migrant victims michael oconnell
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 victimproneness, 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?
• "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.
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)
Key Definitions
• Victimisation Survey – Australia
Source (Credit): Johnson 2005, p3
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)
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 prerelease 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
Terima kasi
Selamt siang
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 victimproneness, 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?
• "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.
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)
Key Definitions
• Victimisation Survey – Australia
Source (Credit): Johnson 2005, p3
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)
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 prerelease 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
Terima kasi
Selamt siang