has been

researching sex work in the UK for over two decades and has been involved in innovative support services and sex work policy development in several cities in the UK, such as including sex workers in hate crime policy in Merseyside and the introduction of the managed approach in Leeds. Her worked has focused on sex worker safety. Clare B. Cresswell graduated with an Hons BSc in Criminology and

Psychological studies from the Open University, followed in 2014 with an MSc in criminology and criminal justice from University College Dublin Sutherland School of Law. In 2015, she was awarded an Irish Research Council scholarship to undertake a PhD in criminology, and graduated from UCD in 2019. Funded by the Irish Research Council Employment Based Programme and PACE (Prisoners Aid through Community Effort), her PhD research project was entitled Assisted Desistance: Evaluating a Coordinated Community-​Based Response to the Reintegration of Perpetrators of Sexual Harm. Clare’s interests include desistance, rehabilitation, and restorative practices.

vii

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

Alan Cusack (BCL, LLM, PhD, solicitor) is Lecturer in Law at the University

of Limerick. His research interests lie in the areas of criminal procedure, victimology, criminology, and disability studies. His work has been published widely in national and international journals including the International Journal of Law and Psychiatry, the International Journal of Evidence and Proof, Northern Ireland Legal Quarterly, and the Irish Judicial Studies Journal. He has a specialist interest in the treatment of vulnerable witnesses, and in 2018 he was elected to the board of directors for the Irish Criminal Justice and Disability Network. Marcus Gatto is Programme Director and Lecturer at Griffith College Dublin,

with responsibility for clinical legal education. He lectures law and oversees student participation in a wide range of pro bono opportunities with legal aid clinics and non-​profits, including the Irish Innocence Project. He also lectures for Boston University study abroad programmes in Dublin and Brussels in the area of human rights and clinical education. Belle Guarani is an activist, dominatrix, and the current deputy chair of the

Sex Workers Alliance Ireland. She has spoken on the subjects of sex work and migration and the ways in which these topics intersect on conference panels in London and Glasgow. Belle is currently working on completing her college degree and taking classes in burlesque performance. James Leonard has a BA in Social Science (youth and community work),

an MA in Criminology, and is currently undertaking an employment-​based PhD between the University College Cork Department of Sociology and Criminology and his employer the Cork Education and Training Board. He is co-​host of the Two Norries podcast and has published in the International Journal of Drug Policy and RTÉ Brainstorm. Orla Lynch is Senior Lecturer in Criminology, Associate Dean of Graduates

Studies and Programme Director of the PG Dip in trauma studies at University College Cork. Until 2015 she was Director of Teaching and Lecturer in Terrorism Studies at CSTPV at the University of St Andrews. Ciaran McCullagh was previously Senior Lecturer in the Department of

Sociology in University College Cork. At present, he is Adjunct Professor in the School of Law at the University of Limerick. He has written on a range of issues in the sociology of crime and the sociology of the mass media. He is currently, and somewhat slowly, writing a new edition of his book Crime in Ireland, first published in 1996.

viii

Notes on Contributors

Kathryn McGarry is Assistant Professor in the Department of Applied Social

Studies, Maynooth University. Her research interests include gender, risk and social justice, sexuality and the law, and critical feminist methodologies. Recent projects include a HIV Ireland–​funded study (with Paul Ryan) using a participatory methodology exploring sex worker health and well-​being in the context of criminalization in the Republic of Ireland. Kathryn co-​ chairs the Irish Sex Work Research Network (ISWRN) and she co-​edited the book Realising Justice for Sex Workers: An Agenda for Change (with S. FitzGerald)(Rowman and Littlefield, 2018). Dimitra Mouriki is a PhD student at the University of York. The topic

of her research project is Sexual and Gender-​Based Violence against Refugee Women: A Silent Characteristic of Mediterranean Crisis. Dimitra is interested in LGBT movements and rights, critical feminism, gender and migration studies, and critical social policies and interventions. Jane Mulcahy is a research, policy, advocacy, and legal consultant. Her PhD

in Law at University College Cork was on the topic of Connected Corrections and Corrected Connections: Post-​release Supervision of Long Sentence Male Prisoners. It was co-​funded by the Irish Research Council and the Probation Service under the employment-​based PhD scheme. Jane has worked as a researcher in the area of criminal justice, penal policy, and social justice since 2005. She hosts a podcast called Law and Justice and won a Justice Media Award in the ‘Best local radio show/​podcast’ category for her documentary series Humanising Human Rights. Katherine O’Donnell is Associate Professor working on the history of

ideas in the School of Philosophy, University College Dublin. She has been principal investigator on a number of funded research projects including gathering an archival and oral history of the Magdalene institutions funded by the Irish Research Council. As a member of Justice For Magdalenes Research she has shared in activist honours including the Irish Labour Party’s Thirst for Justice Award. Jennifer O’Mahoney is Lecturer in Psychology at the Waterford Institute of

Technology (WIT) and a chartered member of the Psychological Society of Ireland. She is also Co-​Director of the Crime & Society Research Group, and Senior Researcher at INSYTE (The Centre for INformation SYstems and TEchno-​culture), both based at WIT. Her research focuses on how victimology and trauma are remembered and narrated; the relationship between memory and cultural heritage in digital humanities; and activism and social change.

ix

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

Maggie O’Neill is Professor and Head of the Department of Sociology

and Criminology at University College Cork. Her research and teaching are mainly in the areas of social and critical theory, cultural criminology, feminisms, biographical sociology, and creative, participatory, visual, and performative methodologies. Substantive research topics include sex work, borders, asylum and refuge, and arts-​based methods. Maeve O’Rourke is Lecturer in Human Rights Law at the Irish Centre for

Human Rights, National University of Ireland, Galway, where she is also the director of the International Human Rights Law Clinic. She is a member of the Justice for Magdalenes Research group (www.jfmresearch.com) and a co-​director of the voluntary evidence-​gathering and advocacy collaboration between JFMR, Adoption Rights Alliance, and global law firm Hogan Lovells: ‘Clann: Ireland’s Unmarried Mothers and their Children: Gathering the Data’ (www.clannproject.org). Maeve is also a barrister at 33 Bedford Row, London. She previously worked as senior research and policy officer for the Irish Council for Civil Liberties and for a range of other civil society organizations. Sarah Bryan O’Sullivan is Programme Director of Postgraduate Law in

the Law Faculty at Griffith College Dublin. She lectures on the LLB and LLM programmes. Her main areas of research interest are criminal law, criminology, feminist legal theory, and gender and crime. Lori Pompa has been going into prisons for 35 years and has taken countless

people into correctional facilities through courses and exchanges during that time. She has been on Temple University’s Criminal Justice faculty since 1992, and is founder and executive director of The Inside-​Out Centre at Temple University, international HQ of the Inside-​Out Prison Exchange Program®. Pompa collaborated with others on both sides of the prison wall to develop Inside-​Out into an international model of transformative pedagogy. To date, 1100 university instructors from the US and 12 other countries have taken part in The Inside-​Out Training Institute. Hundreds of Inside-​Out classes have been offered, involving 50,000 incarcerated and campus-​based students. Paul Ryan is Assistant Professor in the Department of Sociology at Maynooth

University. His research and teaching focuses on the intersection between family and personal life, sexuality, and the law. He has recently completed a project, funded by HIV Ireland (with Kathryn McGarry) on Sex Worker Lives under the Law: A Community Engaged Study of Access to Health and Justice in Ireland. Paul’s books include Asking Angela: An Intimate History of Irish Lives

x

Notes on Contributors

(Irish Academic Press, 2012) and Male Sex Work in the Digital Age: Curated Lives (Palgrave, 2019). James Windle is Lecturer in Criminology and Director of the BA

Criminology Programme at University College Cork. He was previously Senior Lecturer in Criminology and Criminal Justice at the University of East London. His research focuses on illicit drug markets, drug policy, gangs, and organized crime. He is author of Suppressing Illicit Opium Production: Successful Intervention in Asia and the Middle East (IB Taurus, 2016) and co-​editor of Historical Perspectives on Organized Crime and Terrorism (Routledge, 2018).

xi

newgenprepdf

Acknowledgements Some of the chapters in this volume started life as papers presented at the 12th North-​South Irish Criminology Conference, held in University College Cork in September 2019. We would first like to thank all the participants for engaging in what was an intellectually stimulating conference. We would also like to thank our colleagues, and the undergraduate and postgraduate students at University College Cork who gave their time to help with the event. We are grateful to Rebecca Tomlinson at Bristol University Press for all her support and for taking this book on, and Freya Trand, Catriona Allon, Millie Prekop, and Angela Gage have also provided invaluable support in a challenging year. To our undergraduate and postgraduate students who are actively engaged in lobbying for social justice for marginalized groups: We collectively dedicate this book to you. Keep up the good work! Finally, as always, thank you to our families – ​Stephen, Rian, Tom, Sinead, Cullen, Róisín, Federico, Monica, and Moreno – for their support and patience.

xiii

PART I

Conceptualizing ‘Nothing about Us without Us’ and Researching Marginalized Peoples

1

Introduction: ‘Nothing about Us without Us’, a History and Application for Criminology Yasmine Ahmed, James Windle, and Orla Lynch

‘Nothing about us without us’ summarizes a burgeoning movement in criminology that is about giving voice to diverse perspectives and a way of doing research. Primarily it refers to the importance of an approach to criminology that is inclusive of those voices that have historically been hushed, marginalized, silenced, or ignored. It also refers to the need for researchers to work with state and grassroots practitioners, especially those who provide a conduit to peoples most impacted by social injustice and crime. This edited volume will explore the importance of diversity and inclusivity in criminological discourses and consider how researchers might bridge the gap between theory and lived experience and how the authenticity of the voices of those who have been silenced can be incorporated into a meaningful criminology. This introductory chapter will explore the conceptual history of ‘nothing about us without us’ before summarizing some of the key themes explored in this volume. Criminal justice policies are formed through consultation and deliberation between moral entrepreneurs, politicians, and bureaucratic and economic actors (Monaghan, 2011; Windle, 2014, 2018). This, however, often occurs from positions of authority (see Becker, 1963; Stevens, 2020), and those most impacted by such policies are seldom included in decision-​making processes (see Joyce & Lynch, 2017; Lynch & Argomaniz, 2017; Askew & Bone, 2019; Leonard & Windle, 2020).

3

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

The marginalization of these voices occurs both explicitly and implicitly. Marginalization may centre upon racism, classism, sexism, or other forms of discrimination, or may happen because a group is criminalized or stigmatized (see Lancaster et al, 2018, and McCullagh, O’Rouke et al, and McGarry et al’s essays in this volume), including geographical stigmatization (see Windle and Leonard’s essays in this volume). Policymakers and practitioners may also fail to include marginalized voices because they lack the time or resources to fully engage them in the process, or because policy/​practice from above is how ‘it’s always been done’. Furthermore, as Chapters 3 and 4 by McCullagh and O’Rouke and colleagues in this volume show, those in positions of power can use their authority, and the law, to silence those lobbying for change. The essence of ‘nothing about us without us’ is a demand that the voices of those most affected by a policy or practice must be fully and directly involved in all stages of planning, implementation, and evaluation (Jürgens, 2005). As a slogan it ‘forces people to think about the broader implications of “nothing” in various political-​economic and cultural contexts’ and implies that policies or practices which do not include full participation are hollow (Charlton, 2000: 17). The phrase also requires affected peoples themselves to ‘recognize their need to control and take responsibility for their own lives’; to lobby for what they need rather than unwittingly accepting policies and practices from above. Overall, it is a demand for, and affirmation of, ‘independence and integration, empowerment and human rights, and self-​help and self-​ determination’ (Charlton, 2000: 17). As a slogan it unites ‘all the marginalized and invisible individuals and groups who are demanding a seat at the table’ (Wolff & Hums, 2017: np), locally, nationally, and globally. ‘Nothing about us without us’ is a relatively new social movement, and like all processes of social and institutional change it happens slowly and incrementally. The aim of ‘nothing about us without us’ is thus to promote democratization in policy development and delivery, a refocus on social justice, and a pragmatism regarding the voices that matter in criminal justice, and to improve policy and practice based on an understanding that affected groups are ‘often best able to identify what works in a community that others know little about’ (Jürgens, 2005: 12). Conversely, ignoring and excluding affected communities can result in changes to policy or practice becoming ‘sterile and moribund’ (Ryder et al, 2014: 524). Including marginalized stakeholder groups is not only about improving policy but can be beneficial to individuals. ‘Nothing about us without us’ implies that members of affected groups should support their peers (Jürgens, 2005), advocate for themselves (Charlton, 2000), and lobby for what they

4

A HISTORY AND Application for Criminology

need rather than having to accept policies and practices from above. Research has shown that involvement in advocacy can be ‘self-​enhancing’ and can ‘help to restore self-​esteem damaged by stigma’ (Wahl, 1999: 476) while providing individuals with ‘meaning, purpose and significance’ (Maruna, 2017: 15) and the sense of empowerment gained from exerting control over oneself (see Mulcahy’s essay in this volume). Of course we should not expect individuals to have to advocate and lobby for themselves, and a part of ‘nothing about us without us’ is that we should bring the discussion to people rather than having them have to fight for a voice.

The conceptual history of ‘nothing about us without us’ The slogan is believed to have first been used during the 16th century in the ‘United Kingdom of Poland-​Lithuania’ to dictate that the king could not govern without the participation of the nobility (Wagner, 2003: 201). The modern use is commonly associated with disability rights activists and was popularized in the late 1990s by two books by James Charlton and David Werner. Charlton (2000) reports first hearing the slogan in 1993 from two South African disability rights advocates, who had themselves heard it used by an Eastern European advocate, and then again in 1995 by Mexican farmers chanting ‘Never again without us’ (in Spanish: nunca mas sin nosotros). Werner (2009) reports borrowing the slogan from the Independent Living Movement who meant by it that disabled peoples work as equals in their own rehabilitation. Werner’s (1998) was the more criminological of the two texts. The book documents the experiences of young people with disabilities attending a rehabilitation programme in Mexico. The programme was created in response to the rising numbers of youths presenting with spinal cord injuries from bullet wounds and psychological trauma from gang violence, which Werner (1998: np) attributed to ‘the widening gap between rich and poor’ coupled with progressively repressive state responses. Werner reported that the project helped young people not only with their mental and physical rehabilitation but also with their transition away from violence, crime, gangs, and addiction: ‘Time and again, disabled youth who arrive socially scarred and violent have become among the most considerate care providers for those in greatest need’. The young people became what Shadd Maruna (2017: 9) referred to as ‘wounded healers’: prisoners and former prisoners who draw ‘on their experiences to help others avoid their mistakes and benefit from the inspiration of their achievements’ (for examples see Mulcahy, Leonard, and Pompa’s essays in this volume).

5

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

The slogan spread to a wider range of marginalized groups during the mid-​2000s. In 2005, advocates for Roma communities used the slogan as part of their Decade of Roma (2005–​15) inclusion campaign (Ryder et al, 2014), and the Canadian HIV/​AIDS Legal Network published the booklet “Nothing About Us Without Us”–​Greater, Meaningful Involvement of People Who Use Illegal Drugs, written by people who use drugs demanding a seat at the table, which provided guidelines on how, and how not, to include people who use drugs in policy and practice. The booklet influenced the 2011 World Health Organization report Ethical Engagement of People Who Inject Drugs in HIV Prevention Trials (Boyd & NAOMI Patients Association, 2013). Other examples of organizations working under the slogan include RISE, an Australian organization launched in 2010 to support the welfare of refugees and advocate for their rights, which is ‘entirely governed by refugees, asylum seekers, and ex-​detainees’.1 The 2013 World Conference of Indigenous Women endorsed the slogan in the Lima Declaration (Cultural Survival, 2013: np) and identified themes common to Green Criminology (see Beirne & South, 2013): that deforestation, climate change, and loss of biodiversity are strongly connected to increased rates of violence against indigenous women. One delegate, Victoria Tauli Corpuz of the Philippines, argued that not only would having a say help indigenous women but their expertise and insights could be of service outside of their communities: ‘We have answers to the environmental, social, economic, and cultural crises that the world faces today’ (cited in Cultural Survival, 2014: 14). More recently, Maruna (2017: 11) has used the slogan to argue that desistance from crime be reframed as a social movement; that the concept of desistance move ‘from the Ivory Tower to the professional world of probation and prisons, back to the communities where desistance takes place’. A sentiment shared by several chapters in this volume (specifically, Mulcahy, Leonard, Cresswell, and Pompa’s essays). In the UK, for example, User Voice lobbies for prisoners to be given a say in how prison and rehabilitation work. Their ‘work is led and delivered by ex-​offenders [who] work to provide ways that enable unheard voices; to make a difference, to urge policy-​makers and people with power who make decisions to listen’.2 Involving offenders in activism is not new,3 but has been repackaged under a slogan which adds a sense of urgency and allows former prisoners to feel connected to other marginalized groups under a common banner. The core values of ‘nothing about us without us’ –​self-​determination, liberation, integration, empowerment, self-​help –​predate the slogan and are long-​established elements of critical criminology. The slogan may best fit left realism due to its critique of theorizing from above and insistence that all theory and practice reflect the reality of crime, which can only be understood by speaking to those with lived experiences, and that policy and

6

A HISTORY AND Application for Criminology

practice must reflect the needs of those most impacted by crime and social injustice (Young & Matthews, 1992).

The difficulties of ‘nothing about us without us’ in practice ‘Nothing about us without us’ is not without limitations. First, while many organizations are beginning to commit to involving affected communities in the policy process or in service delivery and evaluation, there is a danger that involvement can be tokenistic and become part of box-​ticking bureaucratic managerialism rather than creating or allowing for truly interactive experiences. Participation that should be enriching can be harmful if individuals feel that they are ‘trotted out’ and exploited. Furthermore, even when individuals are listened to and the process is genuine, there is a cost for those who have to repeatedly tell their story. Second, marginalized groups are not homogeneous. A number of studies have shown, for example, that people who use drugs exhibit diverse opinions on drug policy, and their opinions are embedded in individual experiences and self-​image (see Lancaster et al, 2018; Askew & Bone, 2019; Leonard & Windle, 2020). As such, just bringing representatives from a marginalized group to the table does not mean that all voices will be heard. Third, multiple marginalization can further silence some voice (see McGarry et al and Cusack’s essays in this volume). For example, Jürgens (2005) notes that government consultation on HIV/​AIDS policy seldom includes young people, women, or people who use drugs, and participants are rarely compensated for their time, which excludes those who cannot afford to travel or take time off work. Indeed, Werner (1998) was critical of middle-​class disability rights activists speaking for, not with, the working class and those living in the Global South. He argued that because middle-​ class activists could access essential personal aids, they focused on the civil right of inclusion. This projection of their own priorities ignored the fact that many people needed basic necessities before civil rights could be realized. Fourth, and connected to the last two point, those most affected may be reluctant, or unable, to take on the responsibility of lobbying (Charlton, 2000 Werner & PROJIMO team, 1998). Most social movements are composed of an inner core of a small number of politically active people who direct and organize (Charlton, 2000). Those representing affected groups, who get to have their voice heard, may be the more charismatic, aggressive, articulate, and better educated, and may have the greatest cultural capital, or just be those with the time and inclination to engage in political action. Those who talk may be the most appropriate to articulate broader concerns, or they may

7

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

represent but a small segment of the group in question. The challenge for policymakers and practitioners is, therefore, to identify the voiceless within the voiceless. This may be the core role of researchers, especially insider researchers, as we can open options for those who are voiceless and use our platform of inclusion to lobby for change. This is precisely what many of the chapters within this volume have tried to achieve. Fifth, lived experience is not necessarily the only valuable narrative for voiceless groups, and expecting individuals to be experts about their own conditions may be unrealistic. However, the insight brought to the table by people who experience marginalization and silencing is a valued and essential part of the overall story. Researchers, practitioners, and members of affected groups have different perspectives, born of different experiences and access to different data, and different skills, but none of these perspectives should be ignored or belittled. Sixth, it is important to realize that different groups have varied and at times competing objectives. For example, people who inject drugs have long lobbied for safe injecting facilities. While the health benefits of such facilities are well known, where facilities are located and how they are funded and administered will inherently involve interaction between different groups (see Gatto and O’Sullivan’s essay in this volume). Ideological differences will occur, some voices will dominate, but a democratic discussion between different affected groups is inherent in the ‘nothing about us without us’ approach. Finally, McCullagh (Chapter 3 in this volume) argues that our conceptualization of marginalization is often inadequate and that it should be ‘understood as a double-​edged process’. That is, while one group is ‘excluded from full participation in society’ others, those with money and power, are ‘excluded from the responsibilities of citizenship’. As this marginalization of responsibility facilitates crimes of the powerful, it is not enough to focus our enquiry on those lacking a voice if we do not hold those with a voice to account (see O’Rourke et al’s essay in this volume).

Research and ‘nothing about us without us’ The assumptions underpinning ‘nothing about us without us’ highlight the imperative that researchers engage broadly and inclusively on the research topic. Methodologically it demands, at a minimum, that all stakeholders are included in research, thus providing a platform for the voiceless. Qualitative research is considered to have more potential for inclusivity, notably: interviews (Charlton, 2000 Werner & PROJIMO team, 1998; Mulcahy and Cresswell’s chapters in this volume), participatory action research (Chou et al, 2015; Yarbrough, 2020; O’Neill and Campbell,

8

A HISTORY AND Application for Criminology

Mouriki, and McGarry et al’s chapters in this volume), focus groups (Boyd & NAOMI Patients Association, 2013), and auto-​ethnography, personal reflections, or insider research in general (Charlton, 2000; McCullagh, Windle, Leonard, and Pompa’s chapters in this volume). Linked to this are, of course, the ethical assumptions of ‘nothing about us without us’, whereby research must avoid objectifying and further excluding marginalized groups (Yarbrough, 2020). Yarbrough (2020) has argued that some ‘outsider academic and elite voices and perspectives are legitimized over those of the people who are directly affected by the policies’. That is, research itself can silence marginalized groups (see Windle’s chapter in this volume). The slogan demands that our job as researchers is not only to take from participants but to ‘amplify marginalized participants’ voices and encourage an audience that has historically ignored them to actually listen’ (Yarbrough, 2020). This can require, for example, including affected communities in research design, implementation, and dissemination where possible (see O’Neill and Campbell and McGarry et al’s chapters in this volume).

Chapter summaries A limitation of this book, and of criminology in general, is that the majority of our research comes from the Global North and thus excludes the perspectives of those living in the Global South (Aas, 2012) –​this in itself is a contradiction of the assumptions underpinning ‘nothing about us without us’. In our paltry defence, this book emerged from a conference hosted in University College Cork, Ireland, in September 2019: the North South Criminology Conference. The theme of the conference was ‘nothing about us without us’, and it drew participants predominantly from the island of Ireland and the UK. Focused on building relationships across the island of Ireland, irrespective of the political boundaries and borders that define the island, the conference is arranged each year in the spirit of inclusion and openness. While a key part of this annual event is ensuring the inclusion of minority groups and silenced populations from both jurisdictions, we are acutely aware of the absence of chapters on race and racism, especially as these issues are central to two of the editors’ research: Yasmine Ahmed is currently completing her doctoral thesis on far-​r ight terrorism, and Orla Lynch (2013) has researched how radicalization narratives serve to ‘other’ and exclude Muslim youths in the UK. While chapters by Mouriki and McGarry and colleagues (Chapters 6 and 9 in this volume respectively) highlight the intersection of race and gender, chapters focused specifically on the experience of racism would have strengthened the work. We can point the reader to some excellent studies which parallel the objectives of

9

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

this volume (see Murji, 2017; Joyce, 2018), and note the need for a volume centred on the voices of those experiencing exclusion due to their race. The slogan ‘nothing about us without us’ provides a rallying call to attract disparate groups of advocates and those who have been or were kept silent. It articulates in one sentence what is expected or demanded by those most impacted by political and legal decisions –​involvement in all aspects of policy and practice. Not all chapters in this book engage with groups traditionally working under the ‘nothing about us without us’ banner, but all do engage with the core principles or champion the values inherent in the slogan. The book is divided into three sections in an effort to capture the three components of ‘nothing about us without us’. The chapters in Part I, including this introduction, conceptualize the issue. Chapter 2 by Maggie O‘Neill and Rosie Campbell focuses on the research context of ‘nothing about us without us’ by exploring how participatory action research (PAR), as a collaborative research method, can bridge the gap between theory, lived experience, and praxis in order to enact social justice and work together to create change. Drawing on PAR with sex workers within a British community, the chapter focuses on the issue of meaningful engagement of individuals in research and the opportunities that PAR holds as a framework for inclusivity. In Chapter 3, Ciaran McCullagh explores the issue of white collar and corporate crime in relation to the notions of marginalization and silencing alongside how we conceive of crime and the criminal in Irish society. McCullagh focuses on the assumption that crime is carried out predominantly by working-​class individuals who are marked by the notion of marginalization due to their experiences in the labour market and with addiction and education. While reviewers pointed out that this chapter engaged least with ‘nothing about us without us’, we have placed it in the first section because it offers a conceptual challenge: that while one group or set of groups are marginalized or excluded from full participation in society, those engaging in more powerful positions are often freed from the constraints and obligations of citizenship. This reminds us to shift our analytical gaze, and provides new insights into the power dynamics inherent in marginalization. Following on from the discussion on research and the construction of meaning and labelling in the first section, Part II addresses the experience, testimony, and reaction of silenced and marginalized groups. In Chapter 4, examining institutional abuse in Ireland, Maeve O’Rourke, Jennifer O’Mahoney, and Katherine O’Donnell present interviews with Magdalene survivors and legal professionals (practising both in Ireland and the UK) who have worked with Magdalene survivors. The chapter offers

10

A HISTORY AND Application for Criminology

critical insight into the barriers survivors of institutional abuse face when trying to access civil and criminal justice systems. Chapter 5 focuses also on the meaning making derived from hearing the accounts of individuals invested in issues of policy development and criminal justice practice. Here Jane Mulcahy focuses on the issue of trauma, taking a developmental approach to understanding the impact of adverse childhood experiences on the risk-​taking behaviour of individuals later in life. By exploring the life histories of individuals who served time in prison, the author explores how stress and adverse experiences might be understood and addressed. Continuing with the theme of incarceration and trauma, Dimitra Mouriki presents her work on the experience of women in refugee camps in Greece in Chapter 6. Given the omnipresence of violence in these women’s lives, the author focuses on the necessity of taking a lifespan approach to understanding and conceptualizing their experience of sexual and gender-​ based violence. Based on fieldwork conducted in refugee camps in Greece, the chapter explores refugee women’s experiences of violence and the views of professionals working directly with these women. Chapter 7 is somewhat of a divergence from the previous chapters, but picks up on some of the labelling and marginalization issues raised earlier by McCullagh. The chapter focuses on the dominant and widely accepted media-​driven narrative around the cause of a riot which took place in Oxford (UK) in 1991. In this insider account, James Windle challenges the dominant narrative that the rioters belonged to an underclass. In reviewing how powerful voices, notably the media, misrepresented marginalized working class youths, the chapter reinforces the need for the ‘nothing about us without us’ movement. In the final chapter in this section, James Leonard shares his own experience of incarceration and offers an insightful analysis of his story using criminological theory. Leonard recounts with generosity his experience of education, his treatment pre-​and post-​prison, and the barriers he now faces in his professional life. He considers how a range of criminological frameworks can explain his experiences and inform how we understand and conceptualize incarceration. The issue of masculinity is sensitively discussed and complements the discussion by Windle in the previous chapter. Leonard closes the chapter with four succinct and important recommendations based on his lived experience and academic research. Part III focuses on policy responses and reforms. Chapter 9, by Katherine McGarry, Paul Ryan, Adeline Berry, and Belle Guarani, examines sex worker well-​being in the context of the criminalization of sex work. Using a peer-​to-​peer approach to research, the chapter positions sex workers as experts on their own lives. The authors argue that when we inhibit or limit

11

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

access for sex workers to arenas where knowledge on sex work is produced and communicated, we at once perpetuate the kind of stigma that has long disenfranchised sex working communities while also limiting opportunities for developing the depth of knowledge and experiential understanding that sex working communities hold. This study provides an important contribution to the knowledge base on sex workers’ experiences in Ireland in the aftermath of the Criminal Law (Sexual Offences) Act 2017. At the heart of this study is a commitment to the foregrounding of sex worker voices, informed by the principle ‘nothing about us without us’, in order to challenge the undemocratic practices that have long disenfranchised sex workers. Chapter 10 addresses the frameworks used to understand, conceptualize, and criminalize drug use. Marcus Gatto and Sarah Bryan O’Sullivan present their research on the difficulty of establishing Ireland’s first safe injecting facility. Based on an historical survey of Irish drug policy, their work reveals a gradual acceptance of a public health approach towards persons who inject drugs, as opposed to the strict and exclusive operation of criminal law. The authors examine the disjuncture between public opinion and legal measures while examining the sensitivities around the housing of safe injecting facilities within communities. They point out that while injecting facilities are often largely supported by people who use drugs, they can be opposed by others within the local community. Returning to the issue of desistance, Chapter 11, by Clare B. Cresswell, addresses the issue of individuals convicted of sexual harm and the potential for their desistance within the community. Cresswell addresses the issue of public opinion and the strong emotions prevalent around the subject of sexual offending. The chapter examines how powerful political voices, in their efforts to respond to public anger, impede the implementation of evidence-​based, effective interventions. Throughout the chapter, the possibility of desistance and the impact of social expectations, labelling, and stigmatization are examined. Both this chapter and Gatto and O’Sullivan’s chapter highlight how wider community fears can override the needs of marginalized peoples. O’Neill and Campbell’s chapter more optimistically shows how arts-​based workshops can break down stereotypes and bring people together. They relate how one resident who wanted those “dirty prostitutes off our streets” later became a champion of sex workers’ rights. In Chapter 12, Alan Cusack focuses on the experience at trial of individuals with an intellectual disability. The author examines the balance of needs between meeting the evidential safeguards for the accused and the resultant courtroom environment, which is intimidating and frequently hostile for those with an intellectual disability. Cusack examines the measures and accommodations put in place for vulnerable witnesses, but reflects that

12

A HISTORY AND Application for Criminology

the adversarial trial system is, at its core, not designed in contemplation of persons with intellectual disabilities as victims of crime. Cusack advocates that, as exceptional consumers of the criminal process, victims of crime with intellectual disabilities require exceptional accommodations. The volume concludes with a reflective account by Lori Pompa, the founder of the Inside-​Out Prison Exchange Program. Pompa provides a personal retelling of the history of Inside-​Out, interwoven with quotes gathered over the years from students. Inside-​Out is a unique university program, involving exchanges among ‘inside’ (incarcerated) and ‘outside’ (campus-​based university) students, held inside of prisons across the globe. Pompa reflects on the impact of the program for students and also for herself. One of the editors, James Windle (with our colleague Katharina Swirak), facilitates an Inside-​Out program in Cork Prison, and fully concurs with Pompa’s analysis that it offers a unique opportunity to ‘learn about ourselves, about other people, about how we are both different and alike, about communication and working through conflict, and about the systems that impact our lives and our relationship to those systems’. At its heart, the program involves breaking down stigmas and dialogue between those within and outside of prison. It is, in short, a program that exhibits many of the core values of ‘nothing about us without us’. Notes 1 2 3

http://​r iserefugee.org/​ http://​www.uservoice.org For example, in the 1980s, John Hagedorn (1988) lobbied for gang members to be brought into the political process. He argued that this would help them exit from gang culture while enlivening local politics and youth policy.

References Aas, K.F. (2012) ‘ “The Earth is one but the world is not”: Criminological theory and its geopolitical divisions’, Theoretical Criminology, 16(1): 5–​20. Askew, R. and Bone, M. (2019) ‘Deconstructing prohibitionist ideology: A socio-​cognitive approach to understand opinions on UK drug policy and the law’, International Journal of Drug Policy, 74(2): 33–​40. Becker, H.S. (1963) Outsiders, London: Free Press. Beir ne, P. and South, N. (2013) Issues in Green Cr iminology, Abingdon: Routledge. Boyd, S. and NAOMI Patients Association (2013) ‘Yet they failed to do so: Recommendations based on the experiences of NAOMI research survivors and a call for action’, Harm Reduction Journal, 10(1): 6–​16. Charlton, J.I. (2000) Nothing About Us Without Us: Disability Oppression and Empowerment, London: University of California Press.

13

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

Chou, F., Kwee, J., Lees, R., Firth, K., Florence, J., Harms, J., Raber, M., Stevens, T., Tatomir, R., Weaver, C., and Wilson, S. (2015) ‘Nothing about us without us! Youth-​led solutions to improve high school completion rates’, Educational Action Research, 23(3): 436–​59. Cultural Survival (2013) ‘Lima Declaration of the World Congress of Indigenous Women’, Cultural Survival, [online] 5 November, available online from: https://​ w ww.culturalsurvival.org/​ n ews/​ lima-​declaration-​world-​conference-​indigenous-​women Cultural Survival (2014) ‘Nothing about us without us…Everything about us, with us’, Cultural Survival, 37(4): 1–​29. Hagedorn, J.M. (1988) People and Folks, London: Lake View. Joyce, C. and Lynch, O. (2017) ‘ “Doing peace”: The role of ex-​political prisoners in violence prevention initiatives in Northern Ireland’, Studies in Conflict and Terrorism, 40(12): 1072–​90. Joyce, S. (2018) Mincéirs Siúladh: An Ethnographic Study of Young Travellers’ Experiences of Racism in an Irish City, PhD thesis, Limerick: University of Limerick. Jürgens, R. (2005) “Nothing about us without us” –​Greater, Meaningful Involvement of People Who Use Illegal Drugs: A Public Health, Ethical, and Human Rights Imperative, Toronto: Canadian HIV/​AIDS Legal Network. Lancaster, K., Ritter, A., and Diprose, R. (2018) ‘Recasting participation in drug policy’, Contemporary Drug Problems, 45(4): 351–​65. Leonard, J. and Windle, J. (2020) ‘ “I could have went down a different path”: Talking to people who used drugs problematically and service providers about Irish drug policy alternatives’, International Journal of Drug Policy, 84(1): 1-​8. Lynch, O. (2013) ‘British Muslim youth: Radicalisation, terrorism and the construction of the “other” ’, Critical Studies on Terrorism, 6(2): 241–​61. Lynch, O. and Argomaniz, J. (2017) Victims and Perpetrators of Terrorism, Abingdon: Routledge. Maruna, S. (2017) ‘Desistance as a social movement’, Irish Probation Journal, 14(1): 5–​20. Monaghan, M. (2011) Evidence versus Politics: Exploiting Research in UK Drug Policy Making?, Bristol: Policy Press. Murji, K. (2017) Racism, Policy and Politics, Bristol: Policy Press. Ryder, A.R., Rostas, I., and Taba, M. (2014) ‘ “Nothing about us without us”: The role of inclusive community development in school desegregation for Roma communities’, Race Ethnicity and Education, 17(4): 518–​39. Stevens, A. (2020) ‘The politics of being an “expert”: A critical realist auto-​ ethnography of drug policy advisory panels in the UK’, Journal of Qualitative Criminal Justice and Criminology, 10(2): 1–​21.

14

A HISTORY AND Application for Criminology

Wagner, G. (2003) ‘Nationalism and cultural memory in Poland’, International Journal of Politics, Culture, and Society, 17(2): 191–​212. Wahl, O.F. (1999) ‘Mental health consumers’ experience of stigma’, Schizophrenia Bulletin, 25(3): 467–​78. Werner, D. (2009) ‘Interview with the author of “Nothing About Us Without Us” ’, DINF, [online] 26 October, available online from: https://​ www.dinf.ne.jp/​ d oc/​ e nglish/​ g lobal/​ d avid/​ 0 91026_​ s eminar/​ d avid_​ warner_​en.html Werner, D. and PROJIMO team (1998) Nothing About Us Without Us: Developing Innovative Technologies For, By and With Disabled Persons, Palo Alto, HealthWrights, available online from: https://​www.dinf.ne.jp/​doc/​ english/​global/​david/​dwe001/​dwe00101.html Windle, J. (2014) ‘How the East influenced global drug prohibition’, International History Review, 35(5): 1185–​99. Windle, J. (2018) ‘Why do South-​east Asian states choose to suppress opium? A cross-​case comparison’, Third World Quarterly, 39(2): 366–​84. Wolff, E.A. and Hums, M. (2017) ‘ “Nothing about us without us” –​ Mantra for a movement’, Huffington Post, [online] 9 May, available online from: https://​www.huffpost.com/​entry/​nothing-​about-​us-​without-​us-​ mantra-​for-​a-​movement_​b_​59aea450e4b0c50640cd61cf Yarbrough, D. (2020) ‘ “Nothing about us without us”: Reading protests against oppressive knowledge production as guidelines for solidarity research’, Journal of Contemporary Ethnography, 49(1): 58–​85. Young, J. and Matthews, R. (1992) Rethinking Criminology: The Realist Debate, London: Sage.

15

2

Working Together to Create Change: Theory, Experience, and Praxis Maggie O’Neill and Rosie Campbell

In this chapter we highlight the benefits of using participatory action research (PAR) based upon our long histories of using this approach in our research on sex work, with sex workers and wider communities including residents, criminal justice agencies, and other stakeholders. We draw upon one particular example in our collaborative research that combines participatory arts (PA) with PAR. The chapter opens by articulating the methodological approach of PAR, how we used this method, and how we combined this with PA, highlighting the importance and value of the arts in research. We go on to share some of the findings that emerged from our arts-​based research with sex workers and suggest how researchers might bridge the gap between theory, lived experience, and praxis in order to do social justice and work together to create change. With ‘nothing about us without us’ now perhaps the main banner of the sex worker rights movement globally (ICRSE, 2015), signifying a call for the meaningful involvement of sex workers in policy, programmes, and services around sex work, we argue PAR-​related research can offer a framework for sex worker inclusion and contribute to transforming policy.

Participatory action research and participatory arts: benefits and challenges For us, in our joint and separate research on sex work that began for Maggie in 1989 and for Rosie in 1995, the roots of our work were in feminist and

17

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

ethnographic approaches that sought to learn from the voices and experiences of those on the margins of our social worlds while also creating space for people to be seen and heard, to join us at the table. The importance of life history research and meeting people where they are at enabled us to better access the complexity of lived relations and lived experience and also to think about the interrelationship between the immediacy and everyday aspects of our lives and broader social, political, and cultural structures of power and inequalities in order to better understand and advocate for social change. Identifying and drawing upon participatory methods was for us an important aspect of doing research ‘with’ not ‘on’. Martin O’Brien (2013) has drawn upon Gouldner’s analysis to, quite rightly, argue against sociology or criminology as zookeeping. Gouldner critiques Becker for doing Sociology that ‘expresses the romanticism of the zoo curator who preeningly displays his rare specimens’ (Gouldner, 1973: 37–​8, cited in O’Brien, 2013). For O’Brien (2013: 84) ‘the fundamental task is to expose how “theory” and “world” are not independent variables but critical unities in the development of a transformative criminology’. It is this resistance to ‘zookeeping’ and the valuing of experience in communities and democratic ways of doing research that drew us to participatory methods. Participatory approaches to research that inspired us were critical, engaged with lived experience, and had policy-​or action-​ oriented interventions as an outcome of the research. We were inspired by the Chicago School of Sociology (especially the work of William F. Whyte), the Birmingham School of Cultural Studies (Stuart Hall, Paul Willis, Angela McRobbie), the work of feminists such as Beverley Skeggs, Maria Mies, Patricia Hill Collins, and Dorothy Smith, Latin Americans scholars, and participatory action research experts such as Orlando Fals Borda, Paulo Freire, Ivan Illich, and Asian-​American scholar and film-​maker Trinh T. Minh-​ha. PAR originated in the countries of the Global South. It was launched at the 1977 Cartagena World Symposium, and early proponents were Paulo Freire and Orlando Fals Borda. The methodology emerged from developmental politics and interpretations of the works of Marx (we need to understand the world and to change it) and Gramsci (the combination of ‘common sense’ and ‘critical knowledge’ through mutual recognition and collaboration is more likely to develop greater knowledge and understanding but also solutions to social problems and social harms). For researchers seeking to conduct research in participation with the usual ‘subjects’ of research, in non-​exploitative and non-​procedural ways, the work of the aforementioned scholars is really important. Borda’s (1985) life’s work was committed to conducting PAR with communities in Columbia, Nicaragua, and Mexico. He states that the sum of knowledge from participants and academics/​researchers allows us to acquire a much

18

Working Together to Create Change

more accurate picture of the reality we want to transform. Academic knowledge combined with popular/​folk wisdom may give us a new paradigm. For Whyte (1989), conducting PAR can advance knowledge in new ways, for example through the creative surprise when working with people whose experiences are very different to our own. In Mies’s (1991) fieldwork with women she describes how ‘women confronting “other women” and the reality of their lives raises questions about themselves, the situation of other women and their value systems’ (O’Neill, 2001), and in the process an ‘unlearning’ or ‘critical testing’ takes place of that which women had accepted as ‘natural’ and ‘normal’. Through being open to listening to the lived experiences of other women, each brought ‘affectedness’ and ‘concern’ and this enabled the experience of reciprocity through the encounters with each other. Mies calls this process in the research ‘partial identification’ –​the recognition of what connects us and also what separates us. Mies was very clear that we need to transgress the old scientific paradigm ‘which splits up living unities into life and thought, politics (morality) and science, and which implies the dominion over women … and other races’ (O’Neill, 2001: 48). Another theme in our participatory research is conviviality. By this we mean the relational methods and indeed relational ‘goods’ that mark PAR. Illich’s (1973) definition of a convivial society is one wherein people are not slaves to tools, technology, or oppressive governance systems, and where creativity and imagination are the lifeblood of society. Illich offers tools for a convivial society, based upon what we would define as a commitment to participatory methods. For us, convivial research highlights interdependence, the relational, embodied, sensory, and affective aspects of research, and is about creativity and imagination (Seal & O’Neill, 2019; O’Neill et al, 2019). Taken together, the principles underpinning PAR are for us a commitment to inclusion and participation, valuing all voices, bringing affectedness and concern to the research, a reflexive identification with other people’s lives, and finally creating or facilitating the conditions for convivial research and for relational and embodied understandings to unfold in the process of the research. Hence, for us, PAR and also PA involve relational, active listening, and convivial ways of doing research, connecting theory, experience, and praxis; knowledge produced through PAR is always purposeful. There are, of course, risks and challenges with this approach to research; for example, collaborations that go nowhere can leave communities feeling the approach is tokenistic. More ‘positivist’ methodologies and the demand for ‘evidence-​ based’ data can lead to more ‘sterile and inflexible’ approaches that cast community members as recipients of the research rather than key members. Research which genuinely seeks to include and consult can be met with

19

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

resistance as, in many communities, ‘cynicism has already started to settle in’ because, despite numerous ‘consultations’, nothing seems to change and ‘no one ever hears the results or gets feedback’ (O’Neill & Webster, 2005, italics in original). This research has been described as ‘invite, invoke and ignore’. Participatory approaches of the kind discussed below need time to build relationships and importantly trust and to create the conditions and atmosphere for participation. In the context of sex work research, PAR approaches are vital for guiding research that is inclusive of sex work communities and which involves sex workers in a meaningful way. PAR research should always privilege ethical considerations throughout the research process. This is very important for sex workers, who have been subject to exploitative research practices (Longo, 2004) and as a socially marginalized group have often formed the subject of research without active involvement or tangible benefits for the community. van der Meulen (2011) identifies participatory models of research which include sex workers in the research process as vital to reducing exploitation and misrepresentation, complementing wider sex worker rights advocacy.

Methodological approach: nuts and bolts PAR is a methodology that encompasses social research, action or intervention, and the production and exchange of (often) new knowledge. It facilitates the participation of the very people who might be the subjects of traditional research methods as collaborators and producers. PAR involves praxis –​it seeks to develop purposeful knowledge leading to social change by valuing the knowledge and experience of community members. The focus is upon the process as well as the outcomes of research, and PAR has a better chance of developing solutions with communities or groups because it includes the very people who have a stake in the issue or problem being researched –​community members (O’Neill & Webster, 2005). PAR is underpinned by principles and values of collective research –​ community members are trained as co-​researchers and may be involved in the entire research process from research design to writing up and dissemination. In this sense, PAR is also based upon the democratic principles and processes discussed previously. When community members are involved in the research as community or co-​researchers, and when the research issue or problem has emerged out of community concerns, then participatory approaches and responses can be developed. In the research we discuss in the following sections, we tried to engage all those involved in the area of research: residents, sex workers, and other stakeholders (health, welfare, policing, and criminal justice agencies). Inclusion meant that local residents became our co-​researchers, their

20

Working Together to Create Change

involvement was valued as community experts, using democratic processes and decision-​making. Given this approach, we found that mutual recognition was a very powerful part of the research process and facilitated what Freire (2001) calls dialogic techniques. We were able to develop innovative ways of consulting with local people using arts workshops because our participatory approach to the research was in keeping with the kind of PA embedded in community work practised in the town, especially in relation to ‘arts in health’. Two key arts stakeholders supported our aim to run arts-​based consultation and generated further funding to enable this to happen. The participatory approach, explained further in the next section, enabled shared dialogue, learning, and understanding, and we witnessed changes in deeply held views on sex work in the course of the research. This was in part due to shared ownership in the development, process, and outcomes of the research. Our focus groups and arts-​based workshops enabled people to see and experience the issue of sex work and sex working in fuller, more comprehensive ways. The community researchers were able to experience and reflexively consider the complexities involved and relate these to broader social, political, and cultural structures and processes, including issues of inequality, poverty, and stigma. The research was transformative for many people, including ourselves. Rigorous ethics were at the centre of the research. In PAR, ethics and ethical reflexivity run through the entire project: ethics is not simply about consent, an end stop or tick box, but is central to the process and practice of the research. PAR is a process and practice directed towards social change with the participants. It is interventionist, action-​orientated, and interpretive. In summary, PAR facilitates the creation of time and space for more marginalized people or communities to be involved in research that impacts on their lives –​without reducing them to versions of ourselves; it raises awareness and can change hearts and minds. In a nutshell, PAR empowers, includes, mobilizes, and can transform (O’Neill & Webster, 2005). When using arts-​b ased methods it can also make visible people’s experiences and ideas for change while impacting social policy. PAR can also challenge taken-​for-​g ranted stereotypes, as is the case in our project. When we were interviewed for the research tender, a resident on the interview panel said that she did not care about the methods we used, she just wanted those “dirty prostitutes off our streets”. This same resident at the close of the project championed the right of sex workers to have their artworks exhibited alongside other residents’ artworks at the local art gallery –​the leader of the city council had ‘censored’ some of the images. This resident and community co-​researcher ensured the images were returned to the exhibition space. Participatory research adds value and increases local capacity; it produces

21

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

change with participants and, in our case, local residents, including sex workers as well as stakeholders.

Sex work, safety, and violence Walsall South Health Action Zone1 commissioned this research having identified street prostitution as a significant issue for residents in terms of well-​being and community safety. The Health Action Zone was a body made up of representatives from a range of community and voluntary sector organizations who came together to try and solve some of the intractable health problems facing the area in partnership with the Health Authority and Local Authority. The challenge to the research team was to consult with residents, sex workers, and statutory and voluntary agencies over a period of ten months to get as clear a picture as possible of the major issues, concerns, experiences, and ideas for change. Baseline data were collected and analyzed through sex worker and client surveys. Residents were interviewed by the research team through focus groups, at home, and in local businesses. Representatives from the major statutory and voluntary agencies were also interviewed. In addition, the researchers accompanied two outreach organizations –​a public health funded project and a faith-​based project –​on two nights per week and conducted our own independent outreach on a further evening. The key elements of the research methodology are outlined in Table 2.1. Table 2.1: Research data collection process Residents

Community networking and attendance at community meetings Focus groups (n=6) Outreach ethnographic field research Consultative arts workshops (residents and young people) (n= 14)

Sex workers

Ethnographic research fieldwork: contact with 81 street sex workers Sex worker survey (n=45) In-​depth interviews (n=12) Consultative arts workshops (n=7)

Agencies

Semi-​structured interviews with agency representatives Meetings with agency representatives Attendance at local conferences and multi-​agency forums

Other

Collating and analyzing existing local data and reports Review of national literature Fieldwork visits to five UK cities Pimping questionnaire for Probation Service

22

Working Together to Create Change

Using PAR we met with and involved local people and organizations. We also agreed that an arts-​based approach to consulting sex workers, young people at risk of involvement, and other residents may bring rich material and experiences, and the visual representations could be shared with a wider population than a typical research report. Working in partnership with local community arts organizations, a youth arts agency, and a local artist, Kate Green, we focused the arts project on safety, calling it Safety Soapbox. Safety was a common denominator across all the interviews and focus groups we conducted. Everyone was concerned with safety and violence: ‘By using safety as a theme they thought participants might be able to think more broadly and creatively about some of the issues facing them in their community and focus less on the idea of prostitution as a cause of all the problems’ (O’Neill & Webster, 2005). The arts workshops were planned to be both in situ in the community arts organization and also mobile, on the street, in hostels, community rooms, and workspaces.

What we found Residents’ voices Residents expressed concern that prostitution had increased and was now taking place across a broader geographical area, with women working longer hours, even up to 24 hours. Many residents did not feel safe on the street after dark and were fearful for their children. Harassment from ‘kerb crawlers’ was documented by residents of all ages, both male and female. The residents reported that they did not feel that the community was a safe area in which to live and that situational measures to design out prostitution –​such as road closures, traffic-​calming measures, and CCTV cameras –​were just moving prostitution further into residential areas. Many residents expressed a sense of ‘belonging’ to their community and were happy living in the area, but felt angry and frustrated with the authorities for not dealing effectively with street prostitution and what they perceived as associated problems, which included: lack of respect; harassment; fear of crime; drug use and dealing; health and safety issues; pimps and pimping; associated crime (car theft, break-​ins, and burglary); violation of personal space; a decline in the reputation of the area; businesses worried about losing trade through poor reputation of the area and the proximity of prostitutes and drug dealing; and the early introduction of children to sexual matters. Related to all of these specific concerns was the safety, health, and well-​being of residents as well as the health and safety of the women and young people involved in prostitution.

23

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

‘No safety, harassment, being asked for business, explaining things to children and making up lies to protect them. You can’t walk out in a night at all now because someone might come up to you, a client or something, and they might say this and that, so you can’t, you don’t feel safe walking anymore’. (Resident from focus group 5) Overwhelmingly, residents were dissatisfied with responses by the major agencies. Participants were aware of the responses by the police, but had very limited awareness of responses by the Health Authority and Social Services. Responses to policing were mixed. Participants, while dissatisfied with the police, showed an understanding of the role and limitations of policing measures within the context of the current law, performance indicators, and police resources. All wanted the police to do more, but realized the limitations. Additionally residents wanted the Local Authority to respond to their complaints about associated litter (condoms, needles, lighter fuel cans), unlit alleyways, poor street cleaning, and that unadopted alleyways were not cleaned. Ultimately residents felt that the major agencies and responsible authorities lacked interest in the area. Residents were also concerned with routes into prostitution, and the majority of residents showed a great deal of concern and understanding for the lived realities of the women and young people working in prostitution. Many residents said that routes into prostitution are a response to poverty, drug use, abuse, or single parenthood, and were linked for some to local authority care. Additionally, most residents focused on the coercive and controlling behaviour of men associated with some of the women, and the violence used to ‘control’ them. A minority of residents were so angry and frustrated by their current situation and experiences that they did not want to focus upon routes into prostitution or welfare responses to prostitutes –​ they felt that they were the victims and that they were living in an area of toleration. Residents offered a number of suggestions to address the concerns and problems they experience. Some residents supported the idea of a zone of some kind, where sex workers could work away from residential areas. There were mixed feelings about residents’ action and patrol groups. These were described as a short-​term remedy, as it is not the residents’ responsibility to police their streets and ultimately such action puts residents at risk as they can promote violence and vigilantism. Many supported a co-​ordinated multi-​ agency response that involved the police, health, and education authorities and drug, social, and environmental services –​responses with every agency working to a common agenda. One resident suggested:

24

Working Together to Create Change

In order to tackle prostitution, there needs to be a co-​ordinated approach with every agency in Walsall working to a common agenda, and services provided should be completing each other instead of competing with each other. The concretive effort needs to be backed up with real resources. Agencies need to put money where their mouths are. (Written evidence from a resident) Residents also wanted drug use responded to in more co-​ordinated and effective ways. Residents taking part in the art workshops stated that young people from their communities are using drugs and desperately need services, help, and support which are currently unavailable. The majority of residents felt that their concerns were going unheard. All the residents we spoke to suggested that there should be a change in the law; education, prevention, and harm-​minimization responses should be developed and encouraged. A key aim for the future was better education for young people; it was suggested that all within the community should take responsibility for this, not just schools. Residents felt that the future of young people in the community had to be protected. Preventing routes into prostitution and developing harm-​minimization responses for those involved was seen as a necessary development for the community through partnership working. Many residents were keenly aware of the realities of routes into prostitution and the reasons why people might sustain involvement in prostitution. These residents stressed the need to develop prevention strategies, especially for young vulnerable people, including services to address drug use, violence, domestic violence, and homelessness. The residents’ views on prostitution represent diverse attitudes and values towards prostitutes and prostitution. Some were anti-​prostitution; others saw it as a necessary evil; others saw it as a fact of life that should be better managed to prevent the problems and associated activities that impacted so greatly on the lives of residents. Ultimately all agreed that we have to work together to create change. This was evident most clearly in the exhibition Safety Soapbox: Sharing Our True Colours, which is discussed below.

Sex workers’ voices Routes into sex work take place within the context of complex lived relations. The majority of street sex workers are white. Of our sample, 58 per cent (n=26) were mothers, of which 62 per cent (n=16) had their children living with them. The majority (78 percent, n=34) mainly contacted clients on the street, although a number of street workers also contacted clients at home via their phone, either given out to clients initially contacted on the

25

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

street or advertised in local papers and contact magazines. In terms of the frequency of working, 47 per cent (n=21) said they usually worked more than five days a week; 44 per cent (n=20) worked between two and four days a week, and a small minority worked less regularly. The majority of sex workers indicated more than one reason for why they first started selling sex. The most commonly identified reason was to make a living (56 per cent, n=24). Other reasons were: to pay debts (24 per cent, n=10); to get money for drugs (16 per cent, n=7); to get money for food or accommodation (13 per cent, n=6); and that they were forced by someone but didn’t realize it at the time (13 per cent, n=6). Additional reasons given were: running from a children’s home; only selling sex when money is needed; and that is was suggested by an ex-​boyfriend. In-​depth interviews with sex workers revealed the multi-​layered reasons and circumstances they identify as leading to their initial entry into sex work. Many of the reasons sex workers identified for entry into prostitution were are also factors for continued involvement. For some, coercion and association lead to their entry into prostitution but economic need kept them there, as well as a subculture of similar and significant others. A significant proportion –​42 per cent of the whole sample –​reported experience of local authority care. Just over half of street workers (51 per cent, n=18) reported experience of local authority care compared to 13 per cent (n=7) of sauna workers. Ten (67 per cent) of the 15 people who reported they started sex work when they were under 16 had experience of local authority care. Of the 10 women who started regular sex work between 20 and 29, 30 per cent (n=3) had experience of local authority care. This confirms a correlation between starting age and this one factor of vulnerability. Of the survey respondents, 27 per cent of those who use drugs, (n=6) admitted to presently injecting drugs –​although this is only 14 per cent of the whole sample. Of those who were using drugs, only 36 per cent (n=8) had ever had drug treatment or support and only 23 per cent (n=5) were currently receiving treatment or support. Sex workers stressed a need for harm-​minimization work and better access to drug support and treatment. Housing and homelessness were a key issue: 22 per cent (n=10) of sex workers were homeless; of these, six were staying with friends (one was staying with a boyfriend), two were in hostel accommodation, one was sleeping rough, and one was staying in bed-​and-​breakfast accommodation. All of these were street sex workers. A number of women experienced persistent problems with housing, often with multiple presentations to housing services. Some of the women presented with other issues such as drug use or domestic violence; some of these issues were reasons for leaving previous tenancies and becoming homeless.

26

Working Together to Create Change

The majority of street sex workers have had some contact with the criminal justice system –​64 per cent (n=29) of respondents had convictions for prostitution. Two sauna workers had convictions, which had been obtained when they worked in street prostitution some years earlier. One of these had spent time in prison for non-​payment of fines. For this woman, leaving her children was unbearable. Outstanding fines were held by 38 per cent (n=17); 46 per cent (n=16) of street workers had outstanding fines (no sauna workers documented any outstanding fines). Just over a third (38 per cent, n=17) had spent time in prison. One woman we interviewed had 156 separate fines. National and international research indicates that violence against sex workers is endemic (Kinnell, 2008; Boff, 2012; Campbell, 2014, 2016, 2018; Sanders et al, 2018). The most commonly reported source of violence was client violence (56 per cent, n=25). This was followed by violence from: a partner/​boyfriend (42 per cent, n=19); coercive and controlling relationships (33 per cent, n=15); and passers-​by (31 per cent, n=14). We asked respondents to indicate what types of violence they had experienced from clients: 47 per cent (n=21) had been threatened with a weapon; 33 per cent (n=15) had been raped; 29 per cent (n=13) had been robbed; 31 per cent (n=14) had been physically assaulted; 22 per cent (n=10) had been sexually assaulted; and 13 per cent (n=6) had been kidnapped or abducted. Responses by the criminal justice system to such levels of violence are clearly an important concern: 66 per cent of sex workers said that if they were attacked in the course of their work they would report it to the police, 22 per cent would not report, and 18 per cent did not know if they would report it or not. Thirty-​six per cent (n=16) had reported an attack to the police and 60 per cent (n=27) had never reported an incident: 4 per cent did not respond to the question. Much violence is under-​reported. We asked sex workers who had reported incidents to the police how satisfied they were with the response they received. Of those who responded, the majority were not satisfied. Of the sixteen sex workers who had reported an attack, one (6 per cent) was very satisfied, five (31 per cent) were satisfied, two (13 per cent) were unsatisfied, and eight (50 per cent) were very unsatisfied. Sex workers are very loath to take crimes of rape and assault to the police, because of the illegal nature of their activities and the social stigma involved in selling sex. Take-​up of sexual health services can also be a problem due to fear of losing care and custody of children, poverty through loss of social welfare and accumulating debt, the criminalization and stigmatization of sex work, and responses such as targeted policing. Condom distribution has always been intended to achieve much more than simply getting condoms to sex workers. It is an integral part of broader sexual health promotion

27

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

and harm minimization, which includes: initiatives to make sexual health services accessible to sex workers; drugs services (needle exchange, support treatment); and the provision of broader health and welfare services. Condoms distributed more regularly was the service sex workers most wanted (73 per cent, n=33), followed by a family planning clinic (13 per cent, n=6). Reported condom use was high, with 88 per cent (n=39) reporting that they always used condoms for full sex with clients, and a further 9 per cent saying they used them most of the time: 98 per cent (n=42) said they always used condoms for oral sex with clients and 2 per cent (n=1) said they used them most of the time. A majority of respondents (58 per cent, n=26) were not using any contraception other than condoms. There is clearly a need for more accessible local sex workers’ services In terms of service provision, the Public Health Outreach Project was the most used service, with 56 per cent (n=25) indicating that they used this service (although it operated only one evening per week during the research period). This was followed by faith-​based outreach and the local hospital GUM/​STD clinic, both identified by 40 per cent (n=18). In terms of broader service provision, sex workers were asked to identify which services they felt were needed. The most requested were: • • • • • • • • • • •

73 per cent (n=33): condoms distributed more frequently; 53 per cent (n=23): drop-​in service on or near the beat; 49 per cent (n=22): GUM/​STD testing that travels to the beat; 44 per cent (n=20): housing advice and support; 38 per cent (n=17): self-​defence and safety-​training information; 36 per cent (n=16): legal advice; 33 per cent (n=15): outreach needle exchange; 33 per cent (n=15): education/​training advice and guidance; 31 per cent (n=14): better drug information and treatment; 29 per cent (n=13): better access to hepatitis B injections; 24 per cent (n=11): outreach contraceptive service.

Sex workers were invited to make any further comments they wished about services for sex workers. These subject of these comments included the need: for debt advice; to address safety and violence; for personal alarms, which can be replaced if lost; for more help to keep younger women off the streets; for something to be done about the violence and attacks; for more than one day a week of outreach service and a drop-​in service; for involvement of sex workers through peer education work; for support to find employment; and for better healthcare provision and drug support and treatment. As the majority (58 per cent, n=26) did not want to do sex work for the foreseeable future, there is a need for further development and investment in support services, including education

28

Working Together to Create Change

and training, and access to education and training through sex worker outreach support. Sex worker responses suggest that such support must be part of a holistic package and not focused solely on one element. Finally, an area of minimal enforcement away from residences was a popular recommendation for many.

Arts workshops and exhibition A total of 21 arts workshops were run with residents, young people living in the area, and sex workers. The resulting images were exhibited at the local art gallery and launched to a cross section of social policy providers, research participants, and their families. Working creatively with communities helped them to overcome barriers and the binary thinking that often accompanies debates and discussions on sex work. Solidarity was an important outcome, with a focus on similarities across differences emerging. All figures in this chapter were produced at the arts workshops and all quotations are from discussions which emerged with participants during the workshops.

Residents The key issues emerging from the discussions and art produced were as follows. Residents highlighted: community safety; associated crimes; drugs; coercion and control; and the need to explore possibilities for an area where street prostitution could be regulated away from residential communities and in a manner which promoted the safety of sex workers. Safety ‘Prostitution affects my life and my children 24/​7. I go home and there it is, all weekend, there is no escape, no rest’. ‘We are concerned about drugs. We are concerned about prostitution and we are concerned about litter too’. Residents reported feeling let down by the authorities. They also felt that there are not enough treatment services or support for drug and alcohol problems. It was also acknowledged that “some of our own families/​ communities do the drug dealing but we keep our mouths shut”. Education, harm minimization, and prevention Residents were also concerned that we focus upon harm prevention and education, especially for young people. Such work could be developed

29

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

Figure 2.1: If this is what our children see...

Figure 2.2: Drugs taking the lifeblood from our community

30

Working Together to Create Change

Figure 2.3: Safe and protected behind glass

for schools, with children, and serve a longer-​term goal of being used as a teaching tool for use by the schools themselves. A resident in a focus group said: “We can spread messages to people through art”. Role of art A resident talked about how fear and other factors can give rise to depression and that “art can help lift people and help them find some peace. Art can bring peace. Art can help people”. The role and purpose of art in the community is therefore not just about helping to facilitate involvement through consultation and empowering people but also serves a more personal and practical role. The key theme that connected all the members of the first arts workshop was their desire and commitment to work for the community to help make improvements. Young residents The key issues for young residents revolved around feeling unsafe on streets because of harassment from ‘kerb crawlers’ and a general fear of crimes against them. Two young people talked about carrying knives as protection. Two young people mentioned friends who were approached to work as escorts. The seriousness of some of the issues that emerged from the voices and

31

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

artworks of the young residents reflect also the concerns expressed by the focus group participant on behalf of young people. A young man in the group told us he was propositioned although at first he didn’t realize it –​a man in a car asked him if he was working: ‘It starts as soon as it goes dark … three days ago a man pulled up in a car and said “get into the car … I want to get to know you’ ”. Not wanting to go out A young woman talked about being upset by the attention from men. “I don’t go out much in the area, I just go down to me mum’s”. ‘When you are scared, you can’t scream’. ‘You shouldn’t have to walk around the streets feeling unsafe’. The young people at the workshops attended by the researchers showed a great deal of understanding about the complexity of the issues, and empathy for sex workers: Figure 2.4: Protecting my family

32

Working Together to Create Change

‘They should be safe … there should be support and somewhere to go’. ‘They watch you, the dirty perverts … I’ve lived here eight months now and I am used to it … it doesn’t bother me … but prostitutes have to work somewhere … they are always going to be there’. ‘It isn’t their fault and it’s up to them what they do, but it isn’t very nice when we get seen as a prostitute’. In response to how we might change things, the young people suggested: • • • •

getting out of the area in order to feel safer on the streets; getting prostitution off the streets; helping the prostitutes get jobs; and that they didn’t think CCTV cameras were going to make them feel safer –​in fact they didn’t think they were going to make a difference.

“The cameras are no good, it’s going to be too late”, said one respondent.

Sex workers The key issues which emerged from the discussions with sex workers revolved around their lack of safety on the street and violence against them. One respondent reported: “One bloke tried to ammonia me … He was telling me I was going to give him a blow job for a fiver … he drove past and squirted ammonia at me … it went in my hair and down my coat luckily”. For some women, protecting their families –​not wanting their children to know what they do, due to stigma and the pressure to keep their sex work hidden –​ and leading double lives were experienced as very stressful. For other women, attempts to do something else were frustrated by people’s attitudes towards them and the fact that, as a ‘common prostitute’, you have a criminal record. Attempts at change for some women were also frustrated by lack of self-​esteem, economic necessity, drug use, and homelessness caused by fleeing violence at home. The key themes emerging from art workshops with women are as follows. Ordinary women Some women wanted to get across the fact that they are ordinary women, who are mothers, who have lives, and who want to be respected as human beings. A local woman was very anxious not to be identified because of her desire to protect her children from the knowledge of what she does:

33

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

‘I don’t care what people think about me but it’s what they’d say to the kids if they knew’. ‘Being a mum –​it is really important to me, they can say anything to me but not the kids’. ‘I’m just an ordinary mum now when I go to the school, but what would they think if they knew?’ ‘I’m a mum –​I’m just like everybody else’. ‘I’m really paranoid about the kids –​I worry about them all the time’. On leading double lives and experiencing prejudice from others, two participants said: ‘People see women involved in prostitution as weird, perverse, not ordinary people’. ‘I think they think we’ve got two heads and are all nymphomaniacs’. Figure 2.5: He went for my face

34

Working Together to Create Change

Violence Overwhelmingly, the pivotal issue emerging was how susceptible they are to violence from clients, ‘punters’, and customers as well as passers-​by, and how few rights you have as a ‘common prostitute’: ‘They think you’ve got no rights. In the papers it will say “A prostitute” has been murdered. Does it matter that she’s a prostitute, she’s dead? She is a woman too’. Sex workers felt also that it was much safer to work indoors than outdoors and that there were greater risks and dangers with street prostitution: ‘You don’t see the dangers on the street until something happens’. ‘It was when I was raped –​I asked him to use a condom –​he drove me back onto the beat, can you believe it?’ ‘It was being a mum as well, I thought what would they do if I was murdered, so I came off the streets’. ‘You don’t see the dangers until you come out’. ‘Nine out of 10 times you can always suss them out … dodgy punters … you might have seen them before in the area’. One sex worker commented on how hard it is to work in such awful circumstances, with bad weather and bad men. She also talked about safety strategies, how you can tell a ‘bad punter’ and the importance of looking carefully, taking time to sus them out. She also talked about “being on show”, how she relied on her “intuition”, and about feeling numb to customers. Some felt a tolerance zone was a good idea and that off-​street working was also good, so long as there were safety mechanisms. Health issues Another key issue that emerged was the importance given to condom use by sex workers. Sex workers were aware that they were often stigmatized as vectors of STI’s, with their role in promoting condom use with clients and wider sexual health promotion ignored. Without condoms –​‘tools of the trade’–​they would not work:

35

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

Figure 2.6: Bad weather

Figure 2.7: Tools of the trade

36

Working Together to Create Change

‘At the end of the day you’ve got to go home and kiss your kids –​no sex without condoms’. ‘Is that bit extra worth your life? Always wear condoms’. Sex workers felt that some of the images that emerged could be used as public health leaflets promoting safety and sexual health. One woman’s ‘tools of the trade’ artwork is a particularly striking image that would be useful for women and safe sexual health or peer education projects. This is also a way of educating clients, many of whom ask for unprotected sex. Lack of ‘mainstream’ work experience This can be a problem, as the women can’t talk openly about the skills they use in sex work –​communication skills, receptionist skills, dealing with difficult clients. One respondent said: “It’s hard to get out, I’ve done nothing else really”.

Praxis, policy, and impact The research recommendations addressed: minimizing and preventing the impact of prostitution on residential areas, and improving perceptions of community safety; examining the possibility that a formal street zone be developed in the longer term; addressing coercive control; developing peer education and addressing violence against sex workers; developing more co-​ ordinated holistic and multi-​agency services and responses to prostitution and sex workers that more effectively address health and welfare needs; support for drug and alcohol problems (see Grenfell et al, 2016); addressing violence against women, including the specific ‘risks’ for women involved in sex work; and providing support to sex workers. Acknowledging sex workers as ordinary women, as human beings, as mothers, sisters, and daughters was identified as critical for an effective, inclusive, and rights-​based way forward. ‘We need to work together to create change’ was the primary message of the research. The findings and the report were presented back to the community and key agencies. The recommendations were not universally accepted by either the Local Authority or the Health Authority. Additionally, the police officially rejected the key recommendation, supported by a broad range of communities and agencies: that they should move toward the idea of creating a safety zone away from residential accommodation where sex workers could work with the support of health and other agencies. What happened next really evidences the impact and role of PAR. Members of the Health Action Zone and the residents who had participated in the research as a

37

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

community continued to work towards enabling the recommendations to be achieved. One took up a seat on a multi-​agency forum on prostitution, and the community researchers raised money to produce a leaflet that included the recommendations and the art images. They printed and hand delivered it to every house in the Caldmore, Palfrey, and Pleck area. A website was developed to share the images and the report. The research illustrates what is probably the most important consequence of participatory approaches to research with communities. When people have been invited to do research with academic researchers, when their knowledge and experience is valued, when they are heard and understood, and when they have had a vision of how the future might look, they will not conveniently sit down and be quiet when the project is over. This is what makes PAR a very powerful tool for those who want to promote change, but not a very convenient methodology for the kinds of service providers who want research to produce a glossy report which they can put on the shelf and which permits them to go back to delivering services in the way they have always done. Outcomes of the research were documented and some of the recommendations were adopted immediately. The police established a multi-​ agency panel of professionals working with women involved in the sex trade, along with other agencies and community members. The public health funded outreach organization had their contract extended. Key longer-​term impacts ensured the research had ‘enduring impact’ on the way the local authority used the arts to develop better sexual health services for young people. The community co-​researchers went on to do more community-​ based work such as serving on the board of the arts organization, and the local authority commissioned further arts-​based projects. The outcomes of the research are used to train health professionals. One key service stated: What was significant about it [the research project] is that it bought agencies around the table to talk through their approaches to the issues surrounding prostitution and to look for a new way forward. One of the most important enduring local impacts is that … it broke down the standard professional boundaries and made people think about new approaches. It was agreed that ‘lots of people had their eyes opened by the project … to the experiences of the women and it made them look differently at women working on the streets’. Moreover it left a ‘legacy at a community level in terms of the continued involvement of community members in other projects’. For example, a public health consultant stated that:

38

Working Together to Create Change

‘a group of people who came together as a result of the project, who became critical of the way that a stream of funding was being spent to deliver hostel services to young people in the area at risk of being drawn into prostitution … went on to form an action group which influenced the way hostel services were commissioned in the Borough’. The National Lead for Improving Patient Experience in the NHS Development Authority worked as a community public health worker at the time of the research and stated that “the project had a considerable impact both at the time and since”, it showed that “health professionals do not focus on aspects of young people‘s lives that do not immediately present themselves outside of working hours” and “pioneered working with young people around issues related to sexual health particularly with groups of vulnerable young people”. With sex worker rights organizations across the globe calling for “nothing about us without us”, PAR is more relevant than ever for sex work–​related research, offering one tool to support and inform policy and service provision related to sex work.

Conclusion To conclude, PAR enables a combination of theory, experience, and praxis to help outline and create social justice for sex workers and the communities they live in and are part of. Combining PAR and PA provides the opportunity for participants to use and develop their creative abilities and thinking. The work that is documented here has facilitated collective research and art forms that speak of the complexity of residents’ and sex workers’ experiences as a key element in processes of social inclusion and social change through grassroots community research that bridges the ‘gap between theory, lived experience and praxis in order to do social justice and work together to create change’. Acknowledgements With special thanks to all the community researchers on the project, to the fantastic participants, to Mark Webster, Walsall Youth Arts, and to artist Kate Green.

Note 1

Walsall South is a parliamentary constituency in the West Midlands, UK.

39

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

References Boff, A. (2012) Silence on Violence –​Improving the Safety of Women: The Policing of Off-​street Sex Work and Sex Trafficking in London, available online from: https://b​ ceec56b-1​ 210-4​ f10-9​ 5fb-8​ 537ce6eebd5.filesusr.com/​ugd/​ 047866_​5d318ab5d4a04de0a568e62c084d6499.pdf. Campbell, R. (2014) ‘Not getting away with it: Linking sex work and hate crime in Merseyside’, in N. Chakroborti and J. Garland (eds) Responding to Hate Crime: The Case for Connecting Policy and Research, Bristol: Policy Press, pp55–​70. Campbell, R. (2016) Not Getting away with It: Treating Crimes against Sex Workers as Hate Crimes in Merseyside, PhD thesis, Durham: Durham University. Campbell, R. (2018) ‘Beyond hate: Policing sex work, protection and hate crime’, in T. Sanders and M. Laing (eds) Policing the Sex Industry: Protection, Paternalism and Politics, Abingdon: Routledge, pp53–​72. Fals Borda, O. (1985) Knowledge and People’s Power: Lessons with Peasants in Nicaragua, Mexico and Columbia, New York: New Horizons. Freire, P. (2001) Pedagogy of the Oppressed, London: Continuum. Grenfell, P., Eastham, J., Perry, G., and Platt, L. (2016) ‘Decriminalising sex work in the UK’, British Medical Journal, 354: 1–​2, available online from: https://​www.bmj.com/​content/​354/​bmj.i4459 ICRSE (International Committee for the Rights of Sex workers in Europe) (2015) Nothing About Us Without Us!: Ten Years of Sex Workers Activism and Advocacy in Europe, [online] Amsterdam: ICRSE, available online from: http://​www.sexworkeurope.org/​sites/​default/​files/​userfiles/​files/​ ICRSE_​10years%20report_​Decemberr2015_​photo_​final.pdf Illich, I. (1973) Tools for Conviviality, London: Harper & Row. Kinnell, H. (2008) Violence and Sex Work in Britain, Cullompton: Willan. Longo, P. (2004) ‘From subjects to partners: Experience of a project in Rio de Janeiro, Brazil’, Research for Sex Work, 7(9), available online from: http://w ​ ww. nswp.org/​resource/​research-​sex-​work-​7-​ethics-​healthcare-​and-​research. Mies, M. (1991) Patriarchy and Accumulation on a World Scale, London: Zed Books. O’Brien, M. (2013) ‘The Deviance of Zookeepers’, International Journal of Criminology and Sociological Theory, 6(4): 81–​91. O’Neill, M. (2001) Prostitution and Feminism: Towards a Politics of Feeling, Cambridge: Polity Press. O’Neill, M. and Campbell, R. (2000) Working Together to Create Change, Staffordshire: Staffordshire and Liverpool Hope Universities. O’Neill, M. and Webster, M. (2005) Creativity, Community and Change: Creative Approaches to Community Consultation, Staffordshire: Loughborough and Staffordshire Universities.

40

Working Together to Create Change

O’Neill, M., Giaquinto, B., and Hasedzic, F. (2019) ‘Migration, memory and place: Arts and walking as convivial methodologies in participatory research’, in M. Berg and M. Nowicka (eds) Studying Diversity, Migration and Urban Multiculture: Convivial Tools for Research and Practice, London: UCL Press, pp96–​119. Sanders, T., O’Neill, M., and Pitcher, J. (2018) Prostitution: Sex Work, Policy and Politics, London: Sage Seal, L. and O’Neill, M. (2019) Imaginative Criminology, Bristol: Bristol University Press. van der Meulen, E. (2011) ‘Action research with sex workers: Dismantling barriers and building bridges’, Action Research, 9(4): 370–​84. Whyte, W.F. (1989) Action Research for the Twenty-​first Century, London: Sage.

41

3

Whitewashing the White Collar Ciaran McCullagh

The processes of marginalization and social exclusion have become important ones in contemporary sociology and criminology. As conventionally understood, they refer to the ways in which certain parts of the population are excluded from the social, economic, and cultural opportunities and resources that would allow them to participate as full citizens in society (for example, Giddens & Sutton, 2013). This has a particular impact on how we understand crime. Despite some gestures towards other areas, such as the sexual abuse of children, the prevailing assumption in the study of crime in Ireland is that it is the behaviour of people from working class backgrounds. Moreover, this is a perception that tends to be secured by research on offenders or at least on those offenders who are caught and convicted. Those in prison in Ireland are mainly young, unemployed, urban males from working class backgrounds with an additional range of disadvantages. These include drug problems, lack of significant labour market skills, no educational qualifications, and in the cases of many of them an absence of basic literacy.1 All of which are among the classic markers of marginalization. However, the argument of this chapter is that if marginalization is taken solely in this way, then it is inadequate to fully understanding crime in Ireland. Marginalization is, in fact, a more complex phenomenon and best understood as a double-​edged process. If one group, or set of groups, is marginalized or excluded from full participation in society, there are others who are freed from the constraints and obligations of citizenship. They are excluded from the responsibilities of citizenship. This is the process of double marginalization (McCullagh, 1996). Put at its most simple, some groups are marginalized in the conventional sense, that is, from access to social resources such as education, housing, and

43

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

employment. These are the groups from whom we derive our conventional images of crime and of criminals. The others has privileged access to these resources but are insulated from the impact of effective social control over their behaviour and from the social stigmatization that follows from being labelled anti-​social or criminal. Hence people from what we might broadly term working class backgrounds and others, such as travellers, must deal with the implicit but often quite overt suspicion that they are ‘unreliable’ and more easily susceptible to the temptations of criminal activity while the rest of us are not. It is the crimes of the rest of us that I want to discuss here. The crimes of the middle and upper classes and those of powerful institutions in Ireland remain largely hidden, and, through official neglect, largely unknown, underprosecuted, and undersanctioned. This ‘silence’ feeds into the process of double marginalization that, where crime and law enforcement is concerned, is at the heart of our society. The label of criminality in Ireland is mainly reserved to describe the illegal behaviour of working class and other marginalized groups, and as such distorts social reality. In addition, it plays a key role in the process of class reproduction. What I want to suggest in this chapter is that there are a number of reasons for the comparative silence around white collar and corporate crime in Ireland, some of which relate to the nature of this kind of crime, and others that are more local in tone. The first is universal and is a matter of definition. When we are talking about white collar and corporate crime and about white collar and corporate offenders, what and who exactly do we mean? The second is the manner in which such crimes are regulated by the state, a process that, it will be argued, is designed to downplay their criminality. The third is the law of libel. The ever-​present threat of its use in Ireland can seriously obstruct the investigation of these kinds of crimes and seriously constrain the willingness to see these kinds of behaviour in a criminal light.

What is white collar or corporate crime? A long-​standing problem for the academic study of crime has been the definition of its subject matter. Sellin (1934) argued that if criminology was to achieve status as an independent discipline then it should not rely on the criminal law to define its subject matter but needed to come up with its own. Enter Sutherland. He felt that working within a legal definition of crime distorts our knowledge and perception of crime. It ignores the crimes of the rich and the powerful. His solution was the term that is indelibly associated with him, that of white collar crime, defined as ‘crimes committed by a person of respectability in the course of his occupation’ (Sutherland, 1939: 9). These, he argued, were omitted from the study of crime even though their offences were ‘frequent, routine and repeated’. Though his

44

Whitewashing the White Collar

work was first published in 1939, the concerns he raised and the difficulties that his works raise continue to be issues for criminology. This is somewhat surprising in a discipline that, as Rock (2005) contends, often has little sense of its own history. A substantial problem and an extensive literature have evolved from the work of Sutherland, an important dimension of which revolves around his definition. Tappin (1947), a criminologist and contemporary of Sutherland’s, argued that Sutherland’s definition is misleading. If behaviour is not handled by the police and prosecuted by criminal prosecutors then, Tappin argued, it is not crime in any legal or technical sense. The kind of business practices that Sutherland was talking about –​tax evasion, price fixing, false advertising, insider dealing –​didn’t meet these criteria and so should not be considered as crimes nor should those who engage in them be regarded as criminals. Thus, Tappin and others that follow after him believe that what we study as crime is behaviour that is so defined by the criminal law. This means that the object of study for criminology must remain within the confines of the criminal law. However, what such critics fail to consider is the nature of the law and more importantly how the law is made. The law is not some pre-​ existing or essentialist category but a product of social construction. It is the result of negotiation between the state and significant social interests, and this means that, as McBarnett (1991: 324) puts it, the ‘involvement of potential defendants in the shaping of the law that regulates them’. Business law, for example, can be a product of negotiations between business interests and the state, but such a process has no equivalent in the making of the criminal law. When the state is considering criminal law on, say drug trafficking, it does not consult with drug dealers. But when business law is being made, the relevant interests and bodies are involved even though they may well be the people whose behaviour is being regulated and so may potentially be people against whom the law is used. Thus, the distinction between business, administrative, and criminal law is not a natural one but a social product and as such reflects how the power to assign the status of criminality to behaviour is constructed and organized. At this point it is useful to consider how laws get to be made. This is an area in which there has been little comprehensive research in Ireland, but there are indications that the role of lobbyists is important in this. According to Loewenberg (2006: 13), an attempt by the European Union to increase by law the level of testing done by the chemical industry on the material used in a range of consumer goods unleashed what the European commissioners said was the biggest lobbying effort in modern history and resulted in the watering down of the proposed regulations. An email from a US trade agency told lobbyists that they needed to get to certain governments and neutralize them. One of the relevant targets was the Irish one.

45

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

A common strategy used by lobbyists to influence the content of legislation is to set up a front and seemingly independent group who produce what appears to be coherent, rational, and scientific arguments against the new rules and to use public relations companies to distribute them. An interesting case for further analysis is the role of lobbyists in influencing the shape of alcohol legislation in Ireland, particularly the role of industry lobbyists who saw Ireland as a testing ground for the shift to a health-​based approach to alcohol as against an economic-​or leisure-​based one (see Calnan et al, 2018). A more extended discussion here would have to include the role of the state, which through its law-​making and its choice of the means of regulation may not adequately discourage these kinds of behaviour. It is appropriate here to bring in the issue of the failure to legislate on corporate killing or corporate homicide. It provides a useful illustration of how laws are enforced and, somewhat more tellingly, the way the need to make effective law and enforceable law is ignored. Irish workers are, according to Kilcommins and colleagues (2004: 130), nearly as likely ‘to be wounded or killed at work, sometimes because their employer has broken the law, than they are to be attacked and harmed by a stranger’. In 2017 there were 48 ‘fatal workplace injuries’ and 48 murders plus homicides, though in both cases these numbers are open to revision either for undercounting or for recording issues, and obviously in the former case there is no implication that all of these deaths are corporate killings (CSO, 2018, HSA, 2019). The Law Reform Commission said in 2003 that the existing law was inadequate in the absence of evidence of any successful prosecutions under it. It argued that the law as it was then, and continues to be, made it difficult to get a conviction in cases involving the deaths of workers in workplace incidents. The operation of the law depended on the ability of the prosecution to be able to show that there was a ‘controlling mind’, that is, a senior manager or company director, who was responsible for the policy that was implicated in the death. This has proven extremely difficult to establish and a number of high-​profile prosecutions collapsed in England and Wales on these grounds (see Doyle & McGrath, 2016). The commission (2003) recommended the creation of the offence of corporate manslaughter for corporate entities. This would make an organization responsible for any death that resulted from its gross recklessness. It also recommended the creation of the offence of ‘grossly negligent management causing death’. This was intended to be the means through which those corporate officers who play a role in corporate manslaughter could be prosecuted. These offences were intended to apply not simply to companies but to all of what the commission called ‘undertakings’ in the state, such as public bodies like local authorities and government agencies. A similar kind of law was passed in England and Wales in 2007. Yet despite the

46

Whitewashing the White Collar

significance of the issue, these recommendations have not been enacted, and despite a number of attempts to bring in such legislation to the Dáil through private members bills, none have been successful. There was, as McGrath (2015: 117) argues, a recognition of the need to do something about corporate behaviour, but ‘the efforts to act on these sentiments lacked commitment’. There is a further issue with Sutherland’s definition. The problem here is that many of those who are prosecuted for what Sutherland defined as white collar crime are self-​evidently not rich and powerful. So, for example, while employees may be prosecuted for defrauding a credit union, they are neither powerful nor rich but mainly middle-​or low-​ranking. So to consider their behaviour as crimes of the powerful is to stretch the term into meaninglessness. This has led to attempts to bring the notion of social harmfulness into the debate and to set standards by which behaviour could be judged to be socially injurious or not, and so open it to study by criminology independently of whether it is prohibited by the criminal law. A significant line of thought here originates from the work of Schwendinger and Schwendinger (1970). They suggested that the decision of what crime is can be arrived at in the following way. There are, they argued, particular and indisputable human rights –​most crucially ‘the right to security of one’s person’–​and any actions that violate these rights should be considered as criminal irrespective of what the law says about it, and hence as appropriate subject matter for criminology. They had intended this to open criminology to the study of genocide, poverty, and economic exploitation. A more contemporary version of the attempt to find the subject matter of criminology in the concept of social harm is the work of Dorling and colleagues. For them, any behaviour that causes social harm, whether it is forbidden by the law or not, should be studied by criminologists. So, criminologists should ‘focus upon harms caused by chronic conditions or states of affairs, such as exposure to airborne pollutants, poor diet, institutional racism and homophobia’ (Dorling et al, 2008: 17; see also Hillyard & Tombs, 2007). However, though these kinds of approaches may be attractive at a political level, and the Schwendingers’, for example, were unapologetic about the political nature of their approach, that is also their weakness. Consider, for instance, the COVID 19 epidemic and the reports of the activities of the firms that own or control the supply of personal protection equipment that are essential to protect health workers from the risk of infection. These activities include price gouging, the withholding of such equipment to raise its price, and the sale of the companies themselves. Is this the creation of social harm or simply the normal behaviour of entrepreneurial individuals

47

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

in a free market? The choice between the two is as much a political as a criminological one. Can these issues of definition be resolved? One way of doing this is to make a distinction at a conceptual level between two different kinds of white collar crime –​occupational and organizational crime (see Beirne & Messerschmidt, 2014; Levi & Lord, 2017). It is a useful though not a perfect differentiation. Occupational crime is where the resources of the organization are used to commit crime but where the gain is personal. Corporate or organizational crime is where the resources of the organization are used to commit crime and where the gain and benefit is to the organization. So a staff member who, for example, defrauds the organization through embezzlement commits an occupational crime, while an organization that uses its resources to commit offences under, say, pollution legislation or tax law commits corporate crime. What they have in common is that they are both punishable by the state. Where they differ is in who benefits from the crime. The distinction is important in maintaining the difference between the crimes of low-​level employees and those of the more powerful in corporations. Moreover, although the distinction makes theoretical sense, it can be difficult to apply in practice, not least because when corporations gain, so too do their directors and managers. Thus, although the only benefactors from occupational crime are individual employees, senior and high-​placed employees may, in addition to the corporation, gain from corporate crime. Such a definition can be tied into a legal framework such that white collar crime becomes a criminal matter and corporate crimes become the subject of regulatory law. This distinction, a commonplace in law (see Kilcommins et al, 2016), has two problems with it. The first is that this terminological distinction allows scholars like Lacey (2004: 161) to argue the transgressions of regulatory law ‘were not real crimes to which stigma should attach but were rather in the nature of administrative regulations with non-​stigmatising penalties such as fines’. They are simply ‘quasi administrative matter(s)’ that do not stigmatize those who are guilty of them. That would be fine but it draws on and copper-​fastens the perception that regulatory offences do not threaten social order or social well-​being. The term ‘scumbag’ is freely applied to minor and petty criminals in Ireland but the same does not apply to corporate offenders (McCullagh, 2014). Have you ever heard a tax evader or someone prosecuted under health and safety legislation referred to in this fashion? The second problem is that many of the offences covered by regulatory law are serious and do constitute a threat to social order and social well-​ being. It is hard to characterize the deaths of workers in the workplace, the acquisition of fatal diseases through dangerous working conditions, the exposure of the general population to pollutants, the deprivation of

48

Whitewashing the White Collar

the state of vital income through large-​scale tax evasion, or the impact on social innovation of price-​fixing and anticompetitive practices as minor. It is hardly credible to characterize ‘protection from environmental destruction, protection from radiation poisoning or lethal genetic damage; and, in general, protection from the uncontrolled side effects of large technological operations, pharmaceutical products, scientific experimentation, and so forth’ as simply administrative matters (Habermas, 2008: 432–​5, in Kilcommins et al, 2016). To turn Lacey’s (2004: 161) classic formulation around, it is difficult to argue that offenders in these areas should be accorded ‘a less than fully criminal status from a social point of view’. It may be possible, as McAuley and McCutcheon in Kilcommins et al, 2016 do, to characterize offences in these areas as ‘quasi-​administrative’ matters that do not ‘attract significant moral opprobrium or stigmatize those convicted’. The reason for this does not derive from some inherent essence that such offences may have but from the manner in which the law and law enforcement agencies choose to treat them. It is hard to avoid the conclusion that white collar crime belongs to that category known as ‘essentially contested concepts’. The term is originally ascribed to Gallie (1955), but some would argue it has lost the precision that he ascribed to it. It is now used loosely to refer to concepts about which there is some broad general agreement when the attempt to go beyond this agreement and realize it in empirical studies leads us into fundamental and incommensurate disagreements. Defining and being able to work with a definition of white collar and corporate crime inevitably leads to political and normative questions that are difficult to resolve, and to analytical positions that are difficult to reconcile. At the risk of simplification, it is possible to say that some analysts work with a radical conception of what these kinds of crime are, aptly summarized by describing them as crimes of the powerful, while others consider them the crimes committed by those broadly defined as middle or upper class. However, the inability to agree on what we are supposed to be concerned about places significant restrictions on how wide-​ranging and socially incisive discussions of the crimes of the middle and upper classes can be.

The criminal justice system and white collar and corporate crime The criminal justice system has two components. One is symbolic. It is a means through which key social values are dramatized and publicized. As such, in modern societies, according to Brandon and O’Connell (2018: 1127), the ‘symbolism of equality before the law is at the heart of legal systems’. The second is the manner in which such values are

49

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

operationalized in the habitual activities of the criminal justice system. Thus, the means through which crime is investigated, prosecuted, and sanctioned are the practical expression of the values that the justice system embodies. Moreover, the kind of media coverage that the criminal justice system gets plays an important role in shaping our perceptions of what the nature of the crime problem is (see Carrabine, 2008). However it can only do so through coverage of the kinds of crime that come to the attention of the criminal justice system. The likelihood that white collar or corporate misbehaviour will come to media attention through its crime correspondents is low, largely because of the manner in which it is dealt with by the criminal justice system. We know that knowledge about ‘conventional crime’ depends on the willingness of victims to report it to the police, but the nature of victimization around corporate crime is more complicated. By their nature such crimes are hidden and secretive and occur at levels in organizations where the willingness to report such offences may be lacking (see Levi & Lord, 2017). Equally, many crimes such as tax evasion, corporate neglect of health and safety considerations, and offences involving pollution have a significant impact on society, but their effects on individuals are indirect and there may not be specific persons who define themselves as their victims and who hence can report their victimization to the relevant authorities. This means that, in the case of Ireland at least, a lot of this kind of crime comes to public attention largely by accident. If, for example, Pádraig Flynn, an Irish politician, had not called into question the mental health of developer Tom Gilmartin on a television programme, Gilmartin may not have given the evidence to the Mahon Tribunal about the extent of the planning corruption he experienced in Ireland. James Gogarty was the accountant in an engineering firm. It was what he saw as the failure of his employer to honour a commitment on his pension that led to him answer a newspaper advertisement looking for information on planning corruption. This culminated in his testimony to the Flood Tribunal which revealed extensive alleged corruption in the planning process (see Connolly, 2015). Theoretically speaking, there are those who should recognize and who should report issues like corporate fraud. The most relevant group is auditors. They sign off on companies’ accounts saying that they reflect a true and fair view of the companies’ dealings. The Commission of Investigation into the Banking Sector (2011: vi) said that ‘the problem of clean audits followed by a threat of closure a short time later is not new nor is it limited to Ireland’. What is different, however, about other jurisdictions is the willingness to talk about the behaviour of accountants and auditors in the language of criminality. Fooks (2003: 17) shows how the collapse of Enron and other large corporations ‘uncovered a corporate America beset by deception, false

50

Whitewashing the White Collar

accounting and bankruptcy’. Accountants and auditors were shown to have signed off on accounts they knew were false, colluded in the creation of false accounts, and failed to report such frauds to the relevant authorities. They were also subject to criminal prosecutions. There is little evidence in the Republic of Ireland of a willingness to discuss the behaviour of auditors in these terms (see Kinsella, 2013). Moreover, Section 29 of the Company Law Enforcement Act 2001 prevents the answers given by auditors and accountants in defending their behaviour from being used in later criminal proceedings (see Doyle & McGrath, 2016). To coin a phrase, the law giveth and the law taketh away. There are other professional groups who have been implicated in white collar and corporate crime. These include the legal profession. They are central to the setting up of legal entities called corporate vehicles, such as corporation trusts, foundations, and partnerships, many of which are perfectly legitimate but a lot of which are essential ingredients in money laundering, tax evasion, and the hiding of wealth and assets from state oversight. For drugs criminals or large corporations to hide their assets requires professional intermediaries, and to the extent that members of the legal profession collude in this they can be regarded as ‘white collar crime enablers’. It is not by accident that papers that detailed how the rich hide their money in offshore accounts were leaked from a solicitor’s office, that of Mossack Fonseca, in Panama, hence their title ‘The Panama Papers’ (see Harding, 2016). Much of what was detailed in them was legal and more of a demonstration of the attitude of rich people that tax is for the little person, a somewhat perverse version of virtue signalling. But many of the shell companies set up by Mossack Fonseca were for illegal purposes, such as fraud, tax evasion, and circumventing international sanctions (see Lord et al, 2019). Drug gangs were not the only ones to benefit from such trusts.

How white collar and corporate crime is investigated in Ireland If it is rare that relevant authorities in Ireland are notified of white collar and corporate crime, then the means through which they choose to investigate it hardly inspires confidence. Tribunals of inquiry have been a common response, especially as a means to investigate possible business, corporate, and political corruption. Tribunals were set up for the Whiddy Island disaster in 1979 when 50 people were killed in an explosion, the Stardust fire of 1981 in which 48 young people died, and for a range of illegal payments to politicians and planners, including the McCracken Tribunal, the Moriarty Tribunal, and the Mahon Tribunal, all initiated in 1997. These tribunals have taken considerable periods of time and considerable amounts of public funds (see Murphy, 2005).

51

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

What is most relevant to us here is that whatever the findings of such tribunals, they cannot be used as the basis of criminal prosecutions. As O’Malley (2009: 96) puts it, ‘A tribunal or a commission is not a law court which means that it may never make a finding of criminal or civil liability’. If they uncover what they consider to be illegal behaviour they have to refer the matter to the Gardaí, but the Gardaí cannot act on the evidence presented to tribunals. They have to start at the beginning again and they generally do not have the resources to do this. This means that the findings of such tribunals lack a certain social impact. Consider this: the Moriarty Tribunal (2011: 1050) investigated the bidding process for the awarding of the second mobile phone licence. It concluded that Michael Lowry, the then minister for communications, had an ‘insidious and pervasive influence’ on the bidding process. Esat Telecom got the licence. It is owned by Denis O’Brien and winning the licence saved his business from collapse. The tribunal concluded that O’Brien made or facilitated the payment of hundreds of thousands of pounds in sterling to Lowry. In other countries this is called a bribe. The tribunal said that Lowry was guilty of ‘cynical and venal abuse of office’ by refusing to acknowledge the ‘impropriety of his financial arrangements with Denis O’Brien and Ben Dunne’ (Moriarty Tribunal, 2011: 1059). The McCracken Tribunal (1997: 21) found that Dunne, then the owner of a major supermarket chain, had ‘knowingly’ assisted Lowry evade tax, and ‘what was contemplated and attempted on the part of Mr. Dunne and Mr. Lowry was profoundly corrupt to a degree that was nothing short of breath taking’. The Moriarty Tribunal (2011: 1059) said that ‘by his contemptuous disregard for his taxation obligations, Mr. Lowry displayed qualities similar in nature to those of Charlie Haughey, and has cast a further shadow over this country’s public life’. The final report of the tribunal was sent to Revenue Commissioners, the Garda Commissioner, and the Director of Public Prosecutions. No prosecutions have ensued. The Irish Times reported in 2016 that the Criminal Assets Bureau (CAB) ‘will look to interview’ Denis O’Brien, but there has been no subsequent reporting on whether they succeeded in doing so (Keena, 2016). Equally there is no evidence that CAB seized any of his assets. Michael Lowry, according to the same report, said that he did not anticipate being interviewed by CAB. Denis O’Brien continues to be a respected Irish businessman with whom senior politicians, including a past Taoiseach, have been photographed. Michael Lowry continues to be a member of the Dáil and was a key supporter of the recent Fine Gael government. He was recently described by a judge in a case in which he was found guilty by a jury of filing incorrect tax returns on €372,000 as ‘a conscientious tax payer’. The judge also spoke disparagingly about the tax inspector who brought the case, saying he would

52

Whitewashing the White Collar

not like ‘to get on the wrong side of him’. He said that in passing sentence one of the factors he had to take into account was that Lowry had engaged a ‘substantial legal team and that would be costly to him’ . If tribunals of inquiry have limited impact, what about the Office of the Director of Corporate Enforcement (ODCE). It has a major responsibility for the investigation of corporate offending. But the relative weakness of this office was exposed in its failed prosecution of Sean Fitzpatrick, the former chair of Anglo Irish Bank. He had been charged with 16 offences relating to his role in lending millions to a number of investors to falsely inflate the share price of the bank of which he was the chairman. The subsequent, and probably inevitable, downfall of the bank was one of the significant contributors to the implosion of the Irish banking system in 2008. The case against him collapsed when it emerged that the principal investigator shredded relevant documents and coached witnesses. He also had little experience of investigating cases at this level and was hardly, one would think, the best person to handle what was considered the most serious case with which the ODCE has had to deal (see Mulligan, 2019: Sheehan, 2017). Perhaps not surprisingly, it is now in the process of being renamed the Corporate Enforcement Authority and has been given new powers and some additional staff. There is also the issue of the relative resourcing of these kinds of investigations. Objectively, there appears to be a discrepancy between the state’s willingness to pursue blue collar as distinct from white collar crime. In recent times, the Garda National Economic Crime Bureau (the new name for the Garda Fraud Squad) had 55 investigators and 14 civilians on staff. Its current size is difficult to determine from published reports, but its main focus would appear to be on trafficking and organized crime. The ODCE, tasked with the pursuit of corporate offenders, has a staff of 30. By contrast the Department of Social Protection, which investigates cases of social welfare fraud, most of which involve relatively small amounts of money –​the sum total of all such offences has been shown with predictable and depressing regularity to be grossly overstated –​had 566 staff assigned to what are ‘control activities’ in 2017. Devitt (2016: 87) has argued that ‘it is unlikely that the emasculation of law enforcement agencies is unintentional’.

Sanctioning Should corporate offenders ever get to the stage of having their offences adjudicated on in court, the consequences are rarely devastating. McGrath (2015) has argued that we can identify three stages in the sanctioning of corporate offenders in Ireland. The first was rooted in the criminal law, and while the law was formally very strict, it was seldom used. The next was

53

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

the development of a system of civil sanctions, reflected in the growth of a multiplicity of regulatory agencies, such as the ODCE, the Competition Authority, the Bank Regulator, and the Health and Safety Authority. In this compliance model, the regulatory agencies saw themselves as having a largely educational role towards those they were regulating. Their job was to inform companies of the law and assist them in the development of compliance strategies. Recourse to the courts was very much a last resort. The underlying philosophy of this approach assumed that the fear of reputational damage would be enough to keep companies and individuals in line. It also assumed that the threat of sanctions rather than their imposition would be sufficient to ensure compliance. This became known in Ireland as ‘light touch’ regulation, though subsequent events would suggest that it was featherweight (see McGrath, 2020). Ireland became a prime example of what is called ‘agency capture’. This is where the regulating agency comes to see the world through the eyes and perspectives of those being regulated, at which point any serious regulation is compromised. Arguably, this is what happened in Ireland during the collapse of the banking system before 2008, whereby the banks saw no problems with reckless lending behaviour and neither did the regulator (McGrath, 2020). The questioning of this system in the wake of the financial crash led to a return to the criminal justice model, but it has not proven to be a panacea. Moreover, as McGrath (2014) argues, the criminal justice approach continues to be underutilized. There are 400 criminal offences in the Companies Act, but most are never used. ‘Business people’ as McGrath puts it, ‘are rarely required to defend their wrong doings in the Criminal Courts’. Where sanctions are applied, a prison sentence is unlikely to be the primary one. Instead fines are more common and, as the activities of the Central Bank have shown, these can be substantial. For example, it fined Ulster Bank for what it termed ‘governance failings’ relating to the bank’s legal requirements. These ‘fell far short of the governance standards applicable to the preparation of regulatory returns’. The ‘appropriate fine’, it said, was €6,572,000. This was reduced by 30 per cent ‘in accordance with the settlement discount scheme’ operated by the Central Bank (2020: 2). It is still, by any standards, a serious sanction. But such fines raise the question of who ultimately pays them? It can be argued that, effectively speaking, the fines imposed on banks, for example, are passed on to customers in the shape of increased banking charges, reduced services, and the particularly high interest rates that prevail in Ireland. As Fisse and Braithwaite (1993) argue, in a wider context, the costs of such fines are generally borne by innocent people, including employees who lose their jobs and customers paying higher prices as firms recoup the cost of the fine.

54

Whitewashing the White Collar

The show trial Some few offences and offenders, however, do make it to the criminal courts, but many of the proceedings against them have been characterized by Levi (2009: 62) as ‘show trials’, designed to prosecute a number of ‘atypical, limited and easily isolated individuals’. They can then be scapegoated for the wider crisis in the economic system and portrayed as responsible for it. It also helps if they are outsiders to the networks that permeate business and commerce. They can then be easily portrayed as aberrant to their profession and as aberrant in the business world. Such trials are essentially exorcisms, picking on a limited number of offenders to purify the wider business and corporate community. All of the foregoing reinforces the belief that criminal law, like tax, is for the small people. The unwillingness to criminally investigate white collar crime is often framed as grounded in the absence of law and as indicating the need for more regulatory bodies. It is clear that although there are legal deficiencies, such as the absence of appropriate law on reckless trading and reckless banking, the legal weapons are there but the choice is being made not to use them (McCullagh, 2016). There is simply a deep-​seated reluctance to apply the stigma of criminality to the behaviour of the powerful.

The law on libel The third problem in researching and writing about this issue is the risk of libel. As this law currently operates, it is largely about protecting the good names and reputations of the kinds of individuals and corporations about whom Sutherland was writing. So, while his seminal work first appeared in book form in 1948, it did so in a heavily redacted and censored version. It wasn’t until 1983, forty-​three years after his death, that the full version of his book appeared with the complete lists of names of offenders and the details of their transgressions included. The fear of libel and defamation still exerts a constraining effect on research in this area, particularly in a country like Ireland where the well off have somewhat more ready and willing access to the remedies of the civil law. According to the most recently available Annual Report of the Court Service, that for 2018, there were just under 300 new cases of alleged defamation before the High and Circuit Courts, at least 80 per cent of which were against the media. Sweeney (2009) tells us that that a defamatory statement is one which ‘tends to injure a person’s reputation in the eyes of reasonable members of society’. The defences against defamation include truth, honest opinion, and ‘fair and reasonable publication on a matter

55

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

of Public Interest’. So far so clear and reassuring. But then he adds that a defamation case does not necessarily have to name someone. If a person can say with a degree of credibility that they were able to recognize a complainant from an image or a description then there are grounds for defamation. If the law in Ireland can be characterized as black letter (see Kilcommins et al, 2016), then defamation law would, more accurately, be characterized as grey. However, while it would be wrong here to fixate on the precise meaning of the law, and also to acknowledging the right of people to a good name, we do need also to acknowledge that it is the threat of its use rather than the actuality of it that can stifle or curtail investigations. Greenslade (2016) has counted the number of occasions in which a prominent Irish businessman has issued writs against journalists and then did not proceed with the cases. The writ was sufficient to stifle further investigation and reporting. I have had two experiences with such threats or with the assumption that if what I had written was published then I would be sued. In 1994, the Sociological Association of Ireland in conjunction with the Institute of Public Administration (IPA) decided to do a second edition of their textbook on Irish society, first published in 1986. Rather than just doing a cut and paste on the article that I had written for the first edition, I decided to do a new piece. I gave it the somewhat grandiose title, ‘Getting the Criminals We Want: The Social Production of the Criminal Population’. The then editor at the IPA refused to publish it, the justification being ‘legal advice’. The editors of the book stood by me and argued the toss, a decision for which I may, in hindsight, have been insufficiently grateful. This led to a series of meetings and correspondence with lawyers, events that are best dealt with in a novel, preferably by Stephen King. They were quite surreal experiences. In retrospect, they were probably meant to be intimidating but I was too naive to appreciate this. The lawyers were not interested in the analytic framework that I set out but in the examples that I used to illustrate them. The kind of thing that was contentious was the case of the late Patrick Gallagher. His activities were included under the heading ‘The Best Way to Rob a Bank is to Own One’. What he did was fairly simple. He set up a bank, got people to invest in it by offering very high interest rates –​people put their life savings into it –​and then he spent the money on his own property developments and on buying art for himself. When the bank collapsed, as inevitably it did, his offences were uncovered by the liquidator. Some of these had been committed in the south and others in Northern Ireland, two separate jurisdictions. Gallagher was charged in the North for the offences committed there and served two years in prison in Belfast. When in prison he worked in the library. Presumably he would have been good at collecting the fines. Although Gallagher had committed

56

Whitewashing the White Collar

documented offences in the Republic of Ireland with which he could have been charged, he never was. The lawyers’ response to this account of events, all based on material which was in the public domain, was to say that if I wanted to use it in the article I would have to go to Belfast, consult the court records, get some official court documents to show that he had been tried and sentenced there, and then some official documents to show he had served time. I had neither the time nor the resources to do this, so the whole section had to be significantly modified. Other issues that were taken out or the discussion of which was seriously truncated included an account of the fire in the Stardust Ballroom in North Dublin in 1981 in which 48 young people died and the conclusions of the official inquiry into the fire which continue to be an issue of contention. There was similar reticence imposed around the issue of fraud at the Goodman meat plants, also the subject of an official inquiry. I was not allowed to describe insider dealing as ‘corporate robbery’ or to say that there was a lack of political will to pursue tax evaders, a comment that I had taken from a government report into the operation of the tax system. Somewhat more oddly, I was also not allowed to use an article from a reputable Irish business magazine which quoted two private investigators –​both ex-​Gardaí –​on the extent of fraud in Irish business. The fear was that although the investigators were not named in the article, they might recognize themselves and take a defamation case. Ex-​Gardaí, one of the lawyers assured me, were notably litigious around these kinds of issues. This may be part of the folklore of libel litigation, but one of the examples used by lawyers is of a television programme on police corruption that used a particular graphic. A retired Garda commissioner argued that it was his ears in the graphic and hence it made him identifiable and by implication corrupt. He won damages against the television station (Woods, 2016). The more recent of my two experiences involves a paper I was asked to write for an organization that publishes commentaries on social issues but which has funding from a religious order, regarded as one of the more liberal ones in Ireland –​a considerable claim. After laying out the problems and issues around white collar and corporate crime, I finished the article with two examples. Of the second and more contentious one, the relevant paragraph went like this: It has been alleged that religious congregations in Tuam, Co. Galway and Cork forged death certificates and then trafficked the children to the United States for sums of money apparently in the region of £2,000 (sterling) each. At that time this sum of money would have bought about four large houses in Dublin.

57

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

More importantly if this is true, then it changes the perspective on how to deal with the issue. It ceases to be one for yet another tribunal and becomes a matter for the Criminal Assets Bureau. They have the power to seize assets that are suspected to be the product of illegal activity and, if the reports about illegal trafficking are true, then much of the accumulation of wealth by these religious congregations was the result of criminal behaviour (see Milotte, 2012). So far, to my knowledge there have been no police or revenue raids on any convents in the country. The editors baulked at the baldness of this, so I gave them an extended version as follows: The second example relates to religious institutions and religious based organisations. It has been alleged that a number of these altered birth certificates and that the children were adopted by prospective parents in, for example, the United States, for sums of money often in the region of £2,000 sterling each (see the discussion in Milotte, 2012). Opinions are divided on this. The interim report of the Commission of Investigation into Mother and Baby Homes (2019) found no evidence of illegal adoptions where the children’s fates were disguised as burials in Tuam, but it also criticized some of the evidence that it had been given. The nuns who ran the Bessborough, Castlepollard, and Sean Ross Abbey homes had given the commission an affidavit that was ‘in many respects, speculative, inaccurate and misleading’ (Mother and Baby Homes Commission of Investigation, 2019: 8). The commission confirmed that many of the children were adopted in the United States. Fergus Finlay, the former chief executive of Barnardo’s, a major children’s charity, claimed that there may have been up to 15,000 illegal adoptions in Ireland through baby homes and the adoption agencies associated with them where the adoptive parents were registered as the birth parents. This, he said, is ‘a crime against these people and their mothers’ (Clarke, 2018). The Adoption Authority of Ireland did an audit of one particular agency and identified over 120 cases of illegal adoptions, but said that this could well be the ‘tip of the iceberg’ (see O’Fatharta, 2018). Taoiseach Leo Varadkar echoed somewhat similar sentiments when he told the Dáil on 6 June 2018 that illegal adoptions were ‘another dark chapter in Ireland’s history’ and that the ones identified so far were probably, to use that much abused phrase, ‘only the tip of the iceberg’. As Milotte (2018b) put it, ‘The falsification of babies’ records is as old as the state’. There was an investigation in the 1950s of

58

Whitewashing the White Collar

one particular agency. While it ‘revealed numerous potentially imprisonable offences, committed by multiple players, there were no prosecutions’. There was more I could have added but the constraints of space did not allow it. But Milotte’s (2018a) summary is as good as any. He said: Astonishingly, the State authorities have never shown the slightest interest in investigating the murky financial aspects of adoption in Ireland, and although evidence of nuns charging exorbitant but unitemised and clearly fictitious ‘expenses’ while arranging adoptions first came to light two decades ago, no effort was made then or since to seize their accounts or go after other documentary proof of criminality. They’ve been given twenty years to shred the evidence and keep another appalling vista at bay. Claire Daly (2018: 11), then an elected member of the Irish parliament, put it most bluntly when she said that ‘we need to recognize that this was an illegal practice and warrants criminal investigation’. All of this is compelling evidence which, at a minimum, is worthy of further discussion, further investigation, and is suitable for inclusion in any discussion of corporate crime. For a start, if any of this is the case, then it changes the manner in which we respond to the issue. At the very least another tribunal of inquiry is not adequate to the task, and it should become a matter for the Criminal Assets Bureau. It has the power to seize assets that are suspected to be the product of illegal activity and, if the reports about illegal adoptions are true, then perhaps some of the wealth accumulated by these organizations is the result of criminal behaviour. The idea that the Catholic Church and its associated branches might have been involved in criminal activity is not of course mine. It was first articulated in an extended form by former president of Ireland Mary McAleese (Irish Examiner, 2009). It was an issue that many of the religious orders were aware of themselves, as a number of them have now offshored their resources, either to the security of the Vatican or to other suitably untouchable locations (Clarke, 2018). On a wider scale it draws attention to the role of the state in facilitating this behaviour and in assisting in its cover up, behaviours that in other countries would be regarded as state crimes. It is also something that, at the very least, should be of interest to criminologists. However, this journal said they had problems with what I had written and, on the ‘basis of legal advice’, could not publish it, but that it was an issue they might return to. I withdrew the piece. They were not forthcoming when asked about the source of this ‘advice’. NewsBrands, an organization representing news producers in Ireland, raised a relevant question when it asked about libel law: ‘Is the law

59

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

there to protect or hide behind?’ (NewsBrands Ireland, n.d.). It is pertinent in writing about corporate crime.

Conclusion The argument of this chapter has been that the process of social marginalization is a two-​edged one. Conventionally it is understood as the exclusion of certain groups from full participation in society due to the denial of access to relevant social resources such as education and employment. There is, however, another side to marginalization, and that is the degree to which more powerful groups and organizations in society are marginalized from the kind of effective social control to which the others are subject. Where crime is concerned, this means that their criminality is seldom defined as such, nor is it prosecuted or sanctioned in the same way as the antisocial behaviour of others in society. This has an important impact on what we perceive the crime problem to be and how we treat those whom we think commit most crime. Note 1

For a useful summary see Irish Penal Reform Trust, ‘Facts on Offenders’ at https://​www. iprt.ie/​prison-​facts-​2/​

References Beirne, P. and Messerschmidt, J. (2014) Criminology, Oxford: Oxford University Press. Brandon, A.M. and O’Connell, M. (2018). Same crime: different punishment? Investigating sentencing disparities between Irish and non-​Irish nationals in the Irish criminal justice system’, The British Journal of Criminology, 58(5): 1127–​46. Calnan, S., Davoren, J., Perry, I., and O’Donovan, O. (2018) ‘Ireland’s Public Health (Alcohol) Bill: A critical discourse analysis of industry and public health perspectives on the bill’, Contemporary Drug Problems, 45(3): 107–​26. Carrabine, E. (2008) Crime, Culture and the Media, Cambridge: Polity Press. Central Bank (2020) Enforcement Action: Ulster Bank (Ireland) DAC fined €4,600,000 by the Central Bank of Ireland, [online] 5 March, available online from: https://w ​ ww.centralbank.ie/n ​ ews-m ​ edia/​press-​releases/​press-​release​ulster-​bank-​fine-​05-​march-​2020 Clarke, V. (2018) ‘There may be 15,000 illegal adoptions, Barnardos head claims’, Irish Times, [online] 30 May, available online from: https://​ www.irishtimes.com/​news/​social-​affairs/​there-​may-​be-​15-​000-​illegal​adoptions-​barnardos-​head-​claims-​1.3513517 Commission of Investigation into the Banking Sector (2011) Misjudging Risk, Dublin: Central Bank.

60

Whitewashing the White Collar

Connolly, F. (2015) Tom Gilmartin: The Man Who Brought Down a Taoiseach and Exposed the Greed and Corruption at the Heart of Irish Politics, Dublin: Gill Books. CSO (Central Statistics Office) (2018) Recorded Crime 2018, Dublin: CSO. Daly, C. (2018) ‘Recognise adoption scandal warrants criminal investigation’, Irish Examiner, [online] 4 June, available online from: https://​www. irishexaminer.com/​opinion/​commentanalysis/​arid-​30846752.html Devitt, J. (2016) ‘White collar crime costs far outweigh those of gangland crime, but it’s not a priority’, The Journal, [online] 11 March, available online from: https://​www.thejournal.ie/​readme/​white-​collar​crime-​2652129-​Mar2016/​ Dorling, D., Gordon, D., Hillyard, P., Pantazis, C., Pemberton, S., and Tombs, S. (2008) Criminal Obsessions, London: Centre for Crime and Justice Studies. Doyle, D. and McGrath, J. (2016) ‘Attributing criminal responsibility for workplace fatalities and deaths in custody: Corporate manslaughter in Britain and Ireland’, in K. Fitz-​Gibbon and S. Walklate (eds) Homicide, Gender and Responsibility: International Perspectives, Abingdon: Routledge, pp148–​70. Fisse, B. and Braithwaite, J. (1993) Corporations, Crime and Accountability, Cambridge: Cambridge University Press. Fooks, G. (2003) ‘Auditors and the permissive society: Market failure, globalisation and financial regulation in the US’, Risk Management, 5(2): 17–​26. Gallie, W.B. (1955) ‘Essentially contested concepts’, Proceedings of the Aristotelian Society, 56: 167–​98. Giddens, A. and Sutton, P. (2013) Sociology, Cambridge: Polity Press. Greenslade, R. (2016) ‘Are Denis O’Br ien’s legal actions some kind of record?’, The Guardian, [online] 16 May, available online from: https://​www.theguardian.com/​media/​g reenslade/​2016/​may/​16/​ are-​denis-​obriens-​legal-​activities-​some-​kind-​of-​record Harding, L. (2016) ‘What are the Panama Papers?’, The Guardian, [online] 5 April, available online from: https://​www.theguardian.com/​news/​2016/​ apr/​03/​what-​you-​need-​to-​know-​about-​the-​panama-​papers Hillyard, P. and Tombs, S. (2007) ‘From “crime” to social harm?’, Crime, Law and Social Change, 48(1): 9–​25. HSA (2019) Annual Review of Workplace Injury, Illness and Fatality Statistics, 2018-​ 2019, available online from: https://www.hsa.ie/eng/publications_and_ forms/publications/corporate/annual_review_of_workplace_injury_ illness_and_fatality_statistics_2018-2019.html

61

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

Irish Examiner (2009) ‘McAleese calls for abusers to be charged’, Irish Examiner, [online] 29 May, available online from: https://​www. irishexaminer.com/​news/​arid-​20092944.html Keena, C. (2016) ‘Cab seeks to question Denis O’Br ien on tribunal findings’, Irish Times, [online] 9 January, available online f ro m : h t t p s : / / ​ w w w. i r i s h t i m e s . c o m / ​ n ew s / ​ c r i m e - ​ a n d - ​ l aw /​ cab-​seeks-​to-​question-​denis-​o-​brien-​on-​tribunal-​findings-​1.2490189 Kilcommins, S., O’Donnell, I., O’Sullivan, E., and Vaughan, B. (2004) Crime, Punishment and the Search for Order in Ireland, Dublin: IPA. Kilcommins, S., Leahy, S., and Spain, E. (2016) ‘The absence of regulatory crime from the criminal law curriculum’, in K. Gledhill and B. Livings (eds) The Teaching of Criminal Law, Abingdon: Routledge, pp194–​205. Kinsella, S. (2013) ‘Behaviour of our auditors during crash can’t be ignored any longer’, Irish Independent, [online] 19 February, available online from: https://​www.independent.ie/​opinion/​analysis/​stephen-​kinsella-​ behaviour-​of-​our-​auditors-​during-​crash-​cant-​be-​ignored-​any-​longer-​ 29079016.html Lacey, N. (2004) ‘Criminalisation as regulation: The role of criminal law’, in C. Parker, C. Scott, N. Lacey, and J. Braithwaite (eds) Regulating Law, Oxford: Oxford University Press, pp144–​67. Law Reform Commission (2003) Consultation Paper on Corporate Killing, Dublin: Law Reform Commission. Levi, M. (2009) ‘Suite revenge? The shaping of folk devils and moral panics about white-​collar crimes’, British Journal of Criminology, 49(1): 48–​67. Levi, M. and Lord, N. (2017) ‘White-​collar and corporate crime’, in A. Liebling, S. Maruna, and L. McAra (eds) The Oxford Handbook of Criminology, Oxford: Oxford University Press, pp722–​43. Loewenberg, S. (2006). ‘Watering down of EU regulations on chemicals proves power of lobbyists’, The Irish Times, [online] 16 January, available online from: https:// ​ w ww.samloewenberg.com/ ​ a rticles/ ​ i rtimes_​ eulobbying.html Lord, N.J., Campbell, L.J., and Wingerde, K.V. (2019) ‘Other people’s dirty money: Professional intermediaries, market dynamics and the finances of white-​collar, corporate and organized crimes’, The British Journal of Criminology, 59(5): 1217–​36. McBarnett, D. (1991) ‘Whiter than white collar crime’, British Journal of Sociology, 42: 323–​44. McCracken Tribunal (1997) Tribunal of Inquiry: Dunnes Payments Report, Dublin: Stationery Office. McCullagh, C. (1996) Crime in Ireland: A Sociological Introduction, Cork: Cork University Press.

62

Whitewashing the White Collar

McCullagh, C. (2014) ‘From offenders to scumbags: changing understandings of crime and criminals in contemporary Ireland’, Irish Journal of Sociology, 22(1): 8–​27. McCullagh, C. (2016) ‘Plus ca change: White collar and corporate crime in and after the crisis’, in D. Healy, C. Hamilton, Y. Daly, and M. Butler (eds) The Routledge Handbook of Irish Criminology, Abingdon: Routledge, pp89–​104. McGrath, J. (2014) ‘Jurys out on whether we’ll see more white collar crime cases’, Irish Independent, [online] 3 April, available online from: https://​ www.independent.ie/​opinion/​analysis/​jurys-​out-​on-​whether-​well-​see-​ more-​white-​collar-​crime-​cases-​30196927.html McGrath, J. (2015) ‘The prosecution of white-​collar crime in a developing economy: A case study of Ireland in the 20th Century’, in J. Van Erp, W. Huisman, and G. Walle (eds) The Routledge Handbook of White-​Collar and Corporate Crime in Europe, Abingdon: Routledge, pp399–​417. McGrath, J. (2020) ‘Walk softly and carry no stick’: Culture, opportunity and irresponsible risk-​taking in the Irish banking sector’, European Journal of Criminology, 17(1): 86–​195. Milotte, M. (2012) Banished Babies, Dublin: Island. Milotte, M. (2018a) ‘Adoption controversy’, Irish Times, [online] 1 June, available online from: https://​www.irishtimes.com/​news/​ireland/​irish-​ news/​adoption-​controversy-​only-​one-​person-​was-​ever-​charged-​over-​ bogus-​birth-​certificates-​1.3515329 Milotte, M. (2018b) ‘The forced adoption scandal’, Rebel, [online] 4 June, available online from: http://​www.rebelnews.ie/​2018/​06/​04/​ forced-​adoption-​irelands-​baby-​black-​market/​ Moriarty Tribunal (2011) Inquiry into Payments to Politicians and Related Matters, Dublin: Stationery Office. Mother and Baby Homes Commission of Investigation (2019) Fifth Interim Report, Dublin: Stationery Office. Mulligan, J. (2019) ‘Fitzpatrick trial failures bordered on “criminality” ’, Independent, [online] 6 February, available online from: https://​www. independent.ie/​business/​irish/​f itzpatrick-​trial-​f ailures-​bordered-​on-​ criminality-​37787101.html Murphy, G. (2005) ‘Payments for no political response? Political corruption and tribunals of inquiry in Ireland, 1991–​2003’, in J. Garrard and J. Newell (eds) Scandals in Past and Contemporary Politics, Manchester: Manchester University Press, pp91–​105. News Brands Ireland (n.d.) ‘NewsBrands Ireland launch new campaign to highlight the urgent need for Defamation Law reform’, a​vailable online from: https://​newsbrandsireland.ie/​newsbrands-​ireland-​launch-​new-​ campaign-​to-​highlight-​the-​urgent-​need-​for-​defamation-​law-​reform/​

63

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

O’Fatharta, C. (2018) ‘Women forced to give up babies for adoption still failed by state agencies’, Irish Examiner, [online] 3 December, available online from: https://​www.irishexaminer.com/​lifestyle/​arid-​30889369.html O’Malley, T. (2009) ‘Responding to institutional abuse: The law and its limits’, in T. Flannery (ed) Responding to the Ryan Report, Dublin: Columba, pp95–​100. Rock, P. (2005) ‘Chronocentrism and British criminology’, British Journal of Sociology, 56(3): 473–​91. Schwendinger, H. and Schwendinger, J. (1970) ‘Defenders of order or guardians of human rights’, Issues Criminology, 5: 123–​40. Sellin, T. (1934) ‘Foreword’, Annals of the American Academy of Political and Social Science, 74: ix. Sheehan, M. (2017) ‘Amateur probe that made it look like OCDE tried to fit up Sean Fitzpatrick’, Independent, [online] 28 May, available online from: https://​www.independent.ie/​irish-​news/​courts/​amateur-​probe-​ that-​made-​it-​look-​like-​ocde-​tried-​to-​fit-​up-​sean-​fitzpatrick-​35763206. html Sutherland, E.H. (1939) White Collar Crime, New York: Dryden Press. Sweeney, K. (2009) Defamation Act 2009, available online from: https://​ www.lawyer.ie/​defamation/​defamation-​act-​2009/​ Tappan, P.W. (1947) ‘Who is the criminal’, American Sociological Review, 12(1): 96–​102. Woods, K. (2016) Defamation, available online from: lhttps://​www.lawyer. ie/​defamation/​

64

PART II

Insider Voices

4

Institutional Abuse in Ireland: Lessons from Magdalene Survivors and Legal Professionals Maeve O’Rourke, Jennifer O’Mahoney,1 and Katherine O’Donnell

Introduction: Ireland’s Magdalenes, the SASCA Project, and institutional abuse The girls and women who were incarcerated in Ireland’s Magdalene institutions found themselves under lock and key due largely to perceptions that they were at risk of violating or had violated moral rather than legal codes. Their treatment was in many ways worse than the treatment of those imprisoned under the Irish criminal justice system; arbitrariness and exploitation were its hallmarks. Addressing the manifold injustices that occurred is still an ongoing issue for groups such as Justice for Magdalenes Research (JFMR)2 and for survivors themselves,3 and this chapter offers an introduction to the difficulties that the women face in seeking accountability and redress for the legal wrongs perpetrated by state and non-​state actors. In particular, the chapter discusses the findings of a 24-​month European research project in which the authors were involved, entitled SASCA (Support to Adult Survivors of Child Abuse in institutional settings), and draws on survivor testimony recorded as part of a separate oral history project (O’Mahoney, 2014).

Ireland’s Magdalene Laundries Magdalene institutions had a long history on the continent of Europe, and they were established in the mid-​eighteenth century in Ireland as asylums

67

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

for poor and destitute women. Prior to the twentieth century, they were run by religious orders or lay-​managed philanthropic concerns, often equipping women with training and references of good character to afford them the opportunity to earn a living after their rehabilitation work (Luddy, 2007; Smith, 2007). The institutions adopted the life of Mary Magdalene as their exemplum, described in the Christian tradition as a repentant prostitute who became one of the most notable followers of Jesus. Christian tradition holds that penance should involve tasks characterized by humility and labour so that divine forgiveness might be granted for sins. The Magdalene institutions run by Catholic orders in Ireland enshrined the assumption that women’s bodies and female sexuality cause ‘occasions of sin’, whereby a man might be likely to be enticed into committing sinful behaviour. Hence, the work of the religious sisters in containing women who would promote potential vice was considered to be good social work by the patriarchal rulers who ran Ireland (Howell, 2003). Ireland’s War of Independence from British rule ended in 1921, and in the following year 26 of the island’s 32 counties established the Irish Free State/​Saorstát. By 1922, Magdalene institutions elsewhere in Europe were adapting to social and legislative change, many modifying to focus on providing services for ‘unmarried mothers’ and their ‘illegitimate children’. However, in a newly independent Ireland, the ten remaining Magdalene institutions –​all Catholic in ethos –​were afforded a continued role in the newly established republic. Irish patriots aimed to establish control in both symbolic and material terms. Irish national discourse on morality and purity found key ground in debates on social reproduction and maternity, where it was maintained that while the British Empire was politically and financially more powerful, the fledging Irish state would maintain moral supremacy (McAvoy, 1999; Howell, 2003) The Irish Magdalene institutions, run by four Catholic religious orders, existed for most of the twentieth century, with the final institution closing in 1996. The Order of Our Lady of Charity of Refuge (OLC) operated Magdalenes in High Park, Drumcondra, and Seán McDermott Street in Dublin; the Sisters of the Good Shepherd ran Magdalenes in Cork city (Sunday’s Well), Waterford, Limerick, and New Ross, Co. Wexford; the Congregation of the Sisters of Mercy ran laundries in Galway and Dún Laoghaire; and the Sisters of Charity ran Magdalenes in Cork (Peacock Lane) and Dublin (Donnybrook). Testimony collected by The Magdalene Oral History Project reveals that girls and women incarcerated in the Magdalenes were frequently the victims of incest, sexual assault, and rape, and only a minority had given birth outside wedlock. A few had intellectual disabilities, while others had committed minor crimes or were destitute (O’Donnell, 2012).

68

INSTITUTIONAL Abuse in Ireland

The living conditions and regime were harsh. The girls and women were locked in, forced into hard labour, and returned by police if they escaped. Generally, their hair was shorn when they were brought into the institutions, and they were given a religious name (and sometimes also a number), as the nuns sought to erase their former identity and identify the girls as ‘penitents’. The Magdalenes wore a uniform, woke daily about six in the morning, attended mass, and worked without pay at laundry or needlework. The girls and women slept in cold dormitories with poor sanitation and hygiene, eating meagre food rations. Punishments included solitary confinement and withholding of food. Friendships were forbidden, a code enforced by strict rules of silence and prayer between the inmates. Visitors were strongly discouraged and letters were censored or undelivered to the Magdalenes. Inmates were frequently disappeared without notice or explanation, potentially to another laundry, committed to a psychiatric hospital, or placed in another menial role within another Catholic religious institution (Smith et al, 2012; O’Rourke, 2017; O’Donnell, 2012, 2018). Leaving a Magdalene institution of one’s own volition was difficult, if not impossible. Some women did try to escape, but escapees were frequently captured by the Irish police force and returned to the Magdalene and punished. Some girls and women were taken out by very determined family members. Oral histories indicate that some women managed to leave the Magdalene institutions by consistently agitating for release. These assertions, based on testimonies in the Oral History Project, compensate for the fact that the religious orders will not release Magdalene records for the twentieth century, even in redacted form. Research conducted by Claire McGettrick indicates that, for at least two institutions (High Park and Donnybrook in Dublin), approximately half of the girls and women who were incarcerated between 1954 and 1964 died behind the convent walls (McGettrick & Justice for Magdalenes Research, 2015).

The SASCA project SASCA was a 24-​month European project, co-​financed by the Justice Programme of the EU. The project aimed to examine child abuse in institutional settings from the perspective of adult survivors in order to understand the long-​term effects of such events, including how and whether the survivors of abuse may find protection and compensation in the existing legal framework, and how their experience may enlighten the design of a prevention strategy for the protection of children living today in residential care. The project partnership incorporated NGOs, Universities, public agencies, and survivor organizations from Italy, Ireland, Greece, and Romania (Italy: L’Associazione Artemisia, La Regione

69

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

Toscana, La Società della Salute Mugello, and L’Associazione Vittime del Forteto; Ireland: Justice for Magdalenes Research and Waterford Institute of Technology; Greece: Institute of Child Health; Romania: Universitatea Babeș-​Bolyai). The Irish partnership was formed by Dr Jennifer O’Mahoney from WIT and Dr Katherine O’Donnell, Dr Maeve O’Rourke, and Claire McGettrick from JFMR. A core focus of the SASCA project was to identify legal professionals’ experiences in dealing with these issues both nationally in the partner countries and internationally at a European level. The SASCA project has demonstrated that survivors face marked difficulties in accessing legal support and in navigating both the civil and the criminal justice systems. They report that institutional responses to their needs are inadequate. Thus, a clearer recognition of public responsibilities to survivors is needed, which recognizes the wide-​ranging mistreatment that survivors of institutional abuses have experienced. As one of the key aims of the project is to support legal professionals, who are both key actors in the prevention and early detection of child abuse and providers of support for adult survivors of child abuse, interviews were conducted with legal professionals in the four partner countries to identify their experiences of responding to institutional abuse in a legal context. This chapter presents key and indicative findings of the interviews with legal professionals (practising both in Ireland and the UK) who have worked with Magdalene survivors, and of interviews with Magdalene survivors, who offer critical insight into the barriers to accessing the civil and criminal justice systems.

Institutional abuse Institutional abuse is typically defined in psychological and sociological terms by reference to the maltreatment of individuals (such as neglect and physical and sexual abuse) by adults or peers working or living in these institutions (Stein, 2006; Carr et al, 2010; Kamavarapu et al, 2017). In Ireland, these institutions incorporate a range of systems which have been designed to provide social care within communities, such as foster homes and residential care centres as well as historical institutions (such as industrial schools, the Magdalene Laundries, mother and baby homes, and county homes) which have now ceased operations. Institutional abuse, at a systemic level, can incorporate multiple levels of maltreatment, such as problematic or illegal methods of punishment, inspection failures, and poor management and staff training (Stein, 2006, Burns et al, 2013). Institutional abuse involves ‘repeated acts and omissions due to either the regime in the institutions or abuses perpetrated by individuals directed at another individual in that setting’ (Burns et al, 2013: 516).

70

INSTITUTIONAL Abuse in Ireland

An extensive literature demonstrates the long-​term adverse effects of child abuse and neglect. Review studies of institutional abuse have demonstrated a wide range of cognitive, physical, and psychosocial sequela experienced by survivors (for example, psychiatric, addictive, and psychological disorders; chronic medical and physical illness; and other legal, vocational, and family problems. See, for instance, Cook et al, 2005; Blakemore et al, 2017; Hughes et al, 2017). Furthermore, many of these issues place individuals at risk of additional trauma exposure and impairment related to the cumulation of multiple adverse childhood experiences (Cook et al, 2005). Despite these findings, abuse in institutional settings is still an under-​ researched area in the academic literature (Burns et al, 2013). In Ireland, studies of adult adjustment of survivors of institutional child abuse have demonstrated serious long-​term effects of institutionalization. Carr et al (2010) demonstrated an association between institutional abuse in childhood and a high incidence of adult mental health problems. Over 80 per cent of their 247 participants met criteria for psychological disorders, with anxiety, mood, and substance-​use disorders the most common. According to Fitzpatrick et al (2010), as compared to survivors of severe physical and severe emotional abuse, survivors of severe sexual abuse reported higher rates of all forms of child maltreatment and higher rates of post-​traumatic stress disorder, alcohol and substance abuse, antisocial personality disorder, trauma symptoms, and life problems. They recommend a thorough assessment of abuse history and functioning in order to identify the appropriate level and duration of treatment when providing services to adult survivors of institutional abuse. Definitions vary worldwide, depending on what is considered an institution and what is considered to constitute abuse (Daly, 2014). Additionally, historical institutional abuse is a complex phenomenon, which requires a multitude of various theories and lenses to examine. This chapter focuses specifically on residential institutional abuse in order to more accurately contextualize the experiences of Irish survivors of the Magdalene Laundries (many of whom are also survivors of industrial schools and/​or other institutions). The historical residential institutional abuse will be examined primarily from the perspective of legal professionals attempting to support these survivors in efforts to obtain redress for abuses and human rights violations suffered during their time at these institutions.

Methodology 12 semi-​structured interviews with legal professionals (solicitors, barristers, and legal academics) were completed. Purposive sampling was used to identify and select appropriate participants, due to the limited number of

71

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

legal professionals with experience regarding Ireland’s Magdalene Laundries abuse. Participants were identified based on the authors’ professional networks and initially contacted via email. Interviews were conducted either in person or via phone and recorded in their entirety. The interviews were transcribed within two weeks of the interview, after which the audio recording was deleted. Identifying information (such as names, locations, and so forth) was redacted from the interview transcripts to protect the participants’ confidentiality. Thematic narrative analysis was used to examine the interview data, as this approach is well designed for exploratory research and amenable to use with semi-​structured interviews (Riessman, 1994). Narrative analysis argues that people use stories to make sense of their world, and is advocated for by a variety of researchers from various disciplines as both an ‘organizing principle’ and a suitable method for understanding subjective experience (Riessman, 1994). The interviews were examined for patterns of variability and consistency within and across interviews, focusing on content to identify thematic categories. The subsequent analysis will examine the legal professionals’ narratives by considering the individual experiences narrated, how these experiences are contextualized within the Irish legal system, and the relevance of these themes and concepts for survivors of Ireland’s Magdalene Laundries. Themes generated from these interviews will be considered in terms of both their impact on the survivors as well as their broader cultural, political, and economic significance for responding to institutional abuse in the Irish context.

Findings: legal rights and difficulties faced by survivors seeking justice Three overall themes were identified in the thematic narrative analysis, which focused on asking legal professionals about their experiences working with survivors of the Magdalene Laundries: legal rights and difficulties faced by survivors seeking justice; responsibilities of professionals working in institutions where abuses occurred; and the prevention of institutional abuse. This chapter presents the analysis of the first theme (legal rights and difficulties faced by survivors seeking justice).

Non-​recognition of legal wrongdoing In the first excerpt, Michael, a legal researcher, highlights the state’s refusal to recognize the legal rights violations that the Magdalene Laundries abuse constituted. He says:

72

INSTITUTIONAL Abuse in Ireland

‘Survivors have a huge range of rights, both at national and international levels, regarding harms they experienced in the past. What has been particularly frustrating from my perspective regarding the Irish approach to this issue is that we have examined the past in an ex gratia or non-​legal fashion. So, we are using legal mechanisms but we’re not framing them as reflecting the fact that the individuals, particularly the women, had rights at the time the harms took place, those rights have been violated and the redress mechanisms, whether they be investigation or whether they be forms of compensation or other mechanisms of redress, are not because the government are doing a “nice thing” but are instead because those people have legal rights and this is the means by which they are being remedied’. Michael’s argument that “survivors have a huge range of rights” finds favour with numerous international and domestic human rights actors, making the Irish state’s refusal to recognize these rights particularly stark. Resulting from legal submissions by the voluntary group Justice for Magdalenes (now Justice for Magdalenes Research since 2011), United Nations human rights treaty bodies have recommended to the Irish state that it should comply with its international human rights law obligations to investigate, prosecute perpetrators, facilitate access to information, and ensure comprehensive redress in relation to the Magdalene Laundries abuse (CAT, 2011, 2017; HRC 2014; CESCR, 2015; CEDAW, 2017;). The Irish Human Rights and Equality Commission (IHREC, 2014, 2015a, 2015b, 2017, 2017) has issued similar advisories, recognizing that the Magdalene institutions ‘operated as a discriminatory regime’ (IHRC, 2013: para 76), that ‘women were deprived of their liberty [and] the lawfulness of such detention is questionable in a number of respects’ (IHRC, 2013: para 171), and that ‘the State’s culpability in regard to forced or compulsory labour and/​or servitude appears to be threefold’ (IHRC, 2013: para 229). Colin Smith and April Duff (2020) argue, similarly, that ‘in addition to being subject to criminal prohibition and sanction when they occurred, these human rights violations gave rise to civil liability as violations of the personal rights protected by Article 40.3 of the Constitution’. These authors highlight that ‘by the 1960s and 1970s such basic guarantees included the right to bodily integrity; to be reared with due regard to one’s religious, moral, intellectual, physical and social welfare; and to be safeguarded from inhuman or degrading treatment’ (Smith & Duff, 2020; referencing Ryan v. Attorney General [1965] IR 294; G v. An Bord Uchtála [1980] IR 32; and State (C) v. Frawley [1976] IR 365).

73

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

The state’s position, however, which it continually asserts in public correspondence to the United Nations, is that there is ‘no factual evidence to support allegations of systematic torture or ill treatment of a criminal nature in these institutions’.4 A state report to the United Nations Committee Against Torture (CAT) in 2016 argued that ‘the majority of entrants into the Magdalen Laundries were not “confined” there in any legal sense’ (Government of Ireland, January 2016). While barring access to the courts (as will subsequently be discussed in detail), the government contends that it holds no legal obligations towards Magdalene survivors because the women have not successfully sued the state or the religious congregations that managed the institutions (O’Rourke, 2019). Michael notes in the previous extract that despite the clear application of a range of laws to the abuse that girls and women in institutions suffered, even ‘legal mechanisms’ that the government has established to respond to survivors’ calls for justice do not frame their work in terms of rights. This is true of the recent Mother and Baby Homes Commission of Investigation, whose terms of reference made only one reference to ‘international human rights law’ and none to the Irish Constitution or the European Convention on Human Rights, or otherwise to the concept of rights (O’Rourke, forthcoming). Regarding the Magdalene Laundries specifically, the state has never initiated any systematic legal response. The government refuses to establish an independent, thorough investigation into the Magdalene Laundries abuse, as so many human rights bodies have requested. The Irish police service has never announced that it is investigating the Magdalene Laundries or asked publicly for witnesses to come forward (O’Rourke, forthcoming). An Inter-​Departmental Committee (IDC) inquiry into the Magdalene Laundries between 2011 and 2013 was mandated ‘to establish the facts of State interaction with the Magdalen Laundries’ but it was not given the task of investigating questions of human rights or constitutional rights abuse of the girls and women detained and working inside. Choosing nonetheless to include a chapter in its final report entitled ‘Living and Working Conditions’, the IDC failed to examine whether girls and women were arbitrarily deprived of their liberty in the Magdalene Laundries or whether they were forced into unpaid labour (Department of Justice and Equality, 2011) –​two of the most prominent features of the institutions. The IDC report contains no human rights–​based analysis of the evidence revealed within it, although as is readily apparent, and as the Irish Human Rights Commission (2013) concluded, the information published by the McAleese Inter-​Departmental Committee established breaches of human rights. Additionally, at a procedural level, the IDC arguably violated the well-​established right to an effective investigation under articles 2 and 3 of

74

INSTITUTIONAL Abuse in Ireland

the European Convention on Human Rights (O’Rourke, forthcoming). The IDC was not independent, being composed of senior officials from six government departments involved with the Magdalene Laundries (although chaired independently). Furthermore, neither survivors nor the public have ever been allowed to scrutinize the archival or witness evidence gathered by it, given that it operated in private, returned all records it received from the nuns, and created an archive of state papers that the government has censored in its entirety (O’Rourke, 2017: 17). In the following excerpt, Michael draws our attention to the media-​ friendly occasion of Taoiseach/​Prime Minister Enda Kenny’s apology to the Magdalene survivors (Dáil Éireann, 2013),5 which followed the IDC Report’s publication and led rather disingenuously to the state declaring that ‘redress’ payments would be made on an ‘ex gratia’ basis (Department of Justice and Equality, 2020). That is, ‘redress’ was to be understood as a free gift from the state rather than as compensation for admitted injuries. (This echoes the pattern established in relation to industrial and reformatory schools in the previous decade.) Michael explains: ‘What I then find particularly frustrating in the Irish context is there is very limited either legislation to reflect this, political action to reflect this, we’ve seen a number of apologies and so on that don’t speak about the language of rights, that speak more about the past in political/​cultural terms, and very little litigation … So, at a national level we find there’s very limited opportunity for these individuals to pursue their rights and to effectively have them enforced. If we were to zoom out a little bit and look at it at an international level, we would find that Ireland is not unique … So at a national level we’ve got a weird quasi-​legal practice, and at an international level we’re just not hitting the mark in terms of what can be done in any of these areas’. Elizabeth Coppin, a survivor of an industrial school and three of the Magdalene Laundries, gives a clear account of her frustration that laws were clearly broken and yet the lawbreaking is neither acknowledged nor addressed by the Irish state: ‘When you think about human rights violations, our human rights were so violated … I told Enda Kenny about what I told you, about being locked in the cell and a padded cell. He was in there with his lawyers and his this one and his that one. Nothing was mentioned ever again as if it never happened and you get

75

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

so angry about them ignoring you as an individual even, you know? Let alone as a group’. (O’Mahoney, 2014)

Barriers to accessing civil justice Previously, Michael observed that Magdalene survivors have engaged in ‘very little litigation’. Reflection on this point brings into sharp relief the continuing indignities that women formerly detained in Magdalene institutions experience (O’Rourke, 2019). State officials have frequently relied on the lack of litigation to suggest that legal wrongdoing did not occur in the Magdalene Laundries (O’Rourke, forthcoming). In 2011, for example, the Department of Justice resisted the Irish Human Rights Commission’s recommendation for an immediate statutory investigation into human rights violations in the Magdalene Laundries by arguing that the government was ‘not aware of any finding by a court or other similar body that any offences or torts [had] been committed by those operating Magdalen Laundries’ (Department of Justice, 2011; cited in Ó Fatharta, 2014). Correspondence in 2016 from the Department of Justice to the ombudsman, rejecting the ombudsman’s recommendation for a change to the department’s criteria for making financial payments to survivors under the Magdalene ‘restorative justice ex gratia’ scheme, went as follows: There has been no court ruling that the State has any liability for women who entered such institutions, nor have we ever seen any legal advice or factual evidence that would give rise to the belief that the State has any legal liability. We are also not aware of any successful legal action taken against the religious orders concerned.6 Smith and Duff (2020) argue, in relation to the scarcity of litigation concerning so-​called ‘historical’ abuse in Ireland generally, that ‘significant responsibility lies with the judicial system and with the rules governing its operation’. Furthermore, it must be noted that in order to receive modest payments from the Magdalene ‘restorative justice ex gratia’ scheme established in 2013, survivors were required to waive all legal rights against the state regarding their abuse (O’Rourke, 2017). In addition to specific waivers of rights as a condition of so-​called ‘restorative justice ex gratia’ redress (which under the Magdalene scheme prevented future litigation against the state but not the church), the procedural obstacles to accessing the civil courts identified by Smith and Duff (2020) include: a narrow conception of vicarious liability in Irish tort law such that abuse in privately managed, state-​funded social care

76

INSTITUTIONAL Abuse in Ireland

services will not necessarily give rise to state responsibility; the difficulty of determining which defendant(s) to sue, particularly given that religious congregations in Ireland have no independent legal personality; the lack of class action legislation; and the inordinate delays that defendants can cause to the progress of proceedings due to the absence of modern judicial case management procedures in the Irish High Court. Smith and Duff (2020) further note that ‘religious orders and state agencies are vigorous in seeking costs against litigants whose claims against them have failed … [and] victims of historic institutional abuse will receive a stark warning from their lawyers that if their proceedings fail, they will face financial ruin.’ Smith and Duff (2020) and James Gallen (2018) observe, in addition, that the Statute of Limitations 1957 presents an almost total bar to litigation of so-​called ‘historical’ claims against either state or non-​state actors. As Gallen (2018: 109) points out, there is no legislative provision for the exercise of judicial discretion to extend in the interests of justice the short limitation period for an action claiming personal injuries in tort, and the few existing exceptions to the limitation period are extremely narrow.7 O’Rourke (2019) highlights that the publicly known nature of the Magdalene Laundries, mother and baby homes, and forced adoption abuses was recently found by the Irish High Court, Court of Appeal, and Supreme Court to prevent the operation of the ‘concealed fraud’ exception to the ordinary limitation period for personal injury claims.8 Furthermore, the state withholds basic information about the circumstances and systems within which survivors were abused in the past –​information which might constitute evidence for the purposes of legal proceedings and access to which is required to vindicate the women’s rights in other ways (O’Rourke, forthcoming). For example: the National Archives Act 1986 does not designate health or social care institutions or agencies as sources of records that must be preserved and deposited for public access.9 While the National Archives Act 1986 ordinarily requires the deposit of the records of ‘any body which is a committee, commission or tribunal of enquiry appointed from time to time by the Government’, the government recently introduced a bill seeking to exclude from that legislative provision the entire archive of the Commission to Inquire into Child Abuse, which is the largest statutory investigation to date on matters of ‘historical’ church-​related institutional child abuse (Retention of Records Bill, 2019). The Freedom of Information Act 2014, meanwhile, applies only to ‘public bodies’ and ‘prescribed bodies’, and therefore not to the religious congregations that owned and managed the Magdalene Laundries or to many of entities involved in separating unmarried families. In 2018 the government informed the United Nations that records relating to the Magdalene Laundries ‘are in the ownership of the religious congregations and held in their private archives [and] the State does

77

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

not have the authority to instruct them on their operation’ (Government of Ireland, 2018: para 28). Regarding publicly held records, the Freedom of Information Act 2014 creates a general right of access only to information created after October 1998 (or 2008 for some public bodies).10 Quite apart from the temporal limit of that legislation, the Department of the Taoiseach has been holding the state’s entire archive of records concerning the Magdalene Laundries secret, asserting in response to Freedom of Information requests: ‘These records are stored in this Department for the purpose of safe keeping in a central location and are not held nor within the control of the Department for the purposes of the FOI Act. They cannot therefore be released by this Department.’ (O’Rourke, 2017).

Failure of the criminal justice system One of the most striking findings in interviews with legal practitioners was their noting of the routine ways that the institutions and personnel (whether state or religious or neither) that perpetrated criminal abuse within and related to the Magdalene Laundries and other similar institutions have evaded accountability in the Irish justice system. One solicitor, Hannah, recounted that systematic challenges to survivors of institutional abuse achieving justice in Ireland could be found in the lack of “the availability of defendants, several of whom are now deceased, and evidential issues, given the ubiquitous lack of record-​keeping and instances of deliberate destruction of records and obfuscation”. Emma, a senior lawyer, notes meanwhile that: ‘where institutions have been complicit in abuse or concealing it, it is right that those institutions are openly investigated and that they are sanctioned if they fail to cooperate, destroy evidence or provide false or misleading information. Where institutions are found to be at fault, the findings must be publicised and the expectation must be that the institutions should compensate the victims without attaching conditions to such compensation (eg, gagging clauses). The principle that the criminal justice system must be free from political interference is essential to ensure that it can deliver justice’. Emma reflects upon the idea that “justice is a fluid concept and the abuse the survivors suffered –​whilst morally reprehensible at any time –​needs to be seen against the backdrop of what was actually illegal at the time”. Yet she goes on to argue that when it is clear that crimes were committed such as “child neglect, physical or sexual abuse”, then it “is right and proper

78

INSTITUTIONAL Abuse in Ireland

that the perpetrators are prosecuted if they are still alive”. However, she lists a number of barriers to conducting such prosecutions: “The length of time since the crimes were committed should not be a bar to this, but the reality is that it may cause evidential issues. The burden of proof (beyond all reasonable doubt) cannot be reduced so it is probable that there will not be as many prosecutions as survivors would want”. Mirroring these lawyers’ comments, Professor Sir Nigel Rodley’s concluding address as chairperson of the United Nations Human Rights Committee (2014), following that Committee’s examination of Ireland in 2014, focused on the profound lack of accountability for the Magdalene Laundries abuse, among other forms of ‘historical’ systematic abuses in Ireland: The State’s response has been one of seeking to find material responses to the needs of the victims, and I don’t want to pour cold water on that. However, there remains the problem of accountability –​the accountability for assault and worse. In all of these cases, the issue that remains for the state party is to consider what it is going to do about accountability. Accountability for its own responsibilities, accountability for its failures to monitor what others have been doing, and the accountability of others for committing abuses that the State might well be able to think of as crimes. The accountability that I mention is missing in everything that we’ve heard so far. (Rodley, 2014)

Conclusion Institutional abuse is a complex and multifaceted phenomenon, both historically and currently. Burns et al (2013) have argued that while solutions will not easily be found, potential solutions can be identified by acknowledging the various perspectives of stakeholders and the systemic nature of care provision via continuous constant re-​examination and adaptation. Smith and Duff (2020) propose changes to court procedures that would enable greater access to civil justice for survivors of so-​called ‘historical’ abuses. They contend that the Statute of Limitations 1957 ‘could be amended to provide for judicial discretion to lift the statute bar in the interests of justice’, something which the United Nations CAT recommended in 2017 (CAT, 2017: para 26(b)). They argue, in addition, that ‘the test for inordinate and inexcusable delay could be adjusted by statute to take account of what was reasonable given social reality in Ireland before the liberalization of the 1990s.’ Smith and Duff (2020) suggest, further, the establishment of a

79

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

mechanism for class actions in Ireland (as supported previously by the Law Reform Commission of Ireland and the Bar Council of Ireland) alongside reform of the rules on third party funding of litigation and a relaxation of the rules of standing to allow representative actions. These authors advocate implementation of the Law Reform Commission’s 2006 recommendation for the replacement of charitable trusts and unincorporated associations with a new legal structure –​the charitable incorporated organization –​ which would regularize the legal status of religious congregations (making it possible to litigate against them) (LRC, 2006). Finally, Smith and Duff call for the introduction of a modern system of judicial case management (which work has been started by the Review Group on the Administration of Civil Justice) which would ensure the more efficient and rapid resolution of civil proceedings in Ireland. While benefitting all litigants, they argue, ‘for victims of historic institutional abuse, it would permit a radical rebalancing of their relationship with those they believe responsible for their suffering.’ (Smith & Duff, 2020). Magdalene survivors, meanwhile, have made other recommendations, notably echoing the CAT’s expansive conceptualization of ‘redress’ (CAT, 2012) which goes beyond traditional court-​based remedies while still requiring them –​indeed with a view to ensuring these traditional measures’ effectiveness in practice by creating a culture of accountability with respect to the abuse suffered. The CAT’s conceptualization of what the right to redress for torture or cruel, inhuman, or degrading treatment or punishment entails mirrors the United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005): both dictate that redress include the five elements of restitution, compensation, rehabilitation, satisfaction, and guarantees of non-​repetition. Satisfaction is explained by the CAT (2012: para 16) to include the ‘right to truth’ and to require, in addition to criminal investigation and prosecution, measures such as verification of the facts and full and public disclosure of the truth; the search for the whereabouts of the disappeared; judicial and administrative sanctions against persons liable for the violations; public apologies, including acknowledgement of the facts and acceptance of responsibility; and commemorations and tributes to the victims. The CAT describes guarantees of non-​repetition as preventive measures which ‘offer an important potential for the transformation of social relations that may be the underlying causes of violence and may include, but are not limited to, amending relevant laws, fighting impunity, and taking effective preventative and deterrent measures’ (CAT, 2012: para 18). In the report from a ‘Listening Exercise’ with 147 Magdalene survivors held at Dublin’s Mansion House in June 2018, Katherine O’Donnell and Claire

80

INSTITUTIONAL Abuse in Ireland

McGettrick (2020: 29–​46) write that the women’s key recommendations included: learning from the past and ensuring it doesn’t happen again; educating young people so that the past is never repeated; ensuring that women have a much more powerful say in public policy and governance; including the history of the Magdalene Laundries in compulsory education modules for young people; ensuring public education regarding the truth of the Magdalene Laundries; recognizing and marking the deaths of women in Magdalene Laundries; and memorializing the abuse through the creation of a prominent commemorative monument or space, or a commemorative day or event. What insights can these views of Magdalene survivors offer us in a context where the state has actively prevented ‘ordinary’ criminal and civil justice systems from functioning, bearing in mind the comprehensive definition of redress under international human rights law? In our opinion, survivors are pointing us to the measures of redress that are required in order to tackle the underlying structural causes of not only the ‘historical’ abuse but also the state’s current (non-​)response to it; in other words, the elements of redress that are required in order to force the state, and Irish society, to open up the ‘ordinary’ avenues of civil and criminal justice and abuse prevention now and in the future. In essence, we believe, the measures which survivors recommend are about establishing as a basic moral –​and legal –​premise that what happened to girls and women in the Magdalene Laundries matters, because the women are citizens with rights –​and because women and girls in situations of vulnerability now and in the future are equally rights bearing. The CAT’s General Comment on the meaning of the right to redress for torture and ill-​treatment contends that ‘the restoration of the dignity of the victim is the ultimate objective in the provision of redress’ (CAT, 2012: para 4). In a similar vein, Margaret Urban Walker (2013: 116) argues that ‘what is at stake in whether (adequate) reparations are offered is the recognition of a certain kind of relationship and its implications’. That relationship is one of ‘reciprocal accountability’, whereby an individual enjoys the standing to hold others to account while being held to account themselves –​a relationship that Walker argues is core to ‘moral dignity’. An excerpt from a survivor interview with Deirdre demonstrates both her understanding that ‘ordinary’ justice through the civil or criminal courts may not be forthcoming and her determination that other forms of justice –​which are distinctly concerned with establishing and protecting the dignity of the women who suffered in the past and may suffer in the future –​are achieved so that such failures of civil and criminal accountability do not persist: ‘I feel I have to do it [speak out publicly], cos I haven’t told anybody, and it’s getting me down. Each day, it’s getting harder

81

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

and harder for me. And I’m not doing this for me. I don’t want anything out of this. I’m doing this for my sisters. There is nobody to speak up for them. There is nobody to speak up for the other women that have passed … justice needs to be done. And I know that we can’t make the people who did this pay because, believe me, the majority of them are already gone and I’m hoping that they are paying for their sins somewhere else. But I think we need to make sure that this does not happen again’. In conclusion, our contribution to the SASCA project recognizes the role of accountability in responding to and potentially contributing to the amelioration of survivors’ trauma. SASCA’s focus on identifying legal professionals’ experiences in responding to survivors’ needs has demonstrated that survivors face marked difficulties in accessing legal support in negotiating both the civil and the criminal justice system. Survivors’ contributions have added a crucial perspective to our understanding of the meaning of accountability and the measures that may deconstruct the barriers to it and create a foundation for it to flourish in the future. Acknowledgements This publication has been produced with the financial support of the Rights, Equality and Citizenship (REC) Programme of the European Union. The contents of this publication are the sole responsibility of the authors and can in no way be taken to reflect the views of the European Commission.

Notes 1 2

3

4

5

Corresponding author. See Justice for Magdalenes Research, (available online at: http://​jfmresearch.com/​home/​ restorative-​justice/​accountability/​) for the group’s submissions to international and other human rights bodies from 2010 to the present date. For example the case of Elizabeth Coppin v Ireland, summarized in the Irish Centre for Human Rights press release ‘UN Committee Against Torture delivers landmark admissibility decision in case of Elizabeth Coppin v Ireland 18 February 2020, available online from: https://​www.nuigalway.ie/​irish-​centre-​human-​r ights/​newsevents/​un-​ committee-​against-​torture-​delivers-​landmark-​admissibility-​decision.html; see also the report of the ombudsman regarding the ‘maladministration’ by the Department of Justice of the Magdalene ex gratia ‘restorative justice’ scheme: Opportunity Lost: An Investigation by the Ombudsman into the Administration of the Magdalen Restorative Justice Scheme (November 2017), available online from: https://​www.ombudsman.ie/​publications/​reports/​ opportunity-​lost/​ For the most recent example see the United Nations Human Rights Committee, Periodic Report submitted by Ireland under article 40 of the Covenant, due in 2019, UN Doc CCPR/​C/​IRL/​5 (31 January 2020), paragraph 66. Watch online at: https://​www.youtube.com/​watch?v=hOQyl7ZpoH8

82

INSTITUTIONAL Abuse in Ireland 6

7

8

9

10

Letter from Jimmy (James) Martin (assistant secretary, Department of Justice and Equality) to Tom Morgan (senior investigator, Office of the Ombudsman), 3 August 2016 (on file with author). The ‘disability’ exception to the running of the limitation period applies only if (a) the person is ‘of unsound mind’, in the sense that she is ‘incapable of conducting her ordinary affairs in a general way’, or (b) the person’s court action is based on sexual abuse suffered in childhood, which caused a ‘psychological injury’ of ‘such significance that his or her will, or his or her ability to make a reasoned decision, to bring such action [was] substantially impaired’: Statute of Limitations Act 1957 (as amended by Statute of Limitations (Amendment) Act 2000), 48A. O’Dwyer v The Daughters of Charity of St Vincent de Paul & Ors [2015] IECA 226 (Court of Appeal) paragraph 45. See also EAO v Daughters of Charity of St Vincent de Paul & Ors [2015] IEHC 68 (High Court); Elizabeth Anne O’Dwyer v The Daughters of Charity of St Vincent de Paul, the Sisters of Our Lady of Charity of Refuge, and the Health Service Executive [2016] IESCDET 12 (unreported), January 22, 2016 (Supreme Court). See sections 1, 2, 13 National Archives Act 1986 (as amended) which establish that ‘public service organisations’ (a local authority, health board, or body established by or under statute and financed wholly or partly by the state) may but are not required to deposit records with the National Archives. The National Archives Act 1986 says nothing about the records of non-​s tate bodies which provide state-​f unded services. See Freedom of Information Act 2014, sections 2 and 11. The exception is where disclosure of older records is necessary or expedient in order to understand the more recent records or where the older records ‘relate to personal information about the person seeking access to them’.

References Blakemore, T., Herbert, J., Arney, F., and Parkinson, S. (2017) ‘The impacts of institutional child sexual abuse: A rapid review of the evidence’, Child Abuse and Neglect, 74: 35–​48. Burns, D., Hyde, P., and Killett, A. (2013) ‘Wicked problems or wicked people? Reconceptualising institutional abuse’, Sociology of Health and Illness, 35(4): 514–​28. Carr, A., Dooley, B., Fitzpatrick, M., Flanagan, E., Flanagan-​Howard, R., Tierney, K., White, M., Daly, M., and Egan, J. (2010) ‘Adult adjustment of survivors of institutional child abuse in Ireland’, Child Abuse and Neglect, 34(7): 477–​89. Committee Against Torture (CAT) (2011) Concluding Observations on the First Periodic Report of Ireland, UN Doc. CAT/​C/​IRL/​CO/​1. CAT (2012) General Comment No. 3, ‘Implementation of article 14 by States parties’, UN Doc. CAT/​C/​GC/​3. CAT (2017) Concluding Observations on the Second Periodic Report of Ireland, UN Doc. CAT/​C/​IRL/​CO/​2.

83

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

Committee on Economic, Social and Cultural Rights (CESCR) (2015) Concluding Observations on the Third Periodic Report of Ireland, UN Doc. E/​ C.12/​IRL/​CO/​3. Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW) (2017) Concluding Observations on the Combined Sixth and Seventh Periodic Reports of Ireland, UN Doc. CEDAW/​C/​IRL/​CO/​6-​7. Cook, A., Spinazzola, J., Ford, J., Lanktree, C., Blaustein, M., Cloitre, M., DeRosa, R., Hubbard, R., Kagan, R., Liautaud, J., Mallah, K., Olafson, E., and van der Kolk, B. (2005) ‘Complex Trauma in Children and Adolescents’, Psychiatric Annals, 35(5): 390–​8. Dáil Éireann (2013) Dail debates –​Magdalen Laundries Report: Statements, Kildare Street, [online] 19 February, available online from: https://​www. kildarestreet.com/​debates/​?id=2013-​02-​19a.387 Daly, K. (2014) Redressing Institutional Abuse of Children, London: Palgrave. Department of Justice and Equality (2011) Inter-​departmental Committee to Establish the Facts of State Involvement with the Magdalen Laundries, Interim Progress Report, Department of Justice, [online] 20 October, available online from: http://​www.justice.ie/​en/​JELR/​Appendix%201.pdf/​Files/​ Appendix%201.pdf Department of Justice and Equality (2020) The Magdalen Restorative Justice Ex-G ​ ratia Scheme, Department of Justice, available online from: http://j​ ustice. ie/​en/​JELR/​Pages/​WP15000111 Fitzpatrick, M., Carr, A., Dooley, B., Flanagan-​Howard, R., Flanagan, E., Tierney, K., White, M., Daly, M., Shevlin, K., and Egan, J. (2010) ‘Profiles of adult survivors of severe sexual, physical and emotional institutional abuse in Ireland’, Child Abuse Review, 19(6): 387–​404. Gallen, J. (2018) ‘Historical Abuse and the Statute of Limitations’, Statute Law Review, 39(2): 103–​117. Government of Ireland (1957) Statute of Limitations Act of 1957, Dublin: Houses of the Oireachtas. Government of Ireland (1986) National Archives Act 1986 (as amended), Dublin: Houses of the Oireachtas. Government of Ireland (2014) Freedom of Information Act 2014, Dublin: Houses of the Oireachtas. Government of Ireland (2016) Replies to the List of Issues Prior to Submission of the Second Periodic Report of Ireland, UN Doc. CAT/​C/​IRL/​2. Government of Ireland (2019) Retention of Records Bill 2019 (as initiated), Dublin: Houses of the Oireachtas. Howell, P. (2003) ‘Venereal disease and the politics of prostitution in the Irish Free State’, Irish Historical Studies, 33(131): 320–​41.

84

INSTITUTIONAL Abuse in Ireland

Hughes, K., Bellis, M., Hardcastle, K., Sethi, D., Butchart, A., and Mikton, C. (2017) ‘The effect of multiple adverse childhood experiences on health: A systematic review and meta-​analysis’, The Lancet Public Health, 2(8): 356–​66. Human Rights Committee (2014) Concluding Observations on the Fourth Periodic Report of Ireland, UN Doc. CCPR/​C/​IRL/​CO/​4, para 10. Irish Human Rights Commission (IHRC) (2013) Follow Up Report on State Involvement with Magdalen Laundries (IHRC Follow-​up Report), available online from: https://w ​ ww.ihrec.ie/d​ ocuments/i​ hrc-f​ ollow-u ​ p-r​ eport-o ​ n-​ state-​involvement-​with-​magdalen-​laundries-​june-​2013/​ Irish Human Rights and Equality Commission (IHREC) (2014) Submission to the United Nations Human Rights Committee on the Examination of Ireland’s Fourth Periodic Report, paras 58–​69, available online from: https://​www. ihrec.ie/​download/​pdf/​20140616113130.pdf IHREC (2015a) Submission to the Committee on Economic, Social and Cultural Rights on the Examination of Ireland’s Third Periodic Report under the International Covenant on Economic, Social and Cultural Rights, para 5.5. available online from: https://​www.ihrec.ie/​download/​pdf/​irish_​human_​ rights_​commission_​national_​human_​r ights_​institution_​_​submission_​to_​ human_​r ights_​committee_​list_​of_​issues_​final.pdf IHREC (2015b) Submission to the United Nations Committee on the Elimination of Discrimination Against Women: List of Issues Prior to Reporting on Ireland’s Combined 6th and 7th Reports under CEDAW, paras 17–​19, available online from: https://​www.ihrec.ie/​app/​uploads/​2017/​02/​Ireland-​and-​the-​ Convention-o ​ n-​the-​Elimation-​of-​All-​Forms-o ​ f-D ​ iscrimination-A ​ gainst-​ Women.pdf IHREC (2017) Submission to the United Nations Committee against Torture on Ireland’s Second Periodic Report, pp.53–​58, available online from: https://​ www.ihrec.ie/​ a pp/​ u ploads/​ 2 017/​ 0 7/​ I reland- ​ a nd- ​ t he- ​ C onvention-​ against-​Torture.pdf Kamavarapu, Y., Ferriterm, M., Morton, S. and Völlm, B. (2017) ‘Institutional abuse –​ Characteristics of victims, perpetrators and organisations: A systematic review’, European Psychiatry, 40: 45–​54. Law Reform Commission (LRC) (2006) Charitable Trusts and Legal Structures for Charities, Dublin: Law Reform Commission, available online from: https://​publications.lawreform.ie/​Portal/​External/​en-​GB/​ RecordView/​Index/​35969 Luddy, M. (2007) Prostitution and Ir ish Society: 1800–​1 940, Cambridge: Cambridge University Press.

85

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

McAvoy, S. (1999) ‘The regulation of sexuality in the Irish Free State, 1929–​ 1935’, in G. Jones and E. Malcolm (eds) Medicine, Disease and the State in Ireland, 1650–​1940, Cork: Cork University Press, pp253–​67. McGettrick, C. and Justice for Magdalenes Research (2015) Death, Institutionalisation and Duration of Stay: A Critique of Chapter 16 of the Report of the Inter-​Departmental Committee to Establish the Facts of State Involvement with the Magdalen Laundries and Related Issues, available online from: http://​jfmresearch. com/​wpcontent/​uploads/​2017/​03/​JFMR_​Critique_​190215.pdf O’Donnell, K. (2012) ‘Magdalene Institutions: Recording an Oral and Archival History’, Justice for Magdalenes Research, available online from: http://​www.magdaleneoralhistory.com O’Donnell, K. (2018) ‘Academic and activist: Ethical issues arising from the Justice for Magdalene Campaign and Oral History’, in P. Villar-​Argáiz (ed) Irishness on the Margins: Minority and Dissident Identities, Basingstoke: Palgrave Macmillan, pp77–​100. O’Donnell, K. and McGettrick, C. (2020) Dublin Honours Magdalenes Listening Exercise Report Vol 1: Report on Key Findings, Dublin: Justice for Magdalenes Research. Ó Fatharta, C. (2014) ‘Government “conscious of redress” for Magdalene survivors’, Irish Examiner, [online] 18 November, available online from: https://​www.irishexaminer.com/​ireland/​government-​conscious-​ of-​redre ssfor-​magdalene-​survivors-​298255.html O’Mahoney, J. (2014) Waterford Memor ies Digital Humanities Project, Waterford Memories Project, available online from: www. waterfordmemories.com O’Rourke, M. (2017) Justice for Magdalenes Research, NGO Submission to the United Nations Committee Against Torture, Cavan: Justice for Magdalenes Research, available online from: http://​jfmresearch.com/​wp-​content/​ uploads/​2017/​07/​JFMR-​report-​to-​CAT-​for-​the-​session-​2017-​Main-​ Report.pdf O’Rourke, M. (2019) ‘Prolonged impunity as a continuing situation of torture or ill-​treatment? Applying a dignity lens to so-​called “historical” cases’, Netherlands International Law Review, 66(1): 101–​41. O’Rourke, M. (forthcoming, 2021) ‘The manipulation of “vulnerability”: State responses to so-​called “historical” abuses in Ireland’, Human Rights Quarterly 43(1). Riessman, C. (1994) Qualitative Studies in Social Work Research, London: Sage. Rodley, N. (2014) Examination of the Fourth Periodic Report of Ireland, Statement by Sir Nigel Rodley, 15 July, Geneva, available online from: www.youtube. com/​watch?v=v0NCIB3uHns

86

INSTITUTIONAL Abuse in Ireland

Smith, C. and Duff, A. (2020) ‘Access to justice for victims of historic institutional abuse: Some observations on Irish civil procedure’, Éire –​ Ireland: A Journal of Irish Studies, 55(1/​2): 100–​19. Smith, J. (2007) Ireland’s Magdalen Laundries and the Nation’s Architecture of Containment, South Bend: Notre Dame University Press. Smith, J., O’Rourke, M., Hill, R., and McGettrick, C. (2012) State Involvement in the Magdalene Laundries: Justice for Magdalenes Principal Submissions to the Inter-​departmental Committee to Establish the Facts of State Involvement with the Magdalene Laundries, 16 February, available online from: http://​jfmresearch.com/​wp-​content/​uploads/​2017/​03/​State_​ Involvement_​in_​the_​Magdalene_​Laundries_​public.pdf Stein, M. (2006) ‘Missing years of abuse in children’s homes’, Child and Family Social Work, 11(1): 11–​21. United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2015) UNGA Res. 60/​147. Walker, M.U. (2013) ‘Moral vulnerability and the task of reparations’, in C. Mackenzie, W. Rogers, and S. Dodds (eds) Vulnerability: News Essays in Ethics and Feminist Philosophy, Oxford: Oxford University Press, pp111–​33.

87

5

Re-​storying Offending Behaviour: A Normal Response to an Overdose of Trauma? Jane Mulcahy

Desistance is the process by which offenders reduce and ultimately stop offending and then manage to maintain a law-​abiding lifestyle (Maruna, 2001). The terms ‘resettlement’ and ‘re-​entry’ describe the process of returning to the community in a structured and supported way after serving a prison sentence (Mead, 2007), and include all interventions implemented inside or outside prison –​during and after sentence (Petersilia, 2004) –​ which aim to overcome obstacles and assist the ex-​prisoner’s return to free society. Over the last twenty years there has been a great deal of focus on resettlement and desistance issues in the academic literature and practice (see Maruna, 2001; McCulloch & McNeill, 2008), with a growing recognition that an integrated, multi-​agency, and multifaceted approach is more effective in supporting the difficult transition from prison to the community and reducing offending behaviour (see Mears & Cochran, 2015; Fox, 2016). There has been inadequate academic focus on the prevalence of childhood adversity and the impact of embodied trauma among male prisoners, and equally scant scholarship on trauma-​responsive interventions to assist ‘unrecovered trauma survivors’ (Whitfield, 1998: 362) to process their somatic, affective, and relational symptoms.

The impact of adverse childhood experiences In 1998, Felitti and colleagues (1998) published groundbreaking epidemiological research about the exposure of over 17,000 mainly white,

89

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

middle class, college-​educated Americans to emotional, physical, and sexual abuse, emotional and physical neglect, and household dysfunction including parental separation, domestic violence, living with a mentally ill person or someone with an addiction, or having a family member in prison. The WHO (2018) has more recently added bullying, incidences of racism or other discrimination, and community violence to the list. Felitti and colleagues (1998) found evidence of a strong ‘dose response’: the more adverse childhood experiences (ACEs) a person experienced before they turned 18, the greater their risk of serious illnesses such as ischemic heart disease, diabetes, and obesity, as well as addiction, mental illness, relational dysfunction, and offending behaviour. Those who experienced four or more ACEs were at far greater risk of poor health, social, and behavioural outcomes. Recent neuroscience evidence from the Centre on the Developing Child at Harvard University and elsewhere has established that ACEs damage a child’s developing brain, leading to long-​term impairment of the brain’s structure and function (Carlisi et al, 2020). Offenders tend to come from ‘adverse community environments’ (Ellis & Dietz, 2017): poor, urban areas where there are high doses of ACEs from household to household. Burke-​Harris (2018a) states that ‘toxic stress’ –​ intolerable levels of stress over a prolonged period that negatively impact the brain and body –​is about basic human biology. However, in communities that are extremely deprived and where there are low levels of resources at the individual and collective level, trauma is ‘endemic’, meaning that ‘it isn’t just handed down from parent to child and encoded in the epigenome; it is passed from person to person, becoming embedded in the DNA of society’ (Burke-​ Harris, 2018: 132–​3). Ellis and Dietz (2017: 87) state that ‘when families live in communities in which food insecurity, domestic violence, challenges to parenting, unemployment, inadequate educational systems, crime, and social justice issues are common, the result is an environment in which ACEs abound, needed social supports are scarce, and toxic stress results.’ Children who are ‘incubated in terror’ (Perry, 1997), subjected to unspeakable trauma, are unable to be fully alive in the present. Dysregulation of the autonomic nervous system (ANS) makes itself painfully felt in the body, and may lead to dissociation, illness, addiction, self-​harm, uncontrollable anger, and sometimes violence. ACEs cause the production of toxic stress in children, activating ‘fight/​flight/​freeze’ responses, which are beyond conscious control. A traumatized child typically develops a tiny ‘window of tolerance’ (Siegel, 2015: 281–​6) which means they will struggle to process the stressors of life in healthy ways. They will be prone to remaining constantly on high alert for danger, responding with anger, violence, impulsivity, or defensiveness (hyperarousal), or by shutting down/​disconnecting (hypo-​arousal) when emotionally overwhelmed or triggered.

90

Re-storying Offending Behaviour

Porges’s (2009) polyvagal theory teaches us that, as mammals, our bodies are on a quest for safety in the presence of other humans. Safety is more than the removal of threat.1 It involves a change in neural state, an embodied, ‘felt sense’ (Levine & Frederick, 1997: 69) of comfort, ease, and openness to social behaviour. In relation to changes in brain structure and function due to toxic stress, Burke-​Harris (2018b: 101) found, in her universal screening of ACEs, that children who had experienced four ACEs were 32 times more likely than children with no ACEs to present with learning and behavioural problems, such as attention-​deficit hyperactivity disorder (ADHD). Children cannot access their cortical, thinking brains to learn or control impulses if they feel unsafe in the presence of others, constantly on the lookout for danger. Traumatized adults find themselves imprisoned in the past, stuck, unable to bear to feel their pain and move beyond it. They often unknowingly re-​enact it (Herman, 2015). In Kennedy et al’s (2005) study on mental illness in Irish prisons, between 61 and 79 per cent of prisoners reported addiction problems, and just over one quarter (27 per cent) of male sentenced prisoners and 60 per cent of sentenced women reported a mental illness. Most prisoners reporting mental illness, including psychosis, also reported addiction problems. Recently published figures relating to adversity among children in detention in Ireland revealed that of the 75 children, 57 per cent had not been engaged in education prior to detention, 23 per cent had a diagnosed learning disability, and 41 per cent had a ‘mental health need’.2 Regarding behaviours of interest to criminal justice agencies, Public Health Wales (Bellis et al., 2016: 5) questioned 2,028 Welsh adults about their current health behaviours and exposure to ACEs: 47 per cent of respondents reported having experienced at least one ACE and 14 per cent experienced four or more ACEs. Compared with interviewees with no experience of ACEs, those who experienced four or more ACEs were: • 14 times more likely to have been a victim of violence over the last 12 months; • 15 times more likely to have committed violence against another person in the last 12 months; • 16 times more likely to have used crack cocaine or heroin; • and 20 times more likely to have been incarcerated at any point in their lifetime. Ford and colleagues (2019) reporting on the prevalence of ACEs among prisoners in Parc prison in Wales found that eight in ten prisoners had one ACE and 46 per cent had four or more. They found that the proportion of people with four or more ACEs increased from 25.4 per cent for those in

91

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

prison for the first time to 58.9 per cent for those who reported being in prison on more than seven separate occasions. This data does not provide those who were victimized in childhood with an ‘abuse excuse’ for the harms they do unto others (Perry & Szalavitz, 2017), but as psychiatrist Bessel van der Kolk (2014) states, ‘Hurt people hurt other people.’ I have argued elsewhere that criminal justice agencies must become informed about trauma and responsive to it as a matter of urgency (Mulcahy, 2018a, 2018b, 2018c). If the Irish Prison Service is serious about making rehabilitation one of its core goals in deed as well as rhetoric, then all staff should receive training on the impact of childhood trauma and prison-​based interventions must be strengths-based, healingcentred (Ginwright, 2018) and trauma-responsive (Mulcahy, 2018d). The dominant Risk-Need-Responsivity (RNR) model of offender rehabilitation is preoccupied with quantifying and managing risk rather than recognizing the prevalence and impact of unresolved childhood wounds and the consequences of embodied trauma. This explains why it can be so challenging to get offenders to buy into wholehearted participation in group work or Cognitive Behavioural Therapy (CBT) courses, either in prison or as probation clients in the community. CBT targets the cortical brain, ignoring the reality that traumatized people are perpetually attuned to life threats and are often subject to ‘bottom-​up hijacking’ (Ogden et al, 2006) whereby the more primitive survival brain derails the rational prefrontal cortex. Many offenders may be driven unconsciously to repeat traumatic experiences (Levine, 1997: 37). In this chapter I present extended passages from my exchanges with interviewees to demonstrate the relational aspect of storytelling, storying, and re-​storying. These passages are important for showing the iterative nature of the research process. While I was not originally focused on trauma and socially toxic environments, the men clearly wanted to tell me narratives that deeply engaged these topics. I felt it was incumbent on me to present them and interpret their meaning. The goal of my research was to elevate the voices and experiences of marginalized men in the hope of prompting policy change and improvements in delivering strengths-​based, healing-​ centred practice for better individual and social outcomes.3 In terms of the subject matter of this book and the important human rights concept of ‘nothing about us without us’, the trauma narratives of my interviews strongly suggest that criminal justice policymakers and practitioners would benefit from listening to (ex-​)prisoners and responding with a more compassionate, problem-​solving approach, asking ‘What do you need from us? How can we help you?’ rather than focusing predominantly on the risk that trauma-​blind actuarial assessment tools claim they pose.4

92

Re-storying Offending Behaviour

Method Between November 2017 and May 2018, I conducted interviews with 12 men serving sentences of between two and ten years in Irish prisons.5 The men were identified through the Prisoner Information Management System (PIMS) with the assistance of an experienced civil servant in the Irish Prison Service and a prison-​based probation officer. All names have been changed to protect identities. The pseudonyms I chose were from Irish legends, as the men were the (anti)heroes of their own stories. Interviews were conducted in Cork, Portlaoise, Wheatfield, and Mountjoy prisons. All participant quotations are presented complete with pauses, changes in pitch, and phonetic pronunciation of words, in an attempt to reflect as accurately as possible the energy, emotion, and speech patterns of the interviewees. The use of italics reflects the emphasis placed on certain words by the speaker as transcribed from the audio recordings.

Profile of interviewees Nine interviewees were from lower socioeconomic neighbourhoods in Cork City. One was from a rural address in Cork. Two men with longer sentences were from deprived parts of Dublin City. Only three of the men mentioned had a work history. These findings about social deprivation and unemployment are similar to previous Irish findings revealing that offenders are generally concentrated in deprived urban settings with low social mobility (Bacik & O’Connell, 1998; O’Donnell et al, 2007). Aside from sentence length, the main selection criteria for the research was that the men were subject to some sort of post-​release engagement with probation. In ten cases, this meant a part suspended sentence supervision order (PSSSO). Most of the interviewees were within six months of their release date and subject to some sort of post-​release contact with probation. Two men had no PSSSO. Fiachra had been released on a PSSSO, but a judge lifted the suspended sentence portion and substituted a term of imprisonment after Fiachra applied to be returned to prison due to a drugs relapse. Aodh had been released early on the Community Return Scheme (CRS), an earned early-​release initiative for people serving between one and eight years in prison, but was returned to custody due to non-​compliance. Both men reported finding it much easier to resist taking drugs in prison than in the community. Interviewees were serving prison sentences for a wide range of offences including theft, burglary, aggravated burglary, drug possession for sale or

93

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

supply, assault causing harm, false imprisonment, violent disorder, hijacking, and armed robbery. The only offence category excluded from the study was sexual offences on the basis that people convicted of sexually harmful behaviour warrant a separate study due to differences in offending patterns and recidivism risk, as well as the fact that they present unique challenges to reintegration, especially in terms of housing. Most interviewees were serving sentences of between two and five years. The age range of the men was 20 to 46. Half of them were over 30, and half between 20 and 30. All bar two of the men had done time previously. Diarmuid was the only married man, but three other men over thirty –​Aodh, Tadgh, and Fiachra –​had long-​term partners. Eight of the interviewees had children (12 between them). Contrary to well-​established principles in criminology (Weaver & Weaver, 2013; Hart & Healy, 2018), social bonds and fatherhood had not prompted desistance in the interviewees in question thus far. Zara and Farrington (2016) defined chronic offenders as people with in excess of ten criminal convictions. Two of the men had amassed over 650 convictions between them, though mainly for district court matters. Of the six men over 30, all had a complex history of offending behaviour. Their interactions with the criminal justice system began in their early teens. Four of these men had been imprisoned for a total of approximately 20 years. Finn, who had been in and out of prison for the last 25 years, said that ‘you get immune to it’: ‘It just becomes normal, like’. Cathal had spent 20 years in prison primarily for theft offences –​a life sentence by instalments (Lievesley et al, 2018). Five of the men over 30 had spent time as teenagers in child detention facilities. Criminality and addiction –​ particularly involving consumption of benzodiazepines and alcohol –​were, for the interviewees, inextricably linked. All 12 interviewees reported that addictive behaviours underpinned their offending behaviour. For most of the men, such addictive behaviours included excessive consumption of drugs and alcohol, and there was a high prevalence of dangerous risk-​taking involving cars while under the influence. According to Daniel Sumrok, recourse to alcohol and drugs in order to self-​soothe is a normal, predictable response to ACEs, ‘just like bleeding is a normal response to being stabbed’ (cited in Stevens, 2017: np). Benzodiazepines were the most commonly abused drug, with the most problematic behavioural ramifications. Taking drugs is often the main coping strategy that people with offending behaviour avail of to obtain ‘relief from prior life traumas’ (Felitti, 2004: np). However, as Felitti (2004: np) observed, because ‘it is difficult to get enough of something that doesn’t quite work, the attempt is ultimately unsuccessful, apart from its risks’. Such risks including criminalization, prosecution, imprisonment, and death.

94

Re-storying Offending Behaviour

Unsolicited trauma narratives According to McNeill (2004: 243), practitioners need to listen to offenders and respect them ‘as people with important stories to tell’. I did not administer the WHO ACE-​IQ (World Health Organization adverse childhood experiences international questionnaire) with prisoner interviewees, nor did I set out to gather biopsychosocial data about the men’s early childhood adversity. However, several men spontaneously disclosed details of trauma and toxic stress during the discussions. In terms of Felitti et al’s questionnaire, the only ACE that was not disclosed during interviews was experience of child sex abuse (CSA). Non-​disclosure does not, of course, mean that none of the men survived CSA. CSA is such a taboo issue that even after lengthy engagement with psychiatric services, people typically only disclose if directly asked (Edwards et al, 2007). While only some of the men disclosed multiple childhood adversities that were the source of their ‘ritualized compulsive comfort-​seeking’ (Stevens, 2017: np) –​that is, their substance misuse –​it is likely that these unprompted revelations were only the tip of the iceberg. People who are unrecovered trauma survivors generally tone down their experiences to make them more palatable to the listener, because prior attempts to share their stories have often been disbelieved or ignored (Maruna, 2001: 60). Denial about having endured a punishing childhood is also an extremely common survival mechanism among trauma survivors (Miller, 2009).

Intra-​familial adversity Throughout his childhood, Tadgh’s mother was a seriously mentally ill, single parent who attempted suicide on multiple occasions. In fact, she died by suicide when he was on bail prior to the current sentence. Tadgh, a recovering heroin addict, mentioned her tragic death and the ensuing ‘complicated grief ’ (Tobin et al, 2018) as a turning point in his life. Having spent 20 of his 37 years in prison for serious offences, Tadgh never felt like changing his ways before. Angry at the world, he felt entitled to some sort of payback for his hardship. He referred to the failures and omissions of others –​his family and the inadequate social safety net –​to care adequately for him as a vulnerable child in an unsafe, deprived environment as reasons for his previous decisions not to ‘make good’ (Maruna, 2001) and leave a life of drugs and crime behind. He had no meaningful support or contact from his father in his formative years, and was reliant on a very emotionally distressed mother who could not attend to her own needs let alone provide him with nurturant care. Tadgh ultimately re-​stories the past to reflect his awareness of personal resilience and gives a positive spin to the difficulties

95

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

he endured. Tadgh’s words suggest he has made a certain peace with his childhood adversity through his survival narrative, re-​authoring his experiences, relationships, and identity. He professed to have located and welcomed his ‘core good self ’ (Maruna, 2001), perhaps believing himself to have benefited from ‘post - growth’ (Tedeschi & Calhoun, 2004): JM: So what are you most hopeful about? Tadgh: When I get out? Jus’ to live a normal life. Not to come back to prison. JM: Yeah. And do you believe you can? Tadgh: Mmm. JM: Yeah? Tadgh: (Quietly) O’ course I can. But it’s up to me like. JM: Yeah. And why do you think it didn’t work out the [other times]? Tadgh: (Louder, adamant) I didn’t wanta. JM: You didn’t want to then? Tadgh: (Quietly) Yeah. I jus’ wanted to carry on doin’ wha’ I was doin’. I jus’ wanted to say ‘fuck de world’, like. You know? You feel like you’re owed some’ when you were le’ down. Like, when you were young, growin’ up. You kinda t’ink … JM: Like by society kind of thing? Tadgh: By everyt’ing, by family, society –​like de family are only comin’ around in de las’ say 15, 20 years. JM: Ok. So like you weren’t very supported when you were small? Tadgh: No. … Left to my own devices. JM Ok, am, having to fend for yourself? Tadgh Yeah. Feed meself, rob food, wha’ever, Christmas clothes. JM: Ok, right, so hard times and that kind of thing? Tadgh: It’s good times coz I know like, when you’re lookin’ back it’s hard, bu’ you learn from it, you grow from it an’ it makes you de person you are, djunno wha’ I mean? JM: And you survived? Tadgh: Yeah, da’s it, like. I’m here for a reason. Cathal, a prolific thief with in excess of 200 convictions and 40 prison sentences, similarly informed me that his troubles stem from his early childhood experiences. According to Cathal, attachment disruption, domestic violence, emotional neglect, and being in care were at the root of his debilitating addiction and consequent criminality:

96

Re-storying Offending Behaviour

Cathal:

I was in an’ out of care homes. I come from a dysfunctional family. I weren’t given a fair life, to be honest wit’ ya. Djunno? JM: Yeah. And did you leave school early? Cathal: (High pitched) Yeah. I did leave school early. Djunno? Weren’t given a fair life, like. Djunno what I mean? JM: And so would you think –​like when you’ve done the addiction counselling and stuff, why do you think you’ve taken drugs? Cathal: (High pitched) For wha’ I was watchin’ at five years of age a’ home. Dat’s where it all started. (High pitched, soft) Watchin’ me mudder ge’ bate by me fa-​der. Dat’s where. It all kicked off when I was a small little child wit’ nobody to hug me. (High pitched) I’m gone into all dis in treatment. (High pitched) I know who I am. I know why I am. […] I went back t’rough all dese years. I put it out in groups. I don’t hold in naught’n no more. On antidepressants for years, Cathal stated that his mental health has been in “fuckin’ bits” since the age of five. He claimed to have spent time in a probation hostel in Cork in 1990 when he was 10 years old. He only recently remembered that three boys in the hostel set his arm on fire with an aerosol can. He recollected that the staff responded by trying to get him to sleep in the room with them. The hitherto repressed memory “just keeps poppin’ up” in his head lately. This experience fits with research on the nature of traumatic memory. The memory of a personally traumatic event is such that it is typically fragmented and pixelated, yet felt intensely as if the person was re-​experiencing the ‘sensory, cognitive, emotional and psychological’ responses to the original event in the here and now, triggered by sounds, smells, or images (van der Kolk et al, 2001: 11). The younger a person is when the trauma occurs, the more likely they are to dissociate from the experience as a survival mechanism, especially if they were unable to escape, ‘physically immobile and helpless’ (van der Kolk et al, 2001: 11). While mentally disconnecting helps children to live through unspeakable, inescapable bodily experiences, forgetting/​suppressing often takes an immense toll on the body. Of all the interviewees, Cathal’s autonomic dysregulation was palpable. I could feel the stress surging through him. Cathal claimed that a doctor came upon the scene of a near-​fatal car accident in which he was involved as a young man, telling him to come by his surgery at the earliest possible occasion. This doctor allegedly prescribed 280 benzodiazepines per month for the next decade and beyond, leading to a serious addiction to prescription pills. Cathal came off heroin and methadone in prison on a previous sentence, and managed to stay off

97

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

them in the community, but remained addicted to benzodiazepines. My interpretation of Cathal’s behaviour is that benzodiazepines are his default coping strategy, the only thing that almost works to modulate his autonomic arousal (Felitti, 2004). While the ACE-​IQ includes bereavement of a parent or guardian as an ACE, Vaswani (2019) has argued that other significant bereavements, such as those of siblings, friends, or grandparents, when traumatic or unnatural, should be counted as ACEs. The case files of young offenders in Scotland revealed that ‘multiple and traumatic’ bereavements were commonplace. With four bereavements, the risk of negative outcomes increased significantly (Vaswani, 2019). Carlson and Shafer’s (2010) survey of incarcerated parents in Arizona found that many imprisoned fathers had seen someone dying, while Bevan (2017) discovered that high levels of male prisoners in New Zealand had witnessed a violent death. The youngest interviewee, Cormac, a likeable, smiley-​faced man of 20, whose parents still lived together, professed to have good family support and a particularly strong bond with his mother. He was eager not to cause her any more grief, given the devastating losses she had already endured. Two of his brothers died in tragic circumstances as children, and he witnessed these deaths. Cormac also mentioned that his uncle died in a violent assault shortly after moving abroad. According to Cormac, “Every time I went drinkin’ den, I just, it just –​all dis anger (quieter) comes out like, and it’s no’ good. I goes mad, like.” While none of Cormac’s immediate family had spent time in prison, several of his uncles had been involved in offending behaviour, in and out of prison all their lives, and some of his aunts were currently imprisoned. While this may point to the social learning of offending behaviour (Sutherland, 1939), it is also strongly suggestive of intergenerational trauma. Diarmuid, who was 46 at the time of interview, was doing a five-​year stretch with two years’ suspended for burglary. As an eight-​year old child, his father had been sentenced to serve a 15-​year term of imprisonment. He stated: ‘I went t’rough an awful lo’ of crap in me life. […] I had to become a man at de age of eight years of age, to look after me mam. (Quietly) I would never have had a childhood. I was very angry t’roughou’ my childhood over da’. When I grew up, in later years, I was very angry. […] Not wit’ myself like, bu’ wit’ society’. While the evidence supporting the claim that children of prisoners are six times more likely than other children to end up imprisoned themselves is, according to Flynn (2013: 214), ‘at best ill-​founded and poorly established’,

98

Re-storying Offending Behaviour

parental imprisonment is, nonetheless, a major stressor and one of the original ten ACEs (Felitti et al, 1998). It may lead to relational impoverishment, by removing an important emotional buffer in the child’s life (Burke-​Harris, 2018), and often leaves them reliant on a single caregiver –​usually the mother –​who is likely to be highly stressed, with reduced income, and unable to be sufficiently attuned or emotionally available (Hambrick et al, 2019). van de Weijer and colleagues (2018: 148) found children of imprisoned parents were significantly more likely to die prematurely than children of non-​imprisoned (criminal and non-​criminal) parents. The authors went so far as to claim that mortality risk ‘is specifically related to the incarceration of the parent’. However, had the authors attended to the ACEs evidence and the prevalence of other adversities among the children of imprisoned parents, they would probably have found that it is the accumulation of stressors that is correlated to reduced life expectancy, that is, six or more ACEs.6 RNR devotees might well view Diarmuid as fitting the criteria for antisocial personality, which is one of the ‘big four’ risk factors (Cheng et al, 2019). Although married to his wife since the age of 19, he spent most of their marital life (20 years) behind bars in prisons in the UK and Ireland. According to his own narrative, Diarmuid meets most of Murray and Farrington’s (2005: 1272) criteria for antisocial personality in adulthood: ‘convicted, self-​reported delinquency, involved in fights, taken drugs, heavy drinking, poor relationship with parents, poor relationship with wife, divorced or child elsewhere, unemployed frequently, anti-​establishment, tattooed, and impulsive.’ However, an alternative analysis of his symptoms is possible. My preferred interpretation, on the basis of the details he disclosed to me, is that Diarmuid is a survivor of developmental and/​or complex trauma (Herman, 2015). Although he did not mention physical abuse or domestic violence within the home, he claimed to have been subjected to abusive authority in the institutional context before he turned eighteen (see Maruna, 2001: 61; Bloom, 2017: 185). Antisocial behaviour and criminality as a young teen led to Diarmuid’s committal to a child detention centre in his teens, where he was physically abused by staff. The stressors in his life led to mental injury (Kaschak, 2017), diagnosed as depression, for which he has been medicated for years. According to Miller (2009), depression is a protection against feeling the most authentic emotions, like rage, sadness, fear. Once you can feel them, you are no longer depressed: you gain access to your history, to the suffering of your childhood that is generally painful. So depression is the body’s attempt to remind us that we need to do important work in our interest. (Miller, 2009: 51)

99

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

The overarching point, according to Gabarino and Haslam (2005), is that there are only so many stressors that a child can accumulate without breaking down somehow, especially in the absence of a stable, emotionally available adult buffer to help them make sense of their experiences and understand that they were not to blame for what they endured as children.

Extra-​familial adversity Three interviewees with long histories of offending behaviour professed to come from very good, supportive families. I did not challenge the positive narratives offered by Liam, Aodh, and Art because exploring trauma was not part of my original research focus. Additionally, I did not wish to cause emotional distress to the men or destabilize their current good progress in prison. Despite being involved with psychiatrists since childhood and diagnosed with ADHD, which is often a red flag for intra-​familial toxic stress and trauma, Liam stated that he had a happy childhood and that his problems were all of his own making. Aged 22 at the time of interview, Liam was serving five years for robbery. He was hoping to qualify for CRS in a few weeks, long before his remission date. Barring a few months here and there in the community, he had been in young offender institutions and then prison since the age of 14. On previous sentences Liam was involved in fighting and stand-​offs with prison officers, especially at St Patrick’s Institution, which he described as a violent powder keg of interprisoner stabbings and assaults by officers on prisoners. It was a hellish place where the “Dublin fellas” were at war with the “country lads”, so you “had to hold your own”. Liam regularly took drugs (tablets and cannabis) on previous sentences, especially at the Midlands Prison, which he claimed was the prison that people transfer to if they want to spend their sentence full of drugs. In 2012, the then inspector of prisons, Judge Michael Reilly, stated that many of the prisoners in St Patrick’s ‘were at some period in their lives physically and/​or sexually abused’ (Office of the Inspector of Prisons, 2012: 3.21). In fact, Liam described being beaten as a boy in St Patrick’s Institution (see OCO, 2011) and being placed in solitary confinement at Oberstown Children Detention Centre: Liam:

JM:

We were only kids, you know. We were 16 when we came dere, 16/​17/​18, you know –​up to 21. I was 16 when I came [to St Patrick’s] first, and I remember gettin’ pushed into de cell by staff and slapped and kicked and even Oberstown, dat was like 14 on, you know. I remember dey locked me for over a month up dere. Really?

100

Re-storying Offending Behaviour

For a month wit’ no exercise, no naught’n, gettin’ fed t’rough a window. JM: That can’t have been good for your mind either? Liam: (Higher pitch) It wadn’t good for me mind, and dat’s why I rebelled against de system and it took me (blowing out his mouth, figuring the time) six, nearly –​it took me six years to get out of dat state, you know –​to t’ink to myself, ‘Right, I’m leavin’ dese ge’ de better of me’. Liam:

If it is true that he was physically abused by agents of the state responsible for his care and safety while in child detention, it is little wonder that he has enduring anti-​authoritarian (Zara & Farringdon, 2016), ‘antisocial’ attitudes (Andrews & Bonta, 1998). Abusive behaviours by criminal justice personnel are traumatic experiences (Anderson, 2019). These are not simply cognitive distortions or warped core beliefs. According to Liam’s ‘neuroception’ –​ that is, his unconscious detection of threat in his environment –​people in uniform are dangerous, not to be trusted (Porges, 2009). This feeling is based on lived experience, having been on the receiving end of abusive authority. It is likely that his fear and fury towards uniformed prison officers has been encoded in his ANS and his implicit emotional and ‘procedural’ memory (Levine, 2015). This leads to periodic traumatic re-​enactment whereby he unconsciously gives authority figures aggressive cues to illicit a belligerent or punitive response, thereby confirming his worst suspicions that all power is corrupt and abusive (Bloom, 2017). Described by a probation officer as a “career criminal”, Aodh, 31, had hundreds of criminal convictions on his record, mostly for road traffic offences. He reported being “addicted to cars” and driving at speeds, and having a long-​standing addiction to benzodiazepines. Aodh, a softly spoken, very polite man, described coming of age in a difficult urban setting that fits Ellis and Dietz’s (2017) criteria for an adverse community environment. It negatively impacted his development (see Gabarino & Haslam, 2005). While neither of his parents used drugs, in his neighbourhood, misuse of drugs was the community norm. As a child, the people around him sought pain relief, developing prescription drug dependencies with the seeming complicity of local medical practitioners (Byrne, 2018; Houston, 2018; see also Chapter 8 in this volume), much like the current opioid crisis in the USA. Aodh began abusing benzodiazepines in his early teens, describing serious medical malpractice that promoted community-​wide prescription drug dependency:

101

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

Aodh:

Well, de doctors are kinda after clampin’ down a bit now, but I remember four or five yares ago, I had 10–​12 doctors who I could go to –​I’d have a doctor for every week. […] JM: And, and, and why do you think you got into taking drugs? Aodh: […] A doctor when I was about 13, dere was a doctor in de area and I used just go up and give him 10 pounds and he’d give you a prescription for whatever you wanted. And it wouldn’t even be a prescription. He’d write it out on an envelope and put his stamp on it and he’d tell ya de chemist to go to dem in town. His brudder used to work in de chemist and […] JM: That’s pretty dodgy sounding. Aodh: Uh, very, yeah. JM: And so, so this was you as a thirteen year old? Aodh: Yeah. JM: And how would you have even thought ‘Oh, I’d like these tablets’? […] Aodh: Yeah, jus’ from seein’ people around de place gettin’ ‘um off de same doctor. You’d go up, you could get t’ree prescriptions a day off him, like. And dere was 150 or 180 tablets on every prescription. Aodh’s description of the banal normality of neighbourhood drug consumption accords with descriptions in Lynn Ruane’s (2018) memoir, in which she describes drug misuse, violence, risk-​taking, and criminality as behavioural norms for young people in her community.

Unleashing the ‘feared self’ Murphy et al (2018) found that Irish young people took benzodiazepines to stop themselves from feeling, to soothe negative emotions, and to dissociate from their environment. Several of the men in my study portrayed themselves as fractured, Jekyll and Hyde–​type figures. While Diarmuid, Ciaran, Art, and Cormac described themselves as “very soft-​hearted”, “good”, “easy-​goin’ ”, and “nice”, they also admitted having a nasty, dangerous ‘feared self ’ (Paternoster & Bushway, 2009). The furious parts of these men generally lay dormant, quietly repressed by day, only to make an explosive appearance intermittently by night. Jacob Ham (2017) refers to this phenomenon as ‘hulking out’. Art, a funny, fast-​talking man of 28, came into prison at 22. He was doing time for two separate sentences totalling eight years (including PSSSOs) for violent disorder and a carjacking at knifepoint. He described how out of control his drug-​taking and offending behaviour was prior to imprisonment. He frequently experienced blackouts after consuming

102

Re-storying Offending Behaviour

alcohol, cocaine, and benzodiazepines, during which he engaged in very serious offending behaviour. In the run-​up to imprisonment, Art went on a blitz every Thursday to Sunday, wreaking havoc with his gang of friends in an underprivileged neighbourhood in Dublin. He did not live in this area but had relations in the flat complex and spent virtually all of his time there. Art conceded that his behaviour had been deplorable and that he tormented local people with his drug and drink induced mayhem, “runnin’ amok” through strangers’ flats, being chased by the police. The tone of his voice when he described himself as “disgraceful” was scornful, full of judgment and condemnation. He was well aware of how close he came to killing someone by his reckless, drug-​fuelled offending behaviour. Art possessed a menacing side that he deliberately unleashed four out of seven days a week, by getting himself in an altered state of consciousness: ‘Yeah, so now I couldn’t rememba’ t’ings. Like, especially wit’ de hijackin’. Forty-​eigh’ D30s [tablets] an’ den on de drink an’ all, so I was gone like –​couldn’ even remember. […] I jus’ t’ought it’s no’ in me like to carry a knife, like. Bu’ I done i’, because I was outta me head like. I was ‘oh, I’ll carry da’, jus’ in case, like.’ Djunno wha’ I mean? It’s, look wha’ happens over i’. You don’ t’ink like. Djunno, as soon as you take drugs like now it’s ‘boom’, you black ou’. According to van der Kolk (2014: 19), ‘acts of violence that the perpetrator regards as horrible may, in fact, produce somatic calm.’ Art offered no details of family trauma, adversity, or stressors other than the fact that his mother and sister had the same autoimmune condition. Nonetheless, his out-​of-​control drug-​taking and serious crimes strongly suggest some deep, underlying personal issues and emotional dysregulation, despite the happy-​go-​lucky mask he wears as a self-​described “people-​pleaser” and devoted son.

Conclusion Although I did not set out to elicit information about whether the interviewees had a dysregulated ANS due to an excessive stress burden, many interviewees casually disclosed childhood trauma and community-​ level adversity. The interview data suggests that my interviewees endured an overdose of stressors before turning 18. The more ACEs a man has, the more likely he will be perceived as a ‘difficult, disengaged and hard to reach’ prisoner (Mulcahy, 2019: 9; see also Windle et al, 2020). Addiction/​problematic drug and alcohol use and other self-​destructive, risk-​taking behaviours, including periodic violence, can be recast as normal,

103

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

predictable responses to trauma that is held in the body ‘in the absence of an empathetic witness’ (Maté, 2010: xii). They are attempts to regulate the neural state that are doomed to failure. Severely wounded people never get enough benzodiazepines, alcohol, or heroin to permanently vanquish fear, ventilate anger, or numb emotional pain. Unless addicted humans in prison are provided with a range of coping strategies to regulate their autonomic arousal in healthier ways, they will inevitably relapse. Like Cathal, many will end up reimprisoned for committing acquisitive crimes to feed their drug habit, while others may continue to mix drugs and alcohol to unleash the Hulk within, haphazardly leaving a trail of destruction, and victims, in their wake. If we are serious about maximizing the ‘desistance enhancing’ (Maruna, 2001: 141) potential of prison and post-​release supervision in Ireland, this will require all those working on the frontlines of criminal justice to play a personal role in helping offenders to begin to renegotiate and re-​story their undigested trauma, by fostering relational health, promoting their strengths, and displaying cultural sensitivity. All of this is contingent on ensuring that individuals –​staff included –​feel physiologically safe and emotionally regulated (Miller, 2009). Safety is fundamental. Unless human beings feel physiologically, psychologically, and emotionally safe, they cannot access the cortical brain to learn or institute positive changes, including new ways of relating. If people with offending behaviour are constantly operating in survival mode, primed to detect and respond to danger, their safety needs remain ‘pre-​ potent’ (Maslow, 1943). They will not be receptive to ‘hooks for change’ (Giordano et al, 2002). Stories of toxic, relentless, and traumatic stress, emotional numbing, repressed rage, undigested grief, visceral dysregulation, and traumatic re-​ enactment featured in many of my long-​sentence male prisoners’ narratives. Healing from trauma, addiction, and criminality –​which is but a symptom of wider existential ‘dis/​ease’ (Levine, 1997; Vinje et al, 2017) –​is ‘all about relationships’ and reclaiming one’s power.7 A person’s story can only change when they consciously own it and find the inner sovereignty to direct its narrative arc (Mulcahy, 2018a). This means developing a felt sense of safety, control, choice, and competence to attain their longed-​for good life. Prisons should offer somatosensory, body-​based therapeutic interventions such as Somatic Experiencing, Sensorimotor Psychotherapy, and Comprehensive Resource Model, as well providing programmes combining movement, mindfulness, and coherent breathing to all prisoners, as these may help regulate their neural state. Once people feel physiologically safe, they are able to learn and their ‘social engagement system’ can be enlivened (Porges, 2009). Greater effort is required to ensure that the transition of prisoners back to the community is safe and responsibly managed. The latter is not simply

104

Re-storying Offending Behaviour

the responsibility of the IPS and probation but involves the Departments of Housing, Health, Social Protection, Education and Employment. A whole government response is necessary to ensure that a prisoner’s basic human needs are met upon release. If such needs are not met, the person will be preoccupied with survival and the potential benefits of desistance will fail to drown out the blaring alarm of their amygdala signalling life threat. For people with addictions, entering recovery and finding healing will be crucial to improved well-​being, a better quality of life, and movement away from a crime. Relapse will inevitably, for many, mean further prosecutions, convictions, and reimprisonment. To return to the theme of this book –​‘nothing about us without us’ –​in order to respond more effectively in a holistic, healing-​centred, strengths-​ based way to the needs of long-​sentence male prisoners and people subject to post-​release supervision by probation, policymakers and practitioners should provide information about trauma and adversity to prisoners via psycho-​ education courses and frequently consult with the intended beneficiaries of policies and services to learn whether they are, in fact, experienced as helpful and desistance enhancing. Notes 1

2

3

4

5

6 7

See J. Mulcahy, Law and Justice interview with Stephen Porges: ‘The Science of Safety’, available online from: https://​ s oundcloud.com/​ j ane-​ m ulcahy/​ law-​and-​justice-​interview-​with-​dr-​stephen-​porges-​the-​science-​of-​safety See: https://​www.oberstown.com/​wp-​content/​uploads/​2019/​10/​OBERSTOWN_​ Profile_​of_​Young_​People_​SEPT_​2019_​V3.pdf See How to Talk Policy and Influence People podcast interview with Fritzi Horstman, available online from: https://​www.youtube.com/​watch?v=cza9gkZwU8E; and ‘Step inside the Circle’, available online from: https://​www.youtube.com/​watch?v=8p4pvPd0SRQ See How to Talk Policy and Influence People podcast interviews with David Stanton, TD, on the draft Youth Justice Strategy: https://​youtu.be/​9lA4JgeeVdQ; and with Judge Ginger Lerner-​Wren on the establishment of America’s first mental health court: https://​youtu.be/​aJPA3awEQAc I also interviewed 32 policymakers, senior prison and probation managers, and community-​based organizations, and conducted four focus groups with service providers; while these influenced my overall argument they are not the focus of this chapter. See: https://​vetoviolence.cdc.gov/​apps/​phl/​images/​ACE_​Accessible.pdf See Law and Justice podcast, Critical Voices Network of Ireland Conference, available online from: https://​ p odtail.com/​ p odcast/​ l aw-​ a nd-​ j ustice-​ p odcast/​ law-​and-​justice-​episode-​6-​december-​6-​2017/​

References Anderson, S. (2019) ‘Rethinking adverse childhood experiences’, Howard League for Penal Reform ECAN Bulletin, 49(41): 5–​10. Andrews, D. and Bonta, J. (1998) The Psychology of Criminal Conduct, Cincinnati: Andersen.

105

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

Bacik, I. and O’Connell, M. (1998) Crime and Poverty in Ireland, Dublin: Round Hall Sweet and Maxwell. Bellis, M.A., Ashton, K., Hughes, K., Ford, K.J., Bishop, J., and Paranjothy, S. (2016) Adverse Childhood Experiences and Their Impact on Health-​harming Behaviours in the Welsh Adult Population, Cardiff: Public Health Wales. Bevan, M. (2017) ‘New Zealand prisoners’ prior exposure to trauma’, Practice: The New Zealand Corrections Journal, 5(1): 8–​16. Bloom, S. (2017) ‘Encountering trauma, countertrauma, and countering trauma’, in R.B. Gartner (ed) Trauma and Countertrauma, Resilience and Counterresilience, London: Routledge, pp27–​44. Burke-​Harris, N. (2018a) The Deepest Well: Healing the Long-​Term Effects of Childhood Adversity, Boston: Houghton Mifflin Harcourt. Burke-​Harris, N. (2018b) ACE-​Aware Nation Conference –​The Science of ACEs is Fundamentally Hopeful, 25 September, available online from: https://​ www.youtube.com/​watch?v=NtwmYaVTwis Byrne, K. (2018) ‘The hidden epidemic: How Ireland has become addicted to benzodiazepines’, The Independent, 27 February, available online from: https://www.independent.ie/life/health-wellbeing/healthfeatures/the-hidden-epidemic-how-ireland-has-become-addicted-tobenzodiazepines-36636721.html Carlisi, C., Moffitt, T., Knodt, A., Harrington, H., Ireland, D., Melzer, T., Poulton, R., Ramrakha, S., Caspi, A., Hariri, A., and Viding, E. (2020) ‘Associations between life-​course-​persistent antisocial behaviour and brain structure in a population-​representative longitudinal birth cohort’, Lancet Psychiatry, 7(3): 245–​53. Carlson, B. and Shafer, M. (2010) ‘Traumatic histories and stressful life events of incarcerated parents: Childhood and adult trauma histories’, The Prison Journal, 90(4): 475–​93. Cheng, J., O’Connell, M., and Wormith, S. (2019) ‘Bridging neuropsychology and forensic psychology: Executive function overlaps with the central eight risk and need factors’, International Journal of Offender Therapy and Comparative Criminology, 63(4): 523–​42. Edwards, V., Dube, S., Felitti, V., and Anda, R. (2007) ‘It’s OK to ask about past abuse’, American Psychologist, 62(4): 327–​8. Ellis, W.R. and Dietz, W.H. (2017) ‘A new framework for addressing adverse childhood and community experiences: The building community resilience model’, Academic Paediatrics, (7S): S86–​S93. Felitti, V.J. (2004) The Origins of Addiction: Evidence from the Adverse Childhood Experiences Study, California: Kaiser Permanente Medical Care Program, available online from: https:// ​ w ww.nijc.org/ ​ p dfs/​ Subject%20Matter%20Articles/D ​ rugs%20and%20Alc/A ​ CE%20Study%20-​ %20OriginsofAddiction.pdf

106

Re-storying Offending Behaviour

Felitti, V.J., Anda, R.F., Nordenberg, D., Williamson, D.F., Spitz, A.M., Edwards, V., Koss, M.P., and Marks, J.S. (1998) ‘The relationship of adult health status to childhood abuse and household dysfunction’, American Journal of Preventive Medicine, 14(2): 245–​58. Flynn, C. (2013) ‘Understanding the risk of offending for the children of imprisoned parents: A review of the evidence’, Children and Youth Services Review, 35(2): 213–​7. Ford, K., Barton, E., Newbury, A., Hughes, K., Bezeczky, Z., Roderick, J., and Bellis, M. (2019) Understanding the Prevalence of Adverse Childhood Experiences (ACEs) in a Male Offender Population in Wales: The Prisoner ACE Survey, Bangor: Public Health Wales. Fox, K. (2016) ‘Civic commitment: Promoting desistance through community integration’, Punishment and Society, 18(1): 68–​94. Gabarino, J. and Haslam, R.H.A. (2005) ‘Lost boys: Why our sons turn violent and how we can save them’, Paediatric Child Health, 10(8): 447–​50. Ginwright, S. (2018) The Future of Healing: Shifting From Trauma Informed Care to Healing Centred Engagement, Medium, [online] 31 May, available online from: https://​medium.com/​@ginwright/​the-​future-​of-​healing-​shifting-​ from-​trauma-​informed-​care-​to-​healing-​centered-​engagement-​634f557ce69c Giordano, P., Cernkovich, S., and Rudolph, J. (2002) ‘Gender, crime, and desistance: Toward a theory of cognitive transformation’, American Journal of Sociology, 107(4): 990–​1064. Ham, J. (2017) Trauma and the Hulk, available online from: https://​ drjacobham.com/​videos/​2017/​5/​3/​trauma-​and-​the-​incredible-​hulk Hambrick, E., Brawner, T., Perry, B., Brandt, K., Hofmeister, C., and Collins, J. (2019) ‘Beyond the ACE score: Examining relationships between timing of developmental adversity, relational health and developmental outcomes in children’, Archives of Psychiatric Nursing, 33(3): 238–​47. Hart, W. and Healy, D. (2018) ‘An Inside Job: An autobiographical account of desistance’, European Journal of Probation, 10(2): 103–​19. Herman, J. (2015) Trauma and Recovery: The Aftermath of Violence –​from Domestic Abuse to Political Terror, London: Basic Books. Houston, M. (2018) ‘Benzodiazepines in Ireland: Are they over-​prescribed?’, The Irish Times, [online] 8 July Kaschak, E. (2017) ‘Mental Illness or Mental Injury? Why do we call Certain Aberrant Behavior, Thoughts or Feelings an Illness?’, Psychology Today, [online] 9 January, available online from: https://​www.psychologytoday.com/​intl/​ blog/s​ he-c​ omes-​long-​way-​baby/​201701/​mental-i​ llness-o ​ r-m ​ ental-i​ njury Kennedy, H.G., Monks, S., Curtin, K., Wright, B., Linehan, S., Duffy, D., Teljeur, C., and Kelly, A. (2005) Mental Illness in Irish Prisoners: Psychiatric Morbidity in Sentenced, Remanded and Newly Committed Prisoners, Dublin: National Forensic Mental Health Service.

107

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

Levine, P. (2015) Trauma and Memory: Brain and Body in a Search for the Living Past, Berkeley: North Atlantic Books. Levine, P. with Frederick, A. (1997) Waking the Tiger: Healing Trauma, Berkeley: North Atlantic Books. Lievesley, R., Winder, B., Norman, C., and Banyard, P. (2018) ‘A life sentence in instalments: A qualitative analysis of repeat offending among short-​sentenced offenders’, Victims and Offenders, 13(3): 409–​26. Maruna, S. (2001) Making Good: How Ex-​Convicts Reform and Rebuild Their Lives, Washington: American Psychological Association. Maslow, A. (1943) ‘A theory of human motivation’, Psychological Review, 50: 370–​96. Maté, G. (2010) ‘Foreword’, in P. Levine, In an Unspoken Voice: How the Body Releases Trauma and Restores Goodness, Berkeley: North Atlantic Books. McCulloch, T. and McNeill, F. (2008) ‘Desistance-​focused approaches’, in S. Green, E. Lancaster. and S. Feasey (eds) Addressing Offending Behaviour: Context, Practice and Values, Devon: Willan, pp154–​71. McNeill, F. (2004) ‘Supporting desistance in probation practice: A response to Maruna, Porter and Carvalho’, Probation Journal, 51(3): 241–​7. Mead, J. (2007) ‘Resettlement’, in R. Hancock and D. Canton (eds) Dictionary of Probation and Offender Management, Devon: Willan, pp268–​70. Mears, D. and Cochran, J. (2015) Prisoner Reentry in the Era of Mass Incarceration, California: Sage. Miller, A. (2009) From Rage to Courage: Answers to Readers’ Letters, New York: Norton. Mulcahy, J. (2018a) ‘She sells sanctuary’, Law Society Gazette, [online] October, available online from: https://​www.lawsociety.ie/​globalassets/​ documents/​gazette/​gazette-​pdfs/​gazette-​2018/​october-​2018-​gazette.pdf Mulcahy, J. (2018b) ‘Adverse Childhood Experiences and the case for reparative justice: a constitutional right to rehabilitation and reintegration?’, Irish Criminal Law Journal 28(2): 26. Mulcahy, J. (2018c) ‘The huge cost of adver se childhood exper iences’, RTE Brainstorm, [online] 23 February, available online from: https://​ w ww.rte.ie/​ e ile/ ​ b rainstor m/ ​ 2 018/ ​ 0 221/​ 942377-​the-​huge-​costs-​of-​adverse-​childhood-​experiences/​ Mulcahy, J. (2018d) ‘Daring to ask “what happened to you?” –​ why correctional systems must become trauma-​responsive’, Advancing Corrections, 4: 55–​67. See https://icpa.org/advancing-corrections-journal/ Mulcahy, J. (2019) ‘Towards ACE-​aware, trauma responsive penal policy and practice’, Prison Service Journal, 245(1): 3–​13. Murphy, K.D., Lambert, S., McCarthy, S., Sahm, L.J., and Byrne, S. (2018) ‘ “You don’t feel”: The experience of youth benzodiazepine misuse in Ireland, Journal of Psychoactive Drugs, 50(2): 121–​8.

108

Re-storying Offending Behaviour

Murray, J. and Farrington, D.P. (2005) ‘Parental imprisonment: Effects on boys’ antisocial behaviour and delinquency through the life course’, Journal of Child Psychology and Psychiatry, 46(3): 1269–​78. O’Donnell, I., Teljur, C., Hughes, N., Baumer, E., and Kelly, A. (2007) ‘When prisoners go home: Punishment, social deprivation and the geography of reintegration’, Irish Criminal Law Journal, 17(4): 3–​9. Office of the Inspector of Prisons (2012) Report on an Inspection of St. Patrick’s Institution by the Inspector of Prisons Judge Michael Reilly 26th June 2012, Nenagh: Office of the Inspector of Prisons. Ogden, P., Pain, C., and Fisher, J. (2006) ‘A sensorimotor approach to the treatment of trauma and Dissociation’, Psychiatric Clinics of North America, 29: 263–​79. Ombudsman for Children’s Office (OCO) (2011) Young People in St. Patrick’s Institution, Dublin: OCO. Paternoster, R. and Bushway, S. (2009) ‘Desistance and the feared self: Toward an identity theory of criminal desistance’, Journal of Criminal Law and Criminology, 99(4): 1103–​56. Perry, B. (1997) ‘Incubated in terror: Neurodevelopmental factors in the “cycle of violence” ’, in J. Osofsky (ed) Children, Youth and Violence, London: Guilford, pp 124–​48. Perry, B. and Szalavitz, M. (2017) The Boy Who Was Raised as a Dog, New York: Basic Books. Petersilia, J. (2004) When Prisoners Come Home: Parole and Prisoner Reentry, Oxford: Oxford University Press. Porges, S.W. (2009) ‘The polyvagal theory: New insights into adaptive reactions of the autonomic nervous system’, Cleveland Clinic Journal of Medicine, 76(2): S86–​S90. Ruane, L. (2018) People Like Me, Dublin: Gill and Macmillan. Siegel, D. (2015) The Developing Mind: How Relationships and the Brain Interact to Shape Who We Are, London: Guilford. Stevens, J. (2017) ‘Addiction doc says: It’s not the drugs. It’s the ACEs… adverse childhood experiences’, Aces Too High, [online] 2 May, available online from: https://​acestoohigh.com/​2017/​05/​02/​addiction-​doc-​says-​ stop-​chasing-​the-​drug-​focus-​on-​aces-​people-​can-​recover/​ Sutherland, E. (1939) Principles of Criminology, Philadelphia: Lippincott. Tedeschi, R. and Calhoun, L. (2004) ‘Posttraumatic growth: Conceptual foundations and empirical evidence’, Psychological Inquiry, 15(1): 1–​18. Tobin, M., Lambert, S., and McCarthy, J. (2018) ‘Grief, tragic death, and multiple loss in the lives of Irish Traveller community health workers’, Journal of Death and Dying, 81(1): 130–​54.

109

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

van de Weijer, S.G.A., Smallbone, H., and Bouwman, V. (2018) ‘Parental imprisonment and premature mortality in adulthood’, Developmental Life Course Criminology, 4(1): 148–​61. van der Kolk, B. (2014) The Body Keeps the Score: Brain, Mind, and Body in the Healing of Trauma, London: Penguin. van der Kolk, B., Hopper, J., and Ostermann, J. (2001) ‘Exploring the nature of traumatic memory: Combining clinical knowledge with laboratory methods’, in J. Freyd and A. Deprince (eds) Trauma and Cognitive Science, Philadelphia: Haworth Press, pp9–​31. Vaswani, N. (2019) Loss and Adversity in Childhood: How Adversity, Gender and the System can Interact, available online from: http://​www.healthscotland. scot/​publications/​adverse-​childhood-​experiences-l​ earning-f​ rom-r​ esearch-​ for-​better-​policy-​and-​practice-​in-​scotland-​presentations Vinje, H., Langeland, E., and Bull, T. (2017) ‘Aaron Antonovsky’s development of salutogenesis, 1979 to 1994’, in M.B. Mittelmark, S. Sagy, M. Eriksson, G.F. Bauer, J.M. Pelikan, B. Lindström, and G.A Espnes (eds) The Handbook of Salutogenesis. London: Springer, pp25–​40. Weaver, A. and Weaver, B. (2013) ‘Autobiography, empirical research and critical theory in desistance: A view from the inside out’, Probation Journal, 60(3): 259–​77. Whitfield, C. (1998) ‘Adverse childhood experiences and trauma’, American Journal of Preventive Medicine, 14(4): 361–​4. Windle, J., Moyle, L., and Coomber, R. (2020) ‘ “Vulnerable” kids going country: Young people’s involvement in county line drug dealing’, Youth Justice, 20(1–​2): 64–​78. World Health Organization (2018) Adverse Childhood Experiences International Questionnaire (ACE-​IQ), Geneva: WHO. Zara, G. and Farrington, D.P. (2016) ‘Chronic offenders and the syndrome of antisociality: Offending is a minor feature!’ Irish Probation Journal, 13: 40–​64.

110

6

Sexual and Gender-​Based Violence against Refugee Women as a Continuum of Violence Dimitra Mouriki

Europe is experiencing the Mediterranean refugee crisis. The continuation of conflicts in Africa and the Middle East has forced large numbers of people to flee, and restricted migration channels, from the Middle East to Europe, have exacerbated the ‘crisis’ with Greece holding and processing hundreds of thousands of refugees. From January to September 2015, approximately 500,000 refugees entered Greece from Turkey, crossing the Aegean Sea. Whilst most refugees are men, increasing numbers of women are fleeing to Europe either alone or with their families (Freedman, 2012; Pickering & Powell, 2017). Refugee women have escaped conflict and war zones seeking safety and protection in Greece or other European countries. Fleeing from conflicts does not mean the end of violence for these women, as often refugee journeys and encampment encompass many hidden forms of sexual and gender-based violence (SGBV). This chapter explores refugee women’s experiences of violence (what they have experienced or witnessed) and the views of professionals who worked directly with these women. Research on refugee studies tends to explore experiences of SGBV in isolation from previously experienced forms of violence, focusing either on the exit from the origin country or on the encampment. However, my research demonstrates that participants’ reports of SGBV were not limited to the refugee journey and life in the camp; they also focused on the violence they experienced in pre-​journey life. This highlights that the three stages

111

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

should not be explored as separate cases but through the continuity of violence (COV) and pervasiveness of images of fear. In this study, the concept of the continuum is applied with a view to analyzing SGBV in refugee contexts. The aim is to ‘connect the dots’ between the different forms of violence that women have experienced during the three stages: pre-​refugee life, during the journey, and life in the camp. I argue that there is a COV that women have been subjected to across time. Furthermore, I support the view that the COV across time is marked by the following three dimensions: space/​place, the spectrum/​various forms of violence, and the multiplicity of perpetrators. Through exploring the COV, I discuss, based on participants’ accounts and previous feminist literature, the idea that the meaning of violence is not monolithic –​it can shift across the different phases. With the purpose of unveiling the complexity and multidimensional character of violence, I discuss the spectrum of violence that has been reported by women and discussed by aid workers in each stage. This chapter is structured into two analytical sections and a discussion. First, the theoretical and methodological approach is outlined. Next, I present the reported incidences of violence in each phase, with the purpose of capturing the various forms of violence and spaces and the multiplicity of perpetrators.

Conceptualizing sexual and gender-based violence as a continuum SGBV is understood as ‘any act of gender-​based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life’ (UN General Assembly, 1993). A diverse range of violence has been included under this definition, moving beyond physically and psychologically violent acts and including any threats and attempted incidences of violence. Furthermore, the definition of SGBV recognizes rape and acts of sexual assault by military authorities, smugglers, family members, and other members of the community as one of the most common forms of sexual violence (SV) (UNHCR, 2003). While studies have increasingly explored incidences of SGBV during conflict, displacement, and/​or in the refugee camps, the interconnection of the different stages continues to be widely overlooked. Kelly (1987, 1988) introduced the concept of the COV in order to discuss and elucidate the extent and spectrum of SV in women’s lives. Specifically, she conducted 60 interviews with mostly white, British women to investigate the range of their experiences across their lifetime. Using the continuum, she argued that most women in her study had experienced SV at some point in their lives.

112

SGBV AGAINST REFUGEE WOMEN

Moreover, she clearly indicated that there was a range of possible experiences of SV. According to Kelly’s view, the continuum of SV does not represent a straight line that interconnects the various experiences of women. Equally, she stated that the continuum should not be seen as a representation of the seriousness of the various forms of SV. Instead her usage of the concept implies the prevalence of various forms of SV that women can experience on numerous occasions and the impact on them across time. Ferris (1990) explored the COV in refugee settings, and in relation to refugee experiences, with a focus on how women experience different forms of SGBV during conflicts, flights, and in their resettlement. Cockburn (2014) provided further insight into the continuum, illustrating how the various events and forms of violence are linked by ‘uneasy’ peace, wartime, and post-​ war periods, highlighting the power asymmetry between men and women. The COV is, predominately, a time continuum that should be viewed through a gendered lens. Cockburn’s (2014: 360) analysis emphasizes that gender is often present and also simultaneously absent from the discourses of violence, arguing that ‘gender power is seen to shape the dynamics of every site of human interaction, from the household to the international arena’. She discussed the continuum in relation to the gender violence of everyday life, the structural violence of economic systems, and repressive political regimes that maintain gendered inequalities and discrimination. Krause (2015) builds upon Cockburn’s understanding of the continuum, challenging the idea that violence during/​after the conflicts and in the displacement are disconnected. The literature in relation to migration and feminist studies highlights that the end of conflicts and war does not mean the end of violence for women; these authors posit that there is a link between the violence occurring during conflict and post-​conflict. Specifically, many feminists examined how wartime violence can generate further violence –​ for instance, domestic violence (DV) in peacetime. As Cockburn (1998: 8) notes: ‘Feminist work tends to represent as a COV from the bedroom to the battlefield, traversing our bodies and our sense of self ’. However, it is not clear that wartime violence correlates with a rise in domestic post-​conflict violence, as DV could already occur before the conflict. The aforementioned studies contain a feminist analysis on violence, with a more holistic approach, and place the notion of patriarchy and gender inequalities centrally. By contrast, the main body of refugee studies approaches SGBV in refugee settings in more confined ways. My research, as outlined in this chapter, contributes to the field of refugee studies, highlighting that a gendered lens on SGBV is of paramount importance. The COV is a useful way of making sense of, framing, and conceptualizing participants’ experiences of violence. Moreover, this study contributes to debates about the COV with an empirical study, providing an in-​depth understanding of SGBV across

113

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

time and also of the multiplicity of perpetrators and forms of violence. Previous literature on the COV is limited and only one study, by Krause (2015), has attempted to investigate the COV in refugee settings, and only addressed SGBV during the pre-​refugee conflict period. The current study suggests that the COV should be extended –​that we should not only focus on conflict and post-​conflict violence but should look more systematically at women’s experiences in pre-​refugee life. In contrast with Ferris’s (1990) work, I argue that refugee women experience recurring SGBV incidences, which are not inherently different across the three phases.

Methodology A qualitative study within a feminist participatory framework was conducted with the purpose of identifying and exploring the range of SGBV experiences of refugee women, including agreed the gender dynamics that prevail during their journeys and in the refugee camp. The study explored the experiences of refugee women and the aid workers, utilizing semi-​structured interviews and participant observation alongside the participatory action research framework. Access to refugee camps is controlled by local and/​or national authorities, armies, and national/​international NGOs. In endeavoring to gain access to refugee communities and refugee camps, most researchers (for example Medie, 2013; Akhter & Kusakabe, 2014), including myself, establish relationships through NGOs. I accessed the field and collaborated with a Greek NGO. Fieldwork was carried out from October 2018 to January 2019 in a camp on the mainland of Greece. The camp hosts about 1000 refugees –​mostly from Afghanistan, Syria, Iran, and Iraq. Refugees may have lived in other camps in east Greece before moving to this camp. This means that they have already experienced difficulties in their living conditions and insecurities about their future. Refugee women were approached, identified, and selected with reference to the goals of the research and the NGO’s safeguarding policies. At this stage, I worked closely with the aid workers of the NGO to consider creating a list of refugee women to be interviewed at a later stage. Thirteen semi-​ structured interviews, in person and interpreter mediated, were conducted with refugee women. Additionally, five semi-​structured interviews were undertaken with aid workers. Prior to audio-​recording the interviews, I went through the information sheet explaining in detail the research aim and the consent form. Participants, before giving consent to participate in the research, were informed that they had the right to refuse to participate and to withdraw at any time. Pseudonyms were given to participants to protect their confidentiality. To ensure confidentiality, interviews with

114

SGBV AGAINST REFUGEE WOMEN

refugee women were conducted in a private room provided by the NGO. My experience as a psychologist and working with vulnerable groups under emotional distress helped me to identify and manage any stressful incidents which came to my notice during interviews. In addition, the referral pathway (psychological and medical support) was made known to participants when needed. The number of interviews conducted allowed me to include a fairly diverse sample, including women from different countries and professionals who work in the NGO in various positions. Thematic analysis was applied as a way to make sense of the data, identify patterns/​themes, conceptualize them (see Liamputtong, 2008; Braun et al, 2019), and capture participants’ lived experiences. The coding was an active and ongoing process as themes changed, were refined, and further developed. I worked from the ‘bottom up’ in order to describe SGBV according to participants’ views, interrogating my own position in relation to the data and analysis. The findings were derived from what the participants themselves described, combined with my observational notes from my time as a participant observer in the camp. The University of York Ethics Committee granted ethical clearance for this research.

Pre-​refugee life Participants’ narratives were not limited to experiences of violence during the journey and within the camp –​they also discussed SGBV incidences in their pre-​refugee life. I had not asked them explicitly about their pre-​journey experiences, as my initial focus was their refugee experience and experienced SGBV, but they shared accounts of these during our discussions. This indicates that refugee women view pre-​journey SGBV incidences as being of equal significance to the violence during their journey and in the camp. This section presents participants reports on violence before their refugee journey, which includes domestic and sexual violence. Also during the interviews, women discussed violent incidences that took place in conflict sites or in the ‘safety’ of the home. What unifies women’s experiences before the journey is the continuous threat of violence across space/​place from home to battlefields. Rather than viewing violence in their pre-​refugee life as a disruption to a calm life, I considered it as an ordinary part of their lives. This is not to say that all of the women experienced violence on a daily basis, however the majority reported violence as occurring frequently in their lives. The first part of this section discusses their experiences of SV occurring as a result of war, and the second half presents the different forms of DV they experienced in their homes during peacetime. Participants talked about the threats of SV and especially rape in conflict settings. During wartime, women have been central figures in the literal

115

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

and figurative arena of war. Their perceived vulnerability and continuous presence, coupled with the extreme civil and legal disorder that accompanies war in their countries, increases the likelihood of them experiencing rape and threats of SV (Boesten, 2014; Seifert, 2016). Rape was a common theme across the women’s accounts of wartime in my data set. For instance, Nehal so vividly described in her interview that it was common for Yazidi women to be raped: “The terrorists came to Mount Shinjara, which is mainly a Yazidi area, they entered my sister-​in-​ law’s house. They separated men and women in different rooms. They sold women for sex to each other”. During our discussion Nehal told me that “I am sharing her [Nehal’s sister-​in-​law’s] story with you because this could be mine, it could be my future, if I had not left my hometown on time”. Nehal escaped with her family because her sister-​in-​law warned them that Islamic State (IS) fighters had arrived; they left, and less than an hour later the IS arrived in their town. Her sister-​in-​law did not manage to run away. She was raped multiple times and the fighters took her with them with the intention to sell her as a sex slave to other men. The prevalence of SGBV in Iraq was raised by the next participant. Samina spoke about the war and its particular impacts on women, describing her constant fear: “All women are afraid of being raped. This has happened to us, the Yezidi women, many times”. (Samina) Zeina came from a Kurdish region of Iraq. Talking about pre-​refugee life and the pervasiveness of violence against women, Zeina said: ‘The past period was very dangerous, as many conflicts were in this area. Us women could not get out and do anything out of the house because of the war all these years … I know that many women from my area was sold as slaves, or wives’. (Zeina) The participants referred to the actual violence that women experienced in conflict sites and also the everyday fear they had of the threat of violence due to conflict and political instability. They mentioned that women are disproportionately affected by conflicts and the extensive use of SV. This highlights the gendered nature of war and violence in such settings. The nature of war zones and conflict sites is highly gendered and increasingly endangers women. Participants highlighted that SV is a predominant form of violence that women face in conflict settings. In particular, they referred to the systematic sexual abuse and harassment of women, but also to the pervasive threats of SV and living in a state of

116

SGBV AGAINST REFUGEE WOMEN

constant fear. Rape and SV in general have been utilized as a strategic weapon of war (Kirby, 2012; Boesten, 2014; Ahram, 2015) against women from different ethnic groups (see Korac, 1998; Mojab, 2004; Freedman, 2013; Mashiri, 2013; Krause, 2017). Understanding women’s accounts through the use of the COV highlights SV as a pervasive form of violence in their lives. The various forms of SV (from rape to being made a sex slave) have been a common tactic for exercising domination and power over women (Banwell, 2014). Moreover, according to women’s descriptions, rape can be the gateway to more violence, such as enslavement and forced marriages and sex. The COV highlights that, for instance, rape could signify the foundation for further violence. At this point, I would stress that I do not view one form of SV as more serious than others. SV in the aforementioned cases is intended to humiliate and shame women and their families –​it is also done in view of others. What the participants communicated is that women, during war, have been the targets of SV from military groups, not only because they are women but also because they are women from a different ethnic group. So, SV represents a form of punishment and discipline used against women from another ethnic-​cultural background. This is in line with Davies and True (2015), who state that SV is clearly a political form of violence with deep structural origins. Ways and practices of gender domination, such as SV, provide patterns for marginalization and discrimination of other groups (Yuval-​Davis, 1993; Ozgen, 2015). Gendered and ethnicized discrimination and violation legitimize SV as an ‘effective’ means of shaming. Wartime rape, as a weapon for discriminating against and violating women who belong to other ethnic groups, takes on a symbolic meaning. The physical act of rape in wartime has more symbolic connotations (see Kelly, 2010) compared to rape during peacetime. According to the participants, women in such contexts have been treated as the symbols of their ethnic group, legitimizing violence against women and ethnic groups in total. As Saigol (2016: 116) states, ‘Not only are they raped, their bodies are marked in particular ways that are meant as reminders of their being women, the honour of the community/​nation’. Refugee women’s experiences are reflected and summarized by Maria, an aid worker who noted the existence of violence at different points in these women’s lives: “I have seen many raped women … many of these incidents took place in Syria in a war context …. The army burnt their village and raped them … although in Afghanistan most of the rape incidents took place from a neighbour or person they knew”.

117

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

Maria confirmed the themes the participants shared with me in relation to SV occurring in private and public spaces during conflict. Maria also identified the multiplicity of perpetrators of SV. She stressed that most women have experienced a form of SV at some point in their lives. This clearly shows the prevalence of threats of violence, and especially SV, across space/​place –​ from private spaces to the battlefields, instigated by perpetrators ranging from strangers to acquaintances. Maria, inadvertently, summarized and presented the continuity of SV and rape within public and private areas of war zones. Significantly, the nature and effect of violence can alter women’s experience of this based on who commits this and where it takes place. At this stage, it is important to point out that there are both nuanced and overt tensions here. At a macro-​level, the overall motivations and causes of rape and SV are based on oppressive masculinity and largely have a similar impact –​they are dehumanizing and destructive. However, on a micro-​level, the impact of rape can have distinctly separate meanings and ramifications for the women based on the physical context and the familiarity of the perpetrator. Stanko (1990, 1996) shares this view, stating that the physical act of rape can be the same, however the circumstances and the social factors alter its meaning. DV also takes place in both wartime and, according to participants’ accounts, during peacetime. DV here includes violence by family members, forced marriage, and so-​called ‘honor’ violence (Wright & Hearn, 2013). The next participant described her incidence of rape before fleeing from Afghanistan: ‘My sister was pregnant … I went to help her. While I was sleeping her husband raped me … I just looked at him feeling scared. I did not say anything but with my eyes I said. “Please do not do that, do not touch me” … I did not say anything to anyone …. My father beat me, because I refused to help my sister. He didn’t know that I’d been raped’. (Houria) Houria described the rape she experienced by her brother-​in-​law within the supposed safety of the domestic sphere. Through her account, the multiplicity of sources of violence is evident. Moreover, her experiences of violence within the domestic space show the different forms of violence that can take place –​in this case, sexual and physical violence. In this case, rape could be considered the antecedent of experiencing further DV. Experiencing physical violence by her father could be viewed as a further consequence of being raped; the rape was an indirect causal factor generating further violence. Moreover, her father’s violence demonstrates the expectation that women’s behaviour should be subservient.

118

SGBV AGAINST REFUGEE WOMEN

‘I left Iraq because of my husband. For 14 years, he was forcing me to have sex with other people in order to have his drugs. I left him but somehow he found us. One day he set fire to our house’. (Esma) Esma described the ongoing violence that she was experiencing from her husband back in Iraq. Esma mentioned the continuity of forms of violence, such as physical and psychological violence, that she was facing on a regular basis. Also, the fact that she was forced into sex by her husband for such long periods signifies the continuity of violence over time. The pervasiveness of threats and acts of violence against her indicates that her life was marked by a COV across time and forms of violence by her husband. Both Esma and Houria reported that the DV they experienced from family members could either occur once or repeatedly across time. Moreover, their accounts show the extent of violence in the private space. According to Stanko (1990), we tend to consider ‘real’ violence as that which is committed either by strangers or in a public space. As we have seen, however, the participants described the significance of DV within the private space and by people they knew. Maria, an aid worker commented on the extent of violence linked to home life before the journey “various incidents … from stoning or a girl’s cousin being murdered because she got married and was not a virgin happened. Kidnapping or killing someone’s husband in order to marry the woman”. Refugee Houria similarly portrayed the prevalence of violence within the domestic sphere: “In Afghanistan, if a woman goes to a window to look outside his [sic] brother or father will kill her. Why are you looking outside? If someone’s sees you what will they think? They say that this girl is bad because she wants to find a boy”. Houria described women’s position in Afghanistan and the pervasive threats of violence they suffer. According to Houria, women are constantly under surveillance from men to such an extent that even looking out of the window could instigate violence against them. This shows how omnipresent the threat of violence is. The motives for the violence can be attributed to many, often trivial, factors, and result in a range of violent acts. This became clear within Houria’s account, when she described a failure to follow male family members’ rules as a potential cause for violence or, in some cases, death. This is closely related to the reproduction of gendered sociocultural ideas and notions of women’s lack of freedom (Standish, 2014). Women may be closely watched and controlled by male family members in the name of honour and family. Honour codes and their consequences for women’s freedom are grounded in ideas about women’s limited role within society (Grewal, 2013).

119

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

While many women reported violence perpetrated by partners/​husbands, Houria and Maria referred to a form of DV that is perpetrated by other male family members, including fathers and/​or brothers. This demonstrates the multiplicity of the perpetrators of violence within the domestic setting. Moreover, the women expressed the multiplicity of different forms of DV that can be perpetrated, such as honour killing or forced marriages. Participants indicate that gendered violence is deeply rooted in systems of kinship and family networks (see Standish, 2014). Based on Houria and Maria’s descriptions, violence is linked with a sense of honour and shame within the domestic sphere, to the point that they become inextricably linked. The discourses of shame and honour legitimize violent and discriminatory acts against women, and the sociocultural construction of honour/​shame have been utilized to control women and for the reproduction of SGBV (Olujic, 1998; Awwad, 2001). For instance, participants described how the sense of honour, and more specifically the significance of virginity, can restrict women at home and/​or result in violence, forced marriage, and even death. In these cases, violence is referred and closely linked to the sociocultural conceptualizations of gender, women’s sexuality/​bodies, and institutions such as marriage. Werbner (2007: 165) states that the cultural construction of honour and shame are central features in upholding ‘sexual modesty and control within a politics of embodiment’. Also, honour has a crucial role in creating a normative consensus of what it means to be a woman and their predetermined obligations. Many participants presented women in a certain deferential way in relation to men, and women who do not conform to societal rules can experience violence. The violence and deaths, covered up with the discourses of honour and shame, instilled fear in women, forcing them to modify their behaviour (see Mojab, 2004). So, violence serves a corrective function but also acts as a reminder of what it means to be a woman. This section has argued that violence does not start with the onset of war. The threats of SGBV were discussed by the participants as taking place in both the conflict zones and domestic spaces. The following section discusses how violence does not end the moment that war ends and/​or when women escape from their countries of origin. It occurs as a continuum across time, throughout their refugee journeys.

Women at the borders The previous section examined various forms of violence in pre-​refugee life, arguing that there is a COV between peacetime and wartime. The escape from war zones, or from abusive relationships, does not always mean the end

120

SGBV AGAINST REFUGEE WOMEN

of violence. This section looks at women’s reported experiences of violence at the borders. The recurrent themes that emerged from the analysis were SV and structural violence. The refugee women with whom I conducted interviews had used the services of smugglers either to cross the Aegean Sea or walk through the north border of Greece to reach Europe. Women’s experiences of crossing the borders are mediated by state policies and/​or informal rules and mobility restrictions (see Pickering, 2011; Freedman, 2012). Stricter controls and migration policies have increased the market for smugglers (Freedman, 2007). The use of smugglers, in combination with perilous migration passages, creates certain gendered insecurities for refugee women (Freedman, 2016, 2017). The journeys, for women, are uncertain when the risk of violence, especially SV, is high (Weber & Pickering, 2011). The refugee women were distressed by recalling memories of their journey and border crossing, which all women presented as dangerous, evoking a sense of fear. The following accounts help to illustrate a salient characteristic, highlighted within previous research, of the refugee experience: the potential risks of violence during the journey. SV, at every stage of their journeys, was a common theme among interviewees. Some women described rape incidences at the borders. Talking about this issue, Zeina described the continued fear of being sexually assaulted during the journey: ‘I had a lot of insecurities and fear. It was me and my two kids, it was not a normal journey. I was really scared on the journey because when I was younger I had bad experiences with men, they harassed me. All my past experiences and thoughts made me fear men even more during the journey’. (Zeina) Samina undertook this journey from Iraq to Evros, in the north of Greece, with her two young children. In the previous section she described the pervasive fear of experiencing SV as a Yezidi woman in a conflict zone. At this point, she recalled the pervasive fear of being raped throughout the journey: “From when I started my journey in Iraq until I arrived in Greece … I had this constant fear of being raped”. In Afghanistan, soldiers entered Rima’s house –​she was beaten and threatened. Subsequently, Rima fled with her family, heading to the border with Pakistan. The smugglers separated her family into two cars. At some point, after they had assaulted and locked her husband in the boot of the car, they raped her. After this, she walked for 18 hours through the mountains of Iran.

121

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

‘The smuggler hit me and my small child with his gun … he was screaming that he will kill me. When we crossed the borders, they left us in an unknown place but my husband was not there. I cannot describe to you how many difficulties I faced and what they did to me. I will never forget that for the rest of my life. From that moment all my suffering begun. I cannot tell you what happened … I want to tell you but I feel ashamed … I cannot even mention it’. (Rima) Houria, in the previous section, described the rape by her brother-​in-​law. Houria fled from Afghanistan, due to conflict and the civil war, with her father. She had to wait a few months in Turkey until she crossed the Aegean Sea, where the traffickers raped her several times: “The journey was very difficult. It was scary, we were in a small boat. You know, something happened to me. The smuggler raped me many times”. Participants emphasized that previous experiences of violence can reinforce the fear of SV during border crossings. The constant threats of being sexually harassed did not emerge in a vacuum but were strongly related to previous lived experiences. For many women undertaking the refugee journey, sexual attacks and rape are common experiences. Based on women’s accounts, the fear of being raped on the journey is both constant and adaptive as it could happen at different points or occasions. The brutality they wanted to escape from has followed them to the borders. Participants’ experiences of attempted rape, rape, and physical violence before transit show the COV in relation to time but also to space; being raped before the journey in a private space by a family member and at the border by the traffickers. This demonstrates how the same form of violence transcends different stages and is perpetrated by different people. For refugee women, with whom I had formal and informal discussions, travelling with their families, which in many cases should have offered a net of protection, actually made them more vulnerable. When their families protested at the violence being carried out, they were beaten up. Both Houria and Rima shared that they did not react during the rape because of a fear that more intense violence could be directed at them and their families (see Gerard & Pickering, 2014). Refugee women have to respect smugglers’ rules, otherwise they are threatened with abandonment, violence, and death. Their experiences illustrate that SV is often a symbolic process, forced on women not only to harm but also to humiliate the male members of the family. Many participants reported that they had to endure SV as the price for undertaking this journey and securing ‘safe’ passage to Europe. This

122

SGBV AGAINST REFUGEE WOMEN

highlights the gendered ways in which borders are policed (stricter policies, smugglers), and the gendered ways women need to negotiate access to entry points (Pickering, 2011). Women’s presence in the public space of migration is construed by the perpetrators of SGBV as an ‘invitation’ for sexual attacks, and women are construed as sexually ‘available’ (see Pettman, 1996; Freedman, 2012). The perception of women as being sexually available, in combination with high rates of violence, has normalized SV at the borders. The prevalence of sexual attacks has been normalized as part of the journey or as the ‘reality of the borders’ (Bauman, 1998: 12). Participants’ experiences of border crossing indicate the gendered and relational elements of violence in this space. For women, being at the border, and their experienced violence, is a gendered process. Several women mentioned that during the journey they were exposed to multiple forms of danger and violence, and this was compounded due to the fact that there was no way to report it. Furthermore, the perpetrators of SV were aware of this and it incentivized them to act with impunity. With this in mind, women’s bodies were constructed as undocumented/​disposable, allowing and legitimizing SV against them. As D’Cruze and Rao (2004: 503) state, ‘Violence establishes social relationships … it marks and makes bodies … it constitutes subjects’. SV at the borders has significant consequences for women’s bodies. The journey is a generative force that stigmatizes them. Women’s stories show us how their bodies are injured, formed, and reformed, but also gendered through the gendered relations of refugee journeys. Bodies are shaped by SGBV, but SGBV also frames borders as dangerous places. According to the participants, violence at the borders takes many different forms, and it is not always physical. Structural violence at the borders was another theme that recurred throughout the interviews. Leila describes an incident with the port authorities at the Greek border: ‘Authorities need to know what it means to be a woman from a Muslim country … who are wearing a hijab [sic] … took my hijab and threw it away from me. I tried to hold it because I was cold, as I had just come out of the sea. I was lost. Around me were 25 men’. (Leila) Leila’s experience demonstrates that the refugee journey is a gendered process and, often, is experienced differently for women based on the form of SGBV they have been subjected to. She illustrates the multiplicity of the forms of violence at the borders, which are often non-​physical forms of violence.

123

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

In particular, her account indicates structural violence as another threat in transit, an often underestimated form of violence. The pervasiveness of physical violence during the journey can often make structural violence go unnoticed. It is impossible to separate and characterize physical violence as more important than other forms such as structural violence. As seen in Leila’s account, structural violence can be subtle and masked, but also effective in its implications and seen as legitimate. Galtung (1990) claimed that structural violence often legitimizes other forms of violence and/​or direct violence. Therefore, the aforementioned incident at the border generated and legitimized further gendered violence; Leila felt exposed without her hijab and subjected to the male gaze. Hence, the power of structural violence is based on the hidden legitimization of the engendered fear and threat at the borders. Leila’s description signifies that violence is not monolithic but highly complex and multi-​layered, illustrating the complexities and nuances of violence. The relations and structures of domination and power do not stem from violence towards the body. With reference to women’s stories about experienced structural violence, it takes a symbolic meaning that does not directly affect their bodies but is directed towards them as women. Conceptualizing women’s accounts through the lens of structural violence allows us to illustrate the unnoticed structures reproducing control and exercising violence and dominance over women. The everyday dynamics of the refugee journey and practices are often formed in many different ways by the gendered inequalities and power that authorize the continuation of aspects of structural violence and SGBV. In addition to the difficulties of the journey, participants recounted particular aspects of the gendered insecurities of the journey. Based on their descriptions, borders can be dangerous and deeply gendered places, increasing women’s insecurities. For these women, the geographical borders hold a gendered symbolic meaning in terms of gender relations at play, illustrating a complex areality. Based on the interviews, it is suggested that borders are sites of violence that impact upon women’s safety and restrict their movement. The widespread use of violence across the borders frames them as inherently risky places. The borders, as gendered places, perpetuate various forms of violence. As reported by the refugee women, the journey, in total, offered a continued threat of violence. Therefore, women can experience violence at any point of their transition. The following section presents participants’ experiences in the refugee camp.

Life in the camp This section describes the reported SGBV incidences in the camp. Refugee women have often travelled for several weeks and even months before they

124

SGBV AGAINST REFUGEE WOMEN

arrive in the first reception country. Research has shown that threats and/​ or incidences of SGBV continue after the escape from their origin country and continue in the camp (Hans, 2008; Krause, 2017). Despite women’s hopes for security upon arriving in the refugee camp, they identified frequent occurrences of SGBV. Life in the camp creates anxiety and reinforces insecurities that women had experienced during their journeys. The participants reported incidences of DV in the private space of the camp and attempted rape in the public space. Various forms of SGBV were discussed during the interviews with refugee women and aid workers in the camp, including acts and/​or threats of physical violence, DV, and SV. The most common forms of violence in the camp were SV and DV. Many participants described the fear of being sexually assaulted in the camp. In the previous sections, Houria reported SV before/​during the journey. The smugglers threatened to share photos and videos of her rape to extort money from her. They did, in fact, share some of this material with other men. As a consequence, men started calling her a prostitute and harassed her by throwing stones at her container. Understandably, she did not feel safe walking around the camp. She noted her absence around the camp, saying: “How many times you have seen me around the camp? I will only go out if I have an appointment with NGO staff”. In most cases, when SV is committed during the journey, it is not mentioned again due to the perpetrators not continuing to the camp. However, in this case, despite the remaining physical and emotional distress, other men in the camp were aware of her experience and constantly reminded her of this, affecting her everyday life and safety within the camp. Her experiences of violence are understood in relation to the COV across time, as she was raped in Afghanistan and during the journey, and the consequences of these incidences affect her in the camp. The videos and photos of the SV Houria experienced at the hands of the smugglers are another element, a reminder, of the continued violence. This adds another layer of violence and violation. While SV is continuous, the impact of shaming encourages a culture of victim blaming within the camp and justifies any form of violence against Houria. DV in the camp was a common theme throughout my data set. Many women shared their experiences of violence within the ‘safety’ of the home/​ container. Mariam talked about the violence she experienced from her husband: “The problem is behind the closed doors. When a door closes then all the problems start. Behind the door, for every family, are the problems … Violence is behind the doors”. Mariam shared her previous experiences of violence perpetrated by her husband and members of her extend family prior to undertaking this journey. Although she stressed that she was at higher risk of threats due to her husband’s behaviour when they arrived in the camp. Mariam, and many

125

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

other participants, emphasized the COV over time and the multiplicity of perpetrators. DV is worsened in refugee settings (Horn, 2010). According to Mariam, the incidences of DV in the camp are closely linked with the notion of privacy. In line with Schneider (1990), privacy encompasses the notions of freedom, autonomy, and bodily integrity. However, for Mariam, privacy was signified by physical and psychological abuse. She equates the privacy afforded by closed doors with the risk and/​or threat of violence. The metaphor of closed doors emphasized the lived experiences within the private space of the container as, for Mariam, the constant threats of violence started the moment she entered the container. So, the container’s space was a catalyst for violence and abuse. Esma recounted the experienced violence in the camp: ‘Even here my son is violent. Everyday there is verbal violence, threats of killing and beating me. He, with other single men, has alcohol and drugs … then argues with me, why I have not cooked. I do not to respond because he will beat me again. He throws whatever finds at me’. (Esma) As highlighted by the participants, many women are victims of DV in the camp, which is not only carried out by partners but also by other male relatives. The circumstances of the refugee journey, alongside the dynamics within the camp, can either create new incidences of DV or worsen the impact of previously experienced DV. Many women focused on the impact of the new living conditions and the camp’s layout as forcing them to spend more time in the home, which increases the risk of DV. One participant stated, “Men do not have anything to do here”. Life in the camp might disrupt traditional gender relations. Men lose the breadwinner role, which can result in substance misuse and a rise in DV. In a way, DV is a means of reaffirming power over women: “Beatings are not about revenge or punishment but about establishing and expressing particular kinds of appropriate relationships” (Harvey, 1994: 75). Participants’ accounts show that even though DV occurs within the private sphere, it is often influenced by other factors outside of the home. Surtees (2003) supports this, seeing that DV’s being construed as a private issue allows society to ignore the gendered nature of DV. Participants’ accounts, and analysis of these, show that DV in the camp cannot be understood in isolation from its social context, and cannot be disconnected from other perpetuated forms of violence such as psychological violence.

126

SGBV AGAINST REFUGEE WOMEN

Conclusion The analysis of the empirical data presented in this chapter shows how SGBV was experienced by refugee women at the three key stages of their experience: before, during, and after their refugee journey. The participants reported numerous forms of violence. This chapter argues that SGBV incidences are not isolated and do not occur only due to conflicts or sociopolitical turbulence; they also take place during flight and in the camp. For these women, SGBV is a constant threat, even if they have already fled from their origin country and escaped conflict sites. Therefore, this study not only supports the argument that the end of conflicts does not mean the end of violence for these women but also stresses the continuum of SGBV between the three phases as seen through a gendered lens. A gendered analysis of SGBV reveals that violence flows through all three phases of the refugee experience and permeates the political spectrum of society. Gender connects violence at various points, from the home to bombarded environments. In particular, the COV stems from the patriarchal construction of a hierarchical relationship between the genders, which positions women in numerous ways as subordinate to men, and also reinforces and reflects unequal gendered relationships. Also, the study shows that the experienced violence in each stage is not a unique phenomenon that only arises under certain circumstances. Instead, SGBV is a common tactic used against women at each stage, taking different forms. Any attempt to capture the nuances of womens’ experiences of violence needs to explore the interconnection between the three different stages by going beyond a list of the different forms of violence. Within the literature, SV has been perceived as normalized, due to sociopolitical situations, but at the same time as exceptional, implying that SV only happens due to conflict. However, based on participants’ accounts, different forms of violence have been reported in different contexts in pre-​ refugee life. Some women reported SGBV unrelated to the war context. This undoubtedly confuses the boundaries between pre-​, mid-​, and post-​ war SGBV and risks rendering the distinction useless except to describe and illustrate how SGBV against women is ignored and belittled in different sociopolitical circumstances and stages of their lives. Most of the refugee-​ studies literature focuses on SGBV during war, although participants pinpointed SGBV incidences during peacetime as well. As Kelly (1988: 76) stresses, women’s experiences of violence represent a ‘continuous series of elements or events that pass into one another and cannot be readily distinguished’. SGBV is not just a result of war but is an ordinary part of women’s lives, and takes various forms.

127

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

Approaching SGBV during pre-​refugee life as a COV demonstrates that women’s experience of violence is not always of a one-​off act perpetrated by a ‘stranger’. Participants’ experiences indicate that women are deliberately targeted in war zones but also in times of ‘peace’ by family members, turning homes into battlefields. Therefore, participants’ descriptions illustrate the continuity/​prevalence of SGBV across space; from the ‘safety of home’ to the unsafe battlefields. In supposed safe spaces such as homes, SGBV can occur in order to ‘protect families’ honour’ and also to remind women of the ‘appropriate gendered behaviors’ –​as a means of justifying women’s subordination. On the other hand, in wartime SGBV can take place as a way of attacking women’s bodies and, consequently, their families’ and communities’ honour; in this case, pre-​existing discrimination has been used to legitimize SGBV. All of the refugee women had used smugglers to cross borders and reach the islands in the east Aegean Sea. The prevalence of SGBV became a normalized aspect of the refugee journey for both the refugee women and the perpetrators. A COV in relation to their lived experiences in transit unveils and connects the different forms of violence to which the women were exposed. Additionally, the concept of a COV illustrates the various uncertainties and constant fear that shape women’s journeys and which often are linked with previous SGBV experiences. That participants could experience SGBV at any point on their journey illustrates that the COV during journeys is marked by the multiplicity of perpetrators, such as traffickers, border agents, family members, and other refugees. While refugee camps are supposed to provide a site of protection for those who have fled their origin countries, they often provide little security and can actually be spaces of danger and extended violence. The womens’ accounts highlighted that SGBV is a prevailing issue that permeates the private and public spaces of the camp. Also, the privatization of violence within the camp and the multiplicity of perpetrators indicate the continuing imbalance of power whereby men attempt to redefine their power over women’s bodies –​SGBV becomes a tool of power used against women. Additionally, participants’ stories show that it is impossible to distinguish their previous lived experiences of SGBV as separate cases, as they are linked in a continuity of time, wartime to ‘peacetime’, and from borders to the containers’ privacy. To understand such violence, it is crucial to connect it to experienced violence at previous stages. In many cases, women have stated that their lived experiences in the camp are a continuation of violence from before and/​or during their journey. Perhaps one limitation of the COV is that it implies there is an end, or limit, to violence in women’s lives. However, women’s arrival in the camp does not imply the end of their refugee journey or the violence they suffer –​they

128

SGBV AGAINST REFUGEE WOMEN

may move to other camps or continue on more uncertain journeys. They may also be subjected to ongoing structural violence when finally ‘settled’ in their reception country. Therefore, it is useful to view the COV as a spectrum that some women may perpetually remain on. Equally, women’s trauma, and the repercussions of the SGBV they have experienced, can be lifelong; the end of violence is not the end of their experience or of the impact this has had on them, however far removed they are from it by space and time. Further investigation and exploration of the COV would be worthwhile in order to understand the complexity of women’s experiences and to break the silence and the isolation of women by generating greater knowledge and understanding of their experiences, recognizing and defending their rights, and informing the practice of the NGOs and wider policymakers. References Ahram, A. (2015) ‘Sexual violence and the making of ISIS’, Survival, 57(3): 57–​78. Akhter, S. and Kusakabe, K. (2014) ‘Gender-​based violence among documented Rohingya refugees in Bangladesh’, Indian Journal of Gender Studies, 21(2): 225–​46. Awwad, A.M. (2001) ‘Gossip, scandal, shame and honor killing: A case for social constructionism and hegemonic discourse’, Social Thought and Research, 24(1): 39–​52. Banwell, S. (2014) ‘Rape and sexual violence in the Democratic Republic of Congo: A case study of gender-​based violence’, Journal of Gender Studies, 23(1): 45–​58. Bauman, Z. (1998) Globalization, London: Polity. Boesten, J. (2014) Sexual Violence During War and Peace: Gender, Power, and Post-​conflict Justice in Peru, Amsterdam: Springer. Braun, V., Clarke, V., Hayfield, N., and Terry, G. (2019) ‘Thematic analysis’, in P. Liamputtong (ed) Handbook of Research Methods in Health Social Sciences, Amsterdam: Springer, pp843–​60. Cockburn, C. (1998) The Space Between us: Negotiating Gender and National Identities in Conflict, London: Zed Books. Cockburn, C. (2014) ‘The continuum of violence: A gender perspective on war and peace’, in R. Jamieson (ed) The Criminology of War, Abingdon: Routledge, pp357–​76. Davies, S.E. and True, J. (2015) ‘Reframing conflict-​related sexual and gender-​based violence: Bringing gender analysis back in’, Security Dialogue, 46(6): 495–​512. D’Cruze, S. and Rao, A. (2004) ‘Violence and the vulnerabilities of gender’, Gender and History, 16(3): 495–​512.

129

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

Ferris, E.G. (1990) Refugee Women and Violence, Geneva: World Council of Churches. Freedman, E. (2013) Redefining Rape: Sexual Violence in the Era of Suffrage and Segregation, Cambridge: Harvard University Press. Freedman, J. (2007) Gendering the International Asylum and Refugee Debate, Amsterdam: Springer. Freedman, J. (2012) ‘Analysing the gendered insecurities of migration: A case study of female Sub-​Saharan African migrants in Morocco’, International Feminist Journal of Politics, 14(1): 36–​55. Freedman, J. (2016) ‘Engendering security at the borders of Europe: Women migrants and the Mediterranean “crisis” ’, Journal of Refugee Studies, 29(4): 568–​82. Freedman, L. (2017) ‘Women’s experiences of forced migration: Gender-​ based forms of insecurity and the uses of “vulnerability” ’, in J. Freedman, Z. Kivilcim, and N.Ö. Baklacioğlu (eds) A Gendered Approach to the Syrian Refugee Crisis, Abingdon: Routledge, pp125–​41. Galtung, J. (1990) ‘Cultural violence’, Journal of Peace Research, 27(3): 291–​305. Gerard, A. and Pickering, S. (2014) ‘Gender, securitization and transit: Refugee women and the journey to the EU’, Journal of Refugee Studies, 27(3): 338–​59. Grewal, I. (2013) ‘Outsourcing patriarchy: Feminist encounters, transnational mediations and the crime of “honour killings” ’, International Feminist Journal of Politics, 15(1): 1–​19. Hans, A. (2008) ‘Gender, camps and international norms’, Refugee Watch, 32: 64–​73. Harvey, P. (1994) ‘Domestic violence in the Peruvian Andes’, in P. Harvey and P. Gow (eds) Sex and Violence: Issues in Representation and Experience, Abingdon: Routledge, pp66–​89. Horn, R. (2010) ‘Exploring the impact of displacement and encampment on domestic violence in Kakuma refugee camp’, Journal of Refugee Studies, 23(3): 356–​76. Kelly, L. (1987) ‘The continuum of sexual violence’, in J. Hanmer and M. Maynard (eds) Women, Violence and Social Control, London: Palgrave, pp46–​60. Kelly, L. (1988) The Continuum of Sexual Violence, London: Polity. Kelly, L. (2010) ‘The everyday/​everynightness of rape: Is it different in war?’, in L. Sjoberg and S. Via (eds) Gender, War and Militarism: Feminist Perspectives, London: ABC-​CLIO, pp114–​23. Kirby, P. (2012) ‘How is rape a weapon of war? Feminist international relations, modes of critical explanation and the study of wartime sexual violence’, European Journal of International Relations, 19(4): 797–​821.

130

SGBV AGAINST REFUGEE WOMEN

Korac, M. (1998) ‘Ethnic-​nationalism, wars and patterns of social, political and sexual violence against women: The case of post-​Yugoslav countries’, Identities Global Studies in Culture and Power, 5(2): 153–​81. Krause, U. (2015) ‘A Continuum of Violence? Linking Sexual and Gender-​ based Violence during Conflict, Flight, and Encampment’, Refugee Survey Quarterly, 34(4): 1–​19. Krause, U. (2017) ‘Escaping conflicts and being safe? Post-​conflict refugee camps and the continuum of violence’, in S. Buckley-​Zistel and U. Krause (eds) Gender, Violence, Refugees, Oxford: Berghahn, pp173–​96. Liamputtong, P. (2008) ‘Doing research in a cross-​c ultural context: Methodological and ethical challenges’, in P. Liamputtong (ed) Doing Cross-​cultural Research: Methodological and Ethical Challenges, Amsterdam: Springer, pp3–​20. Mashiri, L. (2013) ‘Conceptualization of gender-​b ased violence in Zimbabwe’, International Journal of Humanities and Social Science, 3(15): 94–​103. Medie, P.A. (2013) ‘Fighting gender-​b ased violence: The women’s movement and the enforcement of rape law in Liberia’, African Affairs, 112(448): 377–​97. Mojab, S. (2004) ‘No safe “heaven”: Violence against women in Iraqi Kurdistan’, in W. Giles and J. Hyndman (eds) Sites of Violence: Gender and Conflict Zones, Berkeley: University of California Press, pp108–​33. Olujic, M.B. (1998) ‘Embodiment of terror: Gendered violence in peacetime and wartime in Croatia and Bosnia-​Herzegovina’, Medical Anthropology Quarterly, 12(1): 31–​50. Ozgen, Z. (2015) ‘Maintaining ethnic boundaries in “non-​e thnic” contexts: Constructivist theory and the sexual reproduction of diversity’, Theory and Society, 44(1): 33–​64. Pettman, J.J. (1996) Worlding Women: A Feminist International Politics, Abingdon: Routledge. Pickering, S. (2011) Women, Borders, and Violence, London: Springer. Pickering, S. and Powell, R. (2017) ‘Death at sea: Migration and the gendered dimensions of border insecurity’, in J. Freedman, Z. Kivilcim, and N.Ö. Baklacioğlu (eds) A Gendered Approach to the Syrian Refugee Crisis, Abingdon: Routledge, pp115–​34. Saigol, R. (2016) ‘Militarization, nation and gender: Women’s bodies as arenas of violent conflict’, in P. Ilkkaracan (ed) Deconstructing Sexuality in the Middle East, London: Ashgate, pp165–​76. Schneider, E.M. (1990) ‘The violence of privacy’, Connecticut Law Review, 23: 973–​1000 Seifert, R. (2016) ‘War and rape: A preliminary analysis’, in R. Jamieson (ed) The Criminology of War, Abingdon: Routledge, pp307–​26.

131

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

Standish, K. (2014) ‘Understanding cultural violence and gender: Honour killings; dowry murder; the zina ordinance and blood-​feuds’, Journal of Gender Studies, 23(2): 111–​24. Stanko, E.A. (1990) Everyday Violence: How Women and Men Experience Sexual and Physical Danger, London: Harper-​Collins. Stanko, E.A. (1996) ‘Reading danger: Sexual harassment, anticipation and self-​protection’, in M. Hester, L. Kelly, and J. Radford (eds) Women, Violence and Male Power: Feminist Activism, Research and Practice, Philadelphia: Open University Press, pp50–​62. Surtees, R. (2003) ‘Negotiating violence and non-​violence in Cambodian marriages’, in C. Sweetman (ed) Gender, Development and Marriage, Oxford: Oxfam, pp30–​41. UN General Assembly (2018) Declaration on the Elimination of Violence against Women, A/​RES/​48/​104. UNHCR (2003) Sexual and Gender-​Based Violence against Refugees, Returnees and Internally Displaced Persons. Geneva: UNHCR. Weber, L and Pickering. S. (2011) Globalization and Borders: Death at the Global Frontier, London: Springer. Werbner, P. (2007) ‘Veiled interventions in pure space: Honour, shame and embodied struggles among Muslims in Britain and France’, Theory, Culture and Society, 24(2): 161–​86. Wright, C. and Hearn, J. (2013) ‘Neutralizing Gendered Violence’, in R. Klein (ed) Framing Sexual and Domestic Violence Through Language, London: Palgrave, pp21–​40. Yuval-​Davis, N. (1993) ‘Gender and nation’, Ethnic and Racial Studies, 16(4): 621–​32.

132

7

Reconsidering the 1991 Blackbird Leys Rioters as an Underclass: An Insider Perspective James Windle

In 1991 there was a riot in Oxford’s Blackbird Ley estate; one of several riots that took place that year. Journalist Beatrix Campbell (1993) wrote an influential book, Goliath: Britain’s Dangerous Places, that explored the causes of these riots, based on her observations of the riots and interviews with members of the community and those who took part. She took a left-​wing, feminist, underclass perspective which identified the rioters as coming from single-​parent households with no prospects for work or education. She argued that the riots were a masculine response to a lack of work caused by deindustrialization. As my own research on drugs and violence has also highlighted the role of deindustrialization and the lack of meaningful work (Windle, 2018, 2019; Leonard & Windle, 2020), I have sympathy for Campbell’s position. I am unconvinced, however, that the theory fits reality in this case. I grew up in Littlemore, a housing estate separated from Blackbird Leys by train tracks and waste ground. I remember the riots well. I was 15, too young and scared to make the trip across the waste ground to see the riots. Kids at school who lived on Blackbird Leys talked about the riots with a mixture of excitement and fear. My parents, uncles, and aunties swapped stories, picked up from friends and family living on the estate. We could see Windrush Towers, under which the riots took place, from our front window, and feared it would migrate to Littlemore.1 Shortly after first reading Goliath, I bumped into an old friend who had participated in the riots. He was shopping with his wife and children. We

133

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

talked about their house, his job (tradesman); I asked about his parents (still together), and we swapped parenting stories and debated whether Peppa Pig World is worth a visit (he thought it was). That short conversation made me think that Goliath got bits right and a great deal wrong. This chapter first describes the riot before critically assessing Campbell’s left-​wing underclass theory. This chapter is not about an organized group lobbying for a seat at the table under the ‘nothing about us without us’ slogan. Rather it offers a critique, from an insider perspective, of how powerful voices, notably the media, misrepresented marginalized working class youths, and how the underclass theory can be challenged by a little insider knowledge. The chapter concludes by offering an alternative theory, drawing from Merton, Katz, and Anderson.

Methodology This chapter is primarily based on anecdotes and conversations picked up over the years and a casual understanding of the basic biographies of some of those who rioted, supported by a review of historical documents. The chapter could be described as semi-​autobiographical, pre-​systematic data-​ collection theorizing, intended to inform future research endeavours. I was fully immersed in my local community until my late 20s. I knew some of those who rioted through school, sport, working on building sites, and drinking and working in local pubs. Some are, or were, friends and acquaintances, while others I know by reputation. I have not formally interviewed anyone, nor was I present at this particular riot. Some friends did, however, spontaneously offer their thoughts on the riots once they found out about the project. Information from the actual events is drawn primarily from media reports and Campbell’s observations, supported by knowledge of the locality and the people who rioted. While media documents can be useful, they must be approached with caution and are seldom a true reflection of events (see Windle & Silke, 2019). Indeed, it is commonly understood amongst our community that the media paid joyriders to display stolen cars in 1991. Many see the riot as partly engineered by the media.

The Blackbird Leys riot Blackbird Leys was built in the 1960s to accommodate increased workforce demands from the nearby car plant and university (Brimblecombe et al, 1999) coupled with the demolition of dilapidated social housing in Oxford City Centre (Ward et al, 1993). Oxford remains a ‘divided city’ (Schofield & Noble, 1993; Brimblecombe et al, 1999) where:

134

Reconsidering the Blackbird Leys RIOTERS

University academic staff and students tend to be concentrated in the north of the city (this being reflected in house prices, schools examination performance and so on). The east of Oxford, the area around the car plant [Blackbird Leys, Littlemore, Rose Hill], has the highest concentration of council housing and lower house prices. (Brimblecombe et al, 1999: 291) 1991 census data show that just 35.1 per cent of Blackbird Leys residents owned their own home, with 54.8 per cent renting from the local authority. Households falling into negative equity meant that average housing wealth for the area was -£​1,125 per household. Male unemployment was 17.7 per cent (the Oxford average was 11.5 per cent), female unemployment was 11.3 per cent (the Oxford average was 6.2 per cent), and 25.2 per cent of the population were dependent on income support (the Oxford average was 14.2 per cent; central Oxford average, 1.6 per cent) (Brimblecombe et al, 1999). Brimblecombe and colleagues (1999) calculated a Townsend deprivation score of 6.53, the second highest in Oxford.2 In the summer of 1990, groups of around 30 to 40 young people started hanging around the ‘top shops’. The shops have a row of maisonettes above them and the walkway offered young people shelter from the rain. There was also a Chinese takeaway and a shop from which young people could buy cigarettes and alcohol. Young people would watch displays of stolen cars drive at speed down the Blackbird Leys Road and perform handbrake turns and donuts at the T-​junction opposite the shops. While some residents enjoyed watching the displays, bringing their deckchairs out to watch from their gardens, others started to complain to the police. The police initially did very little, but later started moving young people away from the shops. The frequency of displays naturally slowed during the winter, but returned in the summer of 1991 (see Campbell, 1993).

Thursday, 29 August On Thursday, 29 August, 17 months after the primarily London-​based poll tax riots and a month after a riot in Eli (Cardiff), the spark of the Blackbird Leys riot occurred when a stolen car flipped over during a police chase around the nearby Barton estate. A young person then injured a police officer by firing a piece of flint from a catapult. Later that night a stolen car rammed a stationary police car in Blackbird Leys. The police responded by entering the estate in riot gear, which one resident described as an “invasion” while another wondered, “Why this now? The joyriding has been happening for years!” (Campbell, 1993: 42).

135

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

Sunday, 1 September On Sunday the police responded to a report that petrol bombs were being stored behind the Blackbird, a pub opposite the ‘top shops’, and young men in balaclavas were patrolling the streets. The police searched houses and detained (without charge) a number of young men on suspicion of preparing petrol bombs. An investigating police car was attacked by a group of young people throwing stones, bottles, and petrol bombs. The police were turned away by the rioters but returned ‘on mass’ an hour later in riot gear. They attempted to ‘occupy the square overnight’, imposed an informal curfew, and searched anyone walking near the shops. That evening nine people were arrested and two police officers were injured (Campbell, 1993: 43). Accounts estimate that 150 (The Advertiser, 1991; Cunliffe-​Hones, 1991) to 200 (Bunting, 1991b; Seton, 1991) young people were involved in the initial skirmish. These numbers should be subjected to critical assessment and likely include a mixture of core rioters, peripheral participants, and onlookers. A friend (married, with children, a successful small business owner, parents still married) had been drinking in the Blackbird that night. He and his friends left the pub to watch the disturbance and got swept along by the riot. Another friend (married, with children, tradesman, parents still married) went to watch the riots but ran away as soon as the police arrived, while another (married, with children, tradesman, parents still married) only remembers one thing about the riot: that some of his friends brought out deckchairs to watch the rioting and joyriding.

Monday, 2 September On Monday, Allison Van Dyke, a 30-​year-​old resident of Blackbird Leys, confronted a group of rioters. She told them to go away from her home and started taking pictures of them. A group of 10 stabbed her in the stomach, chest, and face. Her fiancé, Melvin Davis, went to help her and was beaten with a baseball bat and stabbed. The gang then prevented an ambulance from attending to the victims (Boggan, 1991; Katz, 1991). Davies received ‘a slash wound across his forehead’, a fractured cheekbone, and black eye (Seton & Jones, 1991), while Van Dyke needed plastic surgery to her face and neck (Bunting, 1991). Another, unnamed, young woman was also reportedly stabbed in the neck that evening (Boggan, 1991). The first draft of this chapter portrayed the rioters as innocent young people fighting state oppression. In reality, there were a small number of very violent young people living in the three estates, some of whom participated in the riots. For example, I was mugged at knifepoint near Blackbird Leys; there were stabbings at our school; a friend was hit in the face with a brick

136

Reconsidering the Blackbird Leys RIOTERS

outside the ‘top shops’; and a friend of my sisters was beaten and almost set on fire during school lunch break.

Tuesday, 3 September On Tuesday, ‘a massive media corps’ arrived on the estate. There were reports that some journalists paid young people ‘to perform’ because ‘like the crowd, they [the media] needed a show’ (Campbell, 1993: 43, original italics). A mother reported to Campbell (1993: 44) that “my lad was approached to do a display that night … the press were offering to pay. All they were doing was throwing their money around”. These reports are consistent with a common understanding within our community: any discussion of the riot begins with a criticism of the media, who were seen as orchestrating and engineering the riot and exploiting young people. That a resident of Blackbird Leys flung a news crew down a flight of stairs (Graef, 1991) suggests that some did not welcome the media. Charles Pollard, chief constable of Thames Valley, was also critical of the media: ‘With tension heightened by the presence of numerous members of the media hopeful of obtaining pictures of a so-​called display, further disorders followed and the hopes of the media were realised’ (cited in Kirby, 1991). The Guardian reported that rioters ‘used members of the media as a shield’ from behind which to throw missiles at the police, and that ‘the operational commander had to threaten to arrest journalists unless they left the area’ (Carvel, 1991; also Campbell, 1993). Campbell (1993: 44) reported that the media were given a ‘30 second warning’ to leave by the police, while Roger Graef (1991) reported that Chief Constable Pollard wrote to editors of news outlets asking them to draw back from the story. Graef suggests that editors complied and news crews were ‘confined … to cars and hotel rooms’.

Summary The riot lasted one week: 95 people were arrested, mostly for minor public order offences (Carvel, 1991). The chief constable of Thames Valley Police reported that 10 people were injured: eight police officers, Allison Van Dyke, and Melvin Davis (Carvel, 1991; Kirby, 1991). The true figure is likely higher: the media reported another local women was stabbed in the neck on Monday evening (Boggan, 1991) and Campbell (1993: 43) reported the injury of a resident during the first night of rioting. I know of two rioters who were injured: one threw a petrol bomb from the wrong end of the bottle and set himself alight, and another was assaulted by an aggrieved resident. There were also several reports of police brutality. One resident reported walking with his 14-​year-​old son when “some policemen ran up to me and

137

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

hit me on the shoulder and told us to lie down. While we were on the floor, they hit Michael [his son] on the back, leg and shoulder with a truncheon and kicked him in the lip” (cited in Boggan & Price, 1991a). Another resident reported seeing ‘officers pulling a young woman down stairs by the hair. When she tried to intervene … an officer called her a “n***** lover” ’ (cited in Boggan & Price, 1991a). Oxford City Council complained to Thames Valley Police after the council public affairs committee heard reports from angry residents, including a 19-​year-​old who claimed to have been assaulted while under arrest. A solicitor from Oxford Magistrates Court reported seeing injuries ‘to a number of people, “many of whom were of previous good character” ’ (Renton, 1991).

Goliath: Britain’s Dangerous Places In Goliath, Campbell (1993: 29, 34) identified the Blackbird Leys rioters as belonging to an ‘underclass’ of ‘marginal young men’, excluded from education and work, and coming from single-​parent families: ‘Economically they were spare, surplus; personally they were dependent on someone else for their upkeep …. They had no jobs, no incomes, no property, no cars, no responsibilities’ (Campbell, 1993: 29). Both Robert Reiner (a critical criminologist) and Charles Murray (a conservative commentator) also used the term underclass to profile and explain the riots (Driscoll & Furbisher, 1991). Reiner, discussing the Meadow Well riot which occurred after Blackbird Leys, argued: ‘What makes this so critical is the creation of an underclass of unemployed, under-​educated, desperate young people’ (cited in Driscoll & Furbisher, 1991). Campbell does not, however, define underclass, and there are multiple conflicting definitions (see Lister, 1998), including W.G. Runciman’s (1990: 338) basic economic definition of a class, below the working class, who are ‘more or less permanently’ unemployed and in receipt of state benefits. Charles Murray moves beyond economic to behavioural factors to define the underclass as people who didn’t just lack money …. Their homes were littered and unkempt. The men in the family were unable to hold a job for more than a few weeks at a time. Drunkenness was common. The children grew up ill-​schooled and ill-​behaved and contributed to a disproportionate share of the local juvenile delinquents. (Murray, 1998: 24)

138

Reconsidering the Blackbird Leys RIOTERS

That is, they are not defined by joblessness but by their inability or unwillingness to find or keep work, coupled with unruly behaviour. They are the ‘young, healthy, low-​income males’ who ‘choose not to take jobs’ (Murray, 1998: 38). Campbell and Murray’s left-​wing and right-​wing underclass theories diverge on several key points. Notably, Murray identified rising crime rates as being caused by welfare dependency, decline in marriage, and increases in single-​parent families. Campbell, conversely, highlighted Thatcher’s economic reforms, reductions in social welfare, and joblessness caused by deindustrialization. She was especially critical of right-​wing underclass theories for identifying single mothers as a cause of criminality, suggesting that this sought to reinstate patriarchal structures. Campbell (1993) preceded more critical analysis of the 2011 riots by highlighting the role of consumerism (Bauman 2011; Treadwell et al, 2013), anger at the police (Lewis et al, 2011; Kesten et al, 2013), and social exclusion and marginalization (Lewis et al, 2011). She argued that joyriders consumed cars and thrills, and posturing rioters were there to show off their clothes. This was symbolic of a ‘lawless masculinity’ (Campbell, 1993: 281) by which young men without work sought to prove their masculinity through violence and rioting but also their ‘commitment to pure pleasure, pride in the performance and their own celebration of conspicuous consumption’ (Campbell, 1993: 41). This parallels Zygmunt Bauman’s (2011) explanation of the 2011 London riots as ‘not hunger or bread riots’ but ‘riots of defective and disqualified consumers’. He argued that as our desire to consume has increased, so has our humiliation at not being able to consume and concurrently our desire to destroy what we cannot have. James Treadwell and colleagues (2013) similarly argued that the 2011 riots were symbolic of the individualism of neoliberalism. That the rioters were not protesting against inequality or racism but looking for ‘a handful of souvenirs’ and ‘a fetishized “extreme experience” ’. Karim Murji (2018) suggests that the consumerism argument misses ‘the bigger picture by focusing on some details’ while most riots have complex causes. Campbell (1993) recognizes this complexity by identifying, beyond consumerism, anger at disadvantage and marginalization, and mistreatment by the police. Indeed, several journalists at the time suggested that young people and ‘some residents’ felt that the response to joyriding had been extreme (Boggan & Price, 1991b; Graef, 1991; Lonsdale, 1991). Campbell (1993) draws these factors together into one overarching thesis: that the riots were a masculine response by an underclass to a lack of work caused by deindustrialization.

139

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

An underclass? Neither the right-​nor left-​wing underclass explanations hold up to my ‘sample’, my experience of the area, or historical document analysis. Many commentators rejected economic deprivation as a cause of the riots. Several reported 9 per cent unemployment in Blackbird Leys (Lonsdale, 1991), although the 1991 census reported 17.7 per cent male unemployment with 25.2 per cent of the population dependent on income support (Brimblecombe et al, 1999). The chief constable of Thames Valley Police reported that Blackboard Leys “has a lot of amenities. It has a 50 per cent owner-​occupier rate” (cited in Carvel, 1991). Lord Scarman argued that the riot was caused by boredom rather than economic deprivation: ‘I visited the Leys estate some time ago, and it had a shopping centre, and a pub, and did not seem to have any of the characteristics of deprivations of an inner city’ (cited in Ward, 1991). Although, as Jamie Kesten and colleagues (2013: 10) argue, framing riots as a response to boredom is a well-​worn technique used to depoliticize and undermine structural explanations. Melanie Phillips (1991a) reported in The Guardian that Blackbird Leys was ‘a well-​equipped, relatively pleasant estate’ and explanations that the ‘hotting’ craze can be put down to unemployment or deprivation seem as wide of the mark as the instinctive blame being cast on the parents or the permissive society. Blackbird Leys is not a deprived area full of problem families; people are in work, it is a well-​run estate with a strong sense of community; it is well appointed, with youth facilities which apparently stand empty much of the time. (Phillips, 1991b) Indeed, many argued that because Blackbird Leys had a new leisure centre it could not be poor (see Bunting, 1991; Lonsdale, 1991). An indoor football pitch was obviously a marker of a prosperous community in Guardian circles. While the prosperity of the area was overstated by many commentators, the majority of the rioters I knew did find work. Most became tradesmen or worked in the car plant. Others found lower-​paying and lower-​status jobs, such as building-​site labours and delivery drivers. Most of those I knew married and have stayed married. Many came from traditional (nuclear) families. Some of the rioters went on to long careers in crime; however, the majority took a much more normal criminal career trajectory: peaking in their late teens, their offending slowly declining throughout their 20s. Most of those I knew who participated in the riots were not the stereotypical underclass, although there were some who may fit Murray’s underclass depiction, but less so Runciman’s. But how would Campbell

140

Reconsidering the Blackbird Leys RIOTERS

have known this? Even if you could define those in their teens and early 20s as long-​term unemployed, Campbell did not survey all 150–​200 of the rioters. Rather she saw youths on a housing estate and assumed underclass. In summary, contrary to Campbell, the rioters were not all ‘underclass’ youths but rather represented a cross section of Blackbird Leys and surrounding estates; a hypothesis that echoes Paul Lewis and colleagues’ (2011) research into the 2011 riots.

Alternative explanations No commentators mentioned relative deprivation at the time; which is incredibly high in Oxford. You have disadvantaged housing estates within three miles of one of the UK’s wealthiest areas. It’s not particularly pleasant walking through town on a Wednesday afternoon and seeing students your own age dressed in suits quaffing champagne while you’re wearing a dirty tracksuit after a shift on a building site. The estates were also in a liminal economic and cultural space at the time: the car plant was becoming a less important employer and the area was transitioning towards a new economy partly built around services (although the building trade was thriving). The car plant was taking on less people: just 6,000 people were employed there in 1991, down from around 28,500 in 1973 (McCrystal, 1991; Ward et al, 1993). In early 1991, Rover announced compulsory redundancies, following rounds of early retirement and voluntary redundancy, and by the end of 1992 had started demolishing two sections of the factory (Ward et al, 1993) to make way for a hotel and retail and business parks (Thomas, 1993). During the early 1990s, full-​ time, permanent employment at the factory was declining while part-​time, precarious employment was rising and the welfare state was contracting (Schofield & Noble, 1993; Ward et al, 1993). Many of the parents of the rioters had bought their council homes through the ‘right-​to-​buy’ privatization scheme after taking out large loans. Many were unable to repay loans once the recession hit (McCrystal, 1991), and council and private rents were increasing (Schofield & Noble, 1993). An unpublished document by Oxford City Council reported that residents felt ‘a mounting sense of uncertainty about the future’ and were ‘demoralised and confused’ (cited in McCrystal, 1991; also Schofield & Noble, 1993). Rev James Ramsay of the church opposite the ‘top shops’ said: ‘The background problems of Blackbird Leys need to be taken into account: boredom, little money and overcrowding. Levels of violence have increased markedly following recent job losses at Rover. There has been no investment for retraining in the

141

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

community. The pressure on family life is tremendous’. (cited in Boggan & Price, 1991b) The rioters may have felt a strain that they could not consume and fear that they would not be able to consume in the future. This strain may have been heightened by proximity to significant wealth. You do not have to be underclass to feel such strain: Robert Merton (1938: 678) discussed the lack of respect society has for manual labour as a primary cause of strain. This is partly because of poor pay, but also due to low status and ‘our cultural stigmatization of manual labor’. In short, while there was relatively low unemployment, some may have felt that their employment was undervalued. Jack Katz’s (1988) argument that criminology must move beyond background causes of crime and look to the foreground emotional attractions of crime offers a complimentary perspective. I was reading Katz in preparation for this chapter when my mother-​in-​law suffered a massive stroke; she almost died, and was in hospital for months. I was walking down the street ruminating on the riots and thought: ‘I’d love a riot. I’d love to smash something up’. For Katz, violence is seductive because it provides an emotional release from humiliation. For me, the fantasy of rioting was seductive because it promised to cleanse my stress. The integration of Merton and Katz follows Jock Young’s (2003: 389) article ‘Merton with Energy, Katz with Structure’, in which he argues that globalization and neoliberalism intensify relative deprivation while creating a ‘crises of identity’ in working class communities. This ‘combination is experienced as unfair, humiliating and threatening and results in behaviour which is transgressive rather than instrumental’. That is, while the rioters may have been able to find employment, they may have felt a strain at the lack of respect for their jobs, at feeling excluded from their city, and at the impact the recession and the contraction of the car plant had on their parents, and fear of low future earning potential. For some, the riot may have felt like a release from this strain and stress. A final consideration, one intimately tied to relative deprivation, is that the three housing estates have strong local subcultures of violence. They were (and still are) areas with reputations for violence, where young people were expected to fight, violence was valued, and local hard men and women were heroes for many (for example Marsh et al, 1978: 127). Localized violent subcultures are products of structural disadvantage coupled with transgenerational family dynamics: attitudes to violence are passed down from parent to child, who are then socialized into the subculture further by interacting with peers outside the home. The child may observe violence in the home, on the street, or in school, and violence is normalized

142

Reconsidering the Blackbird Leys RIOTERS

by verbal and non-​verbal signals that being ‘hard’ is good. Indeed, many families will sanction children for lacking aggression (see Anderson, 1999). This does not mean that all internalized this violent subculture to the same extent, or at all. Many rejected violence. Similar to Alijah Anderson’s (1999) observation, a relatively small number of individuals from a small number of families were the main proponents of this subculture. While these are in the minority, they are also the most visible on the streets and in some pubs and to visiting journalists and academics. Consequently, the subculture comes to dominate some public spaces and public interactions. Some of those who took part in the riots were or became football hooligans, some became folk heroes for brawls in pubs, while others distanced themselves from illegitimate violence and took to sport to prove their masculinity. This subculture of violence may, however, have interacted with an equally strong, if somewhat dormant, subculture of resistance. The car plant fermented a ‘powerfully organized and radicalized working class’ with a long history of trade unionism and militant politics (Hayter & Harvey, 1993: 65). While the trade unions had been weakened by sustained attacks from industry and the Conservative Party (see Hayter & Harvey, 1993), many living in Oxford’s estates were acutely aware of class politics. As such, while the riots may not have been overtly political, this history may have been an influencing background factor.

Conclusion The underclass depiction of rioters is well worn. The narrative that rioters belong to an ‘underclass’ of ‘marginal young men’, excluded from education and work, and coming from single-​parent families (Campbell, 1993: 29, 34), was central to statements from politicians 20 years later during the 2011 riots (Shildrick, 2018). Campbell’s depiction of the Blackbird Leys rioters as being composed of an underclass was not accurate, based on my admittedly unsystematic experience of the riots and the rioters, supported by historical documents. That depiction, according to Richard Huggins (2017), has been an important contribution to the long-​term geographical stigmatization of Blackbird Leys. By situating all rioters as coming from an underclass, Campbell falls into what Tracy Shildrick (2018: 23) calls ‘poverty propaganda’: those experiencing relative deprivation are ‘relegated to a very distinct “other” ’. The rioters were not all underclass youths from single-​parent homes who could not find work. Nor were they destined for a life of unemployment and crime. Rather, those I have known who rioted have tended to come from stable (nuclear) families, are in long-​term stable relationships, and have

143

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

been employed for most of their adult lives; many are tradesmen. Few spent time in prison. I suspect that a survey of those who rioted would uncover a cross section of Blackbird Leys and surrounding estates, and only a minority would have experienced long-​term or frequent episodic unemployment. The rioters were not ‘other’, they were us. Neither the left-​nor right-​wing underclass explanations can explain the 1991 Blackbird Leys riots. I suggest that the riots emerged from localized violent subcultures created by the strain of relative deprivation, and because riots are cleansing and present a release from the stress of relative deprivation augmented at a time of uncertainty. The poll tax riots the year before, and Eli at the start of August, were likely the matches that lit this kindling. A final observation, one worth pursuing in later research, is that riots are scary and traumatizing. While Huggins (2017: 152) frames the riots as ‘highly significant’ for the community’s understanding of the estate, they are seldom discussed by those I knew who rioted. The young people who participated in the riots were likely themselves traumatized and felt ashamed that they had traumatized others. Lewis and colleagues (2011) rightly highlight the scarcity of research on what motivates people to riot. While this chapter has hopefully added some insight, more formal interviews with those who participated in historical riots will add much to the literature. Such historical research will provide insight into why people riot and who riots from a longitudinal, retrospective perspective. This can counter common assumptions (such as that rioters belong to an underclass; see Windle et al, 2018) and provide insights into whether rioting is part of a longer-​term pattern of offending or a transitionary phase and how rioters feel about their involvement: whether they regret or relished the riot. Notes 1

2

About two years after the Blackbird Leys riot, a new cohort of joyriders began displaying cars outside the shops across from our house. The noise of the car and the cheering often kept me awake at night; the noise of the helicopter would put me to sleep. The joyriders moved on after my dad, annoyed at having another car stolen and an assault on my aunty, left his Sunday roast to throw a spirit level at the windscreen of a displaying car. A score of material deprivation based on ‘the percentage of households without access to a car, the percentage of households not in owner occupation, the percentage of households living in overcrowded accommodation (more than one person per room) and the percentage of unemployed as a proportion of the economically active’ (Brimblecombe et al, 1999: 293).

References Anderson, E. (1999) Code of the Street: Decency, Violence, and the Moral Life of the Inner City, London: WW Norton & Company.

144

Reconsidering the Blackbird Leys RIOTERS

Bauman, Z. (2011) ‘The London riots: On consumerism coming home to roost’, Social Europe Journal, 6(2): 33–​4. Boggan, S. (1991) ‘Officer defends Oxford tactics; Minister condemns “mindless hooliganism and yobbery” as three cities experience nights of violence’, The Independent, 4 September. Boggan, S. and Price, N. (1991a) ‘Police accused after violence at “hotting” display’, The Independent, 3 September. Boggan, S. and Price, N. (1991b) ‘Angry “hotters” spoil for fight with police’, The Independent, 3 September. Brimblecombe, N., Dorling, D., and Shaw, M. (1999) ‘Where the poor die in a rich city: The case of Oxford’, Health and Place, 5(4): 287–​300. Bunting, M. (1991) ‘Anger and rebellion fight for driving seat on estate’, The Guardian, 4 September. Bunting, M. (1991b) ‘Violence driven by car thefts’, The Guardian, 3 September. Campbell, B. (1993) Goliath: Britain’s Dangerous Places, London: Methuen. Carvel, J. (1991) ‘Police chief rejects hardship link’, The Guardian, 21 September. Cunliffe-​Jones, P. (1991) ‘Fourth night of violence erupts in British cities’, Agence France Presse, 4 September. Driscoll, M. and Furbisher, J. (1991) ‘The mob’, The Sunday Times, 15 September. Graef, R. (1991) ‘Hit squads that fan the flames of riot; The media should show more sensitivity at local disturbances’, The Independent, 11 September. Hayter, T. and Harvey, D. (1993) The Factory and The City: The Story of the Cowley Automobile Workers in Oxford, London: Mansell. Huggins, R. (2017) ‘“Problem People” and “Problem Places”: Territorial Stigmatisation and “The Leys”, Oxford, PhD thesis, Warwick, University of Warwick. Katz, J. (1988) Seductions of Crime: Moral and Sensual Attractions in Doing Evil, London: Basic Books. Katz, I. (1991) ‘Man charged after couple attacked on Oxford estate’, The Guardian, 5 September. Kesten, J., Murji, K., Neal, S., and Ruppert, E. (2013) Knowing, communicating, sense making, place and urban disorder: Young people and the 2011 riots, Milton Keynes: Open University, available online from: http://​research.gold. ac.uk/​7985/​ Kirby, T. (1991) ‘Police “warned of attack by youths” ’, The Independent, 21 September. Leonard, J. and Windle, J. (2020) ‘ “I could have went down a different path”: Talking to people who used drugs problematically and service providers about Irish drug policy alternatives’, International Journal of Drug Policy, 84(1).

145

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

Lewis, P., Newburn, T., Taylor, M., Mcgillivray, C., Greenhill, A., Frayman, H., and Proctor, R. (2011) Reading the Riots: Investigating England’s Summer of Disorder, London: The London School of Economics and Political Science and The Guardian, available online from: http://​eprints.lse.ac.uk/​46297/​ Lister, R. (1998) Charles Murray and the Underclass, London: IEA. Lonsdale, S. (1991) ‘Contempt and hatred on a Sixties estate: The clampdown on hotting that has become a fight over territory’, The Observer, 8 September. Marsh, P., Rosser, E. and, Harré, R. (1978) The Rules of Disorder, Abingdon: Routledge. McCrystal, C. (1991) ‘Wrong side of the tracks; Cal McCrystal meets the fast and the furious of Oxford’s Blackbird Leys estate’, The Independent, 8 September. Merton, R.K. (1938) ‘Social structure and anomie’, American Sociological Review, 3(5): 672–82. Murji, K. (2018) ‘Rioting and the politics of crisis’, Ethnic and Racial Studies, 41(10): 1820–​36. Murray, C. (1998) ‘The emerging British underclass’, in R. Lister (ed) Charles Murray and the Underclass, London: IEA, pp 19–​53. Phillips, M. (1991a) ‘Alienation runs riot’, The Guardian, 13 September. Phillips, M. (1991b) ‘A sense of order in a chaotic society’, The Guardian, 6 September. Renton, A. (1991) ‘Council concerned at riot “brutality” claims, The Independent, 21 September. Runciman, W.G. (1990) ‘How many classes are there in contemporary British society?’, Sociology, 24(3): 377–​96. Schofield, A. and Noble, M. (1993) ‘Communities and corporations: Rethinking the connection’, in T. Hayter and D. Harvey (eds) The Factory and The City: The Story of the Cowley Automobile Workers in Oxford, London: Mansell, pp256–​75. Seton, C. (1991) ‘Police will not allow gangs to create no-​go areas’, The Times, 3 September. Seton, C. and Jones, T. (1991) ‘We must stand up to the yobs, says Oxford gang victim’, The Times, 4 September. Shildrick, T. (2018) Poverty Propaganda: Exploring the Myths, Bristol: Policy Press. The Advertiser (1991) ‘Gangs of youths in renewed violence’, The Advertiser, 5 September. Thomas, M. (1993) ‘Planning, property and profits’, in T. Hayter and D. Harvey (eds) The Factory and The City: The Story of the Cowley Automobile Workers in Oxford, London: Mansell, pp209–​29.

146

Reconsidering the Blackbird Leys RIOTERS

Treadwell, J., Briggs, D., Winlow, S., and Hall, S. (2013) ‘Shopocalypse now: Consumer culture and the English riots of 2011’, The British Journal of Criminology, 53(1): 1–​17. Ward, S. (1991) ‘Scarman links violence with boredom’, The Independent, 11 September. Ward, S., Stuart, O., and Swyngedouw, E. (1993) ‘Cowley in the Oxford economy’, in T. Hayter and D. Harvey (eds) The Factory and The City: The Story of the Cowley Automobile Workers in Oxford, London: Mansell, pp67–​93. Windle, J. (2018) ‘The impact of the Great Recession on the Irish drug market’, Criminology and Criminal Justice, 18(5): 548–​67. Windle, J. (2019) ‘The causes and consequences of gangland violence: Feuding in the Republic of Ireland’, in R. Lombardo (ed) Organized Crime: Causes and Consequences, New York: NOVA, pp20–​42. Windle, J. and Silke, A. (2019) ‘Is drawing from the state “state of the art”?: A review of organised crime research data collection and analysis, 2004–​2018’, Trends in Organized Crime, 22(3): 394–​413. Windle, J., Morrison, J.F., Winter, A., and Silke, A. (2018) Historical Perspectives on Organized Crime and Terrorism, Abingdon: Routledge. Young, J. (2003) ‘Merton with energy, Katz with structure: The sociology of vindictiveness and the criminology of transgression’, Theoretical Criminology, 7(3): 389–​414.

147

8

An Autobiographical Account of Desistance and Recovery James Leonard

Weaver and Weaver (2013: 273) have argued that unbroken autobiographical narratives of desistance can ‘inform’ the desistance literature, especially when connected to existing theory and research. In keeping with ‘nothing about us without us’, these analyzed autobiographical narratives provide knowledge of use to policymakers and practitioners (Weaver & Weaver, 2013). The first half of this chapter will present my own experiences of childhood, offending, drug use, desistance, and recovery. The second half of the chapter uses criminological theories to explore my experiences.

My story I grew up on the north side of Cork City, which had many wonderful people but a lot of social problems (see Cambridge, 2019; Leonard & Windle, 2020). While I enjoyed primary school, my report cards can be summarized in one line: ‘Bright but needs to apply himself more’. Secondary school was a nightmare! Towards the end of primary school my father had been sentenced to seven years for a drugs offence. By the time I started secondary school, when I was almost 13, I was hurt and angry. The secondary school was an all-​boys Christian Brother college and I hated it. Full disclosure, I was a difficult pupil. I had poor concentration, little interest in most of the subjects, and was a class clown. My Irish teacher called me a ‘thug’ and a ‘scut’, harsh terms to call a child messing in class. There were about eight people in my class who were the misfits, a collection of the children with the most adverse childhood experiences, but in a school

149

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

that was anything but trauma informed, we were categorized as those who either could not or did not want to learn. I could not identify with the teachers who were, to me, ‘outsiders’ whose rules I did not adhere to. My secondary schools’ reports can be summarized as either ‘Very talkative and disruptive in class’ or ‘Has plenty of ability but does not use it’. My grades in secondary school were shockingly bad too, and they reflected my state of mind at the time. That said, I once got 85 per cent for English and 20 per cent for Irish, although both teachers wrote ‘Very talkative and disruptive in class’ on my annual report. These ‘copy and paste’ comments were really disheartening and did nothing to motivate or encourage me. I was always good at English, strong with spelling and reading, and developed a wide-​ranging vocabulary early on, unlike most of my class. Also, I responded well to the few teachers I connected with. If they were nice to me, I respected them and did my best to please them with my work and behaviour in class. It’s just a shame most teachers never took the time to try to connect with pupils like me and were quick to label us as ‘unteachable’. Leaving secondary school, my self-​esteem was very low and the constant negativity that plagued my early teenage years took its toll. I left with the notion that college was not for me, that I was not able for further study. To me, school was finished. I was never going back.

Drug use I experimented with alcohol, cannabis, and to a lesser extent solvents in my early teens. I started using harder drugs, and more frequently, when I finished school. I left the family home at 18 and started using ecstasy heavily. I thought ecstasy was everything I had been looking for. It made me feel safe and gave me a bond with my peers as only ecstasy can. That feeling of love and belonging was only topped by the sickness and depression the morning after. I began trying other drugs and eventually became dependent on benzodiazepines (diazepam, rohypnol, Xanax). There was a quack doctor in my locality that would give out monthly prescription easily with minimal persuasion. He was notorious among people who used drugs, who would come from all over Cork to get prescriptions off him (see Mulcahy’s essay in Chapter 5 in this volume). A typical monthly prescription would be 90 diazepam 10mg, 60 Rohypnol and 120 DF 118 (codeine-​based painkillers). He was later found guilty of multiple offences, including poor professional practice and for failing to refer patients to addiction specialists and keep medical records of some patients. Getting prescriptions from different doctors became a full-​time job, and I was good at it. This ‘job’ and the drugs I was taking not only helped me cope with my insecurities and distracted me

150

Autobiography of Desistance AND Recovery

from my poor mental health, but they provided my life with meaning, cash, and status. Among my peers, I had a reputation for being good at scoring valuable prescriptions, which provided me with the drugs I needed and some extra cash on the side.

Offending and prison Ages 17 to 20 were chaotic. We used benzos and alcohol to the point of complete blackout, and seldom had any recollection of the risky lifestyles we were leading. Waking up in Garda stations not knowing how we got there was very common. I first went to prison when I was 18 for a fine. I was caught with a €50 block of hash at a UB40 gig in Cork which ended in a fine that I did not pay. When I went into prison, I was scared and excited at the same time. I felt anxious because of the unknown, but excited to see what all the hype was about. Going to prison felt like a natural thing for me to do. Prison for young men in my area was common and most of my peers were either in prison or had family who were in prison. For a young man like me, to go to prison was a masculine thing to do. Cork Prison was an old Victorian building split into three wings. A1 was for those working in the kitchen, A2 and A3 were for people from the Northside and a couple of areas on the Southside of Cork city, B1 was for fresh committals and trustees, B2 was for non-​Irish nationals, and B3 was mainly made up of Travellers. There would be pockets of people from Limerick, Waterford, Dublin, and Kerry too. I spent most of my time on A3. After the initial scare of prison, I quickly became comfortable in the prison environment. Prison was never a deterrent for me: aged 19 and 20 I spent time inside for being in stolen cars, and I first started using heroin at 21. The next few years saw an escalation from smoking to injecting and included more prison visits and hospital admissions. I first tried heroin in a holding cell in Cork District Court where I was put in with someone who had a small amount and we smoked it. I convinced myself that I was safe if I did not inject. That was a big mistake and inevitably I began injecting. This destroyed me and took any bit of self-​respect or dignity that I had left. My appearance deteriorated and I became isolated from friends and family. Heroin addiction can be a very lonely place. At this stage, the visits to prison provided me with much needed respite and allowed for my body to regenerate. In prison I had structure to my day which included going to the school, the gym, and the yard. I engaged with services like Cork Alliance Centre and the Irish Association for Social Inclusion Opportunities, and often was released from prison with follow-​ on care plans but could never bring myself to engage with those plans once

151

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

released. The feeling of safety and security I felt in prison immediately left once told I was being released. Once released, the anxiety and fear that came over me demanded I use substances to help me cope. The cycle began all over again because once I started I could not stop. I always tried again to stop, however, and that attitude of never giving up hope or accepting my fate was the one thing that helped me to eventually find myself in recovery.

Early recovery: anxiety and university I eventually got myself into a detoxification unit and then a residential treatment program. A lot of soul searching was done there and I had to find out who James really was. I felt as though I had never progressed out of my teenage years and could not understand it. I was doing the same thing at 27 that I was at 16. Finally, at 27, I was becoming aware of who I was, and I could let go of the drug addict identity and transition into adulthood. After leaving the treatment centre, I was accommodated by Cork Simon Community in a sober house for homeless people in early recovery. My first year of recovery was a very anxious time as I dealt with the guilt and shame of my past while coping with the uncertainty of the future. I went to a lot of Narcotics Anonymous meetings, a psychotherapist, the gym every day, and worked part time on a community employment scheme. I began to adopt a new life script that included prosocial activities, trying new things, working, studying, and mixing with people of all strata in society. This helped to broaden my horizon. Up until then I felt my life was mapped out for me and I was not going to amount to anything, but by surrounding myself with like-​minded peers I could swap that old negative mentality for a new outlook full of possibilities. In my first year of recovery I finalized my last court case for an offence that happened two years previous (possession of heroin). I received a community service order and a suspended sentence. For the first time in years I had a clean slate and felt I had the world at my feet. I never committed a crime while in recovery, and a few months in I started dating someone (we later married) who encouraged me to go to college. While I’d toyed with the idea myself, she instilled in me a belief that I could succeed in education. When my father went to prison, both he and my mother returned to education. He took part in a criminology and social policy Open University course in Mountjoy Prison, and she completed a community development degree at Cork Institute of Technology. There were academic books around the house. I had an interest in the topics and ended up pursuing both fields of study. While my childhood experience of school meant that my confidence around education was low, I began a full-​time one-​year course in applied psychology and social studies at Cork College of Commerce. I loved the

152

Autobiography of Desistance AND Recovery

college experience and the course content captured my attention. I then enrolled in Youth and Community Work in University College Cork with the aim of gaining a qualification that would help me find a job where I could help people the same way I was helped. During my degree I gained work experience in a nonformal education centre (Cork Life Centre) and two Irish Probation Service–​funded projects (Churchfield Community Trust and the Irish Association for Social Inclusion Opportunities). I also began training recruit prison officers for the Irish Prison Service in collaboration with the Cork Alliance Centre, another Probation-​funded project. I then won a scholarship to study the MA in Criminology at University College Cork, and worked at Cork Simon Community. It made me feel very proud to work for an organization where I was a service user four years previous.

Gardaí (Irish police) vetting: a big obstacle During my MA, a lecturer told me about a volunteer position mentoring young people who had been in contact with the criminal justice system. I felt that I would be perfect for the role –​based on my work experience, education, and lived experience. I interviewed, was offered the position, and underwent four days of training. Then, just before starting, human resources sent me a letter stating that because of my convictions I was unsuitable to mentor young people. I was very hurt. A few months later, I applied for another volunteer position working with children of prisoners in a sports camp. I was again rejected because of convictions. I could not (and still cannot) understand how convictions picked up while in the throes of addiction overrule every positive thing done since. The hardest aspect of this rejection was that it was a Probation-​funded project that supposedly advocated for people like me. If the projects that advocate for us will not employ us, how do they expect other employers to give us a chance? Offenders can do everything in their powers to change, but they need society to do its part too.

Onwards and upwards I’m currently in full-​time employment in the youth work sector and enrolled in an employment-​based PhD programme: a collaboration between UCC Department of Sociology and Criminology and my employer, the Cork Education and Training Board. I graduated with a first-​class Criminology MA, and my dissertation was published in a peer-​reviewed journal (Leonard & Windle, 2020). I have written several articles for my local newspaper and run a recovery-​themed podcast with a friend.1 I have been provided with

153

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

many opportunities and some very kind people have opened doors for me. I can work as hard as I want, but without these great people I would have very limited life opportunities. I am forever grateful to those people.

Commentary This section will use a number of criminological theories to make sense of the unbroken autobiographic narrative and offer some policy implications.

Drug use With hindsight, it’s almost inevitable that problematic drug use would occur later in life. While drug use is widespread, and experimentation is common, decades of research shows that problematic drug use concentrates in economically deprived areas (Stevens, 2011) and can be influenced by economic conditions (Windle, 2018). Finding ways and means to consume drugs was a full-​time job and gave my life meaning, even if it was a miserable existence. Acquiring prescriptions from ‘quack’ doctors provided me with drugs and cash. In a consumerist society, even drug users aspire to have nice things, and in lieu of legitimate avenues for acquiring money, scams became the means for purchasing clothes, shoes, and phones. Stevens’ (2011: 42) ‘subterranean structuration’ theory states that the link between drug use and crime lies in the nexus between inequality and consumerism. Here drug users from low socioeconomic backgrounds are more likely to commit crime than drug users from more affluent areas. Scams and consuming and buying drugs allowed me to ‘find purpose and company’, a sense of identity, excitement, and adventure, while dulling ‘the pains of existence and exclusion’ (Stevens, 2011: 45). I also identify with Merton’s (1968) strain theory. I was initially in the ‘innovation’ bracket –​ accepting the cultural goal of attaining material things through illegitimate means –​but soon moved to the ‘retreatism’ stage by giving up on cultural goals of material success.

Offending and prison As my drug use escalated so did the consequences. It was no surprise that I ended up in prison at age 18 in October 2004, and returned several times. After the initial scare of prison, I quickly became comfortable in the prison environment because I possessed ‘cultural capital’ (Bourdieu, 1986). This was a scenario that I knew was coming and it did not deter me, rather it made me feel grown-​up, like a man.

154

Autobiography of Desistance AND Recovery

I grew up thinking that going to prison was a masculine thing to do: those respected in our area were involved in crime (see also Cambridge, 2019). We expected to go to prison at some stage, and we looked up to those who had already been inside. The demographics of the inmates in Cork prison mirrored the economically deprived and socially excluded population on the outside: Travellers, men from council estates, and non-​Irish nationals. Research in 1996 found that Mountjoy Prison in Dublin was mainly populated by young male heroin users from just six districts in Dublin (O’Mahony, 1996, cited in Leonard & Windle, 2020). The demographics of the Irish prison population have not changed much since the mid-​1990s, and have significant impacts on those incarcerated. Coming into contact with the criminal justice system hastened my drug using career towards harder drugs, as it did for many of those I interviewed for my MA thesis (Leonard & Windle, 2020). The imprisonment of my father had a deleterious effect on my education: ‘Parental imprisonment has been shown to have a direct impact on children’s academic attainment as well as socio-​emotional development often leading to changes in behaviour which may escalate to school exclusion or truancy’ (Morgan & Leeson, 2019: 507). Fellitti and colleagues (1998) show a correlation between adverse childhood experiences (ACE) and negative life outcomes, including addiction, imprisonment, low educational attainment, and poor health. Having a family member in prison is one of the nine broad ACEs, while the loss of income and stress of joblessness generated by criminalization or imprisonment of a parent can heighten the risk of the child experiencing other ACEs, such as verbal or physical abuse, emotional or physical neglect, and mental illness in the family. In the 1990s and early 2000s, the terms ‘trauma informed’ and ACE were unknown in my school. As such, rather than being provided support I was labelled a ‘scut’ and ‘thug’.

Early recovery: anxiety and university The transition from addiction to recovery signified the transition from childhood to adulthood which, according to Uggen et al (2004: 261), is often typified by ‘completing formal education, obtaining a fulltime job, marrying and voting’. Looking back, I did not mature out of adolescence until my late twenties because I was stuck in a developmental crisis. Erik Erikson’s (1968) stages of psychosocial development posit that throughout our life we are met with crises at various stages. During the teenage years, the crisis is called identity versus role confusion. While my identity was as a drug user who did not work, deep down I did not want to use drugs and I experienced cognitive dissonance because of my behaviour in addiction.

155

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

After addressing my issues, I was able to move on with my life with a new identity. Marsh (2011: 51) articulates the significance of such a change when he states that ‘the likelihood of any offending person attaining and maintaining a crime-​free status very much depends on developing a new identity, and new values and beliefs that are not compatible with offending’. Once I got into recovery, committing a crime never crossed my mind again; the drug use and offending behaviour were so interlinked that once the drug use ceased, so did the crime. This was a common finding in Cambridge’s (2019: 61) study of desistance in Cork City. He found that ‘a lot of people once they stop their addiction, they automatically stop offending’. In my second year of recovery I started a stable relationship with a woman who I later married. She provided me with direction on what college courses I could do and their job prospects. Runell (2015: 9) calls ‘relationships centered on marriage and employment “hooks for change”. I had decided to undertake a course that would allow me to support people like me. I was trying to become what Maruna (2017: 9) calls a ‘wounded healer’, someone who draws ‘on their experiences to help others avoid their mistakes and benefit from the inspiration of their achievements’. ‘Nothing about us without us’ promotes the idea that all policy and practice should involve the full and direct participation of those groups most affected, partly because their lived experiences provide them with invaluable insights. In the 1950s, Eglash (1958, cited in Maruna, 2017: 9) stated that ‘our greatest resource, largely untouched, to aid in the rehabilitation of offenders is other offenders’. Finding work experience in this sector, however, proved to be a frustrating experience, as my criminal record barred me from several jobs I was qualified for. Plenty of other opportunities have come my way, including a PhD scholarship. Maruna (2017: 6) has argued that ‘the next chapter of the desistance story will largely be written by desisting ex-​prisoners themselves’. If I can be a small part of that I will be a happy man.

Conclusion Four lessons can be taken from this narrative. First, teachers must be trained to identify that children with parents in prison who ‘act out’ are in need of attention, not detention. Second, drug use serves a purpose, and containing the concentration of problematic use requires reductions in economic deprivation and social exclusion. Third, desistance and recovery often take multiple attempts and are easier to achieve through the support of people who have unconditional positive regard, as it can be a frustrating process full of recidivism and relapse. Finally, ‘wounded healers’ need to be given the chance to support others and spent convictions should not be the barrier they currently are.

156

Autobiography of Desistance AND Recovery

Note 1

https://​thetwonorriespodcast.com/​

References Bourdieu, P. (1986) ‘The forms of capital’, in J.G. Richardson (ed) Handbook of Theory and Research for the Sociology of Education, London: Greenwood, pp241–​58. Cambridge, G. (2019) ‘Seeking Peace of Mind’ –​Understanding Desistance as a Journey into Recovery and out of Chaos, PhD thesis, Cork: University College Cork. Erikson, E. (1968) Identity: Youth and Crisis, New York: Norton. Felitti, V.J., Anda, R.F., Nordenberg, D., Williamson, D.F., Spitz, A.M., Edwards, V., and Marks, J.S. (1998) ‘Relationship of childhood abuse and household dysfunction to many of the leading causes of death in adults: The Adverse Childhood Experiences (ACE) Study’, American Journal of Preventive Medicine, 14(4): 245–​58. Leonard, J. and Windle, J. (2020) ‘ “I could have went down a different path”: Talking to people who used drugs problematically and service providers about Irish drug policy alternatives’, International Journal of Drug Policy, 84(1). Marsh, B. (2011) ‘Narrating desistance: Identity change and the 12-​step script’, Irish Probation Journal, 8: 49–​68. Maruna, S. (2017) ‘Desistance as a social movement’, Irish Probation Journal, 14: 5–​20. Merton, R.K. (1968) Social Theory and Social Structure, London: Free Press. Morgan, C. and Leeson, J. (2019) ‘School experiences of children of prisoners: Strengthening support in schools in England and Wales’, in M. Hutton and D. Moran (eds) The Palgrave Handbook of Prison and the Family, London: Palgrave Macmillan, pp503–​18. Runell, L.L. (2017) ‘Identifying desistance pathways in a higher education program for formerly incarcerated individuals’, International Journal of Offender Therapy and Comparative Criminology, 61(8): 894–​918. Stevens, A. (2011) Drugs, Crime and Public Health: The Political Economy of Drug Policy, Abingdon: Routledge. Uggen, C., Manza, J., and Behrens, A. (2004) ‘ “Less than the average citizen”: Stigma, role transition and the civic reintegration of convicted felons’, in S. Maruna and R. Immarigeon (eds) After Crime and Punishment: Pathways to Offender Reintegration, Devon: Willan, pp261–​94. Weaver, A. and Weaver, B. (2013) ‘Autobiography, empirical research and critical theory in desistance: A view from the inside out’, Probation Journal, 60(3): 259–​77. Windle, J. (2018) ‘The impact of the Great Recession on the Irish drug market’, Criminology and Criminal Justice, 18(5): 548–​67.

157

PART III

Policy Responses and Reforms

9

Access Denied: Sex Worker Health and Well-​Being in the Context of Criminalization Kathryn McGarry, Paul Ryan, Adeline Berry, and Belle Guarani

Nowhere is peer-​to-​peer research, or peer-​to-​peer care more important than in sex work. It would be hard to name another demographic that has experienced the level of paternalistic representation, silencing and exclusion regarding rights, laws and care without naming other demographics overly represented in sex work. It is time to move the conversation forward. Nobody knows sex workers as well as other sex workers, and we trust each other. Many of us have never been able to depend on anyone else other than each other. Stigma has kept us from being able to turn to neighbours, friends, family and sometimes even partners for fear we will lose everything. And many of us have. There are no genuine and justifiable reasons to continue to exclude us from conversations about ourselves. Nothing about us without us. (Adeline Berry, co-​author and SWAI peer researcher) Positioning sex workers as experts in their own lives is fundamentally implied in a ‘nothing about us without us’ model. As Adeline’s words eloquently state, excluding sex workers from conversations about themselves is no longer justifiable. When we inhibit or limit access for sex workers to arenas where knowledge on sex work is produced and communicated, we are

161

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

at once perpetuating the kind of stigma that has long disenfranchised sex working communities while also limiting opportunities for developing the depth of knowledge and experiential understanding that sex working communities hold. This chapter draws on learning from a recent HIV Ireland–​funded project carried out by researchers from the Irish Sex Work Research Network (ISWRN), in conjunction with the Sex Workers’ Alliance of Ireland (SWAI). The purpose of this study was to explore the perceived impact of legislative change governing sex work in the Republic of Ireland (the Criminal Law (Sexual Offences) Act, 2017) on the health, well-​being, and safety of sex workers in the jurisdiction. The new laws introduced the criminalization of sex purchase but not of the selling of sex. Sex workers who work together, however, would continue to be criminalized under the brothel-​keeping provisions of the law. SWAI managed to include two amendments to the Bill,1 one of which is an assessment of the impact of the operation of the laws on the safety and well-​being of sex workers. In undertaking this study, the researchers were committed to anti-​ discriminatory and inclusive research practices which are core to the ISWRN research policy. To this end, exploring sex workers’ health, well-​being, and safety in the aftermath of the introduction of new legal instruments was regarded as an important opportunity for giving voice to sex workers, challenging traditional ways of knowing about sex work and sex workers, and for supporting sex workers to lead on knowledge production about their own lives. Our research adopted a participatory approach and involved both ISWRN researchers and peer researchers.

Literature review Understanding the relationship between sex work, law, and risk This chapter explores the perceived impacts of new laws governing sex work on the health, well-​being, and safety of sex workers in Ireland by foregrounding the voices of sex workers themselves. As such, this section reviews the literature to establish some key issues arising in the relationship between the law, sex work, and health and well-​being risks. The international literature shows that different models for governing sex work have varying impacts on the health, well-​being, and safety of sex workers (Visser et al, 2004; Brooks-​Gordon, 2006; Levy & Jakobsson, 2014; Levy, 2018; Platt et al, 2018). Moreover, the enterprise of knowledge production on sex work is mired in an entrenched feminist politics which effectively shapes how we understand and respond to sex work.

162

Criminalization AND Sex Worker Health

While there are nuances in the academic literature, portrayals and the construction of sex work and sex workers can be summed up by reference to two polarized perspectives. On the one hand, prostitution is viewed as the ultimate degradation of women under patriarchal rule and the prostitute is regarded as a victim of male privilege and sexual violence (Pateman, 1988; Barry, 1995; Mackinnon, 2001; Jeffreys, 2008). Prostitution is seen as an obstacle to women’s equality. Proponents of this view call for an end to prostitution by targeting the purchase of sex, and advocate for Nordic-​or Swedish-​style laws which criminalize the buyers of sexual services as a means to eliminate prostitution. The other approach argues that states should recognize the existence of voluntary sex work by women, including transgender women, and that allowing the patriarchal moral ideology about sex work to dominate how we think about sex work is harmful to sex workers (Chapkis, 1997; Doezema, 2005; Sanders, 2005; Mai, 2009). Proponents of this view advocate for laws that protect the health and well-​being of sex workers. They call for rights and recognition for sex workers, legislative and policy responses that distinguish between exploitative and voluntary engagements in sex work and that prioritize harm reduction and the promotion of sex worker rights to health and safety for those who choose to engage in sex work (McGarry & FitzGerald, 2018). They also challenge the absence of sex worker voices in research and discussion that affects their lives In an effort to eradicate sex work, a number of jurisdictions have introduced sex purchase laws (for example Sweden, Norway, Canada, France, Northern Ireland, and the Republic of Ireland). In such cases, sex work has not been eradicated, but sex workers have experienced more precarity, stigma, and abuse (Levy & Jakobsson, 2014; Amnesty International, 2016a; Ellison et al, 2019). However, it is difficult to accurately analyze the impact of any sex work/​sex purchase legislation because comprehensive data (pre-​ and post-​introduction of legislation) are not always available, and Ellison and colleagues (2019: 164) found that ‘none of the foundational claims of the Nordic model can be supported’ with empirical data. Furthermore, a report from Amnesty International (2016a) that focused on the experiences of sex workers under client criminalization laws in Norway found that sex workers were being subjected to human rights abuses which were being compounded by the new laws (also Levy, 2018).

Impact of the new law on health, access to supports, and safety Research available from jurisdictions where sex purchase laws operate demonstrates that laws that impede sex workers’ ability to manage their health and well-​being create barriers to accessing health supports (Svanström 2004;

163

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

Visser et al, 2004; Levy & Jakobsson 2014; Amnesty International, 2016a). This has serious implications for health-​risk behaviour and the potential for exploitation because it limits sex worker autonomy in negotiations with clients, decreases the likelihood of condom use, and increases the likelihood of the transmission of sexually transmitted infections and diseases (Shannon et al, 2008; Krüsi et al, 2014; HIV Ireland, 2016; Platt et al, 2018). In addition, Lyons and colleagues (2017) found that, in Canada, access to healthcare among sex workers was problematic in a context where sex purchase is criminalized. This was particularly compounded when intersected by any experience of stigma. For example, migrant sex working populations were found to be particularly vulnerable to health risks, as their undocumented status impacted their ability to negotiate safer sex with clients (Scorgie et al, 2013) and they faced greater problems in accessing healthcare, including a lack of information available in their native language (Marin et al, 2013). These barriers are compounded by issues of stigma and bias; for example, a number of authors point to the reluctance of sex workers to disclose their profession in health settings due to fear of the impact of social stigma (Lazarus et al, 2012; Slabbert et al, 2017; Benoit et al, 2018). This often leads to their concealing their sex working, and can result in poor health outcomes (Lazarus et al, 2012) as well as the mental health effects of any internalization of stigma and the emergence of feelings of shame (Whitaker et al, 2011).

Impact of the new law on access to justice Some point out that in jurisdictions where the purchase of sex is criminalized, access to criminal justice processes are compromised (Levy, 2015, 2018; Amnesty International, 2016b; Platt et al, 2018; Brooks-​Gordon et al, 2020). While many lobby groups (for example, Turn off the Red Light) and feminist activists (Ekberg, 2004; Farley et al, 2009; O’Connor & Pillinger, 2009) who promote Nordic-​style laws support the utility of these laws for delivering a symbolic message about transgressive sexual behaviour, there is little recognition of the way in which such laws effect and shape environments and negatively impact sex workers’ ability to keep safe (McGarry & FitzGerald, 2018). While differing perspectives on how sex work should be governed persist, international evidence continues to reveal the fundamental protections denied to sex workers and the impact this denial of rights has on their health, well-​being, and safety (Scoular & O’Neill, 2008; Levy & Jakobsson, 2014). Amnesty International (2016b) states that when access to justice is conditional for some communities and differentially available across societies on the basis of sex work laws, this is a violation of the rights of sex workers. Scoular and O’Neill (2008) also draw attention to the concerning discourse

164

Criminalization AND Sex Worker Health

of conditional access to rights for sex workers where policy is abolitionist and exit focused, and where protections are only available for those who adopt a victim identity and choose to exit sex work. The deeply problematic implication being that, in a context where state policy is focused on abolition and exit, persistence in sex work is at your own peril (Brooks-​Gordon et al, 2020) and invites the inevitability of violence.

Impact of sex purchase bans on voice, representation, and solidarity The lack of access for sex workers to democratic processes, such as policy consultations and public and political debates and discussions where their voices can be heard, is more pronounced in contexts where sex work is criminalized and sex workers are denied human rights and fundamental freedoms (Amnesty International, 2016b). Sanders and Campbell (2014: 541) observe that ‘the legal and socio-​cultural framework within which sex workers live and work, often embodying criminalization, stigmatization and human rights violations, provides a challenging context for resistance and self-​organisation’. In contexts where aspects of sex work are criminalized and the rights of sex workers are not officially recognized, sex work continues in the margins away from the authoritative gaze. This limits sex workers’ autonomy over their working conditions and constrains their efforts to resist violence and to collectivize to demand rights and protections. In 2005, the International Committee for the Rights of Sex Workers in Europe (ICRSE, 2005) ratified a declaration on the rights of sex workers in Europe and produced a Manifesto for Sex Worker Rights (Sanders & Campbell, 2014) which states: ‘We demand our voices are heard, listened to and respected. Our experiences are diverse, but all are valid, and we condemn those who steal our voice and say that we do not have the capacity to make decisions or articulate our needs’. Here in Ireland, the mission of the SWAI, as part of the global network of sex work projects, is to advance the human rights, safe participation, and dignity of female, male, cis, and trans sex workers. Majic (2018: 41) argues that, as global support for sex workers’ rights gains momentum, feminists must ‘step back’ in order to acknowledge that sex workers know their needs best, and act as supportive allies in any projects or interventions. As referred to above, the polarized perspectives on sex work have created a complex feminist political environment around the issue. While the depth and breadth of these feminist tensions are beyond the scope of this chapter, the efforts of some feminist to ‘speak for’ sex workers, or indeed to ‘speak for’ all women in an effort to eliminate sex work, have made sex work representation a thorny issue (McGarry & FitzGerald, 2017; Majic, 2018). Mansbridge (1990: 127) argues that the transformation from ‘I’ to the political ‘we’ masks subtle forms of control which often exclude certain

165

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

voices that do not conform to the dominant narrative. Drawing on Nancy Fraser’s ideas on the political dimensions of justice, McGarry and FitzGerald (2017) describe how abolitionist activists in Ireland misrepresent sex workers and deny them parity of participation by ‘speaking for’ all women and men through campaigns such as Turn off the Red Light (TORL). The consequences of this are critical in terms of how political space is mapped around the issue of sex work through ‘a contestable set of hegemonic assumptions that carry the TORL agenda’ (McGarry & FitzGerald, 2017: 8), delimiting knowledge production on sex work. McGarry and FitzGerald (2018: xv) call for a social justice agenda to realize rights for sex workers: ‘Social justice is the idea that everyone deserves parity in terms of opportunities, political rights and distribution of wealth and privilege to participate as peers in social life and lead fulfilling lives’. Drawing on the political theorizing of Nancy Fraser, McGarry and FitzGerald (2018) promote the idea of social justice for sex workers in the first instance as a theoretical framework for understanding the politics of representation of sex work, secondly as a tool with which to critically develop feminist theory in this field of study, and thirdly as a process to begin dismantling and displacing the social injustices experienced by sex workers.

Methodology In keeping with the principles of ‘nothing about us without us’, this research design and methodology sought to address the absence of participatory research practices contributing to knowledge production about sex workers, a group traditionally disenfranchised in and through research (Lynch, 1999). Ethical approval was obtained from the Social Research Ethics Sub-​ Committee in Maynooth University. A participatory action research (PAR) design that positioned sex workers as experts on the experience of their own lives was chosen, which also acknowledged the value of sex worker partners in accessing hard-​to-​reach sex working communities. At the outset of the study a research advisory group was established in conjunction with SWAI to promote the research but also create a space to support peer researchers. According to Ledwith (2016: 144), a PAR design provides ‘the foundation for co-​creating new knowledge as the basis of action for change’, and this idea was foundational in this study. A PAR design was employed not only to facilitate the co-​production of knowledge through inclusive research practices but also to enable this knowledge to inform policy and practice with the ultimate aim of the betterment of sex worker health and well-​ being. In addition to taking an inclusive approach, as advocated by O’Neill and Laing (2018) in their participatory research with sex workers, this study addressed the power hierarchies inherent in the research process by drawing

166

Criminalization AND Sex Worker Health

attention to subject-​subject orientation in the research partnership of PAR designs. Bacchi and Ronnblom (2014: 171) consider it important to examine theoretical positions in research ‘in terms of the forms of politics they make possible’. Drawing on the work of Mol (1999), they see feminists and other theorists as being involved in ontological politics or the political shaping of realities. Taking a PAR approach for this study is an explicit means of both uncovering and addressing the ‘ontological politics’ that have long silenced and excluded sex workers from knowledge production. Sex working peer researchers involved in a co-​production of knowledge go beyond mere practical support for a project, by making possible a new form of politics (Bacchi & Ronnblom, 2014); a new way of knowing sex worker lives. Peer researchers were integral to the recruitment process of this study. In conjunction with SWAI, we communicated information about the study through their networks and held an initial peer researcher workshop to develop our research design, recruitment strategy, and our tools for data collection. We were successful in recruiting two peer researchers for the study, along with our key peer researcher Kate McGrew from SWAI. As an exploratory project, it was deemed most appropriate to employ a qualitative methodology through the use of a series of focus groups with sex workers in Ireland. In line with our ethical obligations and in conjunction with our peer researchers, we provided a detailed information sheet and consent forms for all participants in advance of our data collection. We held four focus groups in Dublin (n=9), Galway (n=5), Limerick (n=3), and Cork (n=4). Each focus group was facilitated by one of the peer researchers, supported by an ISWRN researcher.2 In conjunction with the peer researchers we devised a focus group discussion guide in order to explore the key issues impacting sex worker health, well-​being, and safety; this enabled participants to reflect on issues impacting their lives and to collectively discuss and identify policy priorities. In addition to their role in data gathering, focus groups were seen as a place to discuss the ways sex workers might be enabled and supported to effectively manage risk in their lives. The focus groups were recorded (audio) and transcribed. We anonymized all identifying details in the data and used pseudonyms for each participant. The data was securely saved, stored, encrypted, and managed by the researchers as per our institutional ethical guidelines. A thematic content analysis was carried out on the transcript data; we turn now to discuss key themes that emerged from this analysis.

Findings Our findings reveal the realities of sex work within the context of criminalization. The findings demonstrate the adverse impact of

167

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

criminalization on sex workers’ ability to manage their health, as well as physical and emotional risks to their well-​being (Sanders, 2005). The findings set out a number of issues that emerged from the research relating to sex workers’ health, their access to justice, and their ability to have a voice. This chapter concludes by considering the implications of these findings for policy through the lens of an inclusive, ‘nothing about us without us’ approach to achieving justice.

Theme 1:​sex worker safety and well-​being The findings of this study demonstrate that the Criminal Law (Sexual Offences) Act introduced in Ireland in 2017, which criminalized the purchase of sex, has resulted in the participants perceiving themselves to be more vulnerable to health and physical risks and as having limited access to health supports and interventions from services and police. One major reason for this is the need to operate covertly to avoid detection. This situation places sex workers in a precarious position in relation to managing risks. Gina, in our Dublin focus group, described how sex workers are often mistreated and how the current legal context creates a particularly precarious situation. For example, the legal situation, which criminalizes those who work together, forces sex workers to work alone. This solitary working compounds their exposure to risk. There was a perception shared among focus group participants that a legal framework that criminalizes and pathologizes men who buy sex encourages a self-​fulfilling prophecy whereby male clients show less respect to sex workers. This is a contradiction that is recognized in the international literature (Östergren & Dodillet, 2011; Levy & Jakobsson, 2014); ironically, though the official rhetoric of the supporters of criminalization is based around the protection of sex workers, our research participants described the law as making them more afraid and more at risk. ‘Well as I said, there’s been a marked decrease in respect for the girls, that’s the one thing that I’ve seen over the years, the respect has gone down and down and down. Girls are mistreated, and there’s a lot more crime against girls because they’re just not safe anymore, and nobody wants to take the chance of working with another girl, even having a friend sit with her while she’s working’. (Gina, Dublin) Kate describes how exposure to risk is a fallout from the ongoing and increasing stigmatization of sex work whereby sex workers are routinely harassed, thus heightening risk exposure.

168

Criminalization AND Sex Worker Health

‘I feel like time wasting, abusive behaviour on the phone, threats, stalking, these kinds of things, they are perceived as low-​level threats, but I think that the effect that they have on us psychologically and in terms of our time are very important to talk about. Because when you get grounded down, you make less checked-​in decisions, or you feel forced because you’ve wasted so much time today, so you take a client that you were nervous about, these are real repercussions’. (Kate, Galway) Our research participants often made risk-​assessment choices about their clients under duress and by themselves, because the brothel-​keeping provisions of the law were increasingly forcing women to work alone. Our participants, like Piper in Galway, felt that being able to say “there’s somebody else here” or “oh there’s someone in the back room” would make her feel safer and possibly deter any potential act of violence. This was noted in research that examined the implementation of the sex purchase ban in Northern Ireland. Ellison and colleagues (2019: 160) note how “sex worker rights activists and others forcing sex workers to work alone increased their risks of victimisation since there is no one to assist in the event that the sex worker is attacked or assaulted by a client”. Ellison et al’s (2019) evaluation of the sex purchase law found that 63 per cent of sex workers felt safer when working with a colleague or friend. ‘[But] the isolation is intense. And the risk is intense … I do get asked am I alone in the house and I understand that this has got worse because of the whole independent thing and are you going to a brothel, are you not going to a brothel and you are going to someone independent. But I do find it hard to screen people, so if anyone asks me that I just won’t see them. But I could be turning down a good client, who knows. Yeah, I don’t work from hotels, I work alone’. (Freya, Galway)

Theme 2:​exacerbating mental health outcomes An additional consequence of this forced isolation brought about by brothel-​ keeping laws was their effect on mental ill-​health. Sex worker mental health, while a marginal issue in the research literature, was discussed by the participants in this study. The omnipresent danger the workers found themselves in, particularly the physical threats to women and trans workers, was a key issue in the focus groups. In addition, the participants spoke about living a dual life and the burden of worrying about disclosure and the related risks and consequences for them and their families. Criminalization regimes

169

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

have shut down venues for discussion of the mental health of sex workers. Instead, occupational health dominates the field, in particular the risk of HIV/​STI transmission (Rössler et al, 2010: 144). The participants in this study spoke of ‘living in the closet’ (Koken, 2012: 218) as exhausting, and of how this contributes not just to a physical isolation when working alone but to a mental isolation, with few people to confide in. ‘The secretiveness. The feeling that you’re being watched. That you have to keep it a secret. That you can’t be open and tell people what you do for a job. I suppose the new law is definitely a big issue. It makes things more difficult. The crackdowns mean the phone stops ringing, business dries up for a while’. (Carla, Limerick) ‘It’s just that you’re having to live two lives, and that’s going to try anybody, that’s going to take a toll on anybody, if you’re having to be the person who goes to the grocery store, and be the person who’s making casual conversation in the street and who is not the same person who does sex work’. (Kay, Dublin) The experience of gender identity, sexuality, race, ethnicity, and migrant status all intersect in different ways and contribute to stigma for sex workers (Amnesty International, 2016b). One of the participants in the Dublin focus group describes the cumulative stigma that many sex workers experience. ‘There’s also the intersection of what you’re bringing up about being trans, or just being LGBT anyway, and being queer, or being migrant, or being disabled in some way, and you add sex work to any of those things, and you’re already receiving stigma for something that’s a part of who you are, that you cannot change at all, anywhere you turn to for help, they’re going to be judging you for who you are, and what you do. And so you’re just that much more endangered. And there’s a massive intersection as well with people who are in sex work for those reasons’. (Whitney, Dublin) While all sex workers cite a lack of community as a contributing factor in poor mental health outcomes (Benoit et al, 2018) along with concealment and isolation from others (Oliveira, 2018), for many migrant sex workers this isolation is even more intense. Research with South East Asian female sex workers in Australia found that concealing their involvement in sex work increased their sense of isolation within a society where they already felt

170

Criminalization AND Sex Worker Health

marginalized due to their poor levels of English (Selvey et al, 2018: 6). This isolation made it difficult for sex workers to access health or legal supports in times of crisis. Similarly, in this study, migrant sex workers described this isolation and discussed the impact it had on how they accessed a range of health and legal services. ‘Migrants have two Facebooks, they have two Instagrams, they have one for home, one for Dublin’. (Peer researcher Laura, Dublin peer research workshop) ‘And there is a lot to do with visas with migrant girls; as migrants, we don’t always have this information, we don’t always feel safe to say that, especially if you are a migrant that is not welcome in Ireland, the kind of migrant they don’t want here … when you are a migrant and you don’t have the same information and you don’t feel safe to talk to people at the same level’. (Laura, Dublin)

Theme 3:​sex worker health and supports The participants in this study spoke about how the level of isolation experienced was exacerbated by criminal laws, particularly when accessing health services. Sex workers in this research spoke about being less likely to disclose their occupation in health settings, thus limiting their access to appropriate health supports where needed. These findings are reflected in the literature (Lazarus et al, 2012; Slabbert et al, 2017; Benoit et al, 2018). Research by Jeal and Salisbury (2004: 516) in the UK, where prostitution-​ related activities are criminalized, found that 83 per cent of their respondents had failed to disclose sex work in a medical setting, while in Portugal, where selling sex exists in a legal vacuum being neither a crime nor a recognized legal activity, 61 per cent of participants had never disclosed their occupation in sex work to a health professional (Oliveira 2018: 20). The research participants in this study similarly expressed unease at disclosing their occupation in healthcare settings. This was more pronounced with sex workers living outside Dublin, demonstrating perhaps the impact of increased stigma and the resultant shame on rural sex workers. For example, one sex worker who had moved from the UK to rural Mayo describes her difficulty: ‘Ya, same way I don’t have a GP yet, so I’m nervous of accessing any services, because at some point I have to disclose what I do, because my mental health is an issue, my physical health is an issue, my safety is an issue, but I don’t really have anyone … I feel very shy in approaching any services at all’. (Freya, Galway)

171

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

Amongst all the participants in this study, the fear of judgment by healthcare workers prohibited individuals disclosing their occupation. Past experiences have made the individuals wary, for example Freya (Galway) described a previous experience where healthcare staff were “tittering and gossiping” when she declared a high number of sexual partners. Importantly, focus group participants recognized that non-​disclosure was damaging to their overall health, and expressed frustration that they felt unable to be honest. ‘You just can’t be honest with your health professionals, about what it is they do, and why they are at risk, and they can’t get access to the proper healthcare, because they can’t say. And it is important for your healthcare professional to know, it’s sort of like being a smoker and you can’t tell your doctor you’re a smoker, and then you die of lung cancer. You have to be able to tell those things, but you can’t’. (Piper, Dublin) Our focus group participants deployed a series of strategies in order to access healthcare. This usually meant telling false stories to their doctors –​stories about their male partners’ infidelity to explain their exposure to STIs –​ attending only sympathetic doctors even if they were outside of Ireland, and using STI testing kits purchased over the internet. This lack of open communication with healthcare professionals became even more problematic for our focus group participants in a climate where clients expectations of unsafe sex were increasingly common. For example, after the publicity surrounding Gardaí (Irish police) raids on suspected brothels, sex workers felt financial pressure to offer unsafe sex due to the lack of regular clients. The participants in this study told of clients either knowingly removing condoms during sex or requesting unsafe sex for greater payment. They feared for the safety of vulnerable women who were not in a position to refuse such requests. ‘They are having to offer bareback because some clients have gone away or do go away when there’s a raid, but people still need to make money, so some people start offering bareback’. (Kate, Galway) ‘He looks like a gentleman, but I didn’t realise when he took off the condom. So, I just saw when I was really wet and I get really crazy and start screaming at him’. (Lola, Dublin) The financial inducement to engage in unsafe sex was greeted with alarm by our focus group participants, some of whom failed to understand why clients

172

Criminalization AND Sex Worker Health

would take such serious health risks. The difficulties in negotiating safer sex have been identified in previous research with sex workers in Ireland, where women were knowledgeable about sexual health risks but often struggled to communicate this to their clients (Whitaker & Cox, 2009: 117). The promise of more money, coercion, or limited time was identified as the key reasons male and female sex workers engaged in unsafe sex. ‘I wear gloves during tantric massage, and I’m increasingly asked not to. I will not do it without gloves … But the woman I first came to Ireland with, she did anal without wearing gloves, she did it with her fingers, she didn’t ever wear gloves … She put dildos in without condoms on, my jaw just fell on the floor, like this woman had been doing it for ten years, how she hasn’t brought her clients into harm I don’t know. In terms of health, if people are pushing the bareback thing, if people are beginning to feel like they can push people around and push them into unsafe practices, and then you’ve got women as well, or sex workers who are not actually observing any hygiene, then that’s an issue’. (Freya, Galway) ‘I don’t really get why, if I were a client, why I would ever ask for bareback, because it’s like, do you not get that you’re the one that’s in danger, because I get, like, that sex workers are in danger, but also, like, you’re in danger’. (Piper, Dublin) ‘When I meet this fella in a room [in a brothel], and I ask, “Can you tell me why is she so busy, this woman?” and he says, “Well she does everything without a condom” ’. (Lena, Cork) In this research it became apparent that migrant sex workers were the most reluctant to engage with health professions and the most vulnerable to coercion, which significantly increased the likelihood of their involvement in unsafe sex. This included women in Direct Provision (group residential accommodation for asylum seekers in Ireland) or who were subject to control by third parties. Cassandra details how other forms of discrimination and inequality compound the issues experienced by sex workers in Ireland. ‘I’m sorry, if I can just say this –​there is a lot of migrant women involved in sex work that are just … that don’t get themselves checked out as much as they should do … because they’re afraid that if any hint of them being involved in sex work gets out, their applications might get delayed, they might get stuck in DP [Direct Provision] for even longer’. (Cassandra, Galway)

173

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

Lena describes how many migrant sex workers wait until they return to their home country for health checks: ‘If you’re working for a pimp there’s no time for this kind of discussion [safer sex], for checking your blood. So when you come to Ireland to work, starting at 11, you finish at 12, maybe you have half an hour to go to the shop and come back and you have to work. And if you have a problem, go back in your home, you can check everything you want in your country’. (Lena, Cork)

Theme 4:​Sex worker access to justice The provisions under the Criminal Law (Sexual Offences) Act 2017 are impacting sex workers’ access to justice for the reasons outlined above. Fear and mistrust of authorities also reduces the likelihood that sex workers will report abuse. The Criminal Law (Sexual Offences) Act 2017 was promoted as a law that would shift the balance of police surveillance from sex sellers to purchasers; despite this shift, the participants in this study remain fearful of the police. Laura describes how she is fearful of coming to the attention of the authorities as a sex worker, especially as she advocates on behalf of sex workers, which forces her to become less visible: ‘Nowadays I am scared of going on the internet and putting up an ad, because I’m afraid of being targeted by the police, not by my clients, but by the police, because I am vocal about sex workers’ rights, and I am clearly a migrant, and that is dangerous if you don’t want the police on you. You go places where they won’t be’. (Laura, Dublin) Similarly, Carla talks about her fear of the authorities and how, in an effort to avoid detection, she seeks out isolation even with the potential risks that brings: ‘It isn’t actually fear of the men, it’s fear of the authorities. I have sometimes gotten holiday homes, and they’re fine, they work out fine. And I’ve gotten very discreet holiday homes in the middle of nowhere, and I just think I could be found murdered here’. (Carla, Limerick) The consequences of this fear of police were twofold –​it left our research participants reluctant to contact the police when they were victims of

174

Criminalization AND Sex Worker Health

crime, and this then emboldened those who target sex workers for robbery or violence. This is part of the ‘everyday violence’ experienced by sex workers whereby victimization is part of a continuum of violence in their lives (Maher, 1997; Scheper-​Hughes & Bourgois, 2004). One of our participants, Lola, in Dublin, describes the experience of being raped and her unwillingness to contact the police afterwards: ‘Well when that thing happened to me, I was afraid. I didn’t go to the police because I didn’t know the consequences, so I prefer to stay at home. The next day I went to the health centre. So, I was waiting to receive help, but didn’t, well not enough, so maybe if we start to say what we are doing and the people don’t judge it could be better … I just want to have support now to [sic] the community and then the institutions and the police’. (Lola, Dublin) The belief expressed Lola, that sex workers living under criminalization regimes have no recourse to justice, is prevalent in the literature, and as in Lola’s statement, sex workers have internalized this state of play and often accept their fate as the natural order of things (Levy, 2014; Krüsi et al, 2014; Amnesty International, 2016b; Brooks-​Gordon et al, 2020). Migrant sex workers and those bearing an intersection of marginalized identities, like trans, queer, or intersex sex workers, are particularly vulnerable and less trusting of state agencies (Amnesty International, 2016b; Oliveria 2018). This belief was also noted by the participants in our study. ‘Migrants are terrified of the law, and will hide, and it’s really difficult to reach out’. (Laura, Dublin) ‘And for migrants, you would rather die than face the consequences of going to the police because not only are you going to be outed, you can go to jail. … Imagine explaining to your mum that you are being jailed in a different country because you are doing sex work … and they might cause you trouble with immigration … but also because of the way they are going to look at you. … So you have to be invisible as much as you can and that obviously will push you into danger’. (Peer researcher Laura, Dublin peer research workshop) The unique challenges migrant sex workers face have been recognized by Amnesty International (2016b: 6), who argue that migration and ethnicity

175

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

status may lead to ‘a heightened risk of human rights violations in sex work, including higher rates of criminalization, abuses of power or discrimination by authority figures such as police officers, judges and magistrates’. These fears are real, as seen, for example, in Ryan’s (2019) study of migrant male sex workers in Dublin: several men told the same story of a member of the immigration service who sought sex without payment and threatened them with arrest and deportation. Migrant sex workers’ fear of engaging with state agencies pushes them further towards the margins, making them even more invisible and vulnerable to exploitative situations (Krüsi et al, 2014). According to Kay in Dublin ‘they’re [the police/authorities] going after the people they know they can bully the most’.

Theme 5:​Sex workers’ voices and collective action While the findings presented here problematize the current Criminal Law (Sexual Offences) Act 2017, this study also observed the need for promoting and supporting solidarity among sex workers and its role in harm reduction. Our findings have revealed the struggles that many sex workers face in speaking out, and the value they place on coming together. Recognizing this, O’Neill and Laing (2018) call for a politics of inclusion through processes of recognition and the promotion of inclusive citizenship for sex workers. One of our participants, Kay, in Dublin, describes this struggle for recognition and points to the importance of sex worker voices being heard. ‘I think that is something that would be helpful here, is people recognising that this is their life and their right, and they can stand up and speak out, and obviously it’s not made easy, and the people who do need to be heard the most are told to shut up the most. So just having that freedom, of being able to say these things without fear of being persecuted for it. And that falls under freedom of speech, but for goodness sake, the freedom of speech to what degree? I mean what degree are we actually free to speak our minds and to say what is happening in our world?’ (Kay, Dublin) The barriers to speaking out are something that came up across all focus groups in this study. For example, Piper, in Galway, considers how challenging it is to engage sex workers in any discussion. For many, the fear of speaking out deters them from engaging with other sex workers, compounding the isolation many sex workers already feel.

176

Criminalization AND Sex Worker Health

‘Even things like doing this study is difficult, because it’s hard to even find people to come out and do this, and even talk about it. And for me, it’s sad, too, because people like you [speaking to Freya in the group] who feel like you’re in an isolated place, I want you to be able to have, because I think it’s important for us to be able to have community, for you to be able to have a group that understands what it is you do, is not going to be judgy about what it is you do, because we’re all sex workers here, but also is positive and is a safe place where you can vent about things that you do’. (Piper, Galway) We know from previous research the importance of peer engagement in communicating knowledge about health, physical, and emotional risks (Sanders, 2005). The community that Piper refers to is an important element in sex workers’ individual risk management, and such connection holds much potential for solidarity and collective action among sex working communities. O’Neill and Laing (2018) draw on the work of Honneth (2005: 164) to consider the struggle for recognition for sex workers, and how shared personal experiences can then ‘become the motivational basis for collective resistance’. Data drawn from this study shows how critical community can be in enabling sex workers to feel connected, to feel they are not alone. One participant, living in a rural part of the west of Ireland, describes how the stigma attached to sex work prevented her from making friends and connections. This led to an important discussion around solidarity and having a group with shared experiences to reach out to. ‘I can’t make friends here, because I’m just making friends and then lying … So I’ve been here a year and I’ve really met nobody, because at what point, how do I phrase my life?’ (Freya, Galway) ‘Because at least we’re all in Dublin, and we can hide a little bit … I feel like you need community, even though we’re a distance from you we can still text you, so that you could at least have someone to say, “Hey I had this shit day, I have this issue” ’. (Piper, Dublin) ‘But it has been nice being on that [Whatsapp] group, just because when I want to it’s there … at least I know there’s a WhatsApp group there on my phone for sex workers’. (Freya, Galway) Given the context of criminalization that renders sex workers invisible (Brooks-​Gordon, 2006), participants in our study voice the importance of coming together as a community to provide a safe space, to provide supports,

177

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

and to collectivize. However, some sex workers face additional barriers to challenging their invisibility and joining communities of sex workers. One of our sex workers, who is involved in activism and is also a migrant, describes the difficulties in reaching out to sex workers in more marginalized communities. For migrant sex workers in particular, the perceived need to remain invisible means that organizing and having their issues represented becomes difficult. Laura describes how having the choice to speak out or not is a privilege not extended to all sex workers. ‘I think when you are a migrant you are terrified of immigration and you would do anything, literally anything, to escape that … being away from political issues is a matter of privilege because the most [sic] privileged you are you can afford not being involved. But also the other way of work, if you are so marginalized you cannot afford to put your face forward, you are terrified of organizations in general. … So the stigma, and then the stigma around it, you cannot speak about this to anybody. Not only because people are not trustworthy and they might out you and they might cause you trouble with immigration. … So you have to be invisible as much as you can and that obviously will push you into danger, you are going to put up with a lot of things’. (Peer researcher Laura, Dublin peer research workshop)

Conclusion:​lessons for policy and practice This study provides an important contribution to the knowledge base about sex workers’ experiences in Ireland in the aftermath of the introduction of the Criminal Law (Sexual Offences) Act 2017. At the heart of this study was a commitment to the foregrounding of sex worker voices, informed by the principle ‘nothing about us without us’, in order to challenge the undemocratic practices that have long disenfranchised sex workers. Our findings show a number of risks and rights violations that sex workers face under current Irish law. A context that criminalizes sex work exposes those engaged in sex work to increased physical, sexual, and mental health risks, and also hinders their ability to manage these risks (Sanders, 2005; Mai, 2009; Amnesty International, 2016b; Platt et al, 2018). The impacts of current laws on sex workers’ ability to keep safe, and the manner in which the legal context limits their access to justice when their rights have been violated, is a matter of deep concern (Scoular & O’Neill, 2008). Policy needs to respond to the rights violations that sex workers face, and moreover needs

178

Criminalization AND Sex Worker Health

to engage with sex workers in order to enable them to design the supports necessary for sex working communities. This research demonstrates the potential for participatory/​peer-​led work to be harnessed in order to inform sex worker–​led harm-​reduction efforts and to build upon the value of community-​based health and social support interventions. Previous research has shown the value of peer-​led health and social support interventions for enabling sex workers to demand rights and protections and for tackling injustices (Platt et al, 2018). In some jurisdictions, such as New Zealand, the voices of sex workers have been drawn on for the development of legal changes and practice initiatives, where Abel (2018) describes the value of recognizing sex workers as experts in their own health and welfare management and drawing on such expertise in policy formation. The participants in our study call for peer-​led supports to be strengthened, making space for sex workers to collectivize in order to communicate about harm reduction and keeping safe, to promote resilience amongst all sex workers, to reach out to those who are most vulnerable, and to empower sex workers to actively manage the risk in their everyday lives. One major lesson from this study is about the value and potential of empowering sex workers as partners in research. O’Neill and Laing (2018: 161) describe a radical democratic imaginary as ‘situating sex workers’ voices and biographies at the centre of knowledge production’. For too long there has been a hierarchy of knowledge from which marginalized communities have been excluded or in which they have been afforded token participation. Their role in knowledge production has often been to provide data that fits a particular narrative, rather than acknowledging that their stories should shape the narrative. In the Irish context, sex workers have been systematically excluded from democratic processes that affect their lives, and have been routinely infantilized, dismissed, or silenced when they have managed to access the democratic spaces they have long been denied access to (McGarry & FitzGerald, 2017). This study calls for the promotion of inclusive opportunities for sex workers in democratic spaces and in policy discussions that affect their lives. To realize such a dismantling of stigmatizing practices requires the co-​creation of empowering and emancipatory methodologies with and for sex workers. To return to the words of our peer researcher Addy: There are no genuine and justifiable reasons to continue to exclude us from conversations about ourselves. Nothing about us without us. (Adeline Berry, co-​author and SWAI peer researcher)

179

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

Acknowledgements This research was funded by HIV Ireland through Open Society Foundations (OSF) in collaboration with the Irish Sex Work Research Network (ISWRN) and the Sex Workers’ Alliance Ireland (SWAI).

Notes 1

2

As a result of pressure from the SWAI, the Criminal Law (Sexual Offences) Act 2017 includes two amendments –​one amendment to remove further criminalization of street-​ based prostitution and another amendment which allows for a review of the impact of the legislation after a two-​year period. Some participants, that is, peer researchers, took part in more than one focus group.

References Abel, G. (2018) ‘Decriminalisation and social justice: A public health perspective on sex work’, in S. FitzGerald and K. McGarry (eds) Realising Justice for Sex Workers: An Agenda for Change, London: Rowman & Littlefield, pp123–​40. Amnesty International (2016a) The Human Cost of ‘Crushing’ the Market: Criminalization of Sex Work in Norway, London: Amnesty International, available online from: https://​www.amnesty.org/​en/​ documents/​eur36/​4034/​2016/​en/​ Amnesty International (2016b) Amnesty International Policy on State Obligations to Respect, Protect and Fulfil the Human Rights of Sex Workers, London: Amnesty International, available online from: www.amnesty.org/​ en/​documents/​pol30/​4062/​2016/​en/​ Bacchi, C. and Ronnblom, M. (2014) ‘Feminist discursive institutionalism: A poststructural alternative’, Nordic Journal of Feminist and Gender Research, 22(3): 170–​86. Barry, K. (1995) The Prostitution of Sexuality: The Global Exploitation of Women, New York: NYU Press. Benoit, C., Jansson, M., Smith, M., and Flagg, J. (2018) ‘Prostitution stigma and its effect on the working conditions, personal lives, and the health of sex workers’, The Journal of Sex Research, 55(4–​5): 457–​71. Brooks-​Gordon, B. (2006) The Price of Sex: Prostitution, Policy and Society, Devon: Willan. Brooks-​Gordon, B., Wijers, M., and Jobe, A. (2020) ‘Justice and civil liberties on sex work in contemporary international human rights law’, Social Sciences, 9(4). Chapkis, W. (1997) Live Sex Acts: Women Performing Erotic Labour, Abingdon: Routledge. Doezema, J. (2005) ‘Now you see her, now you don’t: Sex workers at the UN Trafficking Protocol Negotiation’, Social and Legal Studies, 14(1): 61–​89.

180

Criminalization AND Sex Worker Health

Ekberg, G. (2004) ‘The Swedish law that prohibits the purchase of sexual services: Best practices for prevention of prostitution and trafficking in human beings’, Violence Against Women, 10(10): 1187–​218. Ellison, E., Ni Dhonaill, C., and Early, E. (2019) A Review of the Criminalization of Paying for Sexual Services in Northern Ireland, Belfast: Queen’s University Belfast. Farley, M, Julie, B., and Golding, J. (2009) Men Who Buy Sex: Who They Buy and What They Know, London: Eaves. Honneth, A. (2005) The Struggle for Recognition: The Moral Grammar of Social Conflicts, Cambridge: Polity Press. HIV Ireland (2016) Potential Impact of the Swedish Model on Rates of HIV/​ AIDS among Sex Workers and Their Access to Healthcare, Dublin: HIV Ireland, available online from: http://​www.hivireland.ie › wp-​content › uploads ICRSE (2005) Sex Workers in Europe Manifesto, Amsterdam: ICRSE, available online from: http://​www.sexworkeurope.org/s​ ites/d​ efault/fi ​ les/u ​ serfiles/​ files/​join/​manbrussels2005.pdf Jeal, N. and Salisbury, C. (2004) ‘Self-​reported experiences of health services among female-​street based prostitutes: A cross-​sectional survey’, British Journal of General Practice, 54: 515–​9. Jeffreys, S. (2008) The Industrial Vagina: The Political Economy of the Global Sex Trade, Abingdon: Routledge. Koken, J.A. (2012) ‘Independent female escort’s strategies for coping with sex work related stigma’, Sexuality and Culture, 16: 209–​29. Krüsi, A., Pacey, K., Bird, L., Taylor, C., Chettiar, J., Allan, S., Bennett, D., Montaner, J.S., Kerr, T. and Shannon, K. (2014) ‘Criminalization of clients: reproducing vulnerabilities for violence and poor health among street-​based sex workers in Canada –​a qualitative study’, BMJ Open, 4: 1–​10. Lazarus, L., Deering, K.N., Nabess, R., and Gibson, K. (2012) ‘Occupational stigma as a primary barrier to health care for street-​based sex workers in Canada’, Culture, Health & Sexuality, 14(2): 139–​50. Ledwith, M. (2016) Community Development in Action: Putting Freire into Practice, Bristol: Policy Press. Levy, J. (2014) Criminalising the Purchase of Sex: Lessons from Sweden, Abingdon: Routledge. Levy, J. (2018) ‘Racism, xenophobia and hegemonic masculinity: The Nordic model of criminalising the purchase of sex’, in S. FitzGerald and K. McGarry (eds) Realising Justice for Sex Workers: An Agenda for Change, London: Rowman & Littlefield, pp1–​21. Levy, J. and Jakobsson, P. (2014) ‘Sweden’s abolitionist discourse and law: effects on the dynamics of Swedish sex work and on the lives of Sweden’s sex workers’, Criminology and Criminal Justice, 14(5): 593–​607.

181

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

Lynch, K. (1999) ‘Equality studies, the academy and the role of research in emancipatory social change’, The Economic and Social Review, 30(1): 41–​69. Lyons, T., Krüsi, A., Pierre, L., Kerr, T., Small, W., and Shannon, K. (2017) ‘Negotiating violence in the context of criminalization: The experiences of trans sex workers in Vancouver, Canada’, Qualitative Health Research, 27(2): 182–​90. Mackinnon, C. (2001) Sex inequality, New York: Foundation Press. Maher, L. (1997) Sexed Work: Gender, Race and Resistance in a Brooklyn Drug Market, Oxford: Oxford University Press. Mai, N. (2009) Migrant Workers in the UK Sex Industry, London: London Metropolitan University. Majic, S. (2018) ‘Feminists, step back! (Re)centring and supporting sex workers’ political projects’, in S. FitzGerald and K. McGarry (eds) Realising Justice for Sex Workers: An Agenda for Change, London: Rowman & Littlefield, pp41–​61. Mansbridge, J.J. (1990) Beyond Self-​ I nterest, Chicago: University of Chicago Press. Marin, G., Silberman, M., Martinez, S., and Sanguinetti, C. (2013) ‘Healthcare programme for sex workers: A public health priority’, International Journal of Health Planning and Management, 30(3): 276–​84. McGarry, K. and FitzGerald, S.A. (2017) ‘The politics of injustice: Sex-​ working women, feminism and criminalizing sex purchase in Ireland’, Criminology and Criminal Justice, 19(2): 62–​79. McGarry, K. and FitzGerald, S.A. (2018) ‘Introduction: Social justice through an agenda for change’, in S. FitzGerald and K. McGarry (eds) Realising Justice for Sex Workers: An Agenda for Change, London: Rowman & Littlefield, ppxv–​xxxv. Mol, A. (1999) ‘Ontological Politics: A word and some questions’, The Sociological Review, 47(S1): S74–​S89. O’Connor, M. and Pillinger, J. (2009) Globalisation, Sex Trafficking and Prostitution: The Experiences of Migrant Women in Ireland, Dublin: Immigrant Council of Ireland. Oliveria, A. (2018) ‘Turning perspectives on migrant sex workers inside out: From criminalization and victimisation to rights-​based law and policy’, in S. FitzGerald, and S. K. McGarry (eds) Realising Justice for Sex Workers: An Agenda for Change. London: Rowman & Littlefield, pp141–​61. O’Neill, M. and Laing, M.(2018) ‘Sex worker rights, recognition and resistance: Towards a “real politics of justice” ’, in S. FitzGerald and K. McGarry (eds) Realising Justice for Sex Workers: An Agenda for Change, London: Rowman & Littlefield, pp161–​83.

182

Criminalization AND Sex Worker Health

Östergren, P. and Dodillet, S. (2011) ‘The Swedish Sex Purchase Act: Claimed Success and Documented Effects’, presented at The International Workshop: Decriminalizing Prostitution and Beyond: Practical Experiences and Challenges, The Hague, 3–​4 March. Pateman, C. (1988) The Sexual Contract, Oxford: Polity Press. Platt, L., Grenfell, P., Meiksin, R., Elmes, J., Sherman, S., Sanders, T., Mwangi, P., and Crago, A.-​L. (2018) ‘Associations between sex work laws and sex workers’ health: A systematic review and meta-​analysis of quantitative and qualitative studies’, PLoS Med 15(12): https://​doi.org/​ 10.1371/​journal.pmed.1002680 Rössler, W., Koch, U., Lauber, C., Hass, A.-​K., Altwegg, M., Ajdacic-​Gross, V., and Landolt, K. (2010) ‘The mental health of female sex workers’, Acta Psychiatrica Scandinavica, 122: 143–​52. Ryan, P. (2019) Male Sex Work in the Digital Age: Curated Lives, London: Palgrave. Sanders, T. (2005) Sex Work: A Risky Business, Cullompton: Willan. Sanders, T. and Campbell, R. (2014) ‘Criminalization, protection and rights: Global tensions in the governance of commercial sex’, Criminology and Criminal Justice, 14(5): 535–​48 Scheper-​Hughes, N. and Bourgois, P. (2004) Violence in War and Peace: An Anthology, Malden: Blackwell. Scorgie, F., Vasey, K., Harper, E., Richter, M.L., Nare, P., Maseko, S., and Chersich, M. (2013) ‘Human rights abuses and collective resilience among sex workers in four African countries: A qualitative study’, Global Health, 9(1): 33. Scoular, J. and O’Neill, M. (2008) ‘Legal incursions into supply/​ demand: Criminalising and responsibilising the buyers and sellers of sex in the UK’, in V. Munro and M. Della Giusta (eds) Demanding Sex: Critical Reflections on the Regulation of Prostitution, Hampshire: Ashgate, pp13–​35. Selvey, L.A., Lobo, R.C., McCausland, K.L., Donovan, B., Bates, J., and Hallett, J. (2018) ‘Challenges facing Asian Sex Workers in Western Australia: Implications for health promotion and support services’, Frontiers in Public Health, 6: 171. Shannon, K., Kerr, T., Allinott, S., Chettiar, J., Shoveller, J., and Tyndall, M.W. (2008) ‘Social and structural violence and power relations in mitigating HIV risk of drug-​using women in survival sex work’, Social Science and Medicine, 66(4): 911–​21. Slabbert, M., Venter, F., Gay, C., Roelofsen, C., Lalla-​Edward, S., and Rees, H. (2017) ‘Sexual and reproduction health outcomes among female sex workers in Johannesburg and Pretoria, South Africa: Recommendations for public health programmes’, BCM Public Health, 17(3): 17–​27.

183

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

Svanström, Y. (2004) ‘Criminalising the john –​a Swedish gender model?’, in J. Outshoorn (ed) The Politics of Prostitution: Women’s Movements, Democratic States and the Globalisation of Sex Commerce. Cambridge: Cambridge University Press, pp225–​44. Visser, J., Randers-​Pehrson, A., Day, S., and Ward, H. (2004) ‘Policies towards the sex industry in Europe: New models of control’, in S. Day and H. Ward (eds) Sex Work, Mobility and Health in Europe, London: Kegan Paul, pp241–​61. Whitaker, T. and Cox, G. (2009) Drug Use, Sex Work and the Risk Environment, Dublin: NACD. Whitaker, T., Ryan, P., and Cox, G. (2011) ‘Stigmatization among drug-​ using sex workers accessing support services in Dublin’, Qualitative Health Research, 21: 1086–​100.

184

10

Care versus Crime: Safe Injecting Facilities as a Legal Crossroads in Ireland Marcus Gatto and Sarah Bryan O’Sullivan

This chapter serves to examine the history of Irish drug policy, specifically in terms of persons who inject drugs (PIDs). A survey of law and policy in this area reveals that the historical approach of prohibition and strict criminalization has partially ceded to one which privileges harm reduction through calculated interventions. One such intervention of recent vintage has been the proposal of supervised injection facilities (SIFs). On examination, much of the history of legislative interventions in the realm of drug control in Ireland has been maladaptive to the aims of controlling drug use and reducing the societal ills that stem from drug use. As such, the promotion, on the part of government, of SIFs signals a change of approach –​solidifying a greater commitment to harm-​reduction measures and enshrining an ethos of care for the individual. While this shift in policy has been welcomed by many, practical difficulties have arisen in terms of the placement and operation of a SIF proposed for Merchants Quay, Dublin. In the following section, a survey of Irish drug policy over a number of decades reveals a gradual acceptance of a public health approach towards PIDs, as opposed to the strict and exclusive operation of the criminal law in this area. While, at the macro level, political commitment to a public heath approach is important, individual communities equally must commit to these strategies. One example of this, which this chapter explores, is the objections to the Merchants Quay facility and the difficulties encountered in obtaining planning permission; the contentious issue of planning permission

185

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

for a SIF in Merchants Quay reveals deep-​seated anxieties on the part of local communities concerning the placement of these facilities. Ethical considerations are also examined to frame the political debate regarding the facility as a tension between strong paternalism and the autonomy of PIDs. In conclusion, the authors consider that SIFs adequately balance the need for the control of drugs in the interests of the community with the human rights of vulnerable PIDs.

Historical overview of Irish drug policy Illicit drug use did not become a significant concern for Irish authorities until the mid-​1960s. In the 1960s and 1970s, research discovered evidence of amphetamine, cannabis, and LSD use (Walsh, 1966; Masterson, 1970; Nevin et al, 1971), however, as O’Gorman describes, ‘neither these research studies nor indicators of drug use (i.e. seizures, prosecutions, and treatment)’ indicated widespread use (1998: 155). Nonetheless, the presence of such drugs in Ireland at this time, although limited, was of sufficient concern to come to the attention of the Commission of Inquiry on Mental Illness in 1966. The report issued by the commission would appear to represent the ‘first discussion of drug problems in an official Irish policy document’ (Butler, 1991: 212). The overall conclusion of the commission was that Ireland had, up to then, avoided any real drug problems. That said, a cautionary flag was raised by the commission when it observed that ‘drug addiction could reach serious proportions in this country unless a constant effort is maintained to prevent the abuse of habit-​forming drugs’ (Commission of Inquiry on Mental Illness, 1966: 84). Within two years of the commission’s report, a specialized unit, the ‘Drug Squad’, was established in An Garda Síochána and a Working Party on Drug Abuse was established under the aegis of the Department of Health. Notably, during this period, within the Department of Health, responsibility for drug issues was assigned to the Food and Drug section rather than the Mental Health Section –​‘the effect of this, consciously or otherwise, was to ensure an emphasis on drug control systems rather than care systems’ (Butler, 1991: 231). The assumptions and recommendations made by the 1971 Working Party Report contributed to the problematic policy approach taken in relation to drug use in Ireland for decades afterwards. While the report has been described as a ‘balanced, caring document’ for its time, it lacked any analysis of exactly what was meant by ‘drug abuse’; it assumed that it was a ‘self-​evident social problem’ and that supply reduction and abstinence were the only policy options (Butler, 1991: 213). The Misuse of Drugs Act 1977 (amended by the Misuse of Drugs Act 1984) followed the Working Party’s Report. Initiated in the Dáil in 1973,

186

Safe INJECTING Facilities in Ireland

it was almost four years before the legislation was signed into law in May 1977. It is possible that the delay in the enactment of the legislation was due, in part, to the relative dormancy of the Irish drugs scene. As Butler (1991: 216) explains, after the initial sense of a drugs crisis in the late 1960s, there followed a period of relative stability; ‘drug use was almost entirely confined to the Dublin area’, and among the drugs being used there was ‘little evidence of intravenous use’. However, by the mid-​1970s clear signs of a heroin epidemic were emerging, hastening the need to enact such legislation.1 From a legislative perspective, the debates accompanying the 1977 Act prior to its enactment were marked by consensus and a general acceptance that a modernization of drug legislation was required.2 The 1977 Act proscribed a number of offences, including the possession of controlled drugs, as well as creating categories of controlled drugs, introducing a system of scaled offences and providing that in most cases convicted persons be placed on remand while a medical report was prepared. A number of years later, the amending 1984 Act introduced higher fines and harsher sentences for drug offences. Even more specialized offences were later introduced in response to arguably misguided public concerns; particularly emblematic of this are the syringe-​related offences introduced by the Non-​Fatal Offences Against the Person Act 1997.3 Thankfully, in more recent years, indicators have emerged that Irish drug policy has begun to take a more balanced approach from the earlier narrow approaches of supply-​reduction, abstinence, punishment, and sanctions by incorporating a growing portfolio of harm-​reduction measures. This initial shift began at a services level with the development of a greater number of harm-​reduction approaches in the 1980s. One significant catalyst for the adoption of harm-​reduction strategies in many countries, including this jurisdiction, was the threat posed by HIV/​AIDS (Kiely & Egan, 2000: 18). Official concern regarding ‘the transmission of HIV greatly affected the development of drug policy’ and the provision of drug treatment and rehabilitation services in Ireland (O’Gorman, 1998: 159). While the first 20 years of Irish drug policy was one of consensus on the validity of an abstinence strategy, the establishment of a link between injecting drug use and HIV necessitated a substantial shift in policy focus. (Butler, 1991: 27; O’Gorman, 1998: 159). This new policy archetype was outlined in the 1991 Government Strategy to Prevent Drug Misuse. As the first official national drug strategy, it placed an emphasis on risk-​and harm-​reduction approaches, at least in the context of HIV: The prevention of transmission of the HIV virus in this country must include strategies developed to deal with the drug misuse problem. These strategies must be community-​based,

187

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

client-​orientated and, given the serious nature of the problem, of necessity, innovative. They must include emphasis on outreach programmes involving counselling, methadone maintenance and needle exchange. Advice on risk reduction services generally must form an essential part of any such strategies to minimise the spread of the disease. (Department of Health, 1991: 17) However, while the language employed signalled a significant policy shift, the practical implications were less significant. Changes in service delivery took place slowly, and were often marked by friction and ambivalence. Butler (1996: 151) suggests that a possible explanation for this is that the rationale for the shift in policy was primarily linked to fears of HIV transmission from PIDs to the general population ‘rather than a result of any radical ideological shift’ in the conception of drug use and the appropriate societal response. A decade later, another significant development occurred with the introduction of the Drug Treatment Court. Established first on a pilot basis in 2001, it became a permanent ‘fixture in 2006. The court was established to deal with offenders who either pleaded guilty or had been convicted of non-​violent crimes associated with drug abuse. Referrals to the court are with the consent of the defendant and may be made at the request of the defence or a probation officer, or at the discretion of the presiding judge. The primary aim and purpose of the court is ‘the reduction of crime through rehabilitation of the offender but not excluding punishment should the circumstances so warrant’ (Irish Court Service, 1999: 15). While the court was initially welcomed, the continued prevalence of punishment and sanctions over rehabilitation and harm reduction has been regularly commented upon (Butler, 2013; Smyth, 2013). More recently, there have been calls for the abolition of such courts and their replacement with a more health-​focused solution (Collins et al, 2019). However, despite the uncertain future of the Drug Treatment Court,4 more recent developments have emerged from political quarters indicating a definitive shift away from the drug policy regimes of the last number of decades –​a shift that has been accompanied with actions signalling a real commitment to a health-​orientated approach. In July 2017, the government launched what could arguably be described as the most progressive government drugs strategy in the history of the state –​the National Drug and Alcohol Strategy, ‘Reducing Harm, Supporting Recovery’. According to the then Taoiseach, Leo Varadkar, the strategy emphasised ‘a health-led response to drug and alcohol use in Ireland, based on providing person-centred services that promote rehabilitation and recovery’ (Department of Health, 2017: 3). In the foreword, specific reference was made to SIFs:

188

Safe INJECTING Facilities in Ireland

The introduction of a pilot supervised injecting facility in Dublin’s city centre and the establishment of a working group to examine alternative approaches to the possession of controlled drugs for personal use, are among a number of initiatives contained within the strategy to promote a harm reducing and rehabilitative approach to drug use. (Department of Health, 2017: 4) The working group referred to in the government strategy was established in November 2017 and it published its final report in August 2019. The Working Group to Consider Alternative Approaches to the Possession of Drugs for Personal Use was asked to examine the approaches taken in other jurisdictions to the possession of drugs for personal use and, in light of this consideration, to make recommendations on policy options. Among the options put forward by the working group were an adult caution scheme and a diversion to health services in place of prosecution. After consideration of the report, the government announced a policy overhaul in the form of a limited health-​diversion approach for those found in possession of drugs for personal use. The diversion approach will see a person found in possession of a small quantity of illegal drugs for personal use on the first occasion being referred on a mandatory basis to the HSE for a health screening and brief intervention. Should they re-offend in the same manner on a second occasion, Gardaí will have the discretion to issue an adult caution as an alternative to prosecution in the courts; both these developments build on the recommendations made by the Working Group (Working Group, 2019: 75). In relation to decriminalization as a potential approach to dealing with possession for personal use in the Irish context, agreement within the working group on this issue remained elusive. In particular, the approach taken by other jurisdictions, such as Portugal, was ultimately deemed incompatible with the Irish legal system. Furthermore, the chair of the group issued a minority report advising that the government ‘strongly resist and reject all calls for decriminalisation of controlled drugs’ (Sheehan, 2019: 8). While the working group’s report and the health-​diversion approach were ultimately welcomed, both have come under criticism for not going far enough.5 One particular criticism voiced by a number of commentators, including the head of policy at the Ana Liffey Drug Project, is that the diversion approach is unlikely to have much impact on PIDs and will do little to break down the stigma associated with drug use (Keane, 2019). Instead it is argued that for the most part the health-​diversion approach will benefit recreational drug users. Furthermore, while the working group held two focus groups in order to ‘consult further with people who had been prosecuted for the possession of illegal drugs for personal use’, these groups were small in number, with 15 participants in total (Working Group, 2019: 49). Much of the groups’ discussions were not reflected in the final recommendations issued.

189

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

As outlined above, current Irish drug policy takes a hybrid approach, whereby the law surrounding drug possession and consumption incorporates elements of both public health and criminal law approaches. The hybrid approach often involves general criminal prohibitions on drug possession, with the option that relevant legal or political authorities disapply the law through very narrowly crafted exemptions, often in the form of public health and ‘harm-​reduction’ initiatives, such as SIFs, needle exchange programmes, and opioid substitution treatment (Department of Health, 2017). In relation to SIFs, at the time the 2017 National Drugs and Alcohol Strategy was published, progress was already underway in the form of the Misuse of Drugs (Supervised Injecting Facilities) Act 2017 and signed into law in May of that year. Initiated in the Dáil on the 8 February 2017, this legislation was the result of decades of lobbying by organizations such as the Ana Liffey Drug Project. A SIF is defined under s.1 of the 2017 Act as ‘a facility operated by a licence holder where authorised users may consume drugs by injection’. Such facilities offer a place ‘where people can inject drugs’, obtained elsewhere, under the supervision of trained health professionals’, reducing the ‘harm associated with injecting drugs and helping ‘people access appropriate services’ such as’ medical care, sterile injecting equipment, and emergency care in the event of overdose’ (MQI, 2018: 1). SIFs have been shown to ‘improve both health related indicators for drug users and broader environmental indicators such as the reduction of unsafely discarded paraphernalia’ (Ana Liffey Drug Project, 2015: 3). There have also been a number of positive evaluations of SIFs in other jurisdictions (see Kilmer et al, 2018), and just as importantly, PIDs overwhelmingly view SIFs as beneficial for reducing some of the harms caused by drug use and by legal prohibition (see Lancaster et al, 2013). Under the 2017 legislation, the country’s first SIF will be permitted to open at the Dublin 8 Merchants Quay Ireland (MQI) site. Merchants Quay Ireland is a homeless and drug services charity and the Dublin 8 site is located close to Dublin City Centre, in an area that houses commercial businesses, residential complexes, tourist attractions (Christchurch, Dublinia), and a number of public services, including schools and Dublin City Council offices. The MQI site and the surrounding area have a long history of offering charitable supports and services. MQI have been operating from the site for over three decades, with its initial origins linked to the Franciscan Friary who had a location and presence in the area for a number of centuries. The Misuse of Drugs (Supervised Injecting Facilities) Act was signed into law in May 2017, but the facility has yet to open. A portion of this delay can be attributed to the initial planning refusal issued by Dublin City Council in July 2019. In rejecting the planning application, Dublin City Council

190

Safe INJECTING Facilities in Ireland

stated that the proposed development would ‘undermine the existing local economy, in particular the growing tourism economy’, have a negative impact on local residents, and ‘hinder the future regeneration of the area’ (An Bord Pleanála Inspector’s Report, 2019: para 3.6.1). However, on appeal An Bord Pleanála reversed the initial refusal noting that, based on ‘the site’s inner-​city location’, the range of services currently delivered at the facility, and the ‘pilot-​scheme nature of the proposed development’, the centre would ‘not seriously injure the amenities of property in the vicinity’ nor would it ‘adversely impact on the residential amenity or character of the area’ (An Bord Pleanála Inspector’s Report, 2019: para 9.1.1). However, the granting of planning permission was not without conditions, and in the section to follow we will examine in detail the difficulties encountered by MQI in their bid for planning permission for the SIF. This discussion exposes, as outlined above, that while national strategies have gradually accepted a public health approach in terms of outreach to PIDs, at the level of local communities there may still be misgivings about a public health model, as shown in the following section, which outlines the strong objection to planning permission process for the proposed SIF.

The struggle to obtain planning permission for the Merchants Quay site The public health model, while now the predominant paradigm at the national level, has been less readily supported at the community level. No better illustration of this is found than the controversy surrounding a proposed SIF in Merchants Quay. On foot of the Misuse of Drugs (Supervised Injecting Facilities) Act 2017, the HSE began a procurement process, inviting bids on a contract to operate a SIF. MQI, located in Dublin 8 in the city centre, placed the successful bid (HSE.ie, 2018). The awarding of the contract by the HSE was subject to planning permission approval. Initially, this permission was refused by the planning authority, a decision which was overturned on appeal by An Bord Pleanála.6 A detailed exploration of the planning approval process reveals the controversial nature of the site in terms of its impact on the local community, weighed against the public utility of the site in terms of the service it provides. Those who were critical of the proposal grounded their objections by citing an area already overburdened by the operation of services aimed at PIDs and similar provisions, such as those for the homeless. In a third-​party observation letter (TPOL) submitted in response to the proposed facility, the Liberties Business Forum, a collective of organizations and businesses in the area, cited concerns for safety premised on conjecture that the planned facility would increase the use of illegal drug use and trade in the area as

191

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

well as anti-​social behaviour and crime that the forum considered incidental to illegal drug use (Liberties Business Forum, 2018). The forum’s letter also asked that, should planning permission be granted, this would be for a limited period only and subject to review. Finally, the forum referenced a High Court decision, Carman’s Hall Community Interest Group & ors v Dublin City Council (2017) IEHC 544 (Carman’s Hall, 2017), which quashed an order to allow for the use of premises situated in Dublin 8 (which comprises the historic Liberties neighbourhood) as emergency accommodation for the homeless. In that decision, Judge Binchy considered that in making the order, the deputy chief executive had failed to comply with specific procedures outlined in policy QH30 and section 16.12 of the Dublin City Development Plan 2016–​2022, which, makes it clear that there is an obligation on those proposing to provide or extend temporary homeless accommodation to satisfy the respondent (as planning authority) that the proposal will not result in an undue concentration of such uses nor undermine the existing local economy, resident community or regeneration of an area. (Carman’s Hall, 2017: para 56) The court in that case made no finding that the order in question did represent an ‘undue concentration’ of services such that it adversely affected the community. However, the court did note: The question as to whether or not the change of use of the Premises might contribute to or give rise to an undue concentration of such facilities in the area, with the attendant detrimental consequences surmised by the Development Plan, is clearly an important one, and one that is likely to be of significant interest and concern to the residents in the area. As a matter of fact, the development of the Premises has attracted local opposition, which the Chief Executive of the respondent has described as understandable. In any case in my view, the people of the locality have real and substantial grounds for such concerns. (Carman’s Hall, 2017: para 72) This case, the forum letter would urge, tended to support the view that the area already houses a disproportionate number of services, and that an expansion of services in the form of the SIF would lead to an ‘overconcentration’ of services in the area. The Temple Bar Company (2018: 3–​4), a consortium of businesses and organizations from the area, also submitted a TPOL in response the proposed

192

Safe INJECTING Facilities in Ireland

facility. In this letter, the company cites safety concerns and questions the wisdom of locating such a facility in such proximity to the city centre, several tourist destinations, and a primary school. They also cite the experience of other jurisdictions that have established similar SIFs and note that a centre called Insite in Vancouver had a permanent policing presence and that in advance of that centre opening there were 60 additional officers allocated to the neighbourhood. In the case of the Merchant’s Quay facility, the company raised concerns that similar provisions in terms of policing could not be made in order to contain any negative externalities resulting from the operation of the facility. The company noted that SIFs in other jurisdictions were not located in city centres or central business districts, and that some were on hospital campuses. The company, akin to the forum, raised concerns as well relating to the concentration of ‘16 similar services within a 2km radius of the city centre’ (2018: 4). The majority of the other TPOLs cited these or similar concerns.7 Those who submitted TPOLs ranged from local residents to individuals with contacts in the area, individual businesses and business collectives, as well as St Audoen’s National School and several parents whose children attend there. Of the TPOLs received, few were in favour of the SIF facility.8 Several noted that they were not opposed to SIFs in principle, but found the proposed location unacceptable (see Fáilte Ireland, 2018: 4). The TPOL lodged on behalf of St Audoen’s National School (O’Driscoll, 2018: 3–​9) merits further examination, as it lays bare real and urgent concerns on the part of children, parents, and administrators. Ultimately, the conclusion reached in the TPOL from the school is that the SIF will draw more illegal and antisocial behaviour to the area as unavoidable externalities of the proposed facility. To illustrate, the school is located in an historic area and flanked by religions buildings, residential areas, and some businesses; it is also less than 300 metres from the existing MQI facility. The episodes of antisocial behaviour on the part of PIDs cited by letter are, indeed, troubling –​from individuals exposing themselves in proximity to the school, presumably to inject drugs in their groin, to a death due to overdose on the premises. The antisocial behaviours cited are numerous and their possible effect on the children in terms of health and safety would rightly give pause to one examining the situation. As well, the relationship between MQI and the school is a tenuous one, and the letter cites what it considers existing problems posed by the operation of the current facility and how the proposed SIF might compound these. It also cites previous non-​compliance of MQI with conditions precedent to past planning decisions. The fact that the facility was ultimately approved over this and other strong objections speaks to the high level of political support the facility received.

193

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

On 25 July, the planning authority initially refused permission for the proposed SIF. Specifically, in its report, it considered that the facility could not be housed in the proposed site without violating section 16.12 of the Dublin City Development Plan 2016–​2022 (see discussion earlier in the context of the Carman’s Hall case), stating that the area already supported a ‘disproportionate quantum’ of services in this regard, and that a SIF would lead to ‘overconcentration of services’ and ‘would undermine the sustainability of the neighbourhood’ (An Bord Pleanála Inspector’s Report, 2019: 11–​12). This language is redolent of the objections found in the TPOLs submitted by local business organizations, citing fears of increased illegal and anti-​social behaviour related to the facility. This also might be seen to present an analysis with reference to section 16.12 that was found lacking in the order quashed by the High Court in Carman’s Hall. The decision also noted that the proposal lacked a comprehensive policing plan. It was this latter ground for refusal that proved most contentious. The appeal of the refusal, the issues within which we will turn to presently, included a letter from senior counsel Eamon Galligan, who considered the legality of such a requirement. Mr Galligan considered that the planning authority had acted ultra vires in requiring the applicants to produce such a report for three reasons: 1. It is not within the applicant’s power to deliver. 2. It is a matter which is entrusted to a separate and independent statutory authority. 3. It is not relevant to planning as planning authorities have no expertise or competence in adjudicating on the adequacy of policing plans. (An Bord Pleanála Inspector’s Report, 2019: 41) It was noted that the applicants had produced a letter in advance of the initial refusal from the detective superintendent of the Garda National Drugs and Organized Crime stating that, following legal advice, it would be inappropriate for the An Garda Síochána to be involved in the planning application process (An Bord Pleanála Inspector’s Report, 2019: 11). Effectively, this made it impossible for the applicants to respond to the request of the planning authority. Following the initial refusal of the planning authority, the applicants appealed to An Bord Pleanála, who ultimately granted permission for the SIF, overturning the decision of the planning authority, notwithstanding the objections lodged by local residents and businesses (An Bord Pleanála Inspector’s Report, 2019). However, the victory was not an unqualified one. In seeming deference to the concerns raised over the concentration of services in the area, the permission required that MQI cease to operate its Night Café;9 the reason provided was to reduce the ‘scale and extent’ of services

194

Safe INJECTING Facilities in Ireland

provided at that site (An Bord Pleanála Inspector’s Report, 2019: 4). This would also seem to be an administrative nod to the analysis required under section 16.12 of the Development Plan, which comprehends the quantum of services of this nature in a given area and seeks to avoid overconcentration to the prejudice of the surrounding community. The permission was also temporary, and the use of the premises as a SIF must end on or before three years from the first date of operation. This echoes the request found in the letter from the Liberty Business Forum (2018: 2) that any permission granted be temporary. This would allow for programmatic assessment of the impact of the site on the community, but renders the continued operation of the site dependent upon continued political will to operate such a site over extensive and robust objections from the surrounding community. In granting permission, the Bord makes no reference to a policing plan; in the Inspector’s Report for An Bord Pleanála, the inspector states that he ‘was not entirely convinced’ (An Bord Pleanála Inspector’s Report, 2019: 42) the request for further information on the policing plan on the part of the planning authority was made in order to evaluate its character and adequacy; by this interpretation, the request below for the policing plan was not in fact made because they intended to adjudicate on the effectiveness of the Plan. It may have been sufficient to simply indicate that such a plan was in place, that it had formed part of the winning tender and that as key stakeholders An Garda Síochána are an integral part of the delivery of the proposed development. Such a statement would certainly have satisfied this Inspector in assessing this appeal. (An Bord Pleanála Inspector’s Report, 2019: 42) As such, the inspector indicated that the Bord could find that it suffices that a policing model for the site was ‘satisfactorily’ demonstrated to the HSE when approving the use of the site as a SIF (An Bord Pleanála Inspector’s Report, 2019: 43). This eliminates as well the most objectionable ground for the refusal from the planning authority initially. The time limitation on the grant of permission might also permit an assessment of the effectiveness of the policing in the area; as such, it represents some mechanism of oversight, albeit indirect. Ultimately, the decision from An Bord Pleanála is not made conditional on receipt of a policing plan. In conclusion, while the decision from An Bord Pleanála was a welcome one for MQI, the permission is not a resounding endorsement of the wisdom of such a site, particularly in the city centre and in neighbourhoods that have borne the brunt of the negative externalities of similar services historically. The order by the Bord is circumspect in this regard –​the grant of permission is a temporary one and requires the removal of the Night Café

195

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

service, which seems to acknowledge the concentration of services within a relatively small area and will remove a service to those sleeping rough. Such a concession may be necessary. It is noted in the Inspector’s Report that accepting such a facility was a ‘big ask’ from a community that already was forced to grapple with the negative externalities of similar services in a relatively concentrated area, and the inspector had due regard to the common criticism found in the TPOLs that the facility would attract and generate antisocial and criminal behaviour. The effects of the SIF on the surrounding communities will certainly be manifest in the initial years of operation, and these might form a significant part of any future decision by the planning authority to renew the grant of permission after the three-​year period. Indeed, it is a ‘big ask’ of the community, and one that is not assured an affirmative response. In February of 2020, St. Audoen’s National School had been granted leave to judicially review the granting of permission; the outcome of this review is forthcoming at the time of publication (The Irish Times, 2020). As these concerns illustrate, there still exist misgivings regarding the adoption of a public health model at the micro-​level; while individuals may broadly support a public health approach as is manifest in SIFs, they may also not accept having and maintaining such facilities in areas where they live and work. Such commitment on the part of communities, however, is necessary for national strategies to succeed.

Ethics, politics, and harm reduction In examining the public discourse surrounding the Merchant’s Quay facility, a useful framework can be found in concepts drawn from medical ethics: autonomy and beneficence (Dooley & McCarthy, 2012: 3–​23; Beauchamp and Childress, 2013: 13, passim). While a full examination of the ethical concerns provoked by SIF is beyond the scope of this chapter, the tension between autonomy and beneficence permeates the political discourse surrounding the opening of a SIF. Autonomy as both a philosophical and medical ethical concept is difficult to define precisely. Beauchamp and Childress (2013) considered these principles to be weighed and balanced with others in ethical analysis. In a classical perspective, Immanuel Kant (1997) is perhaps the philosopher most synonymous with the conception of autonomy; in the Kantian derivation, we act autonomously when our actions are premised on grounds which would be equally acceptable to all rational beings, universal maxims for action.10 Writing some years later, John Stuart Mill defined autonomy differently; for Mill, autonomy was freedom –​a freedom of action that is unfettered, save in circumstances where we cause harm to another. Right action for Mill is determined in

196

Safe INJECTING Facilities in Ireland

the utilitarian sense: simply put, what produces more good than detriment (Dooley & McCarthy, 2012: 5–​6). Autonomy may be contrasted with the ethical concept of beneficence, or paternalism, which does not privilege the same agnosticism concerning the wisdom or utility of the actions of others, as in the Millian concept of autonomy; rather, beneficence roots the normativity of action in a positive concept of a ‘good’ or ‘right’ outcome (Dooley & McCarthy, 2012: 10–​14). In a strong sense, acting in furtherance of a person’s interests may involve interference with their freely made decision and even be against his/​her will (Dooley & McCarthy, 2012: 13–​14). In political terms, two modern jurisprudential thinkers, H.L.A. Hart and Patrick Devlin debated the freedom of others to act as they see fit and even in ways we find misguided.11 Devlin (2009), on the one hand, considered the enforcement of common moral standards of behaviour as essential as having a recognized government for a given society. Hart essentially took a Millian view of the freedom of individuals to act so long as they do not cause harm to others; as he stated, the ‘bare knowledge’ that individuals are doing something behind closed doors that the average person might find objectionable is not a sufficient basis for punishing such behaviour (Feinberg, 1987: 63). In a medical setting, autonomy, in the strong, Millian derivation, generally sustains the proposition that we must respect the decisions of others, even those which we consider unwise, immoral, or irresponsible. By contrast, beneficence, in a strong, paternalistic sense, would require that we act according to a conception of an individual’s best interest, even if this impairs the control that individual retains over their life decisions. The harm-​reduction strategy espoused by the government in the Misuse of Drugs (Supervised Injecting Facilities) Act 2017 has inscribed a fundamental recognition of autonomy and a scepticism towards a paternalistic approach. It recognizes the ability of individuals to act in a way that we, concededly, recognize as harmful to them. Rather than seeking to override or invalidate that decision and attempt, in a corrective fashion, to force them to act in a way that would be seen as beneficial, autonomy might require us in these situations to support individuals in performing actions that are inherently harmful, with a view to reducing the prospect of harm attendant to the act. Beneficence, as a concept, is not entirely abandoned in terms of the possibility for therapeutic interventions in the supervised facilities through offering information on rehabilitation services and cessation strategies –​ however, autonomy is the prevailing consideration. The political debate surrounding the opening of the SIF at Merchants Quay was drawn along similar lines. During a monthly Dublin City Council meeting on 7 October 2019, the topical issue of ‘the importance of safe

197

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

injection facilities’ was part of the agenda, and the interventions by the various councillors cast in stark relief the difference of opinion over the site and its placement. Councillor Michael Pidgeon offered the observation that ‘a facility like this isn’t a solution to all problems, as people have rightly said, but it is a solution to some of them. It brings down the number of overdoses, it gives some privacy, some safety and a hint of dignity to people at a pretty rough time in their lives’. (Dublin City Council, 2019) Accordingly, by this view, SIFs are a necessary concession to complex problems faced by people who inject drugs, and one that allows them ‘a hint of dignity’ by employing a harm-​reduction strategy. These remarks and others are indicative of a principled approach based on preference for the autonomy of the individual, even though they act based on motivations we may not share or support. Not all were supportive of this view; lord mayor Nial Ring noted: “It’s our sons or daughters. Would you give your son or daughter and needles to inject himself with? Absolutely not, but we’re going to allow the government to do that and they call it a sanitised and an injection facility” (Dublin City Council, 2019). The Lord Mayor also considered that this was one step on the road to decriminalization of drugs, and that SIFs were a way of hiding the problem rather than facing it. There is arguably a strong ideological preference in these remarks for beneficence as the correct policy approach for persons who inject drugs. In this way, the lord mayor asks his fellow councillors to imagine themselves as parents; implicit in his remarks is an assertion that a reasonable parent would not assist their child in injecting drugs because the action is inherently harmful. The mention of decriminalization also raises a ‘slippery slope’ argument that toleration of injecting drugs in SIFs will lead to the decriminalization of drugs generally. Rather, the lord mayor stated that he thought “the people on the streets remind us that we have this problem; let’s reach out to them on the streets and not hide them away” (Dublin City Council, 2019). There were other practical objections to the facility as well, including its proximity to a primary school and the choice to locate the facility in Merchant’s Quay because of the presence of other similar services in the area, similar to those raised by the TPOLs considered earlier. The remarks of Hart and Devlin concerning the limits of political toleration seem prescient when we apply them to this contemporary debate. In terms similar to the position taken by Hart in the context of that debate, a slight step in the permissive direction, in terms of a SIF, might provide a solution to health concerns related to the injecting of drugs without entailing

198

Safe INJECTING Facilities in Ireland

the dissolution of political will to contain drug use as a general strategy. As Hart might say, the ‘bare knowledge’ that individuals are injecting drugs in supervised facilities does not entail the erosion of a moral viewpoint on the desirability, vel non, of drug use, nor is it sufficient basis for objection. A fortiori, a SIF might also reduce the actual harm occasioned by open injection, such as that which was cited in the letter by St Audoen’s National School.

Towards a public health model for people who inject drugs The myriad of approaches adopted by different jurisdictions to contain the harm caused by drug use evokes two rival, and potentially incompatible, paradigms for conceiving of PIDs. By one, PIDs are atomized, rational actors, actively choosing to engage in criminally blameworthy activity; by the other, they are equally individuals who are rational and responsible for their actions, but also persons in need of care. Neither of these perfectly capture the reality of addiction, however, and it is important to note that there are legal implications arising from these views of PIDs. Critically, moral condemnation, economic concerns, international politics, racism, classism, national security, as well as pervasive and unhelpful stereotypes concerning PIDs addiction can all shape policy in this area, and are not always manifest in the language used, nor is their inclusion always calculated to aid the stated goal of containing drug use (see Windle, 2017). Rather than evaluations that see PIDs as persons worthy of a voice in policies that affect them and services with which they engage, maladaptive reasoning and the driving forces behind policy cited above arguably have more traceably spurred the evolution of law and policy in this area. The use of evidence in policymaking can create a powerful narrative to substantiate a particular policy choice, while at the same time it can also, overtly or covertly, silence the issues associated or viewpoints of marginalized groups, such as those who use drugs (Monaghan et al, 2018; Stevens, 2010). Specifically, economic concerns of local businesses and incidents of antisocial behaviour are raised by the TPOLs and weighed against a service that seeks to reduce the negative externalities of drug injecting currently occurring on the street and provide care and safety to PIDs. However, as was succinctly observed in the Robinson case in the United States,12 but likely holds true for Ireland as well, governments cannot, without difficulty, directly criminalize the mere status of being addicted to narcotics; as Justice Stewart stated in the Robinson case: It is unlikely that any State at this moment in history would attempt to make it a criminal offense for a person to be mentally

199

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

ill, or a leper, or to be afflicted with a venereal disease. A State might determine that the general health and welfare require that the victims of these and other human afflictions be dealt with by compulsory treatment, involving quarantine, confinement, or sequestration. But, in the light of contemporary human knowledge, a law which made a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment. Indeed, where governments could not punish the mere status of living with addiction, the animus against individuals living with addiction found expression in the arguable overcriminalization of the incidents of drug addiction, such as imprisonment for possession of even small amounts of drugs in the United States and the potentially unnecessary and duplicitous syringe offences in Irish criminal law. In this way, the criminal law has, for a long time, mediated our strong urge to condemn those living with addiction. In more recent times, these approaches have come under increasing scrutiny or have been discontinued; the stigma, however, remains a real impediment to the deployment of effective drug-​use policy. These historic policies that emphasize the use of criminal penalties seem incongruous with international conventions, which do not specify an obligation to criminalize use or addiction. The authors of this chapter suggest that we can draw lessons from other marginalized groups within society for this proposition. For example, the criminal law’s treatment of those living with HIV. This is justified by the fact that those living with HIV and PIDs are not distinct groups, as PIDS are 22 times more likely to contract HIV, one in ten new infections arise from sharing needles, and 25 per cent of new infections, outside sub-​Saharan Africa, are PIDs (UNAIDS, 2019a). Just as for PIDs, individuals infected with HIV in the 1980s and 1990s saw the moral indignation society had aimed at them mediated through the criminal law. For example, per part of the Ryan White Comprehensive AIDS Resources Emergency (CARE) Act in the United States,13 federal funding for state HIV initiatives was made contingent upon the state criminalizing the act of exposing others to HIV.14 This led states to enact criminal statutes that allowed prosecutions for engaging in sexual relationships, sharing needles, even spitting in the case of the original criminal offence in the State of Louisiana, with very onerous, custodial sentences, whether or not the virus was actually transmitted in some cases, that were disproportionate in penalty when compared to comparable risk or harm activities. These prosecutions can also reveal racial and other kinds of intersectionality when closely examined (Ahmed, 2016).

200

Safe INJECTING Facilities in Ireland

Empirical research ultimately showed that these were not effective as deterrents and were maladaptive to facilitating effective public health efforts to curtail the epidemic, and even actively interfered with public health efforts and relationships with health professionals (Mathews, 2017). Over time, criminalization approaches to controlling the spread of HIV have somewhat ceded to public health approaches, as advocated by UNAIDS and other organizations in the area. This illustrates that the abatement of moral panics surrounding a new or unfamiliar epidemic affecting already marginalized groups tends to herald a change in the law away from criminalization (Perone, 2013). The move away from criminalization tends to be a difficult one, as experience teaches us that those prosecuted for such offences tend to belong to politically disenfranchised groups, and on a more visceral level, our disgust at the thought of individuals injecting drugs helps to entrench us in a criminal law approach. As Martha Nussbaum (2010: xiii) stated: ‘Disgust … seems pretty nasty, a fundamental refusal of another person’s full humanity. One might therefore think it a bad basis for lawmaking in a democratic society. Disgust, however, has had some pretty respectable and influential defenders in the law.’ Those who are living with HIV and PIDs have seen the effect of disgust and fear on their treatment within the law. This in mind, the authors propose three axes along which state intervention in law and policy should be organized:

1) A limited role for criminal law The first axis envisions a limited role for criminal law, in applying either general criminal law provisions or removing possession of drugs for personal use from the criminal law realm entirely. Specialized offences are generally reactionary, and tend to signal to society as a whole that a certain conduct, such as injecting heroin, is especially heinous conduct that is associated with an already marginalized group. This comes, as well, with the contemporary understanding that strict criminalization approaches do not yield the best outcomes in terms of health and personal rights, and prevent access to harm reduction, healthcare, and treatment (Strathdee et al, 2015). This does not necessarily militate for the decriminalization of drugs for personal use, but, at the very least, requires that the law not be used as a cudgel to inflict the moral condemnation of society or to menace PIDs into the shadows. Decriminalization, along with a public health model that takes account of the concerns of those engaged with services for PIDs, merits further investigation –​this despite the 2019 working group’s (2019: 6) ultimate

201

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

rejection of a decriminalization model, citing incompatibility with the Irish legal system. Criminalization adds to the stigma, and the sense of disgust, to which we alluded earlier. Rather, we propose that the criminal law be adapted with reference to drug-​related offences in the manner described above, and in particular dispense with matters like syringe-​related offences which are duplicitous, conspicuous, and unnecessary in light of general criminal law alternatives which are available.

2) Identifying our desired ends; choosing appropriate means The authors also propose that policy and law directed at PIDs should identify the socially desirable aims that policy and law in this area seek to realize, and craft that same policy and law in a manner best calculated to achieve these ends. This might seem a straightforward suggestion, but history has proven that the means chosen to attempt to contain or shrink the population of PIDs have not necessarily been evidence based and have proven maladaptive to the desired ends in respect to certain marginalized groups. While drug containment policies that incorporate criminal penalties may work at a macro-​level, they might not adequately address the needs of specific groups, such as those who already inject drugs; more nuance, then, is required at the micro-​level to address specific needs and aims. The authors feel that SIFs represent such a nuanced and humanitarian approach that takes justified steps to address the needs of PIDs. As well, experience of criminal law’s treatment of other marginal groups furnishes us with reason for concern over commending to the criminal law something which is essentially a public health concern.

3) Ethics of care and a person-​first, rights-​based approach Following from the above, the state should definitively enshrine an ethic of care into the law and policy deployed in relation to PIDs. While this could call for a number of measures, it involves, invariably and as a first step, overcoming the disgust that Martha Nussbaum identifies as a driver of policy and law in the case of marginalized groups and reaffirming the human dignity of PIDs. It also involves placing the person and their rights first, dealing with addiction in the least restrictive environment, and committing to a preference for the highest degree of personal liberty and non-​punitive measures. Indeed, this area presents many challenges, but also opportunities for reform (UNAIDS, 2019b). Replacing disgust with dignity, as Nussbaum advocates, might begin for our purposes with affording PIDs the opportunity to inject drugs in a safe and clean environment, not in unhygienic alleyways. Though the

202

Safe INJECTING Facilities in Ireland

concerns of the national school and other parties are understandable, the SIF proposed could actually mitigate the safety concerns cited in the TPOLs.

Conclusion Turning now to the issue of the proposed SIF for Dublin City Centre, the authors consider that the lived experience of other jurisdictions and scholarship in this area militate for the provision of such facilities for PIDs over possible opposition that does not constructively engage with extant issues and overwhelms the voices of PIDs. As well, empirical findings in this area tend to support the view that criminalization does not dissuade individuals from engaging in the conduct prohibited and can prove counterproductive to the stated aims. Even supposing, arguendo, the options of criminal law versus public health initiatives were equally desirable in empirical terms, the use of public health initiatives, in the form of SIFs, satisfies all the criteria we have identified for effective policy in this area, aligns with best-​practice data from other jurisdictions and international guidance, and promotes the autonomy of PIDs. What remains a difficult point of contention is the location of such facilities, bearing in mind that the political context extends from the locality to the entire community. As such, difficult decisions must be made, but also proportionate decisions that are attentive to the needs of individual localities and communities. Notes 1

2

3

4 5

6

7

Hourigan et al (2018: 129) suggest the growth of heroin addiction during this period be viewed as a response to a culmination of international and national issues, including a prolonged domestic economic recession, improved supply due to geopolitical changes in the South Asian ‘opium zone’, and technological innovations which made the importation of large quantities of heroin less challenging and cheaper. Prior to the introduction of the 1977 Act, the law in this area was for the most part governed by the Dangerous Drugs Act 1934. There were also obligations to update the law under the United Nations’ Single Convention on Narcotic Drugs 1961 and the 1971 Convention on Psychotropic Substances. Hanly (2015: 6) suggests that the creation of a number of syringe-related offences was a political response to public fear spurred on by the media. The 2017–​2025 National Drugs Strategy simply suggests a further review. Among the critics were CityWide (2019: 1): ‘We are now seriously concerned at the indications that the Working Group is saying that while it recommends implementing a diversion approach, this should only be done if at the same time we maintain criminal status for possession for personal use and maintain the right to impose potential criminal sanctions on people who use drugs.’ At the time of publication, a school has challenged the granting of planning permission by An Bord Pleanála in the High Court via judicial review; the case is pending. Many TPOLs were received in advance of the initial refusal of planning permission; all submissions are available through the Dublin City Council planning section of their

203

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

8

9

10

11

12 13 14

website. These documents are publicly available through the Dublin City Council website with the planning application reference: 4121/​18. The paucity of observations received in favour of the SIF was noted in the media as well (Deegan, 2020). Also of note is the lack of observations received by those who engage with services for PIDs currently offered and those who might avail of the proposed SIF. The Night Café is an emergency shelter for those who are homeless and provides sleeping and washing facilities, food, information, advise, and crisis support. Kantian ethics would seem to provide the weakest support for SIFs, as the deontological approach would focus on the nature of the act itself and not the wider benefit (Christie et al, 2008: 55–​6). The debate between the two arose after the release of the Wolfenden Report in 1957, which considered criminalization of homosexual conduct and prostitution, and which recommended the decriminalization of consensual homosexual behaviour between adults with varying ages of consent, and led to increased policing of prostitution. Robinson v. California (1962) 370 U.S. 660. Pub. L. No. 101–​381, 104 Stat. 576 (1990). Pub. L. No. 101–​381, 104 Stat. 576 (1990) at §2467(a).

References Ahmed, A. (2016) ‘Adjudicating risk: AIDS, crime, and culpability’, University of Wisconsin Law Review, 3: 627–​54. An Bord Pleanála (2019) Board Order ABP-​305215–​19, Dublin: An Bord Pleanála. An Bord Pleanála (2019) Inspector’s Report ABP-​305215–​19, Dublin: An Bord Pleanála. Ana Liffey Drug Project (2015) Position Paper on the Provision of Medically Supervised Injecting Centres (MSIC) in Dublin, Dublin: Ana Liffey Drug Project. Beauchamp, T.L. and Childress, J.F. (2013) Principles of Biomedical Ethics, Oxford: Oxford University Press. Butler, S. (1991) ‘Drug problems and drug policies in Ireland: A quarter of a century reviewed’, Administration, 39(3): 210–​33. Butler, S. (1996) ‘Substance misuse and the social work ethos’, Journal of Substance Misuse, 1(3): 149–​54. Butler, S. (2013) ‘The symbolic politics of the Dublin drug court: The complexities of policy transfer’, Drugs: Education, Prevention and Policy, 20(1): 5–​14. Carman’s Hall Community Interest Group & ors v Dublin City Council (2017) IEHC 544. Christie, T., Groarke, L., and Sweet, W. (2008) ‘Virtue ethics as an alternative to deontological and consequential reasoning in the harm reduction debate’, International Journal of Drug Policy, 19(1): 52–​8. CityWide (2019) An Open Letter to Taoiseach Leo Varadkar, Dublin: CityWide.

204

Safe INJECTING Facilities in Ireland

Collins, J., Agnew-​Pauley, W., and Soderholm, A. (eds) (2019) Rethinking Drug Courts: International Experiences of a U.S. Policy Expert, London: London Publishing Partnership. Commission of Inquiry on Mental Illness (1966) Report of the Commission of Inquiry on Mental Illness, Dublin: Stationery Office. Deegan, G. (2020) ‘Just two people wrote to city planners saying they were in favour of the new supervised injecting facility’, The Journal, [online] 3 January, available online from: https://​www.thejournal.ie/​ supervised-​injection-​facility-​planing-​submissions-​4953309-​Jan2020/​ Department of Health (1991) Government Strategy to Prevent Drug Misuse, Dublin: Department of Health. Department of Health (2017) Reducing Harm, Supporting Recovery. A Health-​led Response to Drug and Alcohol Use in Ireland 2017–​2025, Dublin: Department of Health. Devlin, P. (2009) The Enforcement of Morals, Indianapolis: Liberty Fund. Dooley, D. and McCarthy, J. (2012) Nursing Ethics: Irish Cases and Concerns, Dublin: Gill and Macmillan. Dublin City Council (2019) Monthly Meeting, available online from: https://​ dublincity.public-​i.tv/​core/​portal/​webcast_​interactive/​444168 (link no longer active). Fáilte Ireland (2018) Third Party Observation Letter, not publicly available. Feinberg, J. (1987) Offense to Others, Oxford: Oxford University Press. Hanly, C. (2015) An Introduction to the Criminal Law, Dublin: Gill. Hourigan, N., Morrison, J.F., Windle, J., and Silke, A. (2018) ‘Crime in Ireland north and south: Feuding gangs and profiteering paramilitaries’, Trends in Organized Crime, 21(2): 126–​46. HSE.ie (2018) ‘HSE confirms Merchants Quay Project CLG as preferred operator of Ireland’s first Medically Supervised Injecting Facility’, available online from: https://​www.hse.ie/​eng/​services/​news/​media/​pressrel/​hse-​ announces-m ​ erchants-q​ uay-p​ roject-c​ lg-a​ s-p​ referred-​operator-​of-​irelands-​ first-​medically-​supervised-​injecting-​facility.html Irish Court Service (1999) First Report of the Drug Court Planning Committee, Dublin: Stationery Office. Kant, I. (1997) Critique of Practical Reason, translated by M. Gregor, Cambridge: Cambridge University Press. Keane, M. (2019) ‘Opinion: The government’s new drug policy will do nothing to end the stigmatisation of drug users’, The Journal, [online] 7 August, available online from: https://​www.thejournal.ie/​readme/​ opinion-​marcus-​keane-​drug-​possession-​policy-​4754411-​Aug2019/​ Kiely, E. and Egan, E. (2000) Harm Reduction: An Information And Resource Booklet For Agencies Engaged In Drug Education, Cork: University College Cork.

205

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

Kilmer, B., Taylor, J., Caulkins, J.P., Mueller, P.A., Ober, A.J., Pardo, B., Smart, R., Strang, L., and Reuter, P. (2018) Considering Heroin-​Assisted Treatment and Supervised Drug Consumption Sites in the United States, Santa Monica: RAND. Lancaster, K., Ritter, A., and Stafford, J. (2013) ‘Public opinion and drug policy in Australia: Engaging the “affected community” ’, Drug and Alcohol Review, 32(1): 60–​6. Liberties Business Forum (2018) Third Party Observation Letter, not publicly available. Masterson, L. (1970) A Report of Drug Abuse in Dublin, Dublin: Medico Social Research Board. Mathews, E. (2017) Pathogens, Punishment and Public Health: Some Jurisdictions Have Not Yet Prosecuted Exposure to, or Transmission of, a Pathogen During Sexual Activities –​Should They Do So Now?, PhD thesis, Dublin: Trinity College. Merchants Quay Ireland (MQI) (2018) Medically Supervised Injecting Facility: Information Booklet, Dublin: Merchants Quay Ireland. Monaghan, M., Wincup, E., and Wicker, K. (2018) ‘Experts, expertise and drug policymaking’, The Howard Journal of Crime and Justice, 57(3): 422–​41. Nevin, M., Wilson-​Davis, K., O’Rourke, A., and Dean, G. (1971) ‘A report on a study in Dublin post-​primary schoolchildren, 1970’, Journal of the Irish Medical Association, 64(406): 91–​100. Nussbaum, M. (2010) From Disgust to Humanity: Sexual Orientation and Constitutional Law, Oxford: Oxford University Press. O’Driscoll, F. (2018) Third Party Observation Letter, not publicly available. O’Gorman, A. (1998) Illicit drug use in Ireland: an overview of the problems and the policies, International Journal of Drug Issues, 28(1): 155–​66. Perone, A. (2013) ‘From punitive to proactive: An alternative approach for responding to HIV criminalization that departs from penalizing marginalized communities’, Hastings Women’s Law Review, 24(2): 363–​406. Ryan White Comprehensive AIDS Resources Emergency (CARE) Act. Pub. L. No. 101–​381, 104 Stat. 576. Sheehan, G. (2019) Minority Report of the Working Group to Consider Alternative Approaches to the Possession of Drugs for Personal Use, Dublin: Department of Health. Smyth, C. (2013) Drug consumption rooms: A step towards the right to health for addicts?, Irish Law Times, 31(14): 205–​08. Stevens, A. (2010) ‘Telling policy stories: An ethnographic study of the use of evidence in policy-​making in the UK’, Journal of Social Policy, 40(2): 237–​55. Strathdee, S.A., Beletsky, L. and Kerr, T. (2015) HIV, drugs and the legal environment’, International Journal of Drug Policy, 26(1): 27–​32.

206

Safe INJECTING Facilities in Ireland

The Irish Times (2020) ‘Dublin primary school challenges permission for heroin-​injecting facility’, available online from: https://​www.irishtimes. com/​news/​crime-​and-​law/​courts/​high-​court/​dublin-​primary-​school-​ challenges-​permission-​for-​heroin-​injecting-​facility-​1.4176487 The Temple Bar Company (2018) Third Party Observation Letter, not publicly available. UNAIDS (2019a) Miles to Go: Closing Gaps Breaking Barriers Righting Injustices, Geneva: UNAIDS. UNAIDS (2019b) Rights and Drugs: Harm Reduction, Decriminalization and Zero Discrimination for People Who Use Drugs, Geneva: UNAIDS. Walsh, D. (1966) ‘Amphetamine dependence in Dublin’, Journal of the Irish Medical Association, 58: 161–​4. Windle, J. (2017) ‘Why do South-​East Asian states choose to suppress opium? A cross-​case comparison’, Third World Quarterly, 39(2): 366–​84. Working Group (2019a) Report of the Working Group to Consider Alternative Approaches to the Possession of Drugs for Personal Use, Dublin: Department of Health.

207

11

Giving Voice to Convicted Perpetrators of Sexual Harm: Assisted Desistance in the Community Clare B. Cresswell

Research in the Republic of Ireland finds the rate of reoffending for sex offenders is low in comparison to other types of criminal offences, which corresponds with international research findings.1 Nonetheless, there are on average more than 400 people in custody convicted of sexual offences on any given day (Irish Prison Service, 2019) and at the time of writing, 170 sex offenders were under probation supervision in the community following release from custody (Probation Service, 2020). The field of sexual offence prevention and rehabilitation is challenging. Empirical research into desistance from sexual offending is lacking, with even less in the area of assisted desistance, that is, in how individuals are best helped to avoid reoffending. Researchers face challenges in accessing perpetrators in the community and handling highly sensitive data from a vulnerable population (Farmer et al, 2015). Small jurisdictions can heighten these difficulties when different rehabilitation interventions frequently involve a crossover of programme stakeholders. Other challenges in this field include strong public emotion regarding sexual offending, the pressure on politicians and policymakers to respond to public anger, and often inadequate or conflicting evidence for effective interventions (Schmidt & Mann, 2018). General desistance principles argue that rehabilitative approaches to offending must consider not only thought processes and risk but also the broader issue of reintegration which needs to involve the community

209

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

(McAlinden, 2011, 2016). It is now recognized at government policy level in Ireland that public alienation drives perpetrators of sexual harm underground and that rehabilitative approaches to sexual offending which do not address wider issues relating to reintegration fail to adequately help offenders or communities and are therefore less likely to prevent further victims (compare Mews et al, 2017). On the contrary, the risk of reoffending can increase when perpetrators of sexual harm leave custody and return to communities who revile and reject them (Brown et al, 2007; Willis et al, 2010). Recognizing this, the Irish Probation Service funds a co-​ordinated community-​based response comprising three different rehabilitative programmes run by PACE (Prisoners Aid through Community Effort). These programmes, Foothold (a floating support service), Safer Lives (a treatment programme), and CoSA (Circles of Support and Accountability), share the overall aim of preventing the creation of further victims of sexual harm by combining community risk management with assisting perpetrators to desist and reintegrate. The lack of empirical research into how perpetrators of sexual harm desist from sexual offending represents an important gap in knowledge as particular legal, political, and social barriers to reintegration are faced by this offender group. Additionally, in common with other offender types, they may have issues relating to addiction, mental illness, and social disadvantage. This chapter presents key results of a study that aims to help fill this knowledge gap by evaluating, through interviews with programme participants, how effectively these three programmes help perpetrators of sexual harm to desist and reintegrate into communities. By allowing programme participants to voice their experiences, the study breaks new ground in offering valuable insights into how this offender group in Ireland perceives the successes and challenges of desistance and reintegration. The study draws on a general assisted desistance framework proposed by McNeill (2012), who argues that successful rehabilitation needs to involve psychological, social, legal, and moral aspects. This four-​part model was chosen to enable a broader understanding of the ways in which three different types of rehabilitative programmes can assist desistance. The general model was also tested to see if it can be readily applied to perpetrators of sexual harm or whether it needs to be extended to accommodate this group.

Assisted desistance Although earlier practical applications of desistance research have been explored (for example in Farrall, 2002; McCulloch, 2005), King (2013) was the first to use the term ‘assisted desistance’ in an article regarding the impact of probation interventions on individuals at an early stage of desistance (Dufour et al, 2018). King (2013) found that while such interventions had a

210

Sexual Harm AND Assisted DesistAnce

positive impact, they inadequately supported the socio-​structural elements of desistance. This is because, if an individual starts to envision a new self, this can be upset by negative circumstances or difficulties which appear too challenging to manage. Such difficulties can result in reversion to old habits which may seem easier. Assisted desistance is a field still finding its feet, with much theory but less evidence to empirically support its key tenets. While studies of probationers show the positive impact of approaches which extend beyond a focus on criminogenic needs (Farrall, 2002; McCulloch, 2005; Healy, 2010, 2012; King, 2013), there is a paucity of both evidence-​based programmes and empirical research on the effectiveness of such programmes, particularly in the area of sexual offending. Assisted desistance is a complex concept that incorporates three distinct but interconnected concepts of desistance, rehabilitation, and reintegration.

Desistance General desistance theories encompass themes of natural desistance emerging through ageing (for example Sampson & Laub, 1993), the influence of informal social controls, such as employment or relationships (for instance Gottfredson & Hirschi, 1990), cognitive transformations relating to psychological or individual change (as in Maruna, 2001; Giordano et al, 2002), or various combinations of these (Bersani and Doherty, 2018). These general desistance theories are variously, if uncertainly, supported by empirical evidence relating to desistance from sexual offending. However, discrepancies exist that general desistance theories do not adequately explain. Examples are the unique features of sexual reoffending, such as the wide variations in specialized crime among different types of sexual offenders or the longer timeframe for sexual reoffending than for general crime, which make it harder to establish whether a person has really desisted or remains in the process of reoffending. Additionally, the challenging impact on desistance of an increasingly punitive contemporary criminal justice context (Mustaine et al, 2015) tends to be overlooked by general desistance theories. For example, although research has revealed that the impact of social controls are complex for perpetrators of sexual harm, as they often report positive criminal justice experiences too (compare Farmer et al, 2015), stringent social controls in many jurisdictions, including Ireland, result in severe restriction of movement, employment, and social interaction. However, mixed research results are now better explained by integrative theories of desistance which combine social, individual, and cognitive factors (compare Göbbels et al, 2012), and empirical research is showing that the combination of different components involved in desistance for perpetrators of sexual harm can be

211

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

different to desistance from general crime (Farmer et al, 2015). Ongoing research explores the composite balance between social structures, cognitive factors, and personal agency, and highlights the unique challenges faced by this offender group (McAlinden, 2011; Lussier, 2016; Farmer et al, 2015; McAlinden et al, 2017). Nonetheless, the paucity of studies on desistance from sexual offending means the picture remains unclear as to how perpetrators of sexual harm desist (Lussier, 2016).

Rehabilitation Desistance theorists understand desistance as a process of change that involves social and structural aspects as well as individual behavioural change; for example, McNeill (2006) makes the case for an assisted desistance paradigm in rehabilitation practice (which he calls ‘desistance-​focused practice’) that emphasizes processes of change. Arising from this understanding, an assisted desistance approach focuses more on how programmes bring about change rather than on the evaluative evidence for ‘what works’. McNeill (2006) suggests this shifts the emphasis from programmes that work ‘on’ an offender to bring about change, to programmes that work ‘with’ the offender as an agentic and subjectively involved human being. Assisted desistance theorists argue that programmes should not focus solely on risk but need to also develop an individual’s strengths and skills, as this helps a move towards desistance as well as towards the reintegration of offenders back into communities. Furthermore, an assisted desistance approach sees a focus on risks as secondary to the broader aims of developing an individual’s strengths and seeking how they can best be supported to achieve desistance through rehabilitation. This requires practitioners to build on an individual’s strengths to develop human capital as well as to help develop social capital by serving as a link to resources and opportunities (for example McNeill, 2006). Although desistance is often described as a process of self-​change, offenders have nonetheless acknowledged the role played by rehabilitation and professionals in assisting their change (Farmer et al, 2015). This suggests that the focus of rehabilitative programmes to prevent reoffending should be less on producing actual change than on assisting and advancing the individual and social processes that bring about this change (Maruna & Lebel, 2010; McNeill et al, 2012). Thus, the assisted desistance literature suggests that while programmes can play a supporting role in desistance, they are embedded in a wider change process which includes other forms of rehabilitation and supports before-​, during-​, and after-​ programme participation.

212

Sexual Harm AND Assisted DesistAnce

Reintegration The concept of reintegration goes further, requiring the removal of practical and legal barriers to the offender’s reintegration (McNeill, 2012) and their full reinstatement and acceptance as a citizen, which are important aspects of the desistance approach. Maruna et al (2004) propose that reintegration is both an event and a process; the event starts on the day of release from custody, but the process may have started pre-​release (for instance, through a CoSA programme) and continues into the community. However, there are specific legal and structural barriers to reintegration for perpetrators of sexual harm. Although current Irish penal policy recognizes the limitations of imprisonment and highlights the importance of the community role (Kilcommins et al, 2005; Hamilton, 2014), sex offender legislation and community risk management are leaning towards greater punitiveness -​for example, the General Scheme of the Sex Offenders (Amendment) Bill 2018 (Department of Justice and Equality, 2018).2 Perpetrators of sexual harm are often rejected, marginalized, and socially isolated by many communities (McAlinden, 2011). This speaks to Miller and Stuart’s (2017) concept of ‘carceral citizenship’, which refers to the different ways an offender experiences being back in society as well as to the different treatment by society of the offender. In other words, the nature of the interaction between individuals and others they come in contact with is altered by a criminal conviction: on a personal level with family and friends, and at a community level, for instance relating to housing, welfare, or employment. In this way, legal barriers can be seen to expand to include other civic areas.

Assisted desistance framework The three PACE programmes were considered together to better understand them as moving parts that operate together in providing a co-​ordinated holistic response to the rehabilitation of this offender group. Therefore, the four-​part rehabilitation model proposed by McNeill (2012) was a useful framework through which to evaluate all three programmes simultaneously. The four rehabilitative aspects are discussed below.

Psychological and ​personal rehabilitation While the first rehabilitative aspect of the framework, psychological rehabilitation, is recognized as very important, critics suggest it has shortcomings. This is because the focus is on individual-​level change and

213

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

addressing the psychological causes of criminal behaviour rather than also seeking to develop human and social capital (compare McNeill, 2012). Critics argue that such an approach focuses too much on risk factors, cognitive distortions (the way a person can convince themselves of something that is not true, often to reinforce negative emotions or thoughts), and past behaviour (Maruna & Mann, 2006). Rather, they say, the focus should be on protective factors, cognitive transformations (individual-​level changes involving personal agency), and future responsibility, to encourage desistance and reintegration. To address this, McNeill (2014) expanded the concept of psychological rehabilitation to include a broader, less restrictive concept of ‘personal’ rehabilitation. This incorporates the wider concept of cognitive transformation in the desistance literature (that is, a focus on how an individual changes within particular social circumstances), which puts the individual and their agency to the fore of the change process.

Social rehabilitation Social rehabilitation offers a more fluid understanding of desistance as a process that encompasses more than the absence of criminal behaviour (compare Maruna, 2001; McNeill et al, 2012). It concerns the viewpoint that rehabilitation needs to extend beyond personal change to the building of social relationships and assisting individuals to reintegrate better into communities. Desistance theorists suggest this requires a shift in focus from rehabilitation models focused only on risk to more strengths-​based models which encompass broader aims of providing positive social environments to encourage desistance. Such models aim to develop hope for the future and encourage a more positive process of ‘reintegrative shaming’ whereby the harm caused is fully acknowledged but there is also a belief that the individual is capable of change (McAlinden, 2011). Social rehabilitation also espouses and encourages community involvement in rehabilitation (which tends to be ignored in risk-​based models), a conceptualization that suggests rehabilitative interventions work ‘with’ rather than ‘on’ offenders to help them develop strengths and explore how each individual can best be supported to achieve desistance (McNeill, 2006).

Legal rehabilitation McNeill (2012) proposes that this aspect is concerned with the requalifying of offenders as citizens and the expunging of criminal records by the state (that is, ‘spent convictions’). He argues that the concept of legal rehabilitation can only be achieved when offenders are fully reinstated as citizens. In other words, this concept relates to the point at which an offender’s alleged debt

214

Sexual Harm AND Assisted DesistAnce

to society can be considered as paid and their criminal record and the stigma it stands for can be removed by the state.

Moral rehabilitation McNeill (2014) suggests that moral rehabilitation requires a relational focus on the offence through reparation between the victim and the community. This implies a level of redress that psychological rehabilitation cannot achieve by virtue of its emphasis on individual change. It is also consistent with Zedner’s (1994) argument for a broader conception of reparative justice whereby an offender is understood to have offended not only against an individual but also against society. Thus, if offenders are seen to lose their rights and status within society due to their offending, then justice demands that the offender makes some form of reparation to society, whether in a concrete or symbolic way, to restore their standing and rights as good citizens. By becoming involved willingly in treatment, an individual can be seen as expressing a desire to change, or in some way apologizing for past behaviour. However, McNeill (2014) suggests that these change processes usually involve professional interventions and tend to be hidden from public view. Acknowledging that restorative justice may be helpful, McNeill (2012) nonetheless argues that the moral aspect of rehabilitation is complex because rehabilitation in itself does not offer moral compensation for harm caused, as it works with the perpetrator and not with the ‘conflict’ and need for reparation between perpetrator, victim, and community.

Community-​based programmes for perpetrators of sexual harm The present study evaluated three different types of community-​based programmes for medium a​ nd high r​ isk adult perpetrators of sexual harm run by PACE in Ireland. The programmes are tailored to address the individual and social needs that appear in the desistance literature and also recognize the importance of community involvement. Analyzing the research data through McNeill’s (2012) different aspects of rehabilitation enabled research participants’ experiences of the programmes’ similarities and differences to be incorporated in an extensive understanding of how the programmes assisted the process of change. Foothold floating support service provides intensive one-​to-​one practical and emotional support for high-​need individuals with limited supports in the community. The programme’s focus is on helping the client find accommodation, sort out finances, seek employment, and deal with basic material or practical needs that may arise.

215

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

Safer Lives programme is a multimodal, group treatment programme for perpetrators of sexual harm with a range of sexual offence types. Co-​ facilitated by PACE and the Probation Service, the programme addresses issues relating to the offences committed to prevent further harmful sexual behaviour. Adopting a strengths-​based approach and a desistance focus, Safer Lives aims to help individuals to build internal capacity and coping skills to live safely in the community. CoSA is a community-​based initiative which operates on restorative principles. CoSA brings together a group of community volunteers with a perpetrator of sexual harm to reduce social isolation and to hold them accountable for the way they now live their lives.

Methodology While recidivism rates are the usual measure of programme success, they do not reveal the way programme mechanisms help the desistance process. As such, a more subjective human element needs to be considered in order to assess this process. Alternative ways of measuring success were also used, including various measures of intermediate programme successes: for example, increasing motivation to avoid reoffending, developing social skills, and increasing hope and resilience. A complex methodology was designed that revealed both the uniqueness of individual programmes and identified common or overarching themes. A mixed-​m ethods approach, including in-​d epth interviews, survey questionnaires, and programme document analysis, enabled the researcher to analyze and synthesize the different types of results from the three programmes into a complex but cohesive whole. This approach more accurately represented the reality of rehabilitation programmes, which do not operate in isolation but rather within complex social contexts. The study design comprised three distinct but overlapping phases which were implemented concurrently over a two-​year period across the three programmes. This chapter focuses on the phase-​one results from 22 interviews with perpetrators of sexual harm involved with one or more of the programmes. In phase two, 59 key programme stakeholders (for instance, probation officers, Gardaí,3 programme facilitators, community volunteers) completed survey questionnaires about their experiences of working with the programmes and clients. Phase three analyzed documentation regarding programme processes and aggregated data from client files to provide background information on research participants (see Cresswell, 2018, for full methodology). Phase one explored the process of change over time through two sets of interviews with participants carried out six to nine months apart.4 The

216

Sexual Harm AND Assisted DesistAnce

sampling criteria for research participants were: perpetration of sexual harm; aged over 18; involvement with a PACE programme (Foothold/​Safer Lives/​ CoSA) for a minimum of three months to ensure sufficient experience of programmes; and voluntary participation. Fifteen participants had contact offences and three were non-​contact offences (one had contact and non-​ contact offences). Fourteen offences were against children and three were against adults. Initial semi-​structured interviews were completed with 17 research participants. As five of them were involved with more than one programme, different programme effects could be difficult to isolate from all other desistance and criminogenic influences. The methodology reflected this reality of rehabilitation, and these participants were interviewed on separate occasions for each programme, making a total of 22 interviews. An interview schedule included questions about participants’ experiences of: involvement with the PACE programme; the criminal justice system/​probation; leaving custody; social bonds and relatedness; desistance; reintegration; and feelings about the future. Three psychometric tools were administered after each interview: the Quality of Life questionnaire (Mann & Hollin, 2010); the Warwick-​Edinburgh Mental Well-​Being Scale (Tennant et al, 2007); and the Life Satisfaction Scale (OECD, 2011). These tools identified cognitive schema and explored well-​being and life satisfaction. A second research contact was made six to nine months later, with available participants from the initial interviews. This consisted of 18 follow-​up telephone interviews and a repeat of one of the psychometric tools on well-​ being. Thematic analysis of transcripts was carried out using the software package MAXQDA.

Research findings: assisted desistance in practice It is recognized that rehabilitation programmes always operate within a social, cultural, and political context and that desistance can be affected contextually by an individual’s environment (Ward & Beech, 2006) as well as individual psychosocial processes (compare Farrall, 2002; McNeill & Weaver, 2010; McNeill et al, 2012; Healy, 2010, 2015). Therefore, when investigating how well the PACE programmes were assisting with desistance and reintegration, the ways in which participants had been helped or hindered in aspects of their lives beyond the programme were explored and factored into an understanding of programmes’ effects. Findings were analyzed through the lens of McNeill’s (2012) rehabilitation framework. Firstly, the impact of the programmes on cognitive and personal change is explored within psychological/​personal and moral rehabilitation frameworks. Secondly, key findings relating to programme mechanisms that help to develop human and

217

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

social capital and build relationships are revealed within a social rehabilitation framework. Thirdly, key external contexts of the programmes experienced collectively by all three programme participant groups are analyzed through a legal/​structural rehabilitation framework. These key research themes are discussed in detail below, with the different programmes referred to where relevant within each theme.

Psychological and ​personal rehabilitation Key themes found were psychological change and agency, and coping mechanisms (including emotions and well-​being).

Psychological change and agency This aspect of rehabilitation generally emphasizes risk and focuses on individual cognitive change, but as mentioned previously, McNeill (2014) expanded the concept of psychological rehabilitation to include a broader, less restrictive concept of personal rehabilitation which puts a focus on developing human and social capital and how an individual changes within particular social circumstances. To explore the impact of the programmes on cognitive change as well as agency, the study further adopted a key desistance theory, namely, Giordano et al’s (2002) cognitive transformation theory. This conceptualizes agency in terms of ‘cognitive shifts’ and the change engendered in an individual from the psychological impact of key life events understood as potential ‘hooks for change’. Analysis of individual and psychological changes experienced by participants throughout the course of the programmes showed how programme mechanisms were helping to bring about change. Although results revealed the emotional struggles in working towards desistance, the majority experienced positive personal change as well as improved well-​ being (compare Prescott, 2017) and many were achieving insights into why they had offended. Through the lens of Giordano et al’s (2002) cognitive transformation theory, a first shift towards desistance was seen, for example, in the motivation to change, which showed an increase in the six-​to-​nine-​ month period between initial and follow-​up interviews. A second shift was indicated by all participants affirming the overall helpful impacts of the programmes and seeing them as meaningful for change towards a non-​ criminal life. A third shift was seen in some participants with the forming of a pro-​social identity: ‘I found it difficult at first to take on ownership of what I’d done … now I’m taking responsibility for what I did. I chose to do it.

218

Sexual Harm AND Assisted DesistAnce

Because I’ve been in a similar mindset since then and I said no, that showed me that I made that choice’. (Safer Lives participant) However, the psychological struggles and challenges of other participants were also apparent, and it is interesting that some comments referred to self-​ management of behaviour as opposed to actual identity change. This may highlight a difference in the way some of these offenders desist and suggests that a broader understanding of identity change may be needed for some perpetrators of sexual harm (compare Blagden et al, 2018). Additionally, a complex interaction was found between internal, psychological factors and external social influences. For participants, this was both positive, from a positive perception of the programmes, and negative, from a real fear of living in the community as a perpetrator of sexual harm. Although participants were positive about the help the programmes were providing and their prospects for personal change, they found further social development and reintegration extremely challenging. As one Safer Lives participant said: “There is no redemption, it’s only a fantasy that that happens. In real life, once you do something like this you are damned forever and that’s a terribly difficult situation to be in”.

Coping mechanisms (including emotions and well-​being) Across all programme participants, managing risk of reoffending involved many different coping strategies. Some of these strategies related to internal sources of coping, for example, religion or spirituality. Others spoke of adapting their social activities, such as, avoiding certain places or changing attitudes to drinking alcohol as well as talking more about feelings with others, using distraction techniques such as regular physical exercise, structuring their day, and acquiring help from available sources. Safer Lives stakeholders identified both under-​regulation and over-​regulation of emotions as significant issues with participants as well as concomitant relationship difficulties that result from such imbalances. With regard to emotions, cognitive transformation theorists suggest an increased ability to regulate or manage emotions in socially acceptable ways is important for desistance (compare Giordano et al, 2007). Notably, all programme participants, when asked about personal change at follow-​up, said they had experienced positive personal change in the six-​to-​ nine-​month period since first interview.

Moral rehabilitation McNeill (2012) proposes that moral rehabilitation concerns the settling of debts between the offender, the victim, and the community. This study

219

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

proposes that moral rehabilitation can be partially met through a participant’s involvement with CoSA, which requires a form of payback through accountability and an intent to change. Importantly, such accountability and change are positioned more in the public domain through participation in CoSA, as they take place within a circle of supportive community representatives, namely the volunteers. An analysis of accountability in the context of ‘moral rehabilitation’ was carried out with the focus on the programmes’ concern with ‘internal’ accountability rather than McNeill’s (2012) proposed full relational form. While accountability concerns acknowledging and taking responsibility for the past, a strengths-​based approach emphasizes looking forward rather than dwelling on the past (compare Cursley & Maruna, 2015). Although the word ‘accountability’ is specifically used only with CoSA, all programme participants were effectively living with this concept in terms of their contemporaneous lifestyle being held to account by programme stakeholders. In practice, the term accountability held different meanings for different participants. CoSA participants were held accountable during the Circle life cycle, which involved weekly meetings with the volunteers for up to 18 months, through an agreed openness with the volunteers about any potential risks to themselves or others generated by their lifestyles. Within Foothold, accountability meant abiding by the PACE contract of rules and regulations, which included restrictions for their own safety as well as others; for example, not going into pubs/​bars and avoiding certain areas. Safer Lives participants were held accountable by both peers and facilitators throughout the process of developing a deeper understanding of themselves and their relationships. They spoke of taking responsibility for the present and the way the programme helped them learn how to manage thoughts, inclinations, and behaviours. As a Safer Lives participant commented: “It’s me responsible if I offend or not offend because it’s me that has the control at the end of the day. Nobody else is going to do it for me”. The finding of stakeholders’ generally non-​judgemental attitude towards perpetrators of sexual harm was also proposed as being a necessary first step towards the complex moral rehabilitation of this offender group. The positive impact of stakeholders recognizing the humanity of the individuals, acknowledged in participant interviews, should not be underestimated in the desistance process for these particularly stigmatized offenders. Hope is identified in the literature as important in the desistance process (compare Harris, 2014; Farmer et al, 2015). A hopeful individual needs to perceive that they have the agency to drive the meeting of their goals in addition to seeing beneficial pathways to achieving them (Snyder et al, 1991). However, participants in the present study showed a very fragile sense of hope as well

220

Sexual Harm AND Assisted DesistAnce

as uncertainty about the future. The question needs to be asked if moral rehabilitation is really possible for this offender group when participants’ accounts showed little evidence of their achieving redemption in their own eyes from their experiences of dealing with the public and wider communities beyond those working directly with them. With 66 per cent of such crimes perpetrated against children (Garda Inspectorate, 2017), this offender group is particularly reviled by the public (McAvoy, 2012). Nonetheless, CoSA can be considered a definite first step, for not only encouraging offenders to desist but also, importantly, showing how communities can play a role in reintegration.

Social rehabilitation Social rehabilitation concerns the proposed need for rehabilitation to extend beyond individual change to building social relationships. However, research has found that developing social bonds and improving social capital is particularly problematic for perpetrators of sexual harm (compare McAlinden, 2007, 2011; Schultz, 2014). An analysis was carried out of how effectively PACE programme mechanisms and processes build social and human capital through providing practical support, enhancing social skills, and developing social relationships. Key themes found related to social and practical needs and social inclusion and relationships. Social and practical needs: help with basic day-​to-​day needs and social skills These findings were focused on Foothold participants who have the highest needs, as it is part of this programme’s role to assist participants as soon as they leave custody, often with no capacity or basic skills to cope with daily requirements. In terms of assisting clients with basic day-​to-​day living needs (accommodation, welfare benefits, employment/​meaningful occupation, for example) and providing one-​to one support, Foothold did their utmost to assist clients. Programme participants gratefully acknowledged the help, support, and perceived friendship provided by the support workers within recognized boundaries. In terms of social skills, results showed the impact of Foothold and CoSA’s focus on developing social skills through building confidence and advising on interactions with others as well as improving social contacts. Such activities are recognized in the literature as necessary steps along the journey towards social inclusion (compare McNeill et al, 2005): ‘They were tremendous, putting the arm around you. No animosity, no judgement. They were part of being alive again,

221

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

gave me great confidence …. Contact is priceless, someone who shows a bit of care. Lives won’t ever be the same but it’s important to still feel human’. (Foothold participant) Programme supports and assistance notwithstanding, there were considerable difficulties for programme participants in achieving social inclusion at the most basic level of needs. They encountered extremely challenging problems with accommodation and employment which impacted severely on their prospects of achieving full social rehabilitation (compare Göbbels et al, 2012). Although all ex-​prisoners experience difficulty in finding employment after custody (compare Visher & Travis, 2003), these participants experienced greater challenges due to additional legal restrictions as well as the stigma attached to this offence type. Participants spoke of living with high levels of fear and experiences of rejection as a result of these challenges. Most referred to the negative impacts of media recognition on their lives, which often led to harassment and having to leave their accommodation for fear of attack. Such findings reveal how the external environment can shape programme functions and also shape the way participants experience programmes. Nevertheless, despite the variety of challenges faced by participants, a majority mentioned various formal and informal support structures that helped with behaviours, addictions, and reintegration, including counsellors, addiction services, community schemes, family, friends, accommodation services, and sometimes a combination of such supports. Social inclusion and relationships Other structural influences that shape programme experiences and reveal the challenges faced in the community include the difficulty of forming relationships and community bonds. A first analysis considered relationships within each programme. This showed how effectively the work of support workers, facilitators, and volunteers, through their commitment, provision of emotional support, and recognition of the humanity of the individual, helped all programme participants to rebuild personal connections. For instance, Safer Lives facilitators encouraged participants to improve their communication skills, and many participants found that engaging with others in the group was helpful (Weaver, 2012). The empathy and commitment of the CoSA volunteers was also evident in both participant and stakeholder accounts, with participants saying they felt more confident and more able to handle social situations. A second analysis was carried out on building/​repairing relationships with others beyond the programmes. While relationships with family showed some improvement for the majority of participants at follow-​up, there was a much

222

Sexual Harm AND Assisted DesistAnce

more mixed response regarding reintegration and the wider community. The particular challenges of the ‘sex offender’ label when back in the community were evident, and some participants spoke of ‘choosing’ to stay below the radar to avoid detection and the inevitable resultant retribution. Over time, these external issues may well affect the benefits of the programmes and increase risk factors for reoffending (compare Farmer et al, 2012). Desistance research has found that social supports (for instance relationships and employment) help to prevent offending with general crime. However, many of the participants in this study said they were in relationships and/​or employment prior to conviction, and it raises the question as to whether such social supports are less meaningful to perpetrators of sexual harm (compare Farmer et al, 2015) or whether they lacked awareness of what they would lose by committing such offences. Many participants expressed shock at the extent of the social losses they experienced following conviction, yet, notwithstanding this, most said they were desisting. Taken together, these findings, similar to recent research, highlight the complex role played by informal social controls such as employment and relationships for this offender group (compare Farmer et al, 2015). It is possible that the less straightforward link between employment and desistance indicates that the importance placed on employment by these participants is less to do with desisting than with seeking greater self-​positivity through work that provides a positive social identity (compare Maruna, 2001; Giordano et al, 2002; Healy, 2010) and a means of civic reengagement.

Legal and ​structural rehabilitation Key themes found were structural and social contexts of returning to the community and challenges and supports external to the programmes.

Structural and social contexts As previously noted, McNeill (2012) proposes that legal rehabilitation refers to the expunging of criminal records (and the accompanying stigma) by the state. However, although the Irish Probation Service is seen to adopt a social welfare approach generally, which has led to a shift towards a strengths-​ based assisted desistance approach to rehabilitation (compare Healy, 2012), Ireland presents a mixed picture regarding legal rehabilitation for sexual offenders. At the time of writing, the General Scheme of the Sex Offenders (Amendment) Bill 2018 proposes provisions and a number of amendments to the Sex Offenders Act 2001 to deal with enhanced post-​release supervision of sex offenders. These include more stringent post-​release supervision and monitoring, for example electronic monitoring of sex offenders and

223

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

a requirement to notify the Gardaí within three working days of release as opposed to seven under current laws. The present study argues that, given the limited scope for legal rehabilitation in many jurisdictions, particularly for perpetrators of sexual harm, the concept of legal rehabilitation should be expanded further to include the wider criminal justice, legal, and policy contexts. Structural legal considerations, such as notification (reporting to the Gardaí when released from custody) and sentencing requirements, need to be taken into consideration, in addition to other structural issues which particularly affect this offender group. This is because, while legal issues beyond spent convictions are problematic for all offenders, they are substantially more so for perpetrators of sexual harm who experience a significantly challenging form of ‘carceral citizenship’ (Miller & Stuart, 2017), as was revealed in their experiences of being back in the community and how they are treated by others: ‘I met the work and training officer and she said, “Someone might have kind of looked at your situation and said, ‘Yeah, we’re going to cut this guy off because you know, because of his offence” . Now that would really be alarming. You are helpless, you feel almost like that you have no rights, you know what I mean?’ (Safer Lives participant)

Challenges and supports external to the programmes This further theme was explored through analysis of participant experiences of prison, the Probation Service, and Gardaí. While experiences were mixed, over half the participants found their prison experiences to be manageable and spoke of having jobs or doing education courses while in custody. Those who found the prison experience as ‘sex offenders’ extremely challenging spoke of the loss of the standing they had enjoyed prior to conviction and the difficult experience of being despised by others. For this group, the process of being labelled as a sex offender began in prison, where a hierarchy was experienced between ‘non-​sexual’ and ‘sexual’ offenders, as well as sometimes between different types of sex offenders, for example, between those convicted of ‘child’ and ‘adult’ offences. Just over a quarter of participants regarded prison as a sort of haven, a place where they were removed from all the strife and chaotic consequences of their convictions. While this may seem surprising in view of sex offenders being particularly despised by other offenders in prison, participants said that the decimation of their lives as a consequence of their convictions made the social structure of prison particularly appealing. It provided a roof, regular

224

Sexual Harm AND Assisted DesistAnce

meals, routine, and regular work and thus seemed to be an easier option than the effort involved in making it on the outside: ‘I didn’t want to come out at all … because there was nowhere to go –​like, I’ve lost everything, I’ve lost me house … I’ve lost me friends, I’ve lost me job. In prison, you were starting off like you were reborn, a baby again, you know. In prison, I was savin’ money, I had a job’. (CoSA participant) Overall, participants’ experiences of dealing with probation officers were very positive and most felt very well supported. Although this has been found previously to be the experience of probationers convicted of non-​ sexual crimes (for example see Farrall, 2002; Healy, 2012), it is interesting that a supposedly heavily stigmatized group also had a positive experience of supervision. This may reflect the social welfare approach of the Irish Probation Service which now also incorporates a desistance orientation and has led to a shift towards a strengths-​based assisted desistance approach to rehabilitation (Healy, 2012). The probation officer may be particularly important for this group given the stigma and social isolation attached to their offender status. Participants had less to say about their liaison Gardaí, possibly because liaison Gardaí are less involved in their day-​to-​day lives than probation officers. Whereas probation officers played a directly supportive role, liaison Gardaí were associated more with law enforcement and monitoring. Nonetheless, while a few expressed fear of attention being drawn to them by a liaison garda calling to their door, a quarter of participants said their liaison garda gave much-​appreciated help and support. Therefore, although the area of sex offending remains an emotive social, legal, and political issue, the study’s findings reveal a more nuanced view of the legal and criminal justice contexts within which rehabilitation programmes operate, since participants had both positive and negative experiences of criminal justice in prison and in the community.

Discussion This study explored the assisted desistance of adult perpetrators of sexual harm living in the community following conviction, and provides new evidence for the efficacy of strengths-​based rehabilitative interventions for this offender group. As most existing rehabilitation studies are of psychological/​ cognitive programmes, this study expanded the evidence base by comparing and contrasting three different types of community-​based interventions that

225

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

offer a unique combination of co-​ordinated programmes. A methodology comprising interviews and surveys, combined with programme and client file documentation, gave voice to programme participants as well as stakeholders. This chapter has focused on programme participant experiences as a way of evaluating programme success and capturing the extent to which the different programme mechanisms assist desistance. Programme participant themes show a journey of personal change in the desistance process and how programme-​specific mechanisms assist in building relationships as well as help improve community participation. While not specifically addressed in this chapter, stakeholder themes were largely consistent with these findings (Cresswell, 2018). However, the challenges in achieving this were also revealed, and were not the fault of the programmes, as results showed these rehabilitation programmes do not operate in isolation but are set within complex criminal justice as well as personal and societal contexts. Results support McNeill’s (2012) argument that successful reintegration for all offenders requires rehabilitation to extend beyond the psychological/​ personal to broader social, legal, and moral aspects, although the study highlights the complexity of trying to transfer separate yet interconnected concepts of desistance, rehabilitation, and reintegration into practice. External barriers notwithstanding, all three PACE programmes were found to be assisting with psychological and social rehabilitation to a point. For example, while analysis of the psychological/​personal aspect found evidence of positive change, a difference in the way certain offenders desist was also found which may suggest the need for assisted desistance practice to consider different treatment approaches for certain types of perpetrators of sexual harm, a topic on which there is a surprising paucity of literature (see Schmidt & Mann, 2018). The social rehabilitation aspect also revealed positive changes in terms of developing social relationships and building social capital, although as noted in other studies (for example, Farmer et al, 2015), the impact of social supports on desistance appear to be more complex than for general crime. Nonetheless, programmes do not work in a vacuum, and results revealed how stakeholders and participants need to work within institutional and political contexts. These contexts, combined with external barriers to desistance (such as rejection and alienation), mean there is a risk that the programmes’ overall positive work could be undermined over time. Therefore, the obvious achievements of the programmes need to be extended and continued into the wider community by other means. Furthermore, comprehensive findings on external contexts of rehabilitation for perpetrators of sexual harm in Ireland suggest that the concept of legal rehabilitation should be expanded to include other aspects of the legal and policy context for this convicted offender group, who face particular legal and structural challenges in the community. Additionally, it is suggested that CoSA contributes in part to moral rehabilitation through participants’

226

Sexual Harm AND Assisted DesistAnce

recognition of accountability and community volunteers’ acceptance of offenders as citizens with human rights, although such rights are necessarily constrained by the law. These findings speak to Barry’s (2006) concept of social recognition: that desistance is not just up to the individual but also needs to involve society. Findings further resonate with the notion of transformative justice which highlights the importance of transforming structural and social barriers that encourage social exclusion rather than reintegration (O’Sullivan et al, 2020). Certainly, desistance may be impeded even for a highly motivated individual (Hunter & Farrall, 2018) if they have little hope of society’s acceptance of them at some level. Several conclusions were drawn from these research results, taking into consideration caveats of voluntary research participation and some restricted access to extremely chaotic or unstable clients from one programme. Firstly, transferring the concept of assisted desistance into practice is extremely complex for perpetrators of sexual harm. Secondly, despite external barriers, all three rehabilitative programmes were found to be assisting with psychological and social rehabilitation. Thirdly, the value of the co-​ ordination, and sometimes interaction, of different programme approaches and focuses was evident, for example on: practical needs (Foothold); cognitive and personal change (Safer Lives); and social integration (CoSA). Fourthly, although McNeill’s (2012) proposed four forms of rehabilitation may never be achieved fully for perpetrators of sexual harm given the particular legal and structural challenges they face with reintegration, the undoubted benefits of all three programmes were evident from the overall positive changes experienced by the majority of research participants involved with the programmes. Acknowledgements This research was funded by the Irish Research Council Employment Based Programme and PACE.

Notes 1

2

3

‘Perpetrator of sexual harm’ is used throughout the study to avoid sensitivities around the label ‘sex offender’ and covers all PACE programme participants. The term ‘sex offender’ is used when spoken by others or when used in other studies. See report on pre-​legislative scrutiny of this bill available online at: https://d​ ata.oireachtas. ie/i​ e/o ​ ireachtas/​committee/​dail/​32‌/j​ oint_​committee_o ​ n_j​ ustice_a​ nd_e​ quality/r​ eports/​ 2019/2​ 019-0​ 1-2​ 4_r​ eport-o ​ n-p​ re-l​ egislative-s​ crutiny-​of-​the-​general-​scheme-​of-​the-​sex-​ offenders-​amendment-​bill-​2018_​en.pdf. The Bill lapsed following government dissolution in January 2020 (https://​www.oireachtas. ie/​en/​bills/​bill/​2018/​28/​). However, the Department of Justice are planning to publish a new Sexual Offences Bill in 2021. See http://www.justice.ie/en/JELR/Department_of_ Justice_Action_Plan_2021.pdf/Files/Department_of_Justice_Action_Plan_2021.pdf The Irish police force.

227

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH 4

PACE restricted access to some Foothold clients if they were considered by PACE staff to be too chaotic or unstable (due, for example, to homelessness or severe intellectual disability) and too vulnerable/​unable to engage in a research interview. However, these clients remained under review as potential research participants throughout the field research period.

References Barry, M. (2006) Youth Offending in Transition, London: Routledge. Bersani, B.E. and Doherty, E.E. (2018) ‘Desistance from offending in the twenty-​first century’, Annual Review of Criminology, 1(1): 311–​34. Blagden, N., Elliott, H., and Lievesley, R. (2018) ‘Circles of support and accountability, assisted desistance and community transition’, in H. Elliott, K. Hocken, R. Lievesley, N. Blagden, B. Winder, and P. Banyard (eds) Sexual Crime and Circles of Support and Accountability, Switzerland: Palgrave Macmillan, pp25–​41. Brown, K., Spencer, J., and Deakin, J. (2007) ‘The reintegration of sex offenders: Barriers and opportunities for employment’, The Howard Journal of Criminal Justice, 46(1): 32–​42. Cresswell, C.B. (2018) Assisted Desistance: Evaluating a Coordinated Community-​ Based Response to the Reintegration of Perpetrators of Sexual Harm, PhD thesis, Dublin: University College Dublin. Cursley, J. and Maruna, S. (2015) A Narrative-​Based Evaluation of ‘Changing Tunes’ Music-​Based Prisoner Reintegration Interventions, available online from: http://​www.artsevidence.org.uk/​media/​uploads/​f inal-​report-​ cursley-​and-​maruna-​changing-​tunes.pdf Department of Justice and Equality (2018) General Scheme of the Sex Offenders (Amendment) Bill 2018, available online from: hhttp://www.justice.ie/ en/JELR/Sex_Offenders_(Amendment)_Bill_2018-General_Scheme. pdf/Files/Sex_Offenders_(Amendment)_Bill_2018-General_Scheme.pdf Dufour, F.I., Villeneuve, M., and Perron, C. (2018) ‘Les interventions informelles de désistement assisté : une étude de la portée’, Canadian Journal of Criminology & Criminal Justice, 60(2): 206–40 Farmer, M., Beech, A.R., and Ward, T. (2012) ‘Assessing desistance in child molesters: A qualitative analysis’, Journal of Interpersonal Violence, 27(5): 930–​50. Farmer, M., McAlinden, A.M., and Maruna, S. (2015) ‘Understanding desistance from sexual offending: A thematic review of research findings’, Probation Journal, 62(4): 320–​35. Farrall, S. (2002) Rethinking What Works with Offenders: Probation, Social Context and Desistance from Crime, London: Willan. Garda Inspectorate (2017) Responding to Child Sexual Abuse: Follow-​ up Review, December, available online from: https://​www.gsinsp.ie/​ responding-​to-​csa-​follow-​up/​

228

Sexual Harm AND Assisted DesistAnce

Giordano, P.C., Cernkovich, S.A., and Rudolph, J.L. (2002) ‘Gender, crime, and desistance: Toward a theory of cognitive transformation’, American Journal of Sociology, 107(4): 990–​1064. Giordano, P.C., Schroeder, R.D., and Cernkovich, S.A. (2007) ‘Emotions and crime over the life course: A neo-​Meadian perspective on criminal continuity and change’, American Journal of Sociology, 112(6): 1603–​61. Göbbels, S., Ward, T., and Willis, G.M. (2012) ‘An integrative theory of desistance from sex offending’, Aggression and Violent Behavior, 17(5): 453–​62. Gottfredson, M.R. and Hirschi, T. (1990) A General Theory of Crime, Palo Alto: Stanford University Press. Hamilton, C. (2014) Reconceptualising Penality: A Comparative Perspective on Punitiveness in Ireland, Scotland and New Zealand, Abingdon: Routledge. Harris, D.A. (2014) ‘Desistance from sexual offending: Findings from 21 life history narratives’, Journal of Interpersonal Violence, 29(2): 1554–​78. Healy, D. (2010) The Dynamics of Desistance: Charting Pathways Through Change, Abingdon: Routledge. Healy, D. (2012) ‘Advise, assist and befriend: Can probation supervision support desistance?’, Social Policy and Administration, 46(4): 377–​94. Healy, D. (2015) ‘Desistance, recidivism and reintegration: Understanding change and continuity in criminal careers’, in D. Healy, C. Hamilton, Y. Daly, and M. Butler (eds) Routledge Handbook of Irish Criminology, Abingdon: Routledge, pp179–​96. Hunter, B. and Farrall, S. (2018) ‘Emotions, future selves and the process of desistance’, British Journal of Criminology, 58(1): 291–​308. Irish Prison Service (2019) Annual Report, available online from: https://​ www.irishprisons.ie/​ w p-​ c ontent/​ u ploads/ ​ d ocuments_ ​ p df/ ​ A nnual-​ Report-​2018.pdf Kilcommins, S., O’Donnell, I., O’Sullivan, E., and Vaughan, B. (2005) Crime, Punishment and the Search for Order in Ireland, Dublin: Institute of Public Administration. King, S. (2013) ‘Transformative agency and desistance from crime’, Criminology and Criminal Justice, 13(3): 317–​335. Lussier, P. (2016) ‘Desistance from crime: Toward an integrated conceptualization for intervention’, in D.R. Laws and W. O’Donohue (eds) Treatment of Sex Offenders: Strengths and Weaknesses in Assessment and Intervention, Switzerland: Springer, pp281–​322. Mann, R. and Hollin, C. (2010) ‘Self-​reported schemas in sexual offenders’, The Journal of Forensic Psychiatry and Psychology, 21(3): 834–​51. Maruna, S. (2001) Making Good: How Ex-​Convicts Reform and Rebuild their Lives, Washington: American Psychological Association. Maruna, S. and Mann, R. (2006) ‘A fundamental attribution error? Rethinking cognitive distortions’, Legal and Criminological Psychology, 11: 155–​77. 229

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

Maruna, S. and Lebel, T. (2010) ‘The desistance paradigm in correctional practice: From programmes to lives’, in F. McNeill, P. Raynor, and C. Trotter (eds) Offender Supervision: New Directions in Theory, Research and Practice, Cullompton: Willan, pp65–​89. Maruna, S., Immarigeon, R., and LeBel, T.P. (2004) ‘Ex-​o ffender reintegration: Theory and practice’, in S. Maruna and R. Immarigeon (eds) After Crime and Punishment: Pathways to Offender Reintegration, Devon: Willan, pp3–26. McAlinden, A.M. (2007) The Shaming of Sexual Offenders: Risk, Retribution and Reintegration, Oxford: Hart. McAlinden, A.M. (2011) ‘The reintegration of sexual offenders: From a ‘risks’ to a ‘strengths’ based model of offender resettlement’, in S. Farrall, M. Hough, S. Maruna, and R. Sparks (eds) Escape Routes: Contemporary Perspectives on Life after Punishment, Abingdon: Routledge, pp158–​80. McAlinden, A.M. (2016) ‘The reintegration of sexual offenders’, Irish Probation Journal, 13: 5–​21. McAlinden, A.M., Farmer, M., and Maruna, S. (2017) ‘Desistance from sexual offending: Do the mainstream theories apply?’, Criminology and Criminal Justice, 17(2): 266–​83. McAvoy, J. (2012) Birds of a Feather? Irish Public Attitudes towards Sex Crime and Sex Offender Reintegration. Is there a Publicly Perceived Scale of Sexual Deviance? , PhD thesis, Dublin: Dublin Institute of Technology. McCulloch, T. (2005) ‘Probation, social context and desistance: Retracing the relationship’, Probation Journal, 52(1): 8–​22. McNeill, F. (2006) ‘A desistance paradigm for offender management’, Criminology and Criminal Justice, 6(1): 39–​62. McNeill, F. (2012) ‘Four forms of “offender” rehabilitation: Towards an interdisciplinary perspective’, Legal and Criminal Psychology, 17(1): 18–​36. McNeill, F. (2014) ‘Punishment as rehabilitation’, in G. Bruinsma and D. Weisburd (eds) Encyclopedia of Criminology and Criminal Justice, Oxford: Springer, pp4195–​206. McNeill, F. and Weaver, B. (2010) Changing Lives? Desistance Research and Offender Management, Glasgow: Centre for Crime and Justice Research. McNeill, F., Batchelor, S., Burnett, R., and Knox, J. (2005) 21st Century Social Work: Reducing Re-​offending-​Key Practice Skills, Dundee: Social Work Services Inspectorate. McNeill, F., Farrall, S., Lightowler, C., and Maruna, S. (2012) ‘Reexamining evidence-​based practice in community corrections: Beyond “a-​confined view” of what works’, Justice Research and Policy, 14(1): 35–​60. Mews, A., Di Bella, L., and Purver, M. (2017) Impact Evaluation of the Prison-​ Based Core Sex Offender Treatment Programme, London: Ministry of Justice.

230

Sexual Harm AND Assisted DesistAnce

Miller, R.J. and Stuart, F. (2017) ‘Carceral citizenship: Race, rights and responsibility in the age of mass supervision’, Theoretical Criminology, 21(4): 532–​48. Mustaine, E.E., Tewksbury, R., Connor, D.P., and Payne, B.K. (2015) ‘Criminal justice officials’ views of sex offenders, sex offender registration, community notification, and residency restrictions’, Justice System Journal, 36(1): 63–​85. Organization for Economic Cooperation and Development (OECD) (2011) How’s Life? 2017: Measuring Well-​Being, Paris: OECD Publishing, available online from: https://w ​ ww.oecd-i​ library.org/e​ conomics/h ​ ow-s​ -l​ ife-2​ 017_​ how_​life-​2017-​en O’Sullivan, R., Hart, W., and Healy, D. (2020) ‘Transformative rehabilitation: Exploring prisoners’ experiences of the community based health and first aid programme in Ireland’, European Journal on Criminal Policy and Research, 26(1): 63–​81. Prescott, D. (2017) ‘Feedback Informed Treatment in Criminal Justice and with People Who Sexually Abuse’, interview with Scott Miller, International Center for Clinical Excellence, available online at: https://​www.youtube.com/​ watch?v=4XZ2WJNqJL4. Probation Service (2020) Monthly Statistical Report, March, available online at: http://​www.probation.ie/​en/​PB/​Pages/​WP21000008 Sampson, R.J. and Laub, J.H. (1993) Crime in the Making: Pathways and Turning Points through Life, Cambridge: Harvard University Press. Schmidt, A.F. and Mann, R.E. (2018) ‘Heraclitus’ river and recent advances in criminal psychology’, European Psychologist, 23(2): 107–​10. Schultz, C. (2014) ‘The stigmatization of individuals convicted of sex offenses: Labelling theory and the sex offense registry’, Research Journal of Justice Studies and Forensic Science, 2(1): 64–​81. Snyder, C.R., Harris, C., Anderson, J.R., Holleran, S.A., Irving, L.M., Sigmon, S.T., and Harney, P. (1991) ‘The will and the ways: Development and validation of an individual-​differences measure of hope’, Journal of Personality and Social Psychology, 60(4): 570–​85. Tennant, R., Hiller, L., Fishwick, R., Platt, S., Joseph, S., Weich, S., Parkinson, J., Secker, J., and Stewart-​Brown, S. (2007) ‘The Warwick-​ Edinburgh Mental Well-​being Scale (WEMWBS): Development and UK validation’, Health and Quality of Life Outcomes, 5(63), available online from: https://​doi. org/​10.1186/​1477-​7525-​5-​63. Visher, C.A. and Travis, J. (2003) ‘Transitions from pr ison to community: Understanding individual pathways’, Annual Review of Sociology, 29: 89–​113. Ward, T. and Beech, A. (2006) ‘An integrated theory of sexual offending’, Aggression and Violent Behavior, 11(1): 44–​63

231

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

Weaver, B. (2012) ‘The relational context of desistance: Some implications and opportunities for social policy’, Social Policy and Administration, 46(2): 395–​412. Willis, G.M., Levenson, J.S., and Ward, T. (2010) ‘Desistance and attitudes towards sex offenders: Facilitation or hindrance?’, Journal of Family Violence, 25(6): 545–​56. Zedner, L. (1994) ‘Reparation and retribution: Are they reconcilable?’, The Modern Law Review, 57(2): 228–​50.

232

12

Reforming Ireland’s Adversarial Trial for Victims of Crime with Intellectual Disabilities Alan Cusack

There appears to be an emergent consensus in recent years that the mainstream processes through which evidence is presented in the paradigmatic adversarial trial can pose particular difficulties for witnesses and, in particular, victims with intellectual disabilities on account of their limited cognitive functioning and linguistic fluency. The overwhelming oral nature of adversarial courtroom proceedings, the combative sensibilities which underpin them, the emphasis on witness demeanour, the insistence upon unrehearsed responses, the freedom of advocates to engage in robust cross-​examination, and the forensic passivity of the judge and jury are all regarded as essential evidential safeguards in securing a fair trial for the criminal accused (Ellison, 2001; Cusack, 2017a). For victims of crime, however, these evidential safeguards often contribute to an intimidating, frequently hostile, courtroom environment (Cusack, 2020a, 2020b). As Doak (2000: 296) explains, ‘The adversarial trial process, as its name would suggest, is not designed to protect witnesses, and nor is it a place where the weak and vulnerable can feel relaxed and at ease’. For over a quarter of a century, the preferred adaptive response of Ireland’s legislature to the plight of these vulnerable witnesses has been to introduce a series of courtroom accommodations –​or ‘special measures’ –​ which have been designed specifically to shield them from the full rigor of adversarial-​style proceedings while, at the same time, continuing to subject them to live cross-​examination (Cusack, 2017a, 2020b). Indeed, that this

233

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

‘accommodation’ (Ellison, 2001: 373) approach remains the favoured strategy among Irish policymakers for addressing the plight of vulnerable witnesses in Ireland is evident in both the style and substance of the reforms visited upon the Irish criminal trial by the Criminal Law (Sexual Offences) Act 2017 and the Criminal Justice (Victims of Crime) Act 2017; both of which wrought significant revisions to the contours of the country’s special-​measures framework.1 Against the backdrop of renewed political interest –​and, indeed, legislative activism –​in this important area of criminal procedure, this chapter assesses the appropriateness of this adopted line of reform. By drawing attention, in particular, to a series of outstanding ontological, procedural, and attitudinal barriers that continue to prejudice efforts at securing the best evidence of these witnesses in Irish courts, it is hoped that this contribution will go some way to highlighting the continued invisible status that many victims of crime with intellectual disabilities occupy within Ireland’s modern criminal justice system.2

The trial on trials: adversarial justice and victims of crime with intellectual disabilities Owing to the legacy of colonialism, the architecture of Ireland’s criminal justice landscape has long been designed in the style and form of the adversarial tradition (Kilcommins et al, 2013; Kilcommins & Donnelly, 2014; Cusack, 2017a). Writing of the structural indices of this procedural tradition, Landsman has remarked: The central precept of adversary process is that out of the sharp clash of proofs presented by adversaries in a highly structured forensic setting is most likely to come the information from which a neutral and passive decision maker can resolve a litigated dispute in a manner that is acceptable both to the parties and to society. (Landsman, 1983: 714) Accordingly, the adversarial model of trial justice can be regarded as being predicated, in effect, upon a laissez-​faire epistemology which assumes that all litigants, in their pursuit of victory, will strategically, thoroughly, and reliably prepare and present any evidence at their disposal in a manner that best supports their own case while simultaneously casting doubt on any proofs raised by their adversarial opponent (see Damaska, 1983; Taslitz, 1999; Asimow, 2007). To put it in forensic terms, the polarized design of the adversarial contest is viewed as an instrumental component in ensuring that the best information –​in the sense of the most important evidentiary proofs –​is made available to the tribunal of fact during a trial:

234

Trials for VICTIMS OF CRIME WITH INTELLECTUAL DISABILITIES

Many lawyers maintain that the best way for the court to discover the facts in a suit is to have each side strive as hard as it can, in a keenly partisan spirit, to bring to the court’s attention the evidence favourable to that side. Macauley said that we obtain the fairest decision ‘when two men argue, as unfairly as possible, on opposite sides’ for then ‘it is certain that no important consideration will altogether escape notice’. (Frank, 1966: 80–1​ ) This logic of procedural efficiency, however, comes at a price. As one might expect, within such an autonomous, victory-​focused trial environment, there is a significant risk that a true account of events will, in fact, be lost in the partisan pursuit of victory. Indeed, with success being measured by the satisfaction of a client, not by the announcement of a truly just verdict, advocates (and, in particular, defence advocates) within the adversarial legal tradition are positively encouraged to tailor any available evidence in a manner that strengthens their client’s case.3 As Frank explains, The lawyer aims at victory, at winning in the fight, not at aiding the court to discover the facts. He does not want the trial court to reach a sound educated guess, if it is likely to be contrary to his client’s interests. Our present trial method is thus the equivalent of throwing pepper in the eyes of a surgeon when he is performing an operation. (Frank, 1966: 84) While admittedly there are some important ethical and evidential restrictions in place on the level of zealous advocacy permitted of prosecution counsel in criminal proceedings,4 modern defence advocates within the Irish adversarial tradition remain largely unfettered by any obligation to ensure that ‘justice shall be done’ through their pleadings.5 Accordingly, not only are Irish defence advocates free of the burdensome disclosure obligations that rest on their counterparts within the Office of the Director of Public Prosecutions (DPP),6 but they are also unconstrained by any ethical duty to impartially lay before the jury any evidence at their disposal.7 In the absence, therefore, of any express obligation to act impartially, defence advocates in Ireland are not only entitled, they are positively encouraged to pursue victory (that is, an acquittal) at all costs.8 The damaging consequences that this singular pursuit of ‘victory at all costs’ can have on the experience of prosecution witnesses and, in particular, crime victims was acutely encapsulated in the dogmatic admission of one barrister interviewed by Temkin (2000: 230) in a study of rape trials in England and Wales: “If you are asking do I take account of the sensitivity of the complainant, the blunt answer is no because it’s not my brief ”. These sentiments were echoed

235

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

by another respondent to the survey who gave unequivocal voice to the combative sensibilities that underpin the archetypal adversarial advocate’s duty in the following terms: “When I’m defending it’s no holds barred in that anything that properly I can use to help secure my client’s acquittal I will” (Temkin, 2000: 230; also Rock, 1993). It would appear self-​evident from these accounts that the strategic incentives of the adversarial legal tradition positively encourage advocates to deploy a range of coercive conversational ploys when cross-​examining a witness in order to shape his or her testimony to bring out its ‘maximum adversarial effect’ (Doak, 2000: 298 ). The adoption of advanced vocabulary and complex syntax (Kebbell & Johnson, 2000), the engagement in a coercive line of questioning,9 the assumption of an aggressive, interrogative demeanour (Wigmore, 1940; Ellison, 2001), and the embarkment upon personal character attacks of witnesses10 are all techniques routinely employed by advocates (and, in particular, defence advocates)11 during cross-​examination in order to confuse, contradict, intimidate, and discredit opposing witnesses. As Ellison (2001:360) writes: ‘Tone of voice, speech rate, emphasis, physical proximity, eye contact, physical gesture and facial expression are all devices which can be used to unsettle or unnerve a witness. In addition, an array of conversational ploys are used to intimidate and thereby undermine [an] opposing witness’. Even for the most assiduous and indefatigable of witnesses, the process of cross-​examination can be intimidating, but for vulnerable witnesses –​such as those who, for instance, are children or have an intellectual disability –​ the ordeal is arguably heightened (Cusack, 2016). Owing to limitations in cognitive functioning, such witnesses can encounter significant difficulties in understanding, recalling, and communicating the details of a criminal event (Ternes & Yuille, 2008): The questioning styles used by barristers, particularly when the victim is under cross-​examination, can have a profound, and often detrimental, impact on the evidence provided by the witness if the legal professional is not aware of the accommodations necessary for effective communication with persons with learning, developmental or intellectual disabilities. (Edwards et al., 2013: 81) At a basic cognitive level, it should be noted that many people with intellectual disabilities have been found to have broad deficits in memory encoding, storage, and retrieval (Kebbell et al, 2004: Ternes & Yuille, 2008). Consequently, such witnesses can encounter significant difficulty in providing spontaneous accounts of eyewitness events in court (Tully & Cahill,

236

Trials for VICTIMS OF CRIME WITH INTELLECTUAL DISABILITIES

1984; Perlman et al, 1994). Moreover, emerging evidence from the field of cognitive psychology suggests that a large proportion of these witnesses are susceptible to a range of additional debilitating psychological vulnerabilities that can significantly impair their capacity to deliver accurate courtroom testimony (Cusack, 2017a; Morrison et al, 2019). Numerous studies, for example, have found that individuals with intellectual disabilities are more suggestible, more acquiescent, more likely to confabulate, and more likely to engage in naysaying than their counterparts within the general population (Clare & Gudjonsson, 1993; Gudjonsson & Henry, 2003). There is also evidence to suggest that such witnesses are more likely to obfuscate generic details about an alleged incident, such as names, times, and dates (Kebbell et al, 2001; Beail, 2002), that they will entertain a final-​option bias in response to closed multiple-​choice questions (Heal & Sigelman, 1995), that their knowledge of the legal process is poor, and that they struggle routinely to comprehend legal terminology (Ericson & Perlman, 2001). Additionally, each of these psychological vulnerabilities can be significantly exacerbated by a range of environmental factors associated with the setting in which a witness’s narrative is elicited. It is particularly apparent from the research that exists in this area that a witness’s responses will be biased by both the status of the interviewing actor and the formality of the venue in which the exchange is taking place (Gudjonsson & Gunn, 1982; Gudjonsson et al, 2000). Of course, none of these findings should be interpreted as suggesting that persons with an intellectual disability cannot in every instance deliver a reliable account of events in court (Gudjonsson, 2003; Cusack, 2018). Neither the psychological vulnerabilities of such witnesses nor any related limitations in social functioning present evidentiary challenges that are insurmountable within the criminal process.12 However, for best evidence to prevail, the forensic design of proceedings is key. The type of questions asked, the status of the person asking them, and the formality of the arena in which this interrogation takes place have all been found to play a fundamental role in shaping the factual accuracy of the testimony delivered by a witness with an intellectual disability in court (Kebbell et al, 2001; Milne & Bull, 2001). It is now widely recognized, for instance, that persons with intellectual disabilities provide their most accurate answers to open, free-​recall questions (for example, ‘What happened?’). However, while such persons often respond to these questions with accuracy rates broadly similar to those of the general population, studies suggest that these responses are often less complete in terms of their factual detail (Dent, 1986; Perlman et al, 1994; Kebbell et al, 2004). By contrast, more directing, closed questions (for instance, ‘Did you see the accused on the bus prior to the alleged altercation?’) have been found to yield a more detailed response that is less factually precise. This

237

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

phenomenon was recognized, for instance, by Perlman et al (1994: 181), who arrived at the following conclusion after their empirical research in this area: ‘In contrast to the more open-​ended recall formats, it appears that less accurate reports are obtained with more focused recall questions for both groups, but particularly for the developmentally handicapped group’. And yet, notwithstanding the proven empirical reality that the adoption by lawyers of an appropriate questioning strategy can significantly mitigate the response biases of witnesses with intellectual disabilities, there is disconcerting evidence to suggest that lawyers routinely do not adapt their interrogative strategy when confronted with such witnesses in court (Kebbell et al, 2001).13 Thus, in much the same way as they seek to control the narrative of general population witnesses through a range of techniques, so too do lawyers, in cases involving vulnerable witnesses, invoke ‘constraining and coercive questioning strategies which have a particularly negative impact on the testimony of witnesses with [learning disabilities]’ (Kebbell et al, 2001: 98). Most alarmingly, research indicates that it is common for counsel to construct the cross-​examination of a witness with an intellectual disability predominantly through the use of close-​ended, leading questions. 14 Interrogations of this nature, as we have seen, can have a significant distortive impact on the accuracy of testimony provided by such witnesses (Perlman et al, 1994; Clare & Gudjonsson, 1995; Heal & Sigelman, 1995; Antaki & Rapley, 1996). Kebbell et al (2004: 32) for instance, concluded, following their research in this area, that ‘witnesses with intellectual disabilities were significantly more likely than general population witnesses to agree with the force of a leading question, less likely to disagree with the force of the question, and less likely to provide additional information, particularly in cross examination’. Another popular tendency among cross-​examining advocates, it would seem, is to have recourse to advanced terminology and complex syntax in court (Cusack, 2017a, 2020b). In this way, lawyers use language as a tool to manipulate and subordinate comparatively naive and vulnerable language users. There is a wealth of research attesting to the distortive impact that legal parlance can have on the accuracy of testimonial responses provided by witnesses with intellectual disabilities. A study by Smith (1993), for example, found that 16 per cent of offenders with an intellectual disability did not understand the meaning of the word ‘guilty’, while a further 22 per cent of respondents did not appear to understand the meaning of the phrase ‘not guilty’. A similar dearth of knowledge has been identified in separate psychological studies (see Gudjonsson et al, 1992; Smith & Hudson, 1995; Ericsson & Perlman, 2001). Significantly, these studies point to the importance of explaining clearly to intellectually disabled witnesses the basic principles, terminology, and procedures involved in the adversarial

238

Trials for VICTIMS OF CRIME WITH INTELLECTUAL DISABILITIES

trial: ‘The results of this study suggest that when many legal terms are used in questioning and they’re not explained to “developmentally disabled” individuals, answers to questions may be confused or incorrect or both’ (Ericsson & Perlman 2001: 542). Additionally, owing, as we have seen, to the heightened sensitivity of these witnesses to aggression –​as well as their overt desire to appease authority ­figures –​there is a risk that intellectually disabled witnesses will simply feign understanding in order to bring an interrogation to a close and avoid any undue public embarrassment (Perske, 1994). As one respondent in McLeod et al‘s (2010: 9) study remarked: ‘You can tell people with learning disabilities anything and they would agree or say they had understood. But you really need to check that they actually understand what’s being said’. This echoes a concession made by a respondent in Sanders et al’s (1997: 75) study, who openly attested to his willingness to redesign his testimony in order to conform with the views of the cross-​examining counsel: “Every time he [the defense barrister] said something to me, I had to agree. He got me where he wanted me. The reason I agreed with everything he said was because I didn’t understand what he was saying, which was all making me worse”. These difficulties of comprehension are compounded by the design of the adversarial trial, which makes it difficult for a witness to articulate a lack of comprehension in a manner that does not detract from his or her credibility.15 Here we again get a clear (if underappreciated) insight into the ostensibly mainstream epistemology underpinning the design of the paradigmatic adversarial trial, whereby the paucity of restraints on cross-​examination allows litigating parties to readily exploit the heightened vulnerability of victims with an intellectual disability.16 It is little wonder, then, that studies by both the Home Office (Burton et al, 2006) and by Hamlyn et al (2004) in England and Wales have identified the form and structure of adversarial cross-​ examination as the greatest impediment to securing meaningful participation by victims of crime with intellectual disabilities in the trial process.

Accommodating vulnerable witnesses in Ireland The roots of Ireland’s special-​measures framework can be traced to Part III of the Criminal Evidence Act 1992 (Cusack, 2017a, 2020a). At the time of their statutory advent, the recognition of special measures on a statutory basis represented a significant departure from established trial practice in Ireland.17 The genesis for this departure is, in effect, attributable to two landmark reports published by the Law Reform Commission in 1990, which explicitly drew political and legal attention to the heightened barriers that traditional adversarial courtroom procedures posed for vulnerable witnesses in Ireland (Law Reform Commission, 1990a, 1990b). The resulting suite of

239

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

special testimonial accommodations ushered in by Part III of the Criminal Evidence Act 1992 was therefore of significant reformative importance at the time, not only in the symbolic sense of, at least partly, addressing the structural and cultural invisibility of members of this marginalized victim constituency but also in the forensic sense of facilitating access to their best evidence in Irish courtrooms for the first time.18 Accordingly, in the original incarnation of Ireland’s special-​measures regime, child witnesses and witnesses with a ‘mental handicap’ could expect to benefit from at least some of the following measures: (i) a presumption in favour of giving evidence via a live television link; (ii) the removal of wigs and gowns; (iii) the use of intermediaries; and (iv) the admission of video-​recorded evidence and sworn depositions in court.19 Following a period of distinct legislative inaction, the contours of Ireland’s special-​measures regime were revisited in May 2018, with the signing into law by the minister for justice and equality, Charlie Flanagan, of the Criminal Law (Sexual Offences) Act 2017 (Commencement) (No. 2) Order 201820 and the Criminal Justice (Victims of Crime) Act 2017 (Commencement) Order 2018.21 Each of these instruments wrought significant revisions to the contours of Ireland’s special-​measures landscape, serving at once to augment the armoury of available testimonial supports and expand the caste of witnesses eligible to benefit from these measures within Irish courtrooms.22 The latter Act was of particular reformative significance, not only because it recognized a whole new category of vulnerable witness who are entitled to a limited suite of special measures (namely, victims with ‘specific protection needs’) within the Irish trial system,23 but also because it removed the disablist reference to ‘persons with mental handicap’ from the gateway architecture of the Criminal Evidence Act 1992.24 Accordingly, under the legislative bricolage that currently governs the delivery of evidence in Irish courts, (i) child witnesses, and (ii) adult witnesses ‘with a mental disorder’25 are now eligible to apply for a selection of the following statutory special measures: (i) a mandatory order for the removal of wigs and gowns; (ii) the delivery of evidence via a live television link; (iii) the use of intermediaries; (iv) the admission of video-​recorded evidence-​ in-​chief and sworn depositions in court; (v) the use of screening facilities; and (vi) an order prohibiting personal cross-​examination by the accused.26

A vision for radical reform That the special measures introduced into the Irish criminal process over the course of the past quarter of a century have gone some way to addressing the systemic barriers that Ireland’s adversarial trial traditionally posed for victims of crime with an intellectual disability cannot be gainsaid. In a study

240

Trials for VICTIMS OF CRIME WITH INTELLECTUAL DISABILITIES

of nearly identical measures in England and Wales, Burton et al (2006: 63) note that ‘all [criminal justice] agencies, to a greater or lesser extent, feel that the reforms have helped significantly’. Moreover, and perhaps more significantly, this enthusiasm for special measures appears to be shared by court users themselves. In McLeod et al’s (2010: 30) study, for instance, it was noted that ‘several court users reported that knowing they could avoid contact with the defendants through the use of video links convinced them to continue with their case, which they would otherwise have found too stressful’. Notwithstanding these positive testimonials which have emerged from England and Wales in recent years, it would be misleading to view the special accommodations introduced in Ireland by the Criminal Evidence Act 1992, and more recently by the Criminal Law (Sexual Offences) Act 2017 and the Criminal Justice (Victims of Crime) Act 2017, as a panacea for all of the procedural shortcomings of the Irish adversarial trial (Cusack 2017a, 2020b). Indeed, there is disconcerting evidence that victims of crime with intellectual disabilities continue to occupy an invisible status within Ireland’s criminal justice process owing to the system’s subscription to an ostensibly mainstream vision of adversarial legalism which overlooks the heterogeneity of the victim constituency (Kilcommins et al, 2013; Edwards, 2014; Kilcommins & Donnelly, 2014). It is particularly notable in this regard that none of the testimonial concessions statutorily afforded to vulnerable witnesses in Ireland present a challenge to the content, or live delivery, of traditional oral cross-​examination within the Irish criminal trial. As a result, the position remains in Ireland that child witnesses, as well as witnesses with an intellectual disability, must remain available to undergo live cross-​examination on the day of trial (Cusack, 2017b). Beyond the serious risk of narrative distortion that live cross-​examination poses for witnesses with intellectual disabilities (given the likelihood of a vulnerable witness’s memory degrading over time),27 our continued subscription to this normative evidential practice poses the further additional risk of witness attrition (given the likelihood of a victim disengaging with the criminal process over time due to mounting anxiety at the prospect of going to court).28 It is intuitively difficult, then, to reconcile Ireland’s enduring subscription to a system of live, viva voce cross-​ examination with the protective spirit of the Criminal Justice (Victims of Crime) Act 2017. As Delahunt (2010) explains, ‘We continue to endure a situation where our adversarial system risks imposing a secondary trauma on the complainant’. Tellingly, this stubborn fidelity to live, oral cross-​examination is not evident across the Irish Sea, where pre-​trial cross-​examination was introduced on a pilot basis in England and Wales in April 2014 (Ministry of Justice 2016a).

241

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

Staged across three crown courts (Liverpool, Leeds, and Kingston-​Upon-​ Thames), the pilot was launched in order to ‘help vulnerable witnesses give their best possible evidence –​without subjecting them to the full atmosphere of the courtroom’ (Ministry of Justice, 2014). Following the successful completion of the pilot scheme, Elizabeth Truss launched a joint paper which indicated that pre-​trial cross-​examination was to be rolled out nationally in England and Wales from 2017 (Ministry of Justice, 2016b). According to the paper, the pilot results indicate that pre-​trial cross-​examination ‘results in a better experience for witnesses, with the cross-​examination taking place in around half the time compared to other cases, and also showed an increase in early guilty pleas by defendants’ (Ministry of Justice, 2016b: 8; see also Cusack, 2017a, 2020a). A further shortcoming of Ireland’s revised special-​measures regime is its failure to make provision for the regulation of the content of cross-​ examination by statutorily prescribing preliminary pre-​trial hearings between members of the judiciary and counsel for the purposes of securing consensus around the acceptable parameters of questioning in cases that involve a vulnerable witness (Cusack, 2020a, 2020b). Once again, Irish policymakers stand to benefit here, it is submitted, from the experience of our neighbours in England and Wales, where a ‘ground rules hearing’ framework has existed since the promulgation of the Judicial College Bench Checklist in 2012 (Judicial College, 2012). At these hearings –​which are usually attended by prosecution counsel, the judiciary, the legal representative of an accused, and an intermediary (if engaged) –​a framework of suitable questioning tactics is developed in consideration of the specific testimonial needs of a given witness. Authority for delineating the acceptable parameters of questioning (that is, the ground rules) rests with the presiding trial judge, and the directional framework agreed upon in the ground rules hearing will be binding upon all parties to the proceedings.29 In attesting to the forensic, as well as therapeutic, benefits associated with this measure, ground rules hearings were placed on a mandatory footing in England and Wales in all cases involving intermediaries by the latest iteration of the Criminal Practice Directions,30 which expressly states that such a hearing ‘is good practice, even if no intermediary is used, in all young witness cases and in other cases where a witness or defendant has communication needs’.31 Indeed, in its recent process evaluation of the pre-​trial cross-​examination pilot, the Ministry of Justice identified ground rules hearings as a significant contributing factor to the success of the scheme: ‘Ground rules hearings were considered by practitioners to be part of the reason why section 28 cases appeared less stressful for the witnesses’ (Baverstock, 2016: 65).

242

Trials for VICTIMS OF CRIME WITH INTELLECTUAL DISABILITIES

Given, therefore, the ostensible success of the ground rules hearing framework in England and Wales (Henderson, 2014), it is perhaps not entirely surprising that members of Ireland’s judiciary have endeavoured to import the facility into Ireland’s adversarial trial system in recent years. In DPP v FE,32 for instance, a preliminary pre-​trial hearing was convened by the trial judge with a view to determining an appropriate questioning strategy for an adult female complainant with Down’s syndrome; while in the later case of DPP v NR and RN,33 a similar preliminary meeting was held with a view to making directions for the fair examination of a twelve-​ year-​old complainant in sexual abuse proceedings which were taken against his parents. Significantly, given the absence of dedicated rules prescribing these preliminary hearings, the court in each of these two cases was invited by the DPP to invoke its inherent jurisdiction to conduct these preliminary hearings. As the authors of a recent report for the Rape Crisis Network Ireland have noted, these two progressive episodes are positive examples of the Irish judiciary’s increasing awareness of, and sympathy towards, the ontological and cognitive realities of intellectual impairment: ‘These “Hearings” demonstrate that even without the benefit of specific Rules of Court, the Court can, does and no doubt will again in similar (or other) unusual circumstances, make imaginative use of its inherent jurisdiction powers to do justice’ (Rape Crisis Network Ireland, 2018: 18). However, while the progressive approach of the trial judges in the aforementioned cases is to be celebrated, the likelihood of other members of Ireland’s judicial community following suit in similar circumstances in the future cannot be predicted.34 For the sake of securing consistent and certain justice for all vulnerable witnesses, there is a clear and urgent need to establish these best-​practice hearings on a formal statutory basis in Ireland.35 As the authors of the Rape Crisis Network Ireland report recently concluded, the inherent jurisdiction of the court provides an unruly template for securing a lasting consensus around the questioning techniques to be followed in cases involving vulnerable witnesses: ‘We recommend that the issue of specific protection needs for all witnesses –​including, but not limited to, those already recognised by An Garda Síochána –​should always be a focus at pre-​trial hearings. ... Our view is that in line with this Scheme, pre-​trial hearings should be placed on a statutory footing’. (Rape Crisis Network Ireland, 2018: 46).

Conclusion Over the course of the last three decades, Ireland’s criminal justice landscape has undergone something of a ‘victim revolution’ as national policymakers have incrementally reconfigured the formalities of the Irish criminal process

243

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

in order to demonstrate an increased sensitivity to the needs and concerns of crime victims (see Coen, 2006; Kilcommins & Moffet, 2015; Kilcommins et al, 2018). The enactment (and incremental revision) of the non-​statutory Victims’ Charter,36 the recognition of a victim’s limited right to separate legal representation,37 and the introduction of victim impact statements at sentencing38 are all emblematic of a concerted political and legal effort, not only to foster greater support for crime victims at all stages of proceedings, but also to actively accommodate their increased participation in the criminal process itself. Unsurprisingly, victims of crime with intellectual disabilities have not been immune to the ameliorative effect of this inclusionary trend. In recent years in particular, we have witnessed a renewed political emphasis on mainstreaming new special accommodations within Ireland’s paradigmatic adversarial trial with a view specifically to tempering the hostile excesses of the courtroom contest for vulnerable witnesses. However, while there is much to applaud in the reforms visited upon Ireland’s special-​measures framework by the Criminal Law (Sexual Offences) Act 2017 and the Criminal Justice (Victims of Crime) Act 2017, the ameliorative impact of these legislative interventions would have been further enriched by the adoption of a more ambitious line of structural reform. In particular, the failure of Ireland’s legislature to make statutory provision in either of the two 2017 acts for a scheme of pre-​trial cross-​examination or a practice of preliminary pre-​trial hearings, in the style which currently exists in England and Wales, is uniquely regretful (Cusack, 2016, 2017a, 2020a). In reflecting an approach then that might best be described as one of ‘accommodation’, solutions for the plight of victims of crime with intellectual disabilities have largely been sought within the confines of Ireland’s established trial framework rather than challenging any of the foundational premises of the framework itself (Ellison, 2001: 373). To quote Birch (2000: 223), the approach of our legislature has, in effect, been to ‘hammer the square peg of the vulnerable witness into the round hole of the adversarial system’. As this chapter has shown, however, the adversarial system, at its core, is not designed in contemplation of persons with intellectual disabilities as victims of crime. As exceptional consumers of the criminal process, then, victims of crime with intellectual disabilities require exceptional accommodations. In this regard, Irish policymakers must be prepared to expand the prevailing discourse around the range of legitimate reformative measures which can be introduced into Ireland’s criminal process. While, undoubtedly, the advent of non-​adversarial measures in Ireland’s criminal justice apparatus –​in the direction of advanced cross-​examination and managed cross-​examination –​ would certainly cultivate significant structural and attitudinal problems (Damaska, 1997), it would be wrong to dismiss the merits of such avenues of reform simply on principle. As Benedet and Grant (2007: 547) remind

244

Trials for VICTIMS OF CRIME WITH INTELLECTUAL DISABILITIES

us, after all, ‘The greatest impediment to accommodating complainants with mental disabilities lies in our assumptions about what is necessary to ensure a fair trial for an accused’. Notes 1 2

3

4

5 6

7 8 9 10 11

12

13 14

15

For a detailed exposition of the revisions, see Cusack (2020a). This chapter does not consider the particular challenges which accused persons with intellectual disabilities face within Ireland’s modern criminal process (see Gulati et al, 2020a, 2020b). According to Frank (1966: 81), ‘the partisanship of opposing lawyers blocks the uncovering of vital evidence or leads to a presentation of vital testimony in a way which distorts it’. The restrained duty resting on prosecution advocates in the adversarial tradition was framed by the Supreme Court of Canada in the following terms: ‘It cannot be overemphasised that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before the jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented; it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justice of judicial proceedings.’ See R v Boucher [1955] S.C.R. 16, 23–​4. See Berger v United States 295 US (1935) 78, 88. The disclosure requirements resting on prosecution counsel are set down in Section 6 of the Criminal Procedure Act 1967. Absent a statutory provision to the contrary, the accused is not obliged to furnish the prosecution in advance with any material on which he or she proposes to rely. See, O’C(P) v DPP [2000] 3 IR 87, 96; People (DPP) v McLeady [1995] 2 IR 517. See Bar Council of Ireland (2016: 28). For an archetypal account of zealous defence advocacy, see Freedman (1966). Parkin v Moon (1836) 7 C & P 408; McLure v Mitchell (1974) 6 ALR 471. Hobbs v Tinling & Co. Ltd [1929] 1 KB 1, 51. Unlike their counterparts in the Office of the DPP, defence advocates in Ireland are relatively unconstrained by a wider ethical duty to impartially present all evidence to the tribunal of fact that is at their disposal. See, in this regard, the dicta of O’Flaherty J. in Paul Ward v Special Criminal Court [1998] 2 ILRM 493, 505. As Gudjonsson (2003: 334) points out, there is no empirical basis for treating as unreliable the evidence of a witness simply because its author presents with a number of psychological vulnerabilities: ‘Persons with moderate learning disability may well be able to give reliable evidence pertaining to basic facts, even when they are generally highly suggestible and prone to confabulation’. For studies on child witnesses see Walker, (1993), Kranat and Westcott (1994). A study by Kebbell et al (2001: 99), for instance, discovered that during cross-​examination, the most frequent types of questions were yes-​no questions (84 per cent of all questions), leading questions (30 per cent of all questions), and questions involving negatives (18 per cent of all questions). See, for instance, the account of one male court user in McLeod’s et al’s (2010: 9) study: “I was so confused. I had this one person coming back and forth saying, ‘You said this, now

245

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

16 17 18

19

20

21

22 23

24

25

26 27

28

you’re saying that’ and then another person saying, ‘Did you say that?’ They were just confusing me, so I lost interest and I didn’t care anymore. I just wanted to leave”. On the evolution of special measures in Ireland, see Cusack (2020b). For a detailed review of Ireland’s special-​measures architecture, see Cusack (2020a). For an account of the ‘highly significant’ implications of the evolution of special measures, see Byrne and Binchy (1992: 263). Sections 13, 13(3), 14, 16 and 19 of the Criminal Evidence Act 1992. Section 13(3) of the 1992 Act has since been deleted by s.35 of the Criminal Law (Sexual Offences) Act 2017, and accordingly, the prohibition against wearing wigs and gowns is now housed in a new statutory provision, namely s.14B of the Criminal Evidence Act 1992. The dominant portion of the Criminal Law (Sexual Offences) Act 2017, entered into force on 27 March 2017 pursuant to the Criminal Law (Sexual Offences) Act 2017 (Commencement) Order 2017 (S.I. No. 112 of 2017). The remaining provisions contained within Part 6 of the Criminal Law (Sexual Offences) Act 2017, relating to Ireland’s special measures regime, entered into force on 30 May 2018 force pursuant to Criminal Law (Sexual Offences) Act 2017 (Commencement) (No. 2) Order 2018 (S.I. No. 172 of 2018). The dominant portion of the Criminal Justice (Victims of Crime) Act 2017 entered into force on 27 November 2017 pursuant to the Criminal Justice (Victims of Crime) Act 2017 (Commencement) Order 2017 (S.I. No. 530 of 2017). Subject to some minor regional exclusions, the remaining provisions of Criminal Justice (Victims of Crime) Act 2017, relating predominantly to special measures, entered into force on 30 May 2018 pursuant to the Criminal Justice (Victims of Crime) Act 2017 (Commencement) Order 2018 (S.I. No. 173 of 2018). For a detailed review of Ireland’s special-​measures architecture, see Cusack (2020a). Section 19 of the Criminal Justice (Victims of Crime) Act 2017. These special measures include live television links, intermediaries, and screens. Section 19 of the Criminal Evidence Act 1992, as substituted by Section 30(l)(iii) of the Criminal Justice (Victims of Crime) Act 2017. It is important to note that the Criminal Justice (Victims of Crime) Act 2017 did not remove the ‘mental handicap’ terminology entirely from the Criminal Evidence Act 1992. Section 27(3) of the Criminal Evidence Act 1992 continue to provide that a person with a ‘mental handicap’ may deliver evidence otherwise than on oath or on affirmation if the court is satisfied that the person can give an intelligible account of events that is relevant to the proceedings. Section 19 of the Criminal Evidence Act 1992, as substituted by section 30(l)(iii) of the Criminal Justice (Victims of Crime) Act 2017. It should be noted that, for the purposes of Part III of the Criminal Evidence Act 1992, the term ‘mental disorder’ is defined as follows: ‘ “Mental disorder” includes a mental illness, mental disability, dementia or any disease of the mind’. See Section 5 of the Criminal Justice Act 1993, as substituted by Section 4 of the Criminal Procedure Act 2010. Sections 13, 14, 14A, 14B, 14C, and 16 of the Criminal Evidence Act 1992, as amended. Studies have shown that, for persons with intellectual disabilities, accuracy of recall is inversely related to the length of time that elapses between the date of an incident and the date of questioning (see Detterman, 1979; Brown & Geiselman, 1990; Heal & Sigelman, 1995). In 2010, O’Mahony (2010) observed, ‘It is not sufficiently acknowledged that the victim is the main decision-​maker leading to attrition (80%+) and that the victim’s lack of confidence in the system is such a major factor’. For Irish studies on the level of attrition in the criminal process, see Leane et al, (2001) and O’Mahony and Corr (2009).

246

Trials for VICTIMS OF CRIME WITH INTELLECTUAL DISABILITIES 29

30

31

32 33 34

35

36

37

38

Section 3.9(7)(B) of the Criminal Procedure Rules 2015 provides as follows: ‘Where directions for appropriate treatment and questioning are required, the court must … set ground rules for the conduct of the questioning’. ‘Discussion of ground rules is required in all intermediary trials where they must be discussed between the judge or magistrates, advocates and intermediary before the witness gives evidence’. See section 3E.2 of the Criminal Practice Directions, October 2015 edition, amended April 2019. Section 3E.3 of the Criminal Practice Directions, October 2015 edition, amended April 2019. See also R v Lubemba [2014] EWCA Crim 2064, para 49, where Lady Justice Hallett remarked, ‘We would expect a ground rules hearing in every case involving a vulnerable witness, save in very exceptional circumstances’. DPP v FE [2015] unreported, (Hunt J.) (Bill No.84/​2013 Central Criminal Court) DPP v NR and RN [2016] IECCC 2 (Central Criminal Court). This view is echoed by the Rape Crisis Network Ireland (2018: 46–​7): ‘In our view, the right approach by the trial judge on [the issue of ground rules hearings] is one which is tailored to the individual witness’s needs. … We know that exactly this approach has been adopted in cases in the Central Criminal Court, using the court’s inherent jurisdiction, but promulgating court rules in this regard encourages best practice rather than relying on individual judges to use their ingenuity and expecting them to approach such cases without practical guidelines’. According to Biggs and Delahunt (2016: 9), ‘The concept of a [ground rules hearing] should be a necessary part of the trial process when dealing with very young or vulnerable witnesses’. The most recent version of the Victims Charter was launched by the Government of Ireland on 21 February 2020 (see Department of Justice and Law Reform, 2020). Section 4A of the Criminal Law (Rape) Act 1981, as inserted by section 34 of the Sex Offenders Act 2001, as amended by section 3 of the Criminal Law (Sexual Offences) (Amendment) Act 2007, and by section 6(2) the Criminal Law (Sexual Offences) Act 2006. Section 5 of the Criminal Justice Act 1993, as amended by section 4 of the Criminal Procedure Act 2010.

References Antaki, C. and Rapley, M. (1996) ‘Questions and answers to psychological assessment schedules: Hidden troubles in “quality of life” interviews’, Journal of Intellectual Disability Research, 40(5): 421–​37. Asimow, M. (2007) ‘Popular culture and the adversarial system’, Loyola of Los Angeles Law Review, 40: 653. Bar Council of Ireland (2016) Code of Conduct for the Bar of Ireland, Dublin: The Bar of Ireland, available online from: https://www.lawlibrary. ie/getattachment/About-Us/What-We-Do/Regulation/Code-ofConduct/FINAL-2016-Code-of-Conduct-commenced-4-6-19-PDF. pdf.aspx Baverstock, J. (2016) Process Evaluation of Pre-​Recorded Cross-​Examination Pilot (Section 28), London: Ministry of Justice. Beail, N. (2002) ‘Interrogative suggestibility, memory and intellectual disability’, Journal of Applied Research in Intellectual Disabilities,15(2): 129–3​ 7.

247

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

Benedet, J. and Grant, I. (2007) ‘Hearing the sexual assault complaints of women with mental disabilities: Evidentiary and procedural issues’, McGill Law Journal, 52: 515–​54, available online from: https://lawjournal.mcgill. ca/article/hearing-the-sexual-assault-complaints-of-women-with-mentaldisabilities-consent-capacity-and-mistaken-belief/. Biggs, C., Delahunt, M. (2016) Prosecutorial Challenges: Vulnerable Victims and Witnesses, paper presented at 17th Annual National Prosecutors Conference, Dublin, Ireland, 12 November. Birch, D. (2000) ‘A better deal for vulnerable witnesses?’, Criminal Law Review, 4: 223–​49. Brown, C.L. and Geiselman, R.E. (1990) ‘Eyewitness testimony of the mentally retarded: Effect of the cognitive interview’, Journal of Police and Criminal Psychology, 6(2): 14–​22. Burton, M., Evans, R., and Sanders, A. (2006) Are Special Measures for Vulnerable and Intimidated Witnesses Working? Evidence from the Criminal Justice Agencies, London: Home Office. Byr ne, R. and Binchy, W. (1992) Annual Review of Irish Law, Dublin: Round Hall. Clare, I.C.H. and Gudjonsson, G.H. (1993) ‘Interrogative suggestibility, confabulation and acquiescence in people with mild learning disabilities (mental handicap): Implications for liability in police Interrogations’, British Journal of Clinical Psychology, 32(3): 295–​301. Clare, I.C.H. and Gudjonsson, G.H. (1995) ‘The vulnerability of suspects with intellectual disabilities during police interviews: A review and experimental study of decision-​making’, Mental Handicap Research, 8(2): 110–​28. Coen, R. (2006) ‘The rise of the victim –​a path to punitiveness?’, Irish Criminal Law Journal, 16(3): 10–​14. Cusack, A. (2016) ‘Making the case for introducing pre-​trial cross-​ examination’, The Irish Examiner, [online] 28 September, available online from: https://​www.irishexaminer.com/​opinion/​commentanalysis/​arid-​ 20423077.html Cusack, A. (2017a) ‘Victims of crime with intellectual disabilities and Ireland’s adversarial trial: Some ontological, procedural and attitudinal concerns’, Northern Ireland Legal Quarterly, 68(4): 433–​49. Cusack, A. (2017b) ‘Pre-​trial cross-​examination for vulnerable witnesses: An idea whose time has come’, Cork Online Law Review, 16(1): 16–​21. Cusack, A. (2018) ‘The pre-​trial position of vulnerable victims of crime in Ireland’, in P. Cooper and L. Hunting (eds) Access to Justice for Vulnerable People, London: Wildy, Simmonds and Hill, pp185–218.

248

Trials for VICTIMS OF CRIME WITH INTELLECTUAL DISABILITIES

Cusack, A. (2020a) ‘Addressing vulnerability in Ireland’s criminal justice system: A survey of recent statutory developments’, International Journal of Evidence and Proof, 24(3): 280–​306. Cusack, A. (2020b) ‘Beyond special measures: Challenging traditional constructions of competence and cross-​examination for vulnerable witnesses in Ireland’, Irish Judicial Studies Journal, 3(1): 98–​115. Damaska, M. (1983) ‘The adversary system’, in S. Kadish (ed) Encyclopedia of Crime and Justice, London: Free Press, pp24–​9. Damaska, M. (1997) ‘The uncertain fate of evidentiary transplants: Anglo-​ American and continental experiments’, American Journal of Comparative Law, 45(4): 839–​52. Delahunt, M. (2010) ‘Improved measures needed for vulnerable witnesses in court’, Irish Times, [online] 7 December, available online from: https://​ w ww.irishtimes.com/ ​ n ews/ ​ c rime- ​ a nd- ​ l aw/​ improved-​measures-​needed-​for-​vulnerable-​witnesses-​in-​court-​1.685691 Dent, H. (1986) ‘An experimental study of the effectiveness of different techniques of interviewing mentally handicapped child witnesses’, British Journal of Clinical Psychology, 25(1): 13–​7. Department of Justice and Law Reform (2020) Victims Charter, Department of Justice and Law Reform, Dublin: Castle. Detterman, D.K. (1979) ‘Memory in the Mentally Retarded’, in N.R. Ellis (ed) Handbook of Mental Deficiency: Psychological Theory and Research, London: Earlbaum, pp2–​11. Doak, J. (2000) ‘Confrontation in the courtroom: Shielding vulnerable witnesses from the adversarial showdown’, Journal of Civil Liberties, 15(3): 294–​316. Edwards, C. (2014) ‘Pathologising the victim: Law and the construction of people with disabilities as victims of crime in Ireland’, Disability and Society, 29(5): 685–​98. Ellison, L. (2001) ‘The mosaic art?: Cross-​examination and the vulnerable witness’, Legal Studies, 21(3): 353–​75. Ericsson, K.I. and Perlman, N.B. (2001) ‘Knowledge of legal terminology and court proceedings in adults with developmental disabilities’, Law and Human Behaviour, 25(5): 529–​45. Frank, J. (1966) Courts on Trial: Myth and Reality in American Justice, London: Atheneum. Freedman, M.H. (1966) ‘Professional responsibility of the criminal defence lawyer: The three hardest questions’, Michigan Law Review, 64(8): 1469–​84. Gudjonsson, G.H. (2003) The Psychology of Interrogations and Confessions, London: Wiley.

249

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

Gudjonsson, G.H. and Gunn, J. (1982) ‘The competence and reliability of a witness in a criminal court: A case report’, British Journal of Psychiatry, 141(6): 624–​7. Gudjonsson, G.H. and Henry, L. (2003) ‘Child and adult witnesses with intellectual disability: The importance of suggestibility’, Legal and Criminological Psychology, 8(2): 241–​52. Gudjonsson, G.H., Clare, I.C., and Cross, P. (1992) ‘The revised PACE “Notice to Detained Persons”: How easy is it to understand?’, Journal of the Forensic Science Society, 32(4): 289–​99. Gudjonsson, G.H., Murphy, G.H., and Clare, I.C.H. (2000) ‘Assessing the capacity of people with intellectual disabilities to be witnesses in court’, Psychological Medicine, 30(2): 307–​14. Gulati, G., Cusack, A., Kilcommins, S., and Dunne, C. (2020a) ‘Intellectual disabilities in Irish prisons: Could Article 13 of the UNCRPD hold the key?’, International Journal of Law and Psychiatry, 68, doi: 10.1016/​ j.ijlp.2019.101540 Gulati, G., Cusack, A., Kelly, B., Kilcommins, S., and Dunne, C. (2020b) ‘Experiences of people with intellectual disabilities encountering law enforcement officials as the suspects of crime –​A narrative systematic review’, International Journal of Law and Psychiatry, 71: 1–​8. Hamlyn, B., Phelps, A., Turtle, J., and Sattar, G. (2004) Are Special Measures Working? Evidence from Surveys of Vulnerable and Intimidated Witnesses, London: Home Office. Heal, L.W. and Sigelman, C.K. (1995) ‘Response biases in interviews of individuals with limited mental ability’, Journal of Intellectual Disability Research, 39(4): 331–​40. Henderson, E. (2014) ‘Jewel in the Crown?’, Counsel, November 10–12. Judicial College (2012) Judicial College Bench Checklist: Young Witness Cases, London: Judicial College. Kebbell, M.R. and Johnson, D. (2000) ‘Lawyers’ questioning: The effects of confusing questions on witness confidence and accuracy’, Law and Human Behaviour, 24(6): 629–​41. Kebbell, M.R., Hatton, C., Johnson, S.D., and O’Kelly, C.M.E. (2001) ‘People with learning disabilities as witnesses in court: What questions should lawyers ask?’, British Journal of Learning Disabilities, 29(3): 98–​102. Kebbell, M.R., Hatton, C. and Johnson, S.D. (2004) ‘Witnesses with intellectual disabilities in court: What questions are asked and what influence do they have?’, Legal and Criminological Psychology, 9(1): 23–​35. Kilcommins, S. and Donnelly, M. (2014) ‘Victims of crime with disabilities in Ireland: Hidden casualties in the “vision of victim as everyman” ’, International Review of Victimology, 20(3): 305–​25.

250

Trials for VICTIMS OF CRIME WITH INTELLECTUAL DISABILITIES

Kilcommins, S. and Moffett, L. (2015) ‘The inclusion and juridification of victims on the island of Ireland’, in D. Healy, C. Hamilton, Y. Daly, and M. Butler (eds) Routledge Handbook of Irish Criminology, London: Routledge, pp379–​98. Kilcommins, S., Edwards, C., and O’Sullivan, T. (2013) An International Review of Legal Provisions and Supports for People with Disabilities as Victims of Crime, Dublin: Irish Council for Civil Liberties. Kilcommins, S., Leahy, S., Walsh, K.M., and Spain, E. (2018) The Victim in the Irish Criminal Process, Manchester: Manchester University Press. Kranat, V.K. and Westcott, H.L. (1994) ‘Under fire: Lawyers questioning children in criminal courts’, Expert Evidence, 3(1): 16–​24. Landsman, S. (1983) ‘A brief survey of the development of the adversary system’, Ohio State Law Journal, 44: 713–​39. Law Reform Commission (1990a) Report on Child Sexual Abuse, Dublin: Law Reform Commission. Law Reform Commission (1990b) Report on Sexual Offences Against the Mentally Handicapped, Dublin: Law Reform Commission. Leane, M., Ryan, S., Fennell, C., and Egan, E. (2001) Attrition in Sexual Assault Offence Cases in Ireland: A Qualitative Analysis, Dublin: Government Publications. McLeod, R., Philpin, C., Sweeting, A., Joyce, L., and Evans, R. (2010) Court Experience of Adults with Mental Health Conditions, Learning Disabilities and Limited Mental Capacity, London: Ministry of Justice. Milne, R. and Bull, R. (2001) ‘Interviewing witnesses with learning disabilities for legal purposes’, British Journal of Learning Disabilities, 29(3): 93–​7. Ministry of Justice (2014) Transforming the Criminal Justice System: Strategy and Action Plan –​Implementation Update, London: Stationery Office. Ministry of Justice (2016a) Process Evaluation of Pre-​Recorded Cross-​Examination Pilot, London: Stationery Office. Ministry of Justice (2016b) Transforming Our Justice System, by the Lord Chancellor, the Lord Chief Justice and His Senior President of Tribunals, London: Stationery Office. Morrison, J., Forrester-​Jones, R., Bradshaw, J., and Murphy, G. (2019) ‘Communication and cross-​examination in court for children and adults with intellectual disabilities: A systematic review’, International Journal of Evidence and Proof, 23(4): 366–​98. O’Mahony, P. (2010) ‘What we can learn from attrition in rape cases’, Rape Law: Victims on Trial? Conference, Trinity College Dublin, 16 January. O’Mahony, P. and Corr, M.L. (2009) ‘Ireland’, in J. Lovett and L. Kelly (eds) Different Systems, Similar Outcomes? Tracking Attrition in Reported Rape Cases Across Europe, London: Child and Women Abuse Unit, pp103–​10.

251

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

Perlman, N.B., Ericson, K.I., Esses, V.M., and Isaacs, B.J. (1994) ‘The developmentally handicapped witness: Competency as a function of question format’, Law and Human Behaviour 18: 171–​87. Perske, R. (1994) ‘Thoughts on the police interrogation of individuals with mental retardation’, Mental Retardation, 32(5): 377–​80. Rape Crisis Network Ireland (2018) Hearing Every Voice –​Towards a New Strategy on Vulnerable Witnesses in Legal Proceedings, Dublin: Rape Crisis Network Ireland. Rock, P. (1993). The Social World of the English Crown Court, London: Clarendon. Sanders, A., Creaton, J., Bird, S., and Weber, L. (1997) Victims with Learning Disabilities: Negotiating the Criminal Justice System, Oxford: University of Oxford. Smith, S.A. (1993) ‘Confusing the terms “guilty” and “not guilty”: Implications for alleged offenders with mental retardation’, Psychological Reports, 73(2): 675–​8. Smith, S.A. and Hudson, R.L. (1995) ‘A quick screening test of competency to stand trial for defendants with mental retardation’, Psychological Reports, 76(1): 91–​7 Taslitz, A.E. (1999) Rape and the Culture of the Courtroom, London: New York University Press. Temkin, J. (2000) ‘Prosecuting and defending rape: Perspectives from the bar’, Journal of Law and Society, 27(2): 219–​48. Ternes, M. and Yuille, J.C. (2008) ‘Eyewitness memory and eyewitness identification performance in adults with intellectual disabilities’, Journal of Applied Research in Intellectual Disabilities, 21(6): 519–​31. Tully, B. and Cahill, D. (1984) Police Interviewing of the Mentally Handicapped, London: Police Foundation. Walker, A.G. (1993) ‘Questioning young children in court: A linguistic case study’, Law and Human Behaviour, 17(1):59–​81. Wigmore, J.H. (1940) A Treatise on the Anglo­American System of Evidence in Trials at Common Law, London: Little Brown. List of Cases DPP v FE [2015] unreported, (Hunt J.) (Bill No.84/​2 013 Central Criminal Court). DPP v NR and RN [2016] IECCC 2 (Central Criminal Court). Hobbs v Tinling & Co. Ltd [1929] 1 KB 1. McLure v Mitchell (1974) 6 ALR 471. Parkin v Moon (1836) 7 C & P 408. Paul Ward v Special Criminal Court [1998] 2 ILRM 493.

252

13

The Inside-​Out Prison Exchange Program®: Its Origin, Essence, and Global Reach Lori Pompa

Inside-​Out should come with a warning label –​in big black and yellow letters: Warning: may cause severe damage if taken internally. We have seen, first hand, the kind of damage the program can do to preconceived notions, stereotypes, and most importantly –​ ignorance. … Inside-​Out has acted, for many of us, as a kind of eye-​exam for the soul, forcing us to realize what we believe and why we believe it. And we now realize that our vision was never 20/​20. We leave here with a little better vision. (Outside student) It began by chance –​an idea tossed into the universe –​and then it took hold. It has been unstoppable ever since. This article provides a description of, and reflection on, The Inside-​Out Prison Exchange Program®,1 a unique, groundbreaking initiative that brings people together for in-​depth dialogue about issues of social justice. Since the program described herein is centered on the power and importance of dialogue, voices of inside and outside students, as well as instructors, from across the globe and across time, are included throughout, providing somewhat of an imaginary dialogic conceit and illustrating the depth of this experience beyond what my words could ever express.

253

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

Here is how it started. I have been going into prisons and jails several times a week since 1985 as a volunteer, a social worker, and, finally, as an educator. In 1992, I began teaching in the Criminal Justice Department at Temple University in Philadelphia, PA, taking my students into correctional facilities multiple times each semester. In 1995, I took one of my classes to the state prison in Dallas, PA, for a tour, and we met with a panel of men who were incarcerated there. What ensued was a surprisingly nuanced, complex conversation, about crime and justice, race and class, philosophy, psychology, and social issues –​ generating a sense of depth that belied its 45-​minute length. This astonishing moment in time inspired one of the men on the panel, Paul Perry, to suggest that we do this as a semester-​long class. While we couldn’t do it at the prison in Dallas (it’s three hours from campus) I told him that I would think about it, and did so immediately upon returning home from the trip. I began to consider what the class would look like, what we would study, and how it would operate. Learning means to travel to the battleground. Learning means to realize the true challenge before me and to strategize, to struggle, to sit in the fire so that I see what I have been avoiding, to understand what I am most afraid of, and to meet the challenge of the forces in this world that attempt to undercut humanity … Each person reflects me to myself in an entirely new and evolving way. Learning from others is to learn about myself. Learning will never be finished. (Inside student) I decided to call the class the Inside-​Out Prison Exchange Program®, since it would be an exchange among ‘inside’ (incarcerated) and ‘outside’ (campus-​based) students, held inside of prison. I identified what seemed to be some of the most central issues in criminal justice (for example, what prisons are for, why crime happens, victims and victimization, punishment versus rehabilitation, and so forth) and that became the course content. Since I imagined that it would be uncomfortable bringing inside and outside students together, I found several icebreakers that would decrease the anxiety in the room. It also seemed important for us to sit in a circle, to emphasize the equality of voice of everyone who shared the space. This class was not like anything I had experienced before. I did learn quite a bit, but it was the ‘interpersonal stuff’ that I valued the most. I really feel like I connected with people, on a human level. What a change it is to be treated with kindness and

254

THE Inside-Out Prison Exchange Program

respect. I was made to feel valued and worthy of compassion. My classmates not only wanted to hear what I had to say, but trusted me enough to share of themselves. (Inside student)

Distinct aspects of Inside-​Out From the beginning, it has been important to make clear what Inside-​Out is –​and is not. As outside people, we are not going in to ‘study’ the men and women on the inside or to ‘help’ them in any way. It is also not about advocacy or activism; we are not pushing a particular agenda. And it is not an opportunity for people to develop relationships that exceed the boundaries of the classroom. At the same time, there are three distinct aspects of the program, each of which, it should be noted, many other sorts of groups are engaged in. Nonetheless, Inside-​Out is the only program that has interwoven all three of these dimensions simultaneously. First, we provide higher educational opportunities for men and women who are incarcerated. In recent years, increasing numbers of colleges and universities have been offering classes in correctional facilities. The importance and impact of these opportunities are well documented and cannot be understated. Inside-​Out has played an important role in that expansion since the program’s inception. Inside-​Out is a platform. One of many stepping stones I’m utilizing to make myself a better person. I’m finding that I can do the work of college level courses and even do well. This is an empowering feeling and I’m grateful to all those who’ve made this opportunity possible. (Inside student) Second, we engage in dialogue across many levels of difference as we explore issues together. Again, there are growing numbers of programs involved in bringing together disparate groups of people to enter into dialogue about various kinds of diversity issues. The Inside-​Out Program® made me realize how people can come together to answer tough issues. Our society can solve problems if we could only have a dialogue. (Inside student) At first blush, it may seem that, in a class that combines incarcerated and non-​incarcerated participants, the issue of each group’s social location would be the major distinguishing factor. Actually, the kinds and levels of difference far exceed that single feature.

255

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

What a motley crew we made in that little program room at [the prison]. I often think about the incredible dynamic of our group and wonder what we must look like to the people outside that room. People of different colors, sexes, ages, education levels, social classes and opinions in a circle, laughing, talking, arguing and respecting each other for hours at a time. It has to make it difficult for anyone who watches to hold on to the status quo. The status quo says that doesn’t happen. It says that people are different and that some things are never going to change. For two and a half hours every Thursday this semester, we proved that untrue. (Outside student) Third, and of vital importance, we take people from the outside into prison –​to see who is there, who’s not there, and what is going on (or not) on the inside. One of the first people I met in prison in 1985 was Tyrone Werts, who was serving a life sentence in Graterford Prison. (Tyrone was granted a commutation of his sentence several years ago, after serving over 36 years, and has been on our staff since his release). At some point during his incarceration, while meeting with a group that included outside participants, Tyrone offered this simple, yet profound, observation. Referring to the 30-​foot wall surrounding the prison, he said: “That wall isn’t there just to keep me in, but to keep you [the public] out.” Exactly. It is this ignorance of the reality of imprisonment and everything that leads to it that has allowed mass incarceration (in the United States) to reach such egregious levels in the past 40 years. As people are freed of stereotypes for a richer understanding of the issues, we as a society benefit in countless ways. Often, through Inside-​Out, we take a more holistic approach and connect the dots that the media purposefully ignores. A more informed public makes better decisions which creates a healthier society. (Inside student) Walking out of that place every week was hard. It was hard because that was the moment that forced me to face the fact that not all of us were allowed to leave. … If prison were anything other than [what] it is, it would be a lot less traumatic to walk out that door and leave someone behind it. (Outside student)

The Inside-​Out approach to learning Once the syllabus, methodology, and logistics were determined, I conducted the first Inside-​Out class in a Philadelphia maximum-​security facility for

256

THE Inside-Out Prison Exchange Program

men in 1997. That first class involved 15 students from Temple University and 15 students from the jail. We sat in a circle each week, sitting alternately (inside student, outside, inside … and so on) and entered into dialogue in the large group and smaller subgroups. I entered this program without knowing what to expect. I imagined that it would be a bunch of white college students basically coming to observe convicts first hand. From the first moment I came into contact with the students it was an experience out of the ordinary. I felt like a saltwater fish moving into freshwater. Years of conditioning by brutality, anger, hatred, mistrust, and guarded emotions, left me unprepared for the reception and humanness with which the … students greeted me. (Inside student) As the instructor, I served as a facilitator of the learning process, guiding the exploration of the group. Gone was the conventional didactic style of teaching that is too often used in our classrooms, that frequently renders participants mere passive observers. My brain never stopped processing information as each student was able to add a piece to the steadily growing mosaic. For me, this is what a college class is all about. I left class with my mind racing to place all of the pieces discussed into their proper places. (Inside student) One of the concepts that I have most appreciated in relation to the pursuit of learning is that the word ‘education’ means to draw forth (rather than stuff in). What makes this process so compelling is that all participants bring to bear their own particular contexts –​everything in their lives that has brought them to this moment. Since each person’s context is both unique and multifaceted, learning in a dialogic format allows the richness inherent in the diversity of the group to come forth. Most college courses are lectures and readings which, later on, we are supposed to apply to real-​life situations. This class was a real-​life situation itself. The readings gave all of us facts, statistics, and the opinions of the ‘experts’, but the class itself was what gave the course an additional meaning and another dimension. The students in the class gave it life –​we taught each other more than can be read in a book. (Outside student)

257

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

I have found this approach to teaching and learning to be a very humbling experience. The energy, creativity, and passion that emerges from the group is beyond anything that could be planned in advance. We often talk about ‘trusting the process’, precisely because the process itself is truly organic in nature. It holds its own inherent power, leading to fresh ideas, creative connections, and new, in-​depth realizations –​about the subject matter, whatever it happens to be, as well as about the enterprise of learning itself. Learning is self-​discovery through the study of internal and external stimuli. It is spreading the wings of your intellectual capacity. It’s self and other empowerment. Most of all, it is the soul’s attempt to understand the universe, to see the intersection of cause and effect and ascend to an awareness that they are one and the same. (Inside student and Think Tank member) In all of my years of teaching, the Inside-​Out pedagogy is, by far, the single most engaged learning process in which I have ever taken part. What has been most surprising to me are the multiple levels of learning that take place –​all of us learning about ourselves, about other people, about how we are both different and alike, about communication and working through conflict, and about the systems that impact our lives and our relationship to those systems, as individuals and as a community. Deep, multi-​layered, lasting learning. The initial meeting … brought home to me the extent to which I’ve been isolated and socially deprived. … While you’re isolated, you do not realize how much you lose psychologically. This is the first time in thirteen years that I’ve been exposed to such an environment. … It made me consider how much I may have lost touch with humanity. Emotional centers were stirred within me that I thought had long since been atrophied. I guess it’s because this was the closest I’ve been to society in thirteen years. (Inside student) [This class] has acted as the catalyst in my passion for life and human rights, and was the pivotal point where I realigned my own path. This program has brought me to a new understanding of life, not just in prison, but in my own life. I have acquired the concrete knowledge of the true inter-​workings of the system, and at the same time come to realize my own captors in life. (Outside student) I feel incredibly thankful to have stumbled upon the world of Inside-​Out teaching. My involvement in Inside-​Out has given me a venue … to put significant energies into education with 258

THE Inside-Out Prison Exchange Program

disenfranchised people, as well as into collaboration amidst deep forms of diversity. The experience has highlighted the transformative value to students of combining intellectual, emotional and experiential learning. I have expanded my capacities and deepened my knowledge as an instructor and as a human being. (Inside-​Out instructor)

Realizations from participating in Inside-​Out Two of the most profound, albeit unexpected, insights that I have gained over these years of going in and out of prison and meeting thousands of people behind the walls are the following: I have come to realize that, though some of us may be incarcerated, all of us are imprisoned, in some way(s), at some level, and how important it is to recognize that reality in our own lives, as well as in the lives of others. That simple truth is core to an empathic way of living. The second realization is something that I have come to understand about myself and, by extension, about human beings in general. Here is how I would explain it. I know that I could have the capacity to do terrible things, possibly even, given the right (or wrong) circumstance, to take the life of another person. But I also know that I am capable of doing tremendous things in the world –​and everything in between. And from the many people I have met over the years, for whom both ends of the spectrum are true, I have begun to reframe how I understand a dimension of what it means to be human –​that each of us has a continuum of potentialities. We are all so much more than the worst (or best) thing that we have ever done. I just want to be human, but so much of my humanity must be buried here. … Cell doors may not open up, yet hearts have. Sometimes, that is actually a larger and more lasting accomplishment. (Inside student) [These sessions] were safety nets, zones by which we could come together and discuss issues commonly significant to all of us, problems and solutions that we felt were important to consider and resolve. (Outside student) I continued to teach in the Philadelphia jails each semester for the next five years, on the men’s side of the facility in autumn, and on the women’s side in spring. Gradually, two professors from Temple came to me with ideas for classes they were interested in teaching using the Inside-​Out pedagogy, asking me to help them get started. I was both surprised and gratified that

259

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

anyone else was interested in doing something like this that was so out of the ordinary. Little did I know, at that point, where this would all go.

Expanding the program Fighting to stop an injustice from continuing is not like ordering at a drive-​up window. It’s like cultivating a tree. The tree might not be strong enough in our lifetime to spread its leaves very far but our children might appreciate its shade. We probably won’t get to live in a world where people are not dehumanized in the prison system. But we can live in a world where we don’t let it dehumanize us and expect that someday someone will live in that other world. (Outside student) In 2002, I expanded the program to Graterford Prison, a very large maximum-​ security facility for men near Philadelphia, with the help of Tyrone (mentioned previously), who was serving as the president of the Lifers’ Association. Tyrone was able to secure the approval of the prison administration and developed an ad hoc committee of men on the inside to work out the logistics to make this course happen inside the institution. One of the men who was asked to be on that committee was Paul Perry, who, unbeknownst to me, had been transferred from Dallas to Graterford in the intervening years since when he had first suggested the idea for such a course. It was a perfect full-​circle experience to have Paul be instrumental in getting the class up and running at Graterford –​and everything else that has followed. I’m always inspired by those who think and live outside the box. Life truly is about change. And although there are those who try to resist change with all their might and power, there are those … who push just as hard (if not harder) to create it … One Inside-​ Out class at a time, 30 students at a time, we can get there. While some dream of doing big things, others stay awake and do them. (Inside student and Think Tank member) The first course held at Graterford (in which both Tyrone and Paul took part) was light years beyond the Inside-​Out experience in the jails, in part due to the length of time that most of the inside students had been incarcerated. Inside-​Out is a way to uncage the mind. … A process where ideas can be discussed freely is very rare for those imprisoned; therefore, Inside-​Out has a liberating effect. I’ve witnessed the

260

THE Inside-Out Prison Exchange Program

positive change in the thinking of many men as a direct result of their having experienced the Inside-​Out course. (Inside student) I feel in this dialogue of … [outside] students and men on the inside an extremely critical engagement with issues of suffering and our society’s accountability to the widespread phenomenon of suffering. I’ve been in many settings where I feel poverty, class oppression, racism were all talked about. But somehow it still just felt like words. What is spoken in [this] class strikes me on a much deeper level. (Outside student) In fact, that first Graterford class was so powerful that the inside and outside students together decided that they wanted to keep meeting each week, voluntarily, after the semester was over, to continue exploring and working on issues of social justice. I didn’t expect to learn so much. I didn’t expect to grow and change as a result of the process. … As I reflect on the power of this course, I am awestruck and humbled … and certain that I do not want it to end here. (Outside student) With enlightenment comes responsibility. We are all responsible. What is the next step after all this dialogue is done? (Inside student) We got permission from the administration and began meeting in October 2002. Amazingly, that group (which we called the ‘Think Tank’) has met weekly ever since for the past 18 years. Though many of the group’s original participants have changed over time, there have been some very long-​term members (including Paul) who have been involved since its inception. I started seeing things I could do. In the eight years I’ve been incarcerated, I’ve never felt so strong about wanting to make a change. (Inside student) The Inside-​Out Prison Exchange Program … provides what I’ve come to believe is an indispensable forum for members of the prison and outside communities to come together to teach and learn from one another about issues, concerns, and truths about crime, punishment, and the criminal justice system. … I’m convinced more than ever of the potential for Inside-​Out to become a life transforming experience for more than just a few of us. (Outside student)

261

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

The Think Tank determined early on that Inside-​Out was too good an idea to keep at just one university, that we needed to make it into a national model. With the help of a Soros Justice Fellowship, we were able to make that happen. We spent the academic year 2003–​04 developing what we needed to replicate the program (materials, a curriculum for a seven-​day intensive training for professors, outreach and fundraising strategies, and so forth). We held our first national training in July 2004, which, to our great surprise, was attended by 20 academics from throughout the USA. Clearly, there was interest. We were off and running. The amount of practical information that I have gained [through the training] is overwhelming, but that is not the most valuable thing. Over the course of this week, particularly when we visited Graterford, I rediscovered a part of me that I haven’t seen in 25 years or so. I’m surprised at the emotional turmoil it has generated. But I also feel like I have found a community that I did not know existed. It is a gift to be surrounded by people who understand what I am saying when I talk about prisons … people that I don’t have to explain everything to. And the training has stirred up an intellectual excitement that I have not felt in years. (Inside-​Out instructor) We have completed 71 intensive trainings between July 2004 and May 2021, conducting several each year. More than 1,100 academics have attended these trainings and have offered classes in disciplines spanning the social sciences, the arts and humanities, education, social work, business, health, and law. So far, approximately 60,000 inside and outside students have taken part in these classes, and Inside-​Out has partnered with more than 150 universities and colleges and about 200 correctional facilities. And along the way, quite organically, the program became international, involving academics from a dozen other countries besides the US (for example Australia, Canada, Denmark, Mexico, the Netherlands, the UK, and others). I will take away the experience of meeting so many impassioned people doing good work. I have had some of the most provocative questions presented to me. I have been a part of some of the most inspiring discussions. I will take part of everyone with me into every classroom, formal and informal, throughout my life. I have been moved in a very profound way. (Inside-​Out instructor)

262

THE Inside-Out Prison Exchange Program

Think tanks Another surprising dimension of the growth of the program has been in the area of think tanks. Based on the original Graterford Think Tank, there are now more than two dozen think tanks within our global network that have emerged naturally, each with its own mission and particular set of projects that are locally informed. The biggest shift that I’ve seen in the group is its cohesiveness. Everyone focusing on one thing, and moving in the same direction. … This experience has been rewarding to me, because I know people outside of the walls care about us in here … I realize now that a lot of our concerns are not just our concerns. (Inside student) As a classroom full of radically different people, we were able to bond, and engage in some very in-​depth analysis of the criminal justice system and society in which we live. It is now our job as the students, whose eyes have now been opened … to go out and create positive and necessary change. (Outside student) Some of the work that has emerged from these groups includes: regional and state Inside-​Out conferences; the creation of re-​entry programs that have been adopted by correctional administrators; new educational and leadership initiatives within some of the prisons; publications of original work; two-​hour workshops for community members that provide an abbreviated Inside-​Out experience; and much more. That involvement in every one of these think tanks is voluntary for both inside and outside participants is a testament to the passion for social justice and social change that is engendered in these classes. There is a power in the collective actions of good people. Inside-​ Out lets us find the source of that power. We do it. We grow. We change the world one class at a time. (Inside-​Out instructor) Our instructor training institutes are conducted in places where we have existing think tanks. In that way, think tank members (mostly inside participants) can collaborate with us in training the instructors. It is such a wonderfully radical idea –​people inside of prison helping to train, as they often say, ‘professors with PhDs’. As I tell the think tank members all the time, the instructors have expertise in their own particular areas … and your expertise is in Inside-​Out. Then, they get it –​and they’re ready.

263

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

Trapped in an ocean almost barren of intellectual stimulation … I was rescued. I was thrown a life raft of conversation that engaged my intelligence in a way that I crave. (Inside student and Think Tank member) I stand in awe of what has happened over the years through this program. People who get involved –​instructors, inside students, outside students –​ consistently talk about how the experience has changed their lives and the renewed passion they feel about social issues. What I did not fully expect was how heightened my awareness would become. … I feel like everyone should be able to see what I see. I guess this increased sensitivity is the best thing that could have ever happened to me. (Outside student) This has been the most meaningful teaching I’ve ever engaged in. Something happens in the Inside-​Out circle that is so much more than the sum of its parts that you can get to feeling like the ceiling might blow off! Apparently, our society desperately needs these conversations –​these extensions of trust –​to happen. Inside-​Out students humble and buoy the instructor; these classes challenge, elate, educate, pierce the heart. Consistently, across the country, the Inside-​Out Prison Exchange Program is opening up doors that simply must open; I believe this is life-​changing work for all who participate. (Inside-​Out instructor) There is something that happens in the Inside-​Out circle (classes, trainings, workshops, think tanks) that provides a sense of liberation to those involved, ironically happening within a context that is the antithesis of a space that promotes freedom. The number of times that students have said that, while in the class, they actually forget that they are in prison, is stunning. It is especially poignant hearing that sentiment voiced by inside students. The group miraculously transformed me to another place and time where I no longer felt like an outcast, a place where I felt my opinions were respected. (Inside student)

Conclusion My hope is that the impacts of the program are illustrated, to some degree, through the voices of the inside and outside students and instructors that are included here. It is often difficult to adequately measure, in a quantitative

264

THE Inside-Out Prison Exchange Program

way, the effects of a program of this kind. However, the amount of qualitative and anecdotal information that we have gathered over the years speaks volumes. Additionally, we have watched as the program has expanded, in the numbers of instructors who have taken our training, the number and kinds of classes offered throughout our network, the number of prisons and universities involved, as well as in the countless initiatives that have been spawned, in think tanks and otherwise, by the Inside-​Out experience. It remains a constant source of amazement to me that what is now a global initiative had its roots in a chance conversation with Paul, one of the men who joined us in that discussion during our trip to the prison in Dallas back in 1995. It is an important reminder to me about always staying open to possibilities, that sometimes seemingly random occurrences can have their own inherent import and urgency. This germ of an idea that became Inside-​ Out was, when I thought about it, the most obvious thing to do –​people from both sides of the prison wall learning together and dialoguing about important issues –​yet no one was doing it. It proved to be a simple –​and quite brilliant –​concept. Becoming: A respite, a place of self-​reflection within an assembly of like minds. Supported in safety by unexpected family profoundly humbling and simultaneously liberating. An inexplicable community where thought and theory balance. Through the fusion of hope, purpose and action flourishing in the most inhospitable environment. Insight and authenticity, shape us with precision. Our questions dissect, then reshape, the structures of the world. (Inside student) There is so much more that can be shared about Inside-​Out –​so many stories, so many examples of innovative spin-​off programs that have been developed, so many lives touched. It is hard to capture it all in a few words. The program has grown organically over the years, meaning, in part, that those who have gotten involved have put their handprint on it, thousands of inside and outside students and instructors across the globe. The most powerful and enduring impact has come from the ongoing work of the two men mentioned throughout this piece, Paul Perry and Tyrone Werts. Their contributions over these many years have served as the thread that ties together the many disparate strands that have coalesced to create the Inside-​Out gestalt.

265

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

We believe in what we do very deeply and plan to keep expanding and developing dimensions of this cutting-​edge program in the years to come. People who get involved in the program often talk about Inside-​Out as a movement, that it is blazing a trail. As Tyrone often says: “Inside-​Out is more than just a program –​we are changing the world.” I hope that is true in some small way. Inside-​Out moves through the walls –​it is an exchange, an engagement –​between and among people who live on both sides of the prison wall. It is through this exchange, realized in the crucible of dialogue, that the walls around us (and within us) begin to crumble. The hope is that, in time, through exchanges of this kind, these walls will become increasingly permeable and, eventually, extinct –​one idea, one person, one brick at a time. Note 1

To become an Inside-​Out instructor, you can apply for training here: http://​www. insideoutcenter.org/​

266

Index References to figures appear in italic type; those in bold type refer to tables. References to endnotes show both the page number and the note number (245n3). A Abel, Gillian  179 Adoption Authority of Ireland  58 adoptions, illegal  57–​59, 77 adversarial trial system  233–​45 application in Ireland  234–​36 and victims of crime with intellectual disabilities  difficulties as witnesses  234–​39 special measures in Ireland  233–​34, 239–​45 adverse childhood experiences (ACEs)  89–​105 impact of  89–​92, 155 institutional abuse  71, 100–​101 recourse to alcohol and drugs  94, 103–​4 research on offending behaviour  interviewees  93–​94 unsolicited trauma narratives  95–​103 significance of safety  91, 104–​5 toning down and denial  95 traumatic bereavements  98 see also  trauma alcohol abuse  94, 103–​4 see also drug use Amnesty International  163, 164, 175–​76 Anderson, Alijah  143 antisocial personality  99 arts workshops  see participatory arts (PA) assisted desistance  see under desistance auditors  50–​51 autonomy, concept of  196–​97 B Bacchi, Carol  167 Barry, Monica  227 Bauman, Zygmunt  139 Beauchamp, Tom L.  196 Becker, Howard  18 Benedet, Janine  244–​45

beneficence, concept of  197 bereavements, traumatic  98 Bevan, Marianne  98 Biggs, Caroline  247n35 Binchy, Judge Donald  192 Birch, Diane  244 Blackbird Leys riot  133–​44 account of events  135–​38 explanations and motivations for  138–​44 local demographics  134–​35 media involvement  134, 137 policing  137–​38 Braithwaite, John  54 Brandon, Avril Margaret  49 Brimblecombe, Nicola  135 Burke-​Harris, Nadine  90, 91 Burns, Diane  79 Burton, Mandy  239, 241 Butler, Shane  187, 188 C Cambridge, Graham  156 Campbell, Beatrix  133–​34, 137–​43 Campbell, Rosemary  165 Canadian HIV/​AIDS Legal Network  6 Carlson, Bonnie E.  98 Carr, Alan  71 Central Bank of Ireland  54 Charlton, James I.  5 children  child sex abuse  95 institutional abuse  see main entry living near sex work  29–​31 with parents in prison  98, 98–​99, 155, 156 trauma during childhood  see adverse childhood experiences (ACEs) and violent subcultures  142–​43 as witnesses  240, 241 Childress, James F.  196 CityWide  203n5

267

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

Cockburn, Cynthia  113 Cognitive Behavioural Therapy  92 cognitive transformation theory  218–​19 Collins, Patricia Hill  18 Commission of Investigation into the Banking Sector  50 conflict zones, sexual violence against women  115–​18 consumerism  139, 154 continuity of violence (COV)  111–​14, 117, 122, 127–​29 Coppin, Elizabeth  75–​76, 82n3 Cork Prison  13, 151, 155 corporate crime  43–​60 and the criminal justice system  49–​55 investigations in Ireland  51–​53 reporting  50–​51 sanctions in Ireland  53–​54 ‘show trials’  55 and fear of libel  55–​60 issues of definition  44–​49 and marginalization  43–​44, 60 CoSA (Circles of Support and Accountability)  210, 216, 217–​27 criminal trials  see adversarial trial system D Daly, Claire  59 Davies, Sara E.  117 Davis, Melvin  136 D’Cruze, Shani  123 Delahunt, Miriam  241, 247n35 Department of Social Protection (Ireland)  53 depression  99 deprivation  141–​42, 144n2 desistance  assisted desistance  209–​27 overview  210–​13 community-​based programmes  210, 215–​16 experiences of prison  224–​25 framework  213–​15 legal rehabilitation  214, 219–​21, 223–​24 moral rehabilitation  214, 219–​21 probation officers and police liaison  225 psychological and personal rehabilitation  213–​14, 218–​19 research methodology  216–​18 social rehabilitation  214, 221–​23 summary and conclusions  225–​27 autobiographical narrative  149–​56 general theories  89, 209–​12 and perpetrators of sexual harm  see assisted desistance above through activism  6, 13n3 and undigested trauma  89, 104–​5 Devitt, John  53 Devlin, Patrick  197 Dietz, William H.  90, 101

disability rights activists  5, 7 see also intellectual disabilities, victims of crime with domestic violence against refugee women  118–​20, 126 see also sexual and gender-​based violence (SGBV) Dorling, Danny  47 double marginalization  43–​44 drug use  and adverse childhood experiences (ACEs)  94, 103–​4 among prisoners  94, 97–​98, 100, 101–​3 among sex workers  25, 26, 30 autobiographical narrative  150–​52, 154–​56 diverse opinions among users  7 policy in Ireland, historical overview  186–​91 supervised injection facilities (SIFs)  overview  185–​86 ethical and political debate  196–​99 planning application in Dublin  190–​96 strategy and legislation in Ireland  188–​ 89, 190 user activism  6 Duff, April  73, 76–​77, 79–​80 Dunne, Ben  52 E Eglash, Albert  156 Ellis, Wendy R.  90, 101 Ellison, Graham  163, 169 Ellison, Louise  236 Erikson, Erik  155 F Fals Borda, Orlando  18–​19 Farrington, David P.  94, 99 Felitti, Vincent J.  89–​90, 94, 95, 155 feminist analysis  of sex work  162–​63, 165 of violence  112–​13 Ferris, Elizabeth G.  113, 114 Finlay, Fergus  58 Fisse, Brent  54 FitzGerald, Sharron A.  166 Fitzpatrick, Mark  71 Fitzpatrick, Sean  53 Flanagan, Charlie  240 Flynn, Catherine  98 Flynn, Pádraig  50 Fooks, Gary  50–​51 Foothold (floating support service)  210, 215, 217–​27, 228n4 Ford, Kat  91–​92 Frank, Jerome  235, 245n3 Fraser, Nancy  166 Freire, Paulo  18, 21

268

Index

G Gabarino, James  100 Gallagher, Patrick  56–​57 Gallen, James  77 Gallie, W.B.  49 Galligan, Eamon  194 Galtung, Johan  124 gang members  5, 13n3 Garda National Economic Crime Bureau  53 Gardaí  153, 195, 225 Gilmartin, Tom  50 Giordano, Peggy C.  218 Global North and South  7, 9 Gogarty, James  50 Goodman meat plants  57 Gouldner, Alvin W.  18 Graef, Roger  137 Gramsci, Antonio  18 Grant, Isabel  244–​45 Green Criminology  6 Green, Kate  23 Greenslade, Roy  56 Guardian  137, 140 Gudjonsson, Gisli H.  245n12 H Hagedorn, John  13n3 Hall, Stuart  18 Ham, Jacob  102 Hamlyn, Becky  239 Hanly, Conor  203n3 Hart, H.L.A.  197, 198–​99 Haslam, Robert H.A.  100 Haughey, Charlie  52 HIV/​AIDS  6, 7, 187–​88, 200–​201 Honneth, Axel  177 Hourigan, Niamh  203n1 Huggins, Richard  143, 144 I illegal adoptions  57–​59, 77 Illich, Ivan  18, 19 Independent Living Movement  5 Inside-​Out Prison Exchange Program  10, 253–​66 Institute of Public Administration (IPA)  56 institutional abuse  and child detention  100–​101 definitions and effects  70–​71 Magdalene Laundries  67–​82 overview  67–​69 barriers to civil litigation  76–​79 lack of accountability  78–​79 legal rights of survivors  72–​73 non-​recognition by Irish state  74–​76 research project and methodology  69–​70, 71–​72

survivors’ and other recommendations  79–​82 mother and baby homes  57–​59, 70, 74, 77 intellectual disabilities, victims of crime with  233–​45 difficulties as witnesses  234–​39 special measures in Ireland  233–​34, 239–​45 International Committee for the Rights of Sex Workers in Europe (ICRSE)  165 Irish Human Rights and Equality Commission  73, 76 Irish Probation Service  210, 223, 225 Irish Sex Work Research Network (ISWRN)  162 Irish Times  52 J Jeal, Nikki  171 Jürgens, Ralf  7 Justice for Magdalenes Research (JFMR)  67, 73 K Kant, Immanuel  196 Katz, Jack  142 Kebbell, Mark R.  238, 245n14 Kelly, Liz  112–​13, 127 Kennedy, H.G.  91 Kenny, Enda  75, 75–​76 Kesten, Jamie  140 Kilcommins, Shane  46 King, Sam  210–​11 Krause, Ulrike  113, 114 L Lacey, Nicola  48, 49 Laing, Mary  166, 176, 177, 179 Landsman, Stephan  234 Law Reform Commission of Ireland  46–​47 Ledwith, Margaret  166 legal rehabilitation  214, 223–​24 Levi, Michael  55 Lewis, Paul  141, 144 Loewenberg, Samuel  45 Lowry, Michael  52–​53 Lyons, Tara  164 M Magdalene Laundries  67–​82 overview  67–​69 barriers to civil litigation  76–​79 and institutional abuse  69, 70–​71 lack of accountability for abuse  78–​79 legal rights of survivors  72–​73 non-​recognition by Irish state  74–​76 research project and methodology  69–​70, 71–​72 survivors’ and other recommendations  79–​82

269

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

Majic, Samantha  165 Mansbridge, Jane J.  165–​66 Marsh, Brendan  156 Martin, Jimmy  83n6 Maruna, Shadd  5, 6, 156, 213 Marx, Karl  18 masculinity  139, 143, 151, 154–​55 material deprivation  144n2 McAleese, Mary  59 McAuley, Finbarr  49 McBarnett, Doreen  45 McCutcheon, Paul  49 McGarry, Kathryn  166 McGettrick, Claire  69, 70, 80–​81 McGrath, Joe  47, 53–​54 McGrew, Kate  167 McLeod, Rosie  239, 241, 245n15 McNeill, Fergus  95, 210–​26 McRobbie, Angela  18 media, role in riots  134, 137 Merchants Quay Ireland (MQI)  190–​96 Merton, Robert K.  142, 154 Mies, Maria  18, 19 migrant sex workers  164, 170–​71, 173–​74, 175–​76, 178 migration  see refugee rights; refugee women, sexual and gender-​based violence against Mill, John Stuart  196–​97 Miller, Alice  99 Miller, Reuben J.  213 Milotte, Mike  58–​59 Mol, Annemarie  167 moral rehabilitation  214, 219–​21 Morgan, Tom  83n6 Moriarty Tribunal  51–​52 Mossack Fonseca  51 mother and baby homes  57–​59, 70, 74, 77 Mountjoy Prison, Dublin  155 Murji, Karim  139 Murphy, Kevin D.  102 Murray, Charles  138–​39 Murray, Joseph  99 N NewsBrands Ireland  59–​60 ‘nothing about us without us’  overview  3–​5, 10 conceptual history  5–​7 difficulties in practice  7–​8 and offending behaviour  105, 156 and research  8–​9 and sex workers  17, 161 Nussbaum, Martha  201, 202 O O’Brien, Denis  52 O’Brien, Martin  18 O’Connell, Michael  49 O’Donnell, Katherine  70, 80–​81

offending behaviour  and adverse childhood experiences (ACEs)  interviewees  93–​94 unsolicited trauma narratives  95–​103 autobiographical narrative  149–​52, 154–​55 desistance from  see desistance significance of safety  91, 104–​5, 151–​52 and use of alcohol/​drugs  94, 100, 101–​3, 150–​52, 154–​56 Office of the Director of Corporate Enforcement (ODCE)  53–​54 O’Gorman, Aileen  186 O’Mahoney, Jennifer  70 O’Mahony, Paul  246n28 O’Malley, Tom  52 O’Neill, Maggie  164–​65, 166, 176, 177, 179 O’Rourke, Maeve  70, 77 P PACE (Prisoners Aid through Community Effort)  210, 215–​27, 228n4 Panama Papers  51 parental imprisonment  98, 98–​99, 155, 156 participatory action research (PAR)  overview  17–​20 methodological approaches  20–​23, 22, 166–​67 sex work research findings  23–​29, 37–​39, 167–​79 participatory arts (PA)  overview  17–​20 sex work research project  23, 29–​39, 30–​ 32, 34, 36 peer-​to-​peer research  161–​62, 179 Perlman, Nitza B.  238 perpetrators of sexual harm  209–​27 overview  210–​11, 212 assisted desistance framework  213–​15 community-​based programmes  210, 215–​16 experiences of prison  224–​25 isolation of  213 legal rehabilitation  214, 219–​21, 223–​24 probation officers and police liaison  225 psychological and personal rehabilitation  213–​14, 218–​19 research methodology  216–​17 social rehabilitation  214, 221–​23 summary and conclusions  225–​27 Perry, Paul  254, 260, 261, 265 personal rehabilitation  214, 218–​19 Phillips, Melanie  140 police and policing  137–​38, 153, 195, 225 Pollard, Charles  137 polyvagal theory  91 Porges, Stephen W.  91 prison  and drug use  151–​52, 154–​55

270

Index

Inside-​Out education program  13, 253–​66 safety and security in  152, 224–​25 prisoners, male  see offending behaviour Prisoners Aid through Community Effort (PACE)  210, 215–​27, 228n4 prostitution  see sex work psychological rehabilitation  213–​14, 218–​19 Public Health Wales  91 R Ramsey, Rev James  141–​42 Rao, Anupama  123 rape  see sexual and gender-​based violence (SGBV) Rape Crisis Network Ireland  243, 247n34 refugee rights  6 refugee women, sexual and gender-​based violence against  111–​29 continuity of violence (COV)  111–​14, 117, 122, 127–​29 during journey  120–​24 in pre-​refugee life  115–​20 at refugee camp  124–​26 research methodology  114–​15 see also migrant sex workers rehabilitation  and assisted desistance  211, 212 and childhood trauma  92 and drug treatment  187–​89 of gang members  5 legal  214, 223–​24 moral  214, 219–​21 and perpetrators of sexual harm  209–​10, 213, 215–​27 psychological and personal  213–​14, 218–​19 Risk-​Need-​Responsivity model  92 social  214, 221–​23 Reilly, Judge Michael  100 Reiner, Robert  138 reintegration  213 relative deprivation  141–​42 see also  material deprivation religious institutions  see Magdalene Laundries; mother and baby homes Ring, Nial  198 rioters  see Blackbird Leys riot RISE: Refugees, Survivors and Ex-​ Detainees, Australia  6 Risk-​Need-​Responsivity model  92 Rock, Paul  45 Rodley, Sir Nigel  79 Roma communities  6 Ronnblom, Malin  167 Ruane, Lynn  102 Runciman, W.G.  138 Runell, Lindsey Livingston  156 Ryan, Paul  176

S Safer Lives (treatment programme)  210, 216 safety, significance of  91, 104–​5, 151–​52 Saigol, Rubina  117 Salisbury, Chris  171 Sanders, Andrew  239 Sanders, Teela  165 SASCA project  overview and methodology  69–​70, 71–​72 findings  72–​79 Scarman, (Leslie) Lord  140 Schneider, Elizabeth M.  126 Schwendinger, Herman  47 Schwendinger, Julia  47 Scoular, Jane  164–​65 Sellin, Thorsten  44 sex offenders  see perpetrators of sexual harm sex work  22–​39, 161–​79 policy and regulation  feminist approaches to  162–​63, 165 legislation in Ireland  162, 174 sex purchase laws  163–​66 research methodologies  22–​23, 22, 162, 166–​67 residents’ views and concerns  21, 23–​25, 29–​33, 30–​32 sex workers  access to justice  164–​65, 174–​76 background and reasons for starting  25–​26 and criminal justice system  27 double lives, stigma and isolation  33–​34, 164, 169–​71, 177–​78 drug use  26 general services needed  28–​29 health issues and risks  27–​28, 35–​37, 36, 163–​64, 168, 169–​74 housing and homelessness  26 isolation from others  171 migrants  164, 170–​71, 173–​74, 175–​ 76, 178 violence against  27, 33, 34, 35, 36, 168–​ 69, 174–​75 voices and collective action  165–​66, 176–​79 Sex Workers’ Alliance of Ireland (SWAI)  162, 165 sexual and gender-​based violence (SGBV)  111–​29 definition  112 against refugee women  continuity of violence (COV)  111–​14, 117, 122, 127–​29 during journey  120–​24 in pre-​refugee life  115–​20 at refugee camp  124–​26 research methodology  114–​15

271

GIVING VOICE TO DIVERSITY IN CRIMINOLOGICAL RESEARCH

against sex workers  27, 33, 34, 35, 36, 168–​69, 174–​75 Shafer, Michael S.  98 Shildrick, Tracy  143 Skeggs, Beverley  18 Smith, Colin  73, 76–​77, 79–​80 Smith, Dorothy  18 Smith, Stuart A.  238 social rehabilitation  214, 221–​23 Sociological Association of Ireland  56 spent convictions  153, 156, 214–​15 St Audoen’s National School, Dublin  193–​96 Stanko, Elizabeth A.  118, 119 Stardust Ballroom, Dublin  57 Stevens, Alex  154 Stewart, Justice Potter  199–​200 strain theory  154 Stuart, Forrest  213 subterranean structuration theory  154 Sumrok, Daniel  94 supervised injection facilities (SIFs)  overview  185–​86 ethical and political debate  196–​99 planning application in Dublin  190–​96 strategy and legislation  188–​89, 190 Surtees, Rebecca  126 Sutherland, Edwin H.  44–​45, 47, 55 Sweeney, Karl  55 T Tappin, Paul W.  45 Tauli Corpuz, Victoria  6 Temkin, Jennifer  235–​36 Temple Bar Company  192–​93 trauma  in childhood  89–​105 impact of  89–​92, 155 institutional abuse  100–​101 recourse to alcohol and drugs  94, 103–​4 research on offending behaviour  93–​103 significance of safety  91, 104–​5 toning down and denial  95 traumatic bereavements  98 and gang violence  5 and institutional abuse  71 and riots  144 see also sexual and gender-​based violence (SGBV); vulnerable witnesses Treadwell, James  139 Trinh T. Minh-​ha  18 True, Jacqueline  117 Truss, Elizabeth  242 U Uggen, Christopher  155 Ulster Bank  54 underclass theories  138–​41, 143–​44

United Nations Committee Against Torture (CAT)  74, 79, 80 United Nations Human Rights Committee  79 User Voice, UK  6 V van de Weijer, Steve G.A.  99 van der Kolk, Bessel  92, 103 van der Meulen, Emily  20 Van Dyke, Alison  136 Varadkar, Leo  58, 188 Vaswani, Nina  98 violent subcultures  142–​43 vulnerable witnesses  233–​45 difficulties of  234–​39 special measures in Ireland  233–​34, 239–​45 W Walker, Margaret Urban  81 war zones, sexual violence against women  115–​18 Weaver, Allan  149 Weaver, Beth  149 Werner, David  5, 7 Werts, Tyrone  256, 260, 265–​66 white collar crime  43–​60 and the criminal justice system  49–​55 investigations in Ireland  51–​53 reporting  50–​51 sanctions in Ireland  53–​54 ‘show trials’  55 and fear of libel  55–​60 issues of definition  44–​49 and marginalization  43–​44, 60 Whyte, William F.  18, 19 Willis, Paul  18 witnesses, vulnerable  233–​45 difficulties of  234–​39 special measures in Ireland  233–​34, 239–​45 World Conference of Indigenous Women  6 World Health Organization (WHO)  6, 90, 95 wounded healers  5, 156 Y Yarbrough, Dilara  9 Young, Jock  142 young people  and drug use  25, 102 and gang violence  5 living near sex work  25, 29–​33, 38–​39 and riots  135–​44 see also children Z Zara, Georgia  94 Zedner, Lucia  215

272

“Responding to the history and call of ‘nothing about us without us’, this collection of essays clearly shows how and why criminological theory and criminal justice policy is ineffectual without such participation and inclusion.” Dylan Kerrigan, University of Leicester

Orla Lynch is Senior Lecturer in Criminology and Associate Dean of Graduates Studies at University College Cork.

The people most impacted by criminal justice policies and practices are seldom included in the decision-making processes that affect their lives.

James Windle is Lecturer in Criminology at University College Cork.

Building on the ‘nothing about us without us’ social movement, this edited volume advocates an inclusive approach to criminology that gives voice to historically marginalized, silenced, and ignored groups.

Yasmine Ahmed is a PhD student in Criminology at University College Cork.

Incorporating the experiences of service users, academics, and state and grassroots practitioners, this volume considers how researchers might bridge the gap between theory and lived experience. It furthers criminological scholarship by capturing the voices of marginalized groups and exploring how criminology can authentically incorporate these voices.

ISBN 978-1-5292-1552-6

@BrisUniPress BristolUniversityPress bristoluniversitypress.co.uk

@policypress

9 781529 215526