Disability in our criminal (in)justice system

Disability in our criminal (in)justice system

There are multiple and compounding disadvantages faced by people with disabilities in the criminal justice system (‘CJS’). If you are an individual with an impairment, Australia’s CJS does not afford you equal access to justice. This is especially the case if you are a person with complex needs; where your singular impairment, be it cognitive or developmental, is amplified by language barriers and social disadvantage (Dowse et al. 2014: 174-5).

As the launch of a recent report on this issue by the Australian Human Rights Commission highlights, many people with complex needs are ‘trapped within their own silence’. While they may be aware of their legal rights and options, they are unable to contact police if they become the victim of crime, leaving them without protection from ongoing violence. Even if police contact is made, the person with complex needs is often misunderstood: their disability may not be identified, is usually downplayed and almost always conflated with other conditions (Dowse et al. 2014: 177). This is despite Australia’s international obligations under the Convention-on-the-Rights-of Persons-with-Disabilities (2008).

These misunderstandings and the resulting marginalisation are nothing new. In fact, most (if not all) people with complex needs experience these from early life. Some criminologists argue for reform at the grassroots level, such as an education system with special emphasis on vocational and life skills to help people with complex needs navigate their lives. However, as no such curriculum presently exists (Dowse et al. 2014: 179-80) the CJS is left to manage. This means people with complex needs rely on the CJS to help them, but are then left in a system which further stigmatises and ostracises. In court, they are often seen as ‘not credible’ and ‘unfit to plead’ even before having to wrangle with the obfuscating process and complex legal jargon. Once convicted, they are forever seen as ‘delinquent’ (Dowse et al. 2014: 181); yet another label to further marginalise (Ashworth and Horder 2013: 22). In essence, people with complex needs are effectively propelled into criminality by the very system seeking to prevent it.

The evidence of this is in the overrepresentation of people with complex needs in prison. In 2009, 9% of the public were estimated to have a disability, yet 87% of inmates were classified as intellectually disabled (Dowse et al. 2014: 176-7). This 87% is even more unsettling considering that it does not account for those inmates with other impairments or disabilities. For Indigenous youth with complex needs, they are currently 35 times more likely to be imprisoned than non-Indigenous youth (Dowse et al. 2014: 178), have no proper support post-release, and also tend to serve longer gaol terms with a greater likelihood of reoffending. From these figures it seems that prison has become the only accommodation option for people with complex needs.

Even research into the issues surrounding people with complex needs is unfair. Law and policy is reformed according to what research suggests, but such research often homogenises. Instead of recommending changes that better takes into account the individual needs of each person with complex needs, research suggests that they are all the same. It reduces their specific and complex personality to mere data, using graphs, tables and percentages in lieu of individualized accounts of each person (Allan and Dawson 2004: 2). This is a major issue because, without methodologies more tailored to individual cases, misconception will continue to shroud the plight of people with complex needs. Our CJS will therefore remain unprepared, misinformed and ill-equipped to fairly manage those who come into contact with it.

Clearly, there is an urgent need for significant reform, and this can only take place after we reconceptualise people with complex needs. They are human, they are individuals, and they need our understanding for real and positive change to be made. We cannot rely on ‘silver bullet’ remedies but need multiple agencies and institutions to work collaboratively (Gray et al. 2009: 8). Until we all become aware of the issues in the video and take action against them, our contemporary CJS – the platform for ‘equality before the law’ – will never be more than a ‘criminal (in)justice system’, creating even more complex needs for people who are already discriminated against.


The author, Rohan Muscat, is the HRD student editor for semester one, 2016. His article forms part of a series, The Student Voice. To read more articles by our students, click here.



Allan, A. and D. Dawson (2004) ‘Assessment of the risk of reoffending by Indigenous male          violent and sexual offenders’, Trends & Issues in Crime and Criminal Justice July       2004, 280(1): 1-15.

Ashworth, A. and J. Horder (2013) Principles of criminal law, 7th edn, Oxford University    Press, United Kingdom.

Australian Human Rights Commission (2014) Equal Before the Law Launch highlights of the Disability Justice Strategies report (video), Feburary 2014, available from: http://vimeo.com/116114403.

Dowse, L., T. Cumming, I. Strnadova, J. Lee and J. Trofimovs (2014) ‘Young people with            complex needs in the criminal justice system’, Research and Practice in Intellectual   and Developmental Disabilities, 1(2): 174-185.

Gray, A., S. Forell and S. Clarke (2009) ‘Cognitive impairment, legal need and access to justice’, Justice Issues, 1(10): 1–15.