Wednesday, July 17, 2019
Tanya Mitchell (The University of Sydney Law School) has posted The Rise to Prominence of the Victim in the Summary Criminal Jurisdiction in the Twentieth Century ((2018) 5:2 "Law & History" 30) on SSRN. Here is the abstract:
The role of victims in the development of the summary criminal jurisdiction is a relatively under-explored subject in the Australian criminal law and historical scholarship. In this paper the summary criminal jurisdiction is understood as the criminal justice apparatus or ‘legal space’ where magistrates preside over the determination of liability for certain proscribed behaviours in the lower courts without the intervention of a jury. A close socio-historical analysis of the development of the summary criminal jurisdiction in NSW reveals that after more than two centuries of near absence, victims began to move from the periphery to take up a key position in the summary criminal process in the final decades of the twentieth century. A key group was victims of non-fatal domestic violence. This shift in the position of the victim took place in the context of the convergence of two dynamics – one social and one institutional. The social dynamic was the rise to prominence of ideas of social equality and human rights which prompted various victims’ and feminist groups to lobby for law reform. The institutional dynamic was the formalisation of the summary jurisdiction; a process that has been taking place since at least the mid-nineteenth century, but which began to intensify in the mid-late 1970s. I argue that this institutional dynamic produced conditions that made it possible for the state to use the criminal law as the primary means of attempting to protect victims of non-fatal domestic violence.