Gendered treatment: girls and treatment orders in bail court.

• Author: Sprott, Jane B.
• Position: Canada

Gendered treatment: Girls and treatment orders in bail court

The first federal youth justice legislation in Canada, the Juvenile Delinquents Act (1908) had a very broad mandate and aimed simultaneously at diverting youths from the adult system and providing services to help "reform" or "rehabilitate" them. Girls, more so than boys, were seen as needing "treatment" or rehabilitation for offences like sexual immorality and incorrigibility. Thus, a disproportionate number of girls were brought into the system and sentenced to custody for a non-criminal or status offence, that is an offence that would not be a crime if an adult committed it (for a review of this history, see Sprott and Doob 2009). The stated goal of the Act, however, was not punishment, but rather rehabilitation. The judge, acting as a benevolent parent, would help, aid, and guide the youth, often with a prison sentence. Although boys were much more likely to cause trouble in the community, girls, for most of the first two thirds of a century of juvenile justice, appeared to be the special targets of rehabilitative interventions (Duffy 1996; Reitsma-Street 1999; Corrado, Odgers, and Cohen 2000; Sprott and Doob 2009).

Throughout the 1960s, however, the acceptability of placing youths in custody for status offences began to decline and Canada formally removed status offences from the criminal law in 1984 with the implementation of the Young Offenders Act (YOA). However, in 1986, the offence of "failing to comply with a disposition"--largely breaches of probation--was created. Failing to comply with a disposition could involve a youth who violated a term of a probation order (e.g., curfew, school attendance, obeying guardian, etc.) that did not come close to involving a violation of criminal law. Such a youth would be brought to court on a new criminal charge of failing to comply. In addition, a youth who was on probation with the mandatory condition of "keep the peace and be of good behaviour" could arrive back in court with two charges related to a minor offence such as shoplifting: theft and the potentially more consequential failure to comply offence because shoplifting clearly constituted a failure to be of good behaviour. Given that terms of probation automatically contained the requirement that the youth "shall keep the peace and be of good behaviour" (s. 23(1)(a)) and could include "such other reasonable conditions set out in the order as the court considers desirable, including conditions for securing the good conduct of the young person and for preventing the commission by the young person of other offences" (s. 23(2)(g)), it is not surprising that, from the time that this offence was created whether under the YOA (1984-2003) or the Youth Criminal Justice Act (YCJA) (2003+)--youths have frequently been brought to court for it. This has led some to argue that status-type offences still exist, though they have been relabelled (Reitsma-Street 1999; Sprott and Doob 2009).

Since the offence of failing to comply was created, it has constituted a larger proportion of the girls' youth court caseload than of the boys,' although obviously the numbers of such cases are lower for girls than for boys. Figure 1 summarizes the data for Canada (under the YCJA) in 2005-2006, showing two things. First, at each stage, these cases account for a larger proportion of girls' cases than of boys' cases. Second, the deeper into the system one goes, the more of these cases there are, especially for girls. Failure to comply cases start out accounting for around 10% of the girls' caseload and by the sentencing to custody stage are accounting for around 26% of the caseload for girls (Figure 1). These relatively minor offences are not being screened out of the youth justice system as much as other offences are as the cases move through the system.

It could be that these cases are seen as quite serious--that failing to comply is, in effect, failing to respect the court (or the judicial official)--and thus that a relatively harsh punishment is seen as being necessary to accomplish proportionality. Indeed, under the YOA these types of cases were more likely than serious violence cases to receive custody, even controlling for criminal record (Sprott 2006). Another possibility is that these cases are simply status offences in disguise and that the high use of custody reflects a desire to intervene and "help"--a desire most profoundly felt when dealing with girls.

[FIGURE 1 OMITTED]

As already mentioned, failing-to-comply cases are largely breaches of probation. One can, therefore, look at the number of failing-to-comply cases in the context of the number of probation sentences handed down in a given year. Using probation sentences as a measure of the population or the denominator of cases that are eligible for a charge of failure to comply with a disposition, one can then calculate the proportion receiving a failing-to-comply charge. This (tracking the proportion of failing to comply from the probation sentences handed down) is, of course, not an ideal calculation, as it is not longitudinal, but rather provides a rough, one-year snap shot of probation sentences and failing to comply. What one sees is that, of all probation sentences handed down, girls have a larger proportion of failing-to-comply cases (Figure 2). This is curious since by any self-report data available, girls tend to be more compliant and law-abiding than boys (Sprott and Doob 2009).

It is unclear why girls are more likely than boys to be in court and sentenced to custody in these failing-to-comply cases. It may be that for girls--who are less likely to be involved in "normal" criminal activity (e.g., property or violent crime)--these non-criminal offences are available as...