To prosecute or not to prosecute: Legal and psychological issues relating to the prosecution of Thai women as survivor/perpetrators in Aust.

Presented by ANU College of Asia & the Pacific

Two under-researched controversies surround the conviction of female Thai “survivor/perpetrator” sex slavery offenders in Australia. First, should Australia (via the Commonwealth Director of Public Prosecutions and, where relevant, the Attorney-General) exercise its prosecutorial discretion to actually prosecute these women at all? What if any leniency should be offered to those Thai women who commit Australian sex slavery offences after escaping from their own periods of working in slave-like conditions in Australia and/or elsewhere? International legal norms, local and international policing policy, plus criminological, psychological, and rehabilitative theory may help provide potential answers to this first question.  A second important question is what do we actually know empirically at the moment about the pathways for Thai women into sex slavery offending following their own survival of periods of sex work in slave-like conditions. Relevant here are the many assumptions, discernible in Australian criminal case law, about why survivor/perpetrators engage in the work and criminality that they do. Despite some fine research by ANU-based and other researchers discussing pathways into coerced or other sex work in South-East Asia, time is ripe to expand the empirical study of the link between sex work, the experience of sex slavery, and the subsequent involvement as (co-)perpetrators of sex slavery of Thai woman as survivor/perpetrators.  Existing speculation by the UN Office of Drugs and Crime, as well as other academic work and NGO experience, seems wanting in terms of its explanatory depth. Often this appears due to a lack of empirical interviewing of Thai women with survivor/perpetrator histories. Culturally-sensitive, social psychological, criminological, sociological, anthropological, historical and other reflections on the links between survivorhood and offending should assist in answering this second causal question. The relevance of these questions to Australia’s (and other countries’) regulation of trafficking and slavery practices in domains other than sex work (such as labour) will also be explored.

About the Speaker: Associate Professor Mark Nolan (BSc(Hons)/LLB, MAsPacSt, PhD (ANU) SFHEA) was trained in law and psychology and completed an experimental social psychology PhD on conceptions and use of human rights arguments in response to perceived intergroup injustice. Mark also has a Masters of Asia Pacific Studies in Thai language and Thai studies.  Mark teaches and researches predominately in the areas of criminal law and legal psychology in the ANU College of Law; also teaching military discipline law to ADF legal officers, conducting interdisciplinary judicial education via the National Judicial College of Australia, and accompanying ANU College of Law student volunteers into the Alexander Maconochie Centre (the Canberra prison) to teach legal literacy to detainees.  Mark has participated in teaching exchanges at Chuo University, Yangon University, and soon at University of Alabama. His major research sabbaticals and invited presentations have included trips to University of Exeter, Chulalongkorn University, Thammasat University, and Ritsumeikan University (Ibaraki) campus (keynoting for the Annual Meeting of the East Asian Association of Psychology and Law in 2015). His research interests span criminal law and procedure, criminal defences, preventative detention, human rights law, and federal criminal law (including counter-terrorism, human trafficking and slavery, cybercrime, and assistance with the publication of the Commonwealth Sentencing Database). His (legal) psychological work has included work on citizenship law and identity, intergroup relations, stereotyping, discrimination, prejudice, and social justice.  Mark’s comparative criminal law work, including supervision of HDR projects, includes work on the Japanese lay judge system (the saiban-in seido), the Japanese prison system, Thai constitutional law, fraud offending in the Thai stock exchange, negligence as liability for military operational incidents, animal cruelty law, and use of concepts of culture in the sentencing of indigenous Australians.  Mark is active in the Australian and New Zealand Association of Psychiatry, Psychology and Law at both ACT and transnational committee levels, establishing the ACT branch in 2010. In 2015 Mark published with Prof Jane Goodman-Delahunty (CSU) one of the first local interdisciplinary texts in psychology and law entitled Legal Psychology in Australia (Thomson Reuters LawBook Co). Mark has served as the Director of Higher Degree Research for three years followed by a three year period as Associate Dean (Education) in the ANU College of Law.