Gendering criminal law: sentencing a mothering person with dependent children to a term of imprisonment
Faculty of Business and Law
School of Law and Justice / Centre for Innovative Practice
Few would dispute that dependent children suffer hardship when a parent, particularly a sole parent or substitute, is imprisoned. This paper focuses on how some Western Australian criminal law courts have dealt with hardship suffered by offenders‟ dependent children. It explores how the judiciary in assessing hardship has applied mercy, the exceptional circumstances test, and a recent legislative provision when considering sentencing a mothering person to a prison term. If found, extreme hardship may mitigate the severity of a prison sentence. This paper argues that gendering processes are at work in criminal law, such as gendering that respects the mothering person-child relationship. The paper concludes by suggesting that gendering processes preserving that relationship has implications for promoting deterrence rather than a term of imprisonment.