Michael O’Connell Commissioner July 2011 Migrant People as Victims of Crime Michael O’Connell Commissioner July 2011

Introductory Remarks

What are the sources of victimisation? Fattah (1991) says victimisation can be divided into ‘six master categories’: • natural victimisation; • auto-victimisation (self-victimisation); • industrial/technological victimisation; • structural victimisation; • criminal victimisation; and • non-criminal victimisation.

Migrants & Crime -- Rhetoric v Reality ‘Crime and fear of crime are major issues in [societies] that help mould our cities and influence the qualities of life in both nations’. (Schneider & Kitchen 2002 p25) “Crime and fear of crime have increasingly been linked to immigration and immigrants.” (Collins 2005, p2)

Key Definitions Victimology Criminal Victimology Crime Migrant

VICTIMOLOGY Schneider (1982) says victimology is the ‘scientific study of victims and of process, origins, causes and consequences of victimisation’. Victimology as a science was first conceived by Mendelshom (1940; 1963) who proposed a new science that would be the ‘reverse’ of criminology. Instead of studying the criminal, the intended focus would be the ‘victimal’.

What is (Criminal) Victimology? Criminal victimology studies victims of crime: the extent, nature and causes of victimisation, its consequences for victims and the reactions of society. It can be viewed both as a fully-fledged academic social science and as a non-academic social movement (backed by some research) (O’Connell 2004, 2008). Scientific victimology shifts the emphasis from the offender to the victim. It covers the role of the victim in the dynamics of a crime, the development of victim typologies, explanations for victim-proneness, identifying victims’ needs as well as the impact and effects of crime on victims, preventing victimisation and alleviating fear of crime (O’Connell 2005).

Recent areas of interest in Criminal Victimology New attention on particular groups of victims: Sexually abused/misused children & adult survivors of such abuse Domestic & family violence (e.g. abuse of elderly and among minorities (such as migrant families) Foreigners / tourists (e.g. migrant workers) Hate crime (such as racially motivated against migrants) Organized crime & transnational crime (e.g. human trafficking & people snuggling) Terrorism Crimes against humanity (e.g. war crimes)

What is a crime? Crime, says van Ness (1986, p3): … is not simply an incident which begins a contest between the State and a defendant, between a prosecutor and a [defence counsel] ... Crime is first of all an encounter between a victim and an offender. It is an unexpected personal crisis in the life of one person brought on by another …

What is a crime? According to the famous ‘common law’ jurist, Blackstone there are two victims when a crime happens: The Person who suffers harm The State

Who is a migrant? Who is a migrant worker? "any person who lives temporarily or permanently in a country where he or she was not born, and has acquired some significant social ties to this country." (Migration & Integration, no date) Who is a migrant worker? migrant worker as a "person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national." (UN Convention on Rights of Migrants 1993)

Who is a migrant (broader definition)? Persons who are outside the territory of the State of which their are nationals or citizens, are not subject to its legal protection and are in the territory of another State; Persons who do not enjoy the general legal recognition of rights which is inherent in the granting by the host State of the status of refugee, naturalised person or of similar status; Persons who do not enjoy either general legal protection of their fundamental rights by virtue of diplomatic agreements, visas or other agreements (Pizarro (Commission on Human Rights) 2002)

Classifications of migrant people Temporary labour migrants (also known as guest workers or overseas contract workers) Highly skilled and business migrants (usually enter via immigration programmes) Irregular migrants (ie undocumented or illegal migrants) Forced migration (eg refugees, asylum seekers, people forced to move due to environmental disaster) Family members (or family reunion / family reunification migrants) Return migrants (ie people who return to country of origin after period elsewhere) (Castles 2002)

Criminal Victimology & Migrant People as Crime Victims A very basic explanation: Criminal victimology in this context is the study of migrant people are victims of crime, but it is also the study of how crime impacts these victims. Criminal victimology requires a thorough review of these victims characteristics including social, financial, and health.

(Criminal) Victimology Theories Victim surveys Key Definitions (Criminal) Victimology Theories Victim surveys

Development of Criminal Victimology The victim Contributor to criminal events (precipitation; life-style; situational) Data on the crime situation (dark figure; multiple victimisation; repeat victimisation) Actor in social control (‘gate keeper’ of criminal justice (reasons for reporting crime)) Impact of crime (e.g. effects & consequences) Fear of crime (including effects) Victims’ needs and expectations (victim assistance & victims’ rights)

General observation on migrant people as victims of crime Migrant people confront many challenges integrating into a new country (e.g. Australia), especially if their language, skin colour, religion or cultural practices distinguishes them from mainstream society Von Hentig (1948) suggested belonging to a minority group was a ‘socio-demographic’ characteristic that might increase a person’s vulnerability to becoming a victim of crime

Von Hentig (1948) -- Rhetoric v Reality Canada – migrants (‘visible minorities’) reported significantly lower rates of personal victimisation compared with the rest of the population (Brzozowski & Mihorean 2002) Britain – ‘ethnic minorities’ (Blacks, Indians, Pakistanis and Bangladeshis) found to be at lower risk of personal crime overall; however, at higher risk of mugging and household crimes (e.g. burglary and motor vehicle theft (Clancy et al. 2001)

Von Hentig (1948) -- Rhetoric v Reality In an analysis of the 2005 ICVS data (Van Kesteren, 2006) showed: In Europe migrant status is an independent risk factor of victimization by contact crimes. Van Kerteren & van Dijk (2009) suggest that immigrants in Europe are especially targeted for contact crimes (such as hate crimes).

Migrants & Crime -- Rhetoric v Reality -- Australia Approximately one quarter (23 %) of Australia’s population are immigrants (ABS 2004) Immigrant minorities and criminal behaviour is a recurring theme in Australian immigration history (Francis 1981; Hazlehurst 1987; Collins 2005) Issues regarding immigrants as offenders and victims (although lesser) have dominated public discourse in Australia

Victims of assault - whether born overseas – 2008 - 09 People born overseas have lower victimisation rates for assault than people born in Australia: In 2008-09, the victimisation rate for people born overseas was 1.7% for physical assault and 2.9% for threatened assault. In 2008-09 for people born in Australia, the victimisation rate was 3.6% for physical assault and 4.8% for threatened assault. (Australian Bureau of Statistics 2010)

Victimisation Survey – Australia Key Definitions Victimisation Survey – Australia

Source (Credit): Johnson 2005, p3

Source (Credit): Johnson 2005, p3 CI = Confidence Interval. There are 19 chances in 20 that the true figure lies within this range. RSE = Relative Standard Error. - = RSE is greater than 25 percent. * = Differences between the main sample and migrant sample that are statistically significant p<0.05 Source (Credit): Johnson 2005, p3

Source (Credit): Johnson 2005, p3

Source (Credit): Johnson 2005, p4

Source: Johnson 2005, p5

Survey conclusions Middle East & Vietnamese migrants in Australia: Similar rates of victimisation overall compared with a general community sample Lower rates of assault and personal theft (Johnson 2005)

Survey conclusions Middle East and Vietnamese migrants: Reported significantly higher rates of racially-motivated assaults and threats More likely to fear a racially-motivated incident in the future Migrant victims of racially-motivated incidents: Tended to feel the situation was very serious Many are unsure whether to label incident a crime (Johnson 2005)

Survey conclusions A factor influencing risk of personal and household crime for both main sample and migrant sample was living in an area with high levels of social disorder (Johnson 2005)

Crime Victims’ needs and expectations Crime Victims Rights Key Definitions Crime Victims’ needs and expectations Crime Victims Rights

Victims needs & expectations Related to the personal situation Personal safety Crisis intervention Practical assistance Protection against secondary victimisation Financial restitution/compensation Related to the offender Attitudes towards criminal sanctioning Intervention more important than severe punishment Protection against future encounter with offender

Victims’ needs & expectations Related to the criminal procedure Information rights Personal participation Procedural justice Related to the outcome of the criminal trial Acknowledgment of the offender’s responsibility Acknowledgment of the harm suffered Expected sanctions Some harsher sentences but others quite moderate Compensation

Victims’ rights instruments United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power: Guide-book on victim assistance; Guide-book for policy-makers. Commonwealth Statement of Basic Principles of Justice for Victims of Crime (endorsed by Senior Law Officers for the Commonwealth). National Charter on Victims’ Rights (endorsed by the Standing Committee of Attorneys-General, Australia) Declaration of Principles Governing Treatment of Victims of Crime (Victims of Crime Act 2001 (SA))

Principles of Justice -- Victims’ Rights To information about the progress of investigations; To have their perceived safety concerns taken into account before suspects are released on bail; To be informed about charge withdrawals and charge bargains; To participate (usually by impact statements) in sentencing of both competent and mentally incompetent offenders; To compensation from the offender, or the State if violent offenders cannot pay; and, To have input at prisoners’ parole hearings and pre-release proceedings for the forensic mentally ill.

Compensation for Victims of Crime – International law that obliges Australia to act Article 8 Universal Declaration of Human Rights & Article 2(3) International Covenant of Civil and Political Rights -- victims of human rights violations have the right to an effective remedy (e.g. restitution / compensation) United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power -- victims of crime have the right to “prompt redress, as provided for by national legislation, for the harm that they have suffered” Other international law: The Convention on the Elimination of Discrimination against Women obliges states to provide appropriate protective and support services to victims of gender-based violence, including compensation. Article 39 United Nations Convention on the Rights of the Child; Article 9 Optional Protocol Convention on the Rights of the Child on the sale of children, child prostitution and child pornography - oblige nations to make compensation available to child victims of crime

Compensation for victims of crime in Australia A victim of crime (including human trafficking) in Australia may be able to seek compensation: Under a state or territory statutory compensation fund for victims of crime Through the civil court system for damages resulting from a civil wrong (e.g. a breach of a duty of care in negligence or false imprisonment) Through the criminal court system if the offender is convicted and the court makes an appropriate order as the sentence or element of the sentence (i.e. a restitution order)

Redress for migrant workers in Australia Migrant workers who are exploited may be able to seek redress under: Fair Work Act 2009 (Commonwealth) Federal anti-discrimination laws.

Commissioner for Victims’ Rights

Justice for Migrant People as Victims of Crime

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