Gaming the Studies – Problematic Pictures

Sun 2 Nov 2014 12:49:38 Leave a comment

This post is part of a series on the research studies on sexism cited in the FeministFrequency video series Tropes vs Women in Video Games. The first post in that series covered my views on the FeministFrequency videos and can be found here.

This post in the series examines the two studies in the “Objectification Leads to Depersonalization” article by Loughnan et al (2010).1 I cover some relevant background material in two posts here and here.



Approach

Before getting into the details of the experiments, it’s probably worth making a few comments on the approach I’ll be taking. The primary purpose of these reviews isn’t to establish the academic merit of the studies or consider if they offer any novel insights into the human mind. The purpose is to consider whether the studies can be reasonably used to support the claims being made by FeministFrequency and by implication whether they can be reasonably used to justify calls for change within the video game industry.

I’ll give brief overview and cover a summary of the method and results of each experiment, focusing on details I plan to comment on. I’ll also include the most significant observations and comments made in the article.

After that I’ll cover my own views and consider the article against three different criteria:

  1. Relevance: How relevant is the study to gaming? i.e. How well does the experiment replicates circumstances related to video games in the real world?
  2. Significance: How significant is the study to the gaming community? i.e. Do the results indicate there is a potential problem or is this a case of streetlight psychology?
  3. Confidence: To what extent can we be confident the experiment actually supports the theories put forward by the authors? i.e. Are the any flaws in the experiment or any alternative theories that might explain the results?


Objectification Leads to Depersonalization:
The denial of mind and moral concern to objectified others

Loughnan, Haslam, Murnane, Vaes, Reynolds & Suitner (2010)1

I wasn’t exactly sure what sort of studies I would find when I started this review project. I have a reasonably healthy respect for the peer-review process, but I had concerns as I had heard many disparaging remarks about ideological bias present in the field of social psychology. Those concerns weren’t exactly alleviated by the first words of the first article:

“When objectification occurs, the person is depersonalized”
— Andrea Dworkin

The two experiments are about the way the objectified images of people influence the perceptions of mental attributes and moral status (“personhood”). The first experiment attempts to extend the work of Schwarz & Kurz (1989)2 on face-ism to cover photos where the head is excluded. The second looks at the impact on the mental and moral perceptions of people either fully clothed or wearing revealing clothing.

The studies are intended to look at the effects of objectification in media where research has shown different genders are presented with different amounts of face and body.3 The article doesn’t mention the priming effect however the experiments do involve manipulating a first stimulus (photo) and then measuring the response to a second stimulus (questionnaire). It does cover the harmful effects of self-objectification and cites studies they may support some of the other claims my in the FeministFrequency video.4 It also notes some research that identifies how people view moral agency and moral patiency as different aspects of personhood.5



Study 1

Method:

This study used photos of three women (“targets”) in swimsuits from the internet, each modified into three different forms: head-only, body-only or full body. The subjects were 86 college aged people (54 f, 32 m; mean age 20.5). Subjects viewed a head-only, body-only and full-body photo with each one photo being of a different target. They rated the targets on a four of different scales. The ratings are all done scales (e.g. 1 = “not at all” to 7 = “very much so”) but I’ll be normalising results to percentage changes when discussing them.



Women in a bikini

What a full-body photo of a women in swimsuit
may look like (from the internet not the study).


The Mental State Attribution (MSA) scale consists of asking subjects about how much the targets possessed the ability to do 20 different things such as see, hear, feel fear, feel joy, reason, think, wish, plan, etc. The General Mind Attribution (GMA) scales directly asks “how much mind does this woman have?”. The blatant moral scale involves asking general questions about the target such as “how unpleasant would it be to harm this woman?”. The Experience Scale (ES) asks about the capacity of the person to have hunger, fear, plain, rage, desire, personality, consciousness, pride, embarrassment and joy.

Results:

Compared to the head-only photos, the full-body photos resulted in a marginal decrease (~3%) in the ratings of the MSA and ES (the more complex scales). Compared to the head-only photos the body-only photos resulted in a small decrease (~8% – ~15%) on the mental scales and a marginal decrease (~4% – ~6%) on the moral scales.

Discussion in the Article:

I think the article’s discussion of these results can be summed up by this quote:

The results of Study 1 indicate that participants deny objectified women both proposed aspects of personhood: Mind and moral status.

While a small decrease in perceptions of mind and moral status are not insignificant, the language appears to be rather indulgent. I’m not sure a shift in viewing a particular mental capacity from “moderately” to “somewhat” can be reasonably described as “denying” that capacity. The discussion does make note of the interesting lack of difference on the blatant scales (GMA and blatant moral scale).



Study 2

Method:

This study used images of 2 men and 2 women from the internet. There were 2 images of each target: one “objectified” image where they were wearing a bikini (women) or shirtless (men) and one “non-objectified” image where they were fully clothed. The photos were controlled to ensure they all contained equal proportion of faces to remove any face-ism effect. They were also pretested to ensure there was no difference in attractiveness or emotionality between the objectified and non-objectified images.

The subjects were 80 college ages people (40 f, 40 m; mean age 19.2). They rated each target on the MSA, GSA, ES and moral patiency scale (PS). They also estimated IQ and rated competence at 4 jobs: lawyer, manager, stockbroker, scientist. In a final measure they were asked how many pain-inducing tablets they would give the target to induce a specific amount of pain.

Results:

The mental scales (MSA, GMA, IQ & Competence) were all lower for objectified images (~6% – ~21%). The gender of the observer (subject) had only one significant effect. Women rated objectified men lower on the MSA compared to non-objectified men, but did not rate objectified women lower compared to non-objectified women.

The gender of the target made a significant difference on the moral scales. On the ES and PS only men were rated lower when they were objectified (~6% – ~9%). On these two scales women were not rated lower when they were objectified. There objectified targets given slightly more pain-tablets on average (~12%) with no gender effect present.

Discussion in the Article:

The discussion covers these results reasonably well, albeit with the same use of the word deny:

The main effect of objectification emerged for all comparisons with objectified targets denied both mind and moral status, although some effects were qualified by interactions. Interestingly, participant gender appeared to have little effect on ratings. This perhaps suggests that both men and women depersonalize the objectified. … This result surprisingly suggests that objectification may have an equal or even greater effect on the perception of males as it does on the perception of females.



My Perspective

Relevance:

These studies are not particularly relevant to video games. There is no indication if video game images cause objectification of video game characters that the objectification caries over into real life (that is dealt with in later studies). However, it is perhaps interesting from consideration of character or avatar design. Developers could leverage the face-ism and revealing clothing elements of their appearance to bias player perceptions in both normative and subversive ways. It is also perhaps of interest in players’ selection or modification of avatars in multiplayer games and the degree to which it may bias the way other players perceive them.

Significance:

Given the limited relevance to video games it’s not that clear how significant this study really is. To the extent that it is significant, it does highlight that objectification of men is at least as significant as the objectification of women. Here it is important to consider the difference between video games and other popular media in terms of the extent of gender representation. It seems uncontested that men are far more frequently depicted as characters in video games. That means that many of those men, from the shirtless barbarian wielding a sword to the shirtless slave building a pyramid, are going to be the most significant examples of objectification in the medium.



Video games - Objectifying men since at least 1987.

Video games – Objectifying men since at least 1987.


Confidence:

There are a number of issues with both of the studies. In both studies it is not clear that the level of face-ism or clothing is the only or even the dominate factor in influencing outcomes. I discussed a number of studies in my second background post that identified many elements of appearance that can influence perceptions of people. These include appearance of health, facial expression, stance, make-up and clothing brand. While there was an effort in the second study to ensure no over-all difference in emotion or attraction, there was not systematic effort to ensure all other factors were eliminated. The low number of photos, less than a dozen over both studies, doesn’t given confidence that any variations would balance each other out (compare the Naumann et al study which used over 200 photos).6 Clothing is of particular concern with the competence measure as all the jobs are white-collar and would have clothing expectations beyond simply wearing some.


Brad Pitt in a tracksuit
Brad Pitt in a suitsuit

Which non-objectified Brad Pitt is the most intelligent and competent?


I found the use of the pain measure in the second study is a little confusing. The study cited as a source of the measure uses it as a comparison between two targets.7 That is the subject is told there a 5 tablets that must be distributed between 2 targets. This would necessitate the mean result overall is 2.5 tablets per target. However, the results from the second study have both non-objectified targets (2.19 tablets) and the objectified targets (2.47 tablets) are below this value. The wording in the article is “they must decide how many tablets to give to the person in the image to induce a specific amount of pain”, which suggests that it is a measure of how much the target can tolerate pain rather than how much they do or don’t deserve pain relative to another.


Brad Pitt as a fighter
Brad Pitt as a goof-ball

Which objectified Brad Pitt has the most moral status or is most able to endure pain?


While I clearly chose the pictures above to best illustrate my point, I doubt the researchers would have selected pictures as obviously biased. However, as we saw in the Doyen et al (2012)8 study in my first background post it can be quite possible for even diligent experimenters to allow bias to creep into a study. The esteem these researchers appear to hold for Andrea Dworkin and her theories does not give rise to confidence in the neutrality of the sample pictures. This leaves the statistical confidence in the results as simply reflecting a confidence that if the same photos (or perhaps photos selected by the same researchers) were shown to a similar sample of college aged students that the rating results would be match. It does not provide confidence that the result would apply across “objectified” generally.

Overall I do not have much confidence that the results seen in these studies reflect a causal relationship with objectification. That said, it is important to note this conclusion does not imply that the objectification theories are wrong, just merely that they are not well supported by these particular two studies.

Conclusion:

It is probably worth highlighting the actual conclusions of the study to anyone using it in support of a claim that objectification of women in video games is problematic while also claiming the objectification of men is not problematic. It might also be tempting to cite this study in support of claims that objectification is a greater problem in video games for men than it is for women. However, the lack of confidence I have in the design and execution of the studies means I will not be doing so.




  1. Steve Loughnan, Nick Haslam, Tess Murnane, Jerosen Vaes, Catherine Reynolds & Caterina Suitner (2010). Objectification leads to depersonalization: The denial of mind and moral concern to objectified others. Journal of Experimental Social Psychology, 40(5), 709–717.
  2. Norbert Schwarz & Eva Kurz (1989). What’s in a picture? The impact of face-ism on trait attribution. European Journal of Social Psychology, 19, 311-316.
  3. Dane Archer, Bonita Iritani, Debra Kimes, & Michael Barrios. (1983). Face-ism: Five studies of sex difference in facial prominence. Journal of Personality and Social Psychology, 45, 725–735.
  4. I’m not planning on covering those studies as part of this series, but may investigate it later.
  5. Heather Gray, Kurt Gray & Daniel Wegner (2007). Dimensions of Mind Perception. Science, 315, 619.
  6. Laura Naumann, Simine Vazire, Peter Rentfrow & Samuel Gosling (2009). Personality Judgments Based on Physical Appearance. Personality and Social Psychology Bulletin, 35, 1661-1671.
  7. Kurt Gray & Daniel Wegner (2009). Moral Typecasting: Divergent Perceptions of Moral Agents and Moral Patients. Journal of Personality and Social Psychology, 96(3), 505-520.
  8. Stephane Doyen, Olivier Klein, Cora-Lise Pichon & Axel Cleeremans (2012). Behavioral Priming: It’s all in the Mind, but Whose Mind? PLoS ONE, 7(1): e29081.

Gaming the Studies – Judgemental Minds

Fri 31 Oct 2014 16:47:09 1 comment

This post is part of a series on the research studies on sexism cited in the FeministFrequency video series Tropes vs Women in Video Games. The first post in that series covered my views on the FeministFrequency videos and can be found here.

This post in the series is continues covering background information about the relevant parts of the field of social psychology, the beginning of which can be found here. I plan on doing detailed explanation and analysis of each study in subsequent posts.



Operationalising Imagery

The studies cited by FeministFrequency mostly rely on presenting sexualised imagery of women. There are other elements involved, such as the objectifying virtualised behaviour in the Leisure Suit Larry game, but manipulation of appearance is consistent. For this reason it is important to consider what other effects have been observed from manipulating appearance.

In a 2009 study,1 researchers took photographs of 113 individuals and had subjects judge the individual’s personality from the photographs alone. No individual knew they were going to be photographed beforehand and they were each photographed twice: once in a natural position and once directed to hold a neutral expression and posture. The subjects judged one photo of each person and rated them against 49 different criteria covering a range of personality traits. The photographed individuals were also judged against the same critiea by three ‘informants’ who knew the individual well in real life. Each of the photos was also independently coded for visual cues such as smiling, folded arms, tiredness, etc.

The results demonstrated to what extent various cues influenced peoples perceptions. Results for static cues present in both natural and neutral poses showed that healthiness, distinctiveness and neatness could affect perceptions of range of personality traits including extraversion, conscientiousness, emotional stability, likability, self-esteem, and politcal orientation. Results from dynamic cues, present only in the natural poses, showed that smiling, stance energy and stance tenseness could affect perceptions of the same range of traits. The results also indicated that the perceptions based solely on naturally posed photos correlated well with the views of the ‘informants’ on a number of traits including extraversion, agreeableness, openness, self-esteem, loneliness and religiosity.

Other studies have identified other influentual cues. A study by Jane Workman and Kim Johnson2 found that the college aged women perceived their peers as less moral when they wore more makeup. A study by Norbert Schawrz and Eva Kurz3 in 1989 found that subjects would rate individuals as possessing more intelligence, assertiveness, ambition, etc when looking at a photo cropped to portrait-style and resized than when looking at the original full-body photo. This effect was found to be mostly consistent across genders. Finally, a recent study by Laurden McDermott and Terry Pettijohn4 showed that the impact of certain factors can intersect and have a reverse affect. They studied the perceptions of both African American and Caucasian women wearing sweatshirts with either “Kmart”, “Abercrombie & Fitch” or no logo. The results showed that subjects were less likely to consider African American women as potentional friends when they were wearing the “Abercrombie & Fitch” compared to the “Kmart” logo, while the effects were reversed for Caucasian women.

It is evident from these studies that a wide range of visual cues influence perceptions of people including perceptions of their mental capabilities and moral worthiness. This can only add to the complexity of using human images rather than words as stimili in experiments on priming effects. It also raises the question of how people might form their judgments.



Reasonably Moral

The majority of the FeministFrequency studies utilise questionaires that probe the subjects for responses about views on sexual harassment, rape or the mental attributes and moral worth of women. In order to be able to interpret the meaning of these responses the best we can, it is worth considering what we know about how people form their views about moral issues. This is an area of social psychology that is at least as much about philosophy as it is about empirical research, yet it may still offer some insight into what is going on in people’s minds.

The most prevalent theory on moral reasoning comes from the work of Lawrence Kolberg. Kolberg’s theory is that as individuals age they progress through a series of steps that represent capacity to reason about morality in a particular ways. The six steps are divided by their relationship to ‘conventional’ reasoning:

Pre-Conventional 1. basic obedience;
2. self-interest;
Conventional 3. conformity;
4. authority;
Post-Conventional 5.social contract; and
6. universal ethical principles.



The level of moral reasoning is assessed by asking subjects to address moral dilemmas, such as the Heinz Dilemma, in an open ended manner. The structure of the responses is then scored against the six forms of moral reasoning in the theory.

In a 20 year longitudinal study5, Kohlberg and others recorded the development of moral reasoning in a group of boys. The study revealed how the moral reasoning most commonly used moved through stages as the boys aged. Kohlberg managed to produce only limited evidence for the use of stage 5 reasoning and eventually concluded he should drop stage 6 from the theory due to the lack of consistent evidence of its use.

I’ve reproduced the graph from that study and included an indication of the mean age of the subjects in the experimental studies cited by FeministFrequency. Although the maximum ages in the studies indicates some outliers (e.g. 37, 44), the fact that the minimum age (18) in the studies is close to the mean implies the majority of the subjects fall roughly in the area of the lines. As seen below, this suggests any results may be reflective of only certain forms of moral reasoning.

Kohlberg vs Studies Graph

Kohlberg’s theory is not without its critics. Feminist Carol Gilligan has criticised Kohlberg’s theories as too focused on the male perspective. In her 1982 book A Different Voice6, Gilligan proposed an alternative theory of moral reasoning which she called the Ethics of Care. Gilligan’s theory frames female moral reasoning as focused on obligations to care for one another, rather than about the pursuit of abstract justice. She put forth three stage development process that consists of:

Pre-Conventional 1. self-interest;
Conventional 2. self-sacrifice; and
Post-Conventional 3.responsibility to care and avoid harm.


Researchers Nancy Clopton and Gwendolyn Sorell have seemlingly offered a compromise between these two different theories. They considered both perspectives in a study on parents of both abled and disabled children.7 A number of different dilemmas were put to the parents that varied between low personal relevance (i.e. about a someone else’s child) and high personal relevance (i.e. about their own child). One of the dilemmas include a hypothetical disabled child that was theorised to have more personal relevance to the parents of disabled children.

The finding contradicted Gilligan’s theory of a gender basis for moral reasoning. Analysis of the responses showed no variation in moral reasoning approach between the mothers and the fathers. Instead, analysis showed that the responses varied in relation to the personal relevance of the dilemma. An ethics of care approach was typically used for dilemmas of high personal relevance, while a justice approach was used for dilemmas of low personal relevence. This suggests the moral reasoning could vary depending on circumstances of the dilemma but not directly on gender. One of the conclusions was that the different life experiences of men and women would explain discrepancies in the different ways they might prioritise or report the forms of moral reasoning they use.

Kohlberg’s theory has also come under criticism from a conservative perspective. Conservative critics observed that placing forms of reasoning associated with progressive ideals (social contract, universal ethics) above the conservative ideal of law and order demostrated a progressive bias in the theory. There haven’t been any major theories put forward from the conserative perspective (perhaps for not-so-good reasons), however there have been some studies looking at the relationship between moral reasoning and political orientation.

A 1973 study by James Fishkinm, Kenneth Keniston and Catherine Mackinnion supported such a relationship.8 They found that use of stage 2 reasoning (self-interest) correlated with favourable views of violent radicalism, use of stage 4 reasoning (authority) correlated with conservative views and use of stage 5 and 6 reasoning (post-conventional) correlated with rejecting conservative but not accepting radical views. Although not published in a peer-review journal, I also found an potentially interesting thesis dissertation by Jeffrey Kunka9. He conducted a study and observed that subjects who reported conservative political views scored lower on moral reasoning when expecting their responses to be anonymous. He also found when subjects expected to have to justify their views to others, there was a sizable increase in the moral reasoning level used by conservative subjects. This suggests that the use of moral reasoning may be as much about personal values and circumstance as it is about capacity to reason.



Reactively Moral

In a 2001 essay10 Jonathan Haidt proposed a theory that turned the moral reasoning approach on its head. He theorised that people form their moral conclusions first and then subsequently form a rationalisation in order to justify it. In a 2007 study,11 together with Jesse Graham, he proposed five moral foundations people intuitively use to react to moral issues, and in 2012 proposed adding a sixth.12 Haidt’s moral foundations are:

Original 1. self-interest;
2. Fairness/cheating;
3. Loyalty/betrayal;
4. Authority/subversion;
5. Sanctity/degradation;
2012 Addition 6. Liberty/oppression


They measured the relevative weight of each foundation by directly asking subjects to what extent they were thinking about it (e.g. “How important is whether or not someone acted unfairly?”). They also asked subjects to rate their political orientation from extremely liberal to extremely conservative. The results showed those with extremely liberal orientation felt that the first two foundations were much more important that the others. Those who had an exteremly conservative orientation felt that all the foundations had roughly equal importance.

A 2012 study by Lars Hall, Petter Johansson and Thomas Strandberg13 supports Haidt’s post-hoc rationalisation theory but perhaps not necessarily the importance of the moral foundations. They conducted an experiment where they surveyed people to rate their views about general moral principles and contentious issues reported in the media. Once people had filled out their responses they used a simple trick to reverse the meaning of two of the prompts and hence reversed the meaning of the ratings. After the trick the experimenters interviewed the subject about the questions and confirmed the meaning of each issue with the subjects. The results showed “a full 69% of the participants failed to detect at least one of two changes”. Perhaps more striking is that they also found that “participants often constructed coherent and unequivocal arguments supporting the opposite of their original position”.

Those results strongly suggest that peoples’ moral views are vulnerable to manipulation. Combining the study above with the conclusions from Kunka’s study, we see that people are prone to morally defending a position they are expected to even though is not their own, and that the reasoning they use may depend on their audience. This suggests that views on morality may well be driven by the popular narratives of the company people choose to keep.

The discussion of the theory of priming in my previous post provides another possible form of manipulation. Priming could conceivably activate one form (or part of one form) of moral reasoning or foundation causing it to be more likely used and tehefore result in a potentional shift in moral conclusions. Given the nuance contained within each of these theories, and the general issues with priming research I covered in my previous post, it could be quite challenging to construct an experiment that provides confidence the results are related to one particular theory and not another.



Morality Objectified

The theories put forward by the studies cited by FeministFrequency are all based around the concept of objectification. As put forward by Martha Nussbaum14, objectification consists of seven features:

Objectification
Features
1. instrumentality;
2. denial of autonomy;
3. inertness;
4. fungibility;
5. violability;
5. ownership; and
5. denial of subjectivity.

The measurements in the studies focus on issues of sexual harassment and rape. This indicates that violability, that is violating boundaries, is the key feature of objectification that is being investigated. They also look at perspectives on women’s mental characteristics which indicates that denial of autonomy, intertness and denial of subjectivity may also be relevent.

The impact of objectification on how people make moral choices would seem to be something that could occur within a particular moral reasoning or intuition rather than as a result of a shift in the method. For example, within Kohlberg’s stage 3 reasoning of conformity, the denial of subjectivity feature could be a result of the perceived target norm of conformity shifting away from the objectified person’s perspective. Likewise,violability could represent a relative decrease in the importance of the care/harm or authority/subversion foundations when morally judging the objectified person or actions harmful actions against them. Given that moral reasoning or intuition can be influenced by circumstance, is it not unreasonable to theorise that objectification represents a mechanism through which this occurs.



Wrapping Up

I think that’s quite enough background information and hopefully that will provide some perspective of the broader research context. I had originally expected to cover all of it in a single post, however I found quite a bit of interesting information that can be related to the issue at hand. I should stress that although I’ve cited many studies, this does not mean I stand by them or their conclusions as some form of definitive evidence. I do feel that the studies I’ve cited are at least as convincing as any of the studies cited by FeministFrequency, and thus form a valid basis for criticism.

In my next post I’ll be setting out some criteria that I’ll be using in my assessment of the studies and how well they support the various claims.



  1. Laura Naumann, Simine Vazire, Peter Rentfrow and Samuel Gosling (2009). Personality Judgments Based on Physical Appearance. Personality and Social Psychology Bulletin, 35, 1661-1671.
  2. Jane Workman & Kim Johnson (1991). The Role of Cosmetics in Impression Formation. Clothing and Textiles Research Journal 10, 63-67.
  3. Norbert Schwarz & Eva Kurz (1989). What’s in a picture? The impact of face-ism on trait attribution. European Journal of Social Psychology, 19, 311-316.
  4. Jane Workman & Kim Johnson II (2011). The Influence of Clothing Fashion and Race on the Perceived Socioeconomic Status and Person Perception of College Students. Psychology & Society, 4(2), 64-75.
  5. Anne Colby, Lawrence Kohlberg, John Gibbs & Marcus Lieberman (1987). A Longitudinal Study of Moral Judgment. Monpgraphs of the Society for Research in Child Development, 48(1), 200.
  6. Carol Gilligan (1982). In a Different Voice. Harvard Univesity Press. as discussed in: Candida Peterson (2012). Looking Forward Through the Lifespan: Developmental Psychology. Pearson Australia.
  7. Nancy Clopton & Gwendolyn Sorell (1993). Gender Differences in Moral Reasoning: Stable or Situational? Pschology of Women’s Quarterly, 17, 85-101.
  8. James Fishkinm, Kenneth Keniston & Catherine Mackinnion (1973). Moral Reasoning and Political Ideology. Journal of Personality and Social Psychology, 27(1), 109-119.
  9. Jeffrey Kunka (1986). Sociopolitical Orientation and Self-Presentation in Measurement of Moral Judgement. ProQuest Dissertations & Theses Global.
  10. Jonathan Haidt (2001). The Emotional Dog and Its Rational Tail: A Social Intuitionist Approach to Moral Judgment. Psychological Review, 198(4), 814-834.
  11. Jonathan Haidt & Jesse Graham (2007). When Morality Opposes Justice: Conservatives Have Moral Intuitions that Liberals may not Recognize. Social Justice Research, 20(1), 98-116.
  12. Ravi Iyer, Spassena Koleva, Jesse Graham, Peter Ditto & Jonathan Haidt (2012). Understanding Libertarian Morality: The Psychological Dispositions of Self-Identified Libertarians. PLoS ONE 7(8): e42366.
  13. Lars Hall, Petter Johansson & Thomas Strandberg (2012). Lifting the Veil of Morality: Choice Blindness and Attitude Reversals on a Self-Transforming Survey. PLoS ONE 7(9): e45457.
  14. Martha Nussbaum (1995). Objectification. Philosophy and Public Affairs, 24(4), 249-291.

Gaming the Studies – Beginning in Earnest

Mon 27 Oct 2014 11:20:50 6 comments

This post is part of a series on the research studies on sexism cited in the FeministFrequency video series Tropes vs Women in Video Games. The first post in that series covered my views on the FeministFrequency videos and can be found here.

This post in the series is focused on background information about the relevant parts of the field of social psychology. While I present a table briefly summarising the studies that are the focus of this series, the purpose of the next two posts is to cover some background information and my approach to reviewing the studies. I plan on doing detailed explanation and analysis of each study in subsequent posts.

I feel I should point out that I am not a researcher in the field, nor do I possess qualifications that major in any form of psychology. I do have an ongoing interest in psychology, and I have studied a few psychology subjects during my time at university, and it is that experience and knowledge that I used as a springboard for the research done for this post. If anyone spots any errors in the way I’ve presented the information please let me know in the comments.



Studying the Studies

In order to understand what studies in social psychology can tell us about ourselves, it’s necessary to understand the basic process they typically follow. A sample population (“subjects”), usually undergrad students roped into it with promises of partial credits, are given a task where some are exposed to some stimulus material while others form a control group. The researchers then make observations of the way the subjects react to the stimulus in comparison to the control groups. Although the subjects are aware they are being experimented on, they are usually ignorant of the details of the experiment until a debrief session after the observations are made.

The most common way to make observations in social psychology is to get the subjects to fill out self-report questionnaires. These questionnaires involve subjective questions or prompts to which the subject response on a scale such as “strongly agree” to “strongly disagree” or “very likely” to “very unlikely”. These responses are numerically coded and then used to produce statistical results. This constrasts to experiments in cognitive psychology where observations are made with regards to the performance or capacity in undertaking a specific task. Tasks are often focused on word recognition, logic puzzles and/or reaction times.

To get a basic feel for the types of experiments that have been cited by FeministFrequency, I have listed the stimulus material along with the socially significant observations made. Notably, one of the studies (Fox & Tang) is an online study that seeks to examine correlations rather than explore causative effects through experimentation.

Study Stimulus (Priming) Material Main Observation
Loughnan1 Images of men & women with varying levels of clothing Self-reports of attitudes and beliefs about the individuals pictured
Rudman2 Sexist/sexual advertisements and a subsequent simulated job interview Levels of sexual and dominating behaviour were independently observed
Dill3 Images of sexist stereotypes in video games Self-reports of beliefs about women and sexual harassment
Yao4 Playing either Leisure Suit Larry, The Sims II or Pacman II Self-reports of beliefs about women and likelihood to sexual harass
Fox5 Virtual Reality environment with avatar wearing revealing or conservative clothing Self-reports of body-related thoughts and beliefs about rape
Fox & Tang6 This was study was an online survey that measured the correlation between demographics, gaming exposure, attitudes, beliefs and sexism in gaming.

The next step is to look at the theories that social psychologists use to explain why they expect the given stimulus to provoke a measurable response.



Prime Words

The foundation for these studies is the cognitive psychology theory of priming. The basic premise of the theory is that exposure to certain stimuli activates the mental features related to that stimuli, and that as a result they become ‘primed’ and more readily accessible for subsequent use. The primary focus of the theory is on words and Wikipedia provides a useful example:

“For example, if a person reads a list of words including the word table, and is later asked to complete a word starting with tab, the probability that he or she will answer table is greater than if they are not primed.“


Experiments with priming need to involve two distinct stimuli. The first stimulus is used to prime some of the subjects. The experimenters then attempt to measure the reaction to a second stimulus and compare the differences between the primed subjects and the control subjects. This is the relationship between the two columns in the table above.

Importantly, this effect has been demonstrated even where the subjects are not consciously aware of its effect. A 1982 study lead by Endel Tulving7 asked subjects to study a given set of words. The subjects were then tested in 2 ways: conscious recognition of the words, and the ability to recognise the words when prompted only a few letters. For example, if two of the words the subjects studied were “ADENOID” and “EPITAPH” the subject may have later been asked (Yes or No) if they recognised the word “ADENOID” but then asked to complete the word “_PI__PH”. Half the words the subjects were tested on were not words they had studied to enable the relative effect of the priming to be measured.

When tested 1 hour after studying the word subjects were able to both conscoiusly identify which words they had studied and which they had not with reasonable accuracy, and more easily recognised the partial words that they had studied compare to words they had not. When retested 7 days later, the benefit to conscious identification had significantly diminished but the ability to more easily recognise partial words had not. This study provided evidence to support the theory that priming can work even when subjects are not consciously aware of its effect.

The priming effect has been demonstrated to go beyond simple word recall and extend to the priming of semantic concepts. One more widely known concept that is related to this is subliminal messages. The stroop effect also provides an accessible and practical example. Another relatable example of the basic concept is how memories are become much easier to recall when listening to familiar music, smelling familiar scents or simply reading the name of an old acquaintance.



Primed for Uncertainty

The studies I’ll be reviewing aim to extend these basic theories of priming both by extending the stimulus from words into multimedia, and extending the observations from cognitive performance into social beliefs and behaviours. While priming is a recognised cognitive theory, it is not without criticism and not necessarily a straight forward topic to study especially when extended to research the social and behavioural domains of psychology. Many of the studies in social psychology I’ve read in researching this post tie their social conclusions to the priming theory by including word recognition tests developed in cognitive experiments. They do this to establish that their priming stimulus has caused at least some cognitive effect, however they still face challenges in experimentally linking the priming to subsequent views and behaviours in the subjects.

In a 1996 John Bargh8 lead an experiment to study the effects of priming with words related to elderly stereotypes. Some subjects were primed with a scrambled sentence task that involved words such as “worried, Florida, old, lonely, grey, selfishly, etc”, while controls performed the task with neutral words. When the subjects left the room they were unknowingly timed by the experimenters using hidden stopwatches. The results showed that “Participants in the elderly priming condition (M = 8.28 s) had a slower walking speed compared to participants in the neutral priming condition (M= 7.30 s)”. In the subsequent discussion it was stated the results “suggest that exposing individuals to a series of words linked to a particular stereotype influences behavior nonconsciously.” They go on to note that the lack of time or speed related words indicates it’s the activation of stereotype that drives the differences in behaviour.

However, a subsequent study in 2012 lead by Stephane Doyen9 aimed to replicate the Bargh study and produced some striking results. In a first attempt to replicate the study, Doyen replicated the study increasing the number of subjects and using automated infra-red timing hardware. This effort failed to result any priming effect.

A second experiment in that study was conducted which was identical to the first with two exceptions. First the experimenters were divided into two groups: half were told the priming was expected to cause the subjects to walk slower, while the other half were told the priming was expecting to cause the subjects to walk faster. Second the experiments were asked to do manual timing with stopwatches under the false pretence that the infra-red equipment was faulty. The results of the automated timing showed that the subjects only slowed their movements when the experimenters were told to expect the prime to result in slower walking speed. Compared to the automated timing, the manual timing produced results correlated with experimenters expectations rather than consistent with the actual priming of the subjects.

This rather awkward result was not received terribly well by the original researcher. Perhaps not surprisingly, another failed attempt to replicated the “Elderly-related Words Prime Slow Walking” effect is (currently) the most read replication attempt on psychfiledrawer.org, a site designed to provide access to unpublished replication attempts. In a Science News article10 on the priming controversy, the researcher behind both that replication attempt and the psychfiledrawer.org site itself, Hal Pashler, was interviewed and voiced concern about the impact of publication bias on psychological research. It was also noted that there are four other replication studies in social psychology that Pashler has undertaken that have failed to reproduce the results of the original and that have not been published in journals.

It has become evident that priming is a cognitive process that is extremely sensitive to corruption by unintended factors. When studying the subtle response to a subtle stimulus it is important to ensure all other potentially confounding factors are appropriately excluded from the experiment. This presents an exceptional challenge as the research has shown that stimuli of which people (including the researchers themselves) are not consciously aware can still have a priming affect. Given the complex and opaque nature of the human mind, it seems studying the priming effect may require a process of elimination. A simple a demonstration of a causal effect in a particular combination of circumstances that happen to include the focus stimulus may not be sufficient.

For this reason it is important to ensure maximum capacity to examine and reproduce a particular experiment. The most important part of that is providing detail on the stimulus material, as this will allow review of that material against alternative theories and tested in alternative scenarios. During my research I found what I thought was a great example of how to provide information on stimulus material in a 1984 study into priming and the stroop effect. The study found a correlation between the level of conscious awareness of the prime and the magnitude of the priming effect, but this wasn’t the only thing I think is interesting. Note the level of detail cognitive psychologists Jim Cheeseman and Philip Merikle11 recorded their description of the stimulus material:


During the experimental trials, each stimulus display was composed of a letter-string prime and color-patch target. The color patches were centrally located rectangles of blue, green, yellow, and orange, which measured .95 cm (.6°) horizontal X .65 cm (.4°) vertical. They were enclosed by black borders that formed a larger rectangle measuring 1.25 cm (.8°) horizontal and .95 em (.6°) vertical. An identical rectangle drawn on a white card served as the fixation stimulus throughout the experiment.


The primes were letter strings that could appear either above or below the color patches. The primes included the four color words, BLUE, GREEN, YELLOW, and ORANGE, as well as a letter string consisting of five Xs. All primes were printed in uppercase 28-pt Helvetica Medium Outline Letraset (No. 2517). The dimensions of each letter were approximately .65 em (.40) horizontal X .80 ern (.5°) vertical, and the vertical distance from the center of a color patch to the center of a letter string was 1.45 em (.9°).


There were three different relationships between primes and targets. For congruent trials, the prime had the same name as the color patch, whereas on incongruent trials, the prime and the target had different color names. For control trials, the letter string of five Xs served as the prime.


This is an example of a description of a stimulus that ensures that competing theroies can be applied to the experiments to consider if they can provide an alternative or supplementary explanation for the impact of stimulus on the resulting measurements. It’s important to note that the stimulus is not the only part of the experiment, and also that it will obviously not be possible to document every single detail of all parts of an experiment. Existing theories can provide a guide as to which elements are important to record even if the experiment isn’t designed to exclude them as possibilities.



Valuable Boundaries

Moving on from controversies about the methods social psychologists study priming, some studies have looked at what factors can have an impact on the priming effect. A 2008 study lead by Dirk Smeesters12 looked at how the consistency of people’s views affected the capacity of priming to have effect. In one experiment the subjects were surveyed to measure how consistently they answered Social Value Orientation (SVO) questions which are designed to elicit either pro-self or pro-social responses. Subjects were then subconsciously primed with religious words (e.g.“priest”, “forgiveness”), business words (e.g. “manager”, “turn-over”), or non-word letter patterns (“XXXXX”). The subjects then participated in a ‘dictator game’ where they could decide how many chips they would keep and how many they would give to another unknown person.

The results showed that people who gave consistent pro-social answers were more giving in the game. The more interesting results were that people who gave more consistent SVO responses (whether consistently pro-self or consistently pro-social) were not affected by the prime while those who gave less consistent SVO responses were affected. The discusson noted “These results are in line with our theorizing that individuals with a highly accessible self-concept (such as high consistent SVO individuals) are less susceptible to priming influences than are individuals with a less accessible self-concept (such as low consistent SVO individuals).”

A second experiment duplicated the first, except that half the subjects were first primed though a translation task with words that would encourage a sense of self (“me”, “myself”) while the control were primed with locations (“city”, “village”). The subjects were then primed a second time as per the first experiment and participated in the same dictator game. The results showed that being pre-primed with a sense of self resulted in no effect from the religious or business word priming, while the others showed similar priming effect to the first experiment. The discussion talked about two boundary conditions for priming:


A first, and important, boundary condition for priming effects is the chronic accessibility of behavioral responses… high consistent SVO individuals were impervious to primed religious and business constructs …
A second boundary condition is the activation of the self. … we found that primes only determined the behavior of low consistent SVO individuals when the self was not activated.


A similar 2008 study by S. Christian Wheeler13 looked at how self-consciousness moderated the effects of priming. It found that a strong internal-state-awareness (e.g., “I am alert to changes in my mood”) reduced the magnitude of the priming effect while high self-reflectiveness (e.g., “I’m always trying to figure myself out”) resulted in increased priming effect. These studies show that priming can be as much about the individual subjects involved as it is about the priming stimulus.

Considering the qualities of the subjects brings us back to something I noted at the beginning of this post: the widespread use of psychology undergraduates as subjects for psychology experiments. One of the contempory concerns in researching psychology is how this makes results WEIRD. That is, the results only reflect people from Western Educated Industrialised Rich Democratic societies. Also important to note is that the subjects are typically in the 18-25 year old range. Given the recent change in views that adolescence extends throughout this range, it raises the question of how widely applicable the results of psychological studies are to even western societies. That is something that’s more closely linked to something I’ll look at in the next post.



Moving On…

In this post I’ve focused on the priming theory and how social psychologists have attempted to study its social and behavioural impacts. In the next post I’ll be moving on to focus on some of the principles behind the self-reporting of values and beliefs that dominate the measurements in the FeministFrequency studies.




1. Steve Loughnan, et al. (2010). Objectification leads to depersonalization: The denial of mind and moral concern to objectified others. Journal of Experimental Social Psychology, 40(5), 709–717.
2. Laurie A Rudman & Eugene Bordgia (1994). The Afterglow of Construct Accessibility – The Behavioral Consequences of Priming Men to View Women as Sexual Objects. Journal of Experimental Social Psychology, 31(6), 493–517.
3. Karen E. Dill, et al. (2008). Effects of exposure to sex-stereotyped video game characters on tolerance of sexual harassment. European Journal of Social Psychology, 44(5), 1402–1408.
4. Mike Z. Yao, et al. (2010). Sexual Priming, Gender Stereotyping, and Likelihood to Sexually Harass: Examining the Cognitive Effects of Playing a Sexually-Explicit Video Game. Sex Roles, 62(1), 77-88.
5. Jesse Fox, et al. (2013). The embodiment of sexualized virtual selves: The Proteus effect and experiences of self-objectification via avatar. Computers in Human Behaviour, 29(3), 930–938.
6. Jesse Fox & Wai Yen Tang (2014). Sexism in online video games: The role of conformity to masculine norms and social dominance orientation. Computers in Human Behaviour, 33, 314–320.
7. Endel Tulving, et al. (1982) Priming Effects in World-Fragment Completion Are Independent of Recognition Memory, Journal of Experimental Psychology 8(4), 336-342.
8. John A. Bargh, et al. (1996) Automaticity of Social Behavior: Direct Effects of Trait Construct and Stereotype Activation on Action, Journal of Personality and Social Psychology, 71(2), 230-244.
9. Stephane Doyen, et al. (2012) Behavioral Priming: It’s all in the Mind, but Whose Mind?, PLoS ONE, 7(1): e29081.
10. Bruce Bower (2012), The Hot and Cold of Priming, Science News, 181(10), 26-29.
11. Jim Cheesman & Philip M. Merikle (1984), Priming with and without Awareness, Perception & Psychophysics, 36 (4), 387-395.
12. Dirk Smeesters, et al. (2008) When do primes prime? The moderating role of the self-concept in individuals’ susceptibility to priming effects on social behavior, Journal of Experimental Social Psychology 45, 211-216.
13. S. Christian Wheeler, et al. (2008) Does self-consciousness increase or decrease priming effects? It depends (2008), Journal of Experimental Social Psychology, 44, 882–889.

Gaming the Studies – A Prelude in Defence of a Messenger

Sat 25 Oct 2014 17:02:35 2 comments

The outbreak of the Great Gaming Flame War of 2014 (a.k.a. #gamergate) has caused the intersection of gaming, on-line harassment, ethics and sexism to become a popular focus of discussion. As someone with a strong interest in both gaming and gender politics, this focus has re-energised my interest in writing on this blog. However, I wanted to write something that was a little more than simply adding a ‘me too’ to cacophony of voices already echoing across the internet.

To that end I decided to focus my energy on writing a review of the pay-walled academic studies that have been cited in by the FeministFrequency Tropes vs Women in Video Games series. These studies have been used to support the claim that sexist and/or sexual gaming content is propagating sexist view and conduct within the gaming community. However, given the on-going hostile context surrounding this topic I thought I’d start by saying some positive things about the video series (even though it’s not really in my nature) before moving onto reviewing the studies.



FeministFrequency – Before Video Games

I’m going to start this by pointing out I was something of a ‘fan’ of the FeministFrequency series before it gained in popularity during the Kickstarter campaign. The videos that stick out most in my mind are the ones covering the way Lego has been marketed. Although my own opinions often vary significantly from common feminist viewpoints, the videos are a great vehicle to critically reflect on popular culture and its potential for significant social impacts.

When judging the series it’s important to remember that Antia Sarkeesian is presenting herself as a feminist pop-culture critic. Sarkeesian is not presenting herself as some great feminist philosopher presenting novel insights into modern society. Nor is she presenting herself as an astute sociological researcher who is capable of backing feminist ideals with bountiful evidence. It is not fair to judge the video series (or Sarkeesian herself) on the basis that the videos need to achieve either of those things.

The purpose of the videos is to use established feminist ideals and concepts to critique patterns within the broad subject of popular culture. Their intended outcome is to bring considered attention to patterns (‘tropes’) that might otherwise be uncritically accepted as simply ‘the way things are’. One does not necessarily need to agree with the feminist perspective or the videos’ conclusions to see the validity of such an approach to critique regardless of medium.

The quality of the videography is one of the key draw cards of the series. The audio-visual format offers a more convenient way to engage in the topic than reading long written articles. Additionally the videos were a step above a lot of the basic vlog-into-a-webcam or faceless-rant-over-powerpoint-slides style videos that are quite common on YouTube. The combination of consistent lighting, quality sound and the quality editing made the videos easy to watch. The articulate and well-enunciated vocal commentary and inclusion of supporting multimedia content greatly lowers the barriers to engaging in what is often a fairly abstract and complex topic.

Numerous links are provided with each video posting on the FeministFrequency website. Consistent with the series’ purpose, these provide the sources for the ideas presented in the videos along with opportunities for further reading. It’s only recently that links have started to referencing academic journal articles and it’ll be these articles that are the focus of my subsequent posts in this series. It’s a little surprising that this detail is neither included nor directly linked from the YouTube description, however given the FeministFrequency address is regularly provided at the end of each video the information is not that difficult to locate particularly for anyone dedicated enough to actually read the linked content.



FeministFrequency – The Kickstarter

The Tropes vs Women in Video Games series was an ideal project for crowd sourced funding. The proposal was put forward by someone with an established record of quality content creation. The project represented a modest increase in scope over previous works. The initial budget was reasonable and could be easily justified by the cost outlay for software and hardware, as well as possibly some modest compensation for the time required to make the videos. The only criticism I’ll make is that the original completion time frame of 6 months was perhaps overly optimistic for reviewing “100’s of games”, and was possibly based on the previous experience of producing videos covering less time consuming media.

The Kickstarter campaign gained a fair amount of notoriety and with that came a fair amount of criticism. From all that I’ve read on the topic, I’ve not seen one major criticism of the way the Kickstarter was run that can be reasonably justified. The fact that the campaign reached 26 times the initial funding goal, and 6 times the highest stretch goals is quite significant. This entirely justifies a substantial increase in the scope of the project and the consequential delays.

To the extent that this funding outcome was inspired by the media coverage of the harassment and threats is in no way inconsistent with the underlying feminist principles on which the project was founded. Neither would the promotion the feminist views of the project through other means, such as attending and speaking at gaming conferences, be an unreasonable use of any excess funds (I’m not assuming this is happening).

There is perhaps some reasonable criticism in the way the rewards have been handled. Despite the promises made to most categories of supporters, I haven’t seen a single Kickstarter supporter named on either the FeministFrequency videos or website. However, given the well published harassment going on it is perhaps reasonable to not deliver on this promise for the time being. Other rewards cover physical goods, including DVDs of all the videos. Given production of the videos is still in progress, it is natural that the physical rewards have not yet been delivered.

Contrary to the sceptical predictions from some observers, Sarkeesian has managed to deliver 5 videos in the project to date. The videos are of a quality and format consistent with both the previous publications and the details of the proposal. The scope of each proposed video is greatly expanded. The new videos encompassing multiple parts of 20-30 minutes each in comparison to the much shorter 5-10 minute videos previously produced. My all reasonable measures, the outcome so far has been entirely consistent with expectations which stands in contrast to many other Kickstarter projects.



FeministFrequency – Existing Criticism

It’s worth briefly noting some of the substantive criticism directed at the substance of the Tropes vs Women in Video Games series. Youtuber KiteTales has posted a reasonable response to the videos on the Damsel in Distress trope. For the videos on the Women as Background Decoration trope, some people have observed that the games might be being misrepresented. However, at least one video game producer has come out and acknowledge the criticism of their game had merit.

There have also been accusations made that the FeministFrequency videos includes fanart and let’s play footage without the source being notified, linked or provided consent. While this might be an important issue, I won’t be addressing it here.



FeministFrequency – The Claims & Sources

“So why does any of this matter?”
“…the effects on people of all genders are quite clear and serious.”

In part one of the Women as Background Decoration episode, a number of claims were made that went beyond observations of the content of video games and began to comment on the impact the videos games on individuals and society. Accompanying the video on the FeministFrequency website is a list of sources that include a number of academic journal articles reporting on social psychology studies. The fact that these studies are behind a pay-wall does seem to be a source of frustration for critics.

However, I think it’s a positive step for the research that underlies various claims to be linked from online discussions. It has the potential to both lift the quality of online discussions of contentious political or ideological issues, and possible also shift the focus away from personal ad hominem attacks and towards a debate on the substance of the issue.

Given I have access to the journals I thought I would review the studies to see how well they support the claims made in the video. If feminists are going to advocate that gaming communities and the gaming industry ought to reshape itself in response to these claims, then I think it’s important to understand the basis for the claims and ensure such a response is justified.

The studies cited are listed below:

  1. Steve Loughnan, et al. (2010). Objectification leads to depersonalization: The denial of mind and moral concern to objectified others. Journal of Experimental Social Psychology, 40(5), 709–717.
  2. Laurie A Rudman & Eugene Bordgia (1994). The Afterglow of Construct Accessibility – The Behavioral Consequences of Priming Men to View Women as Sexual Objects. Journal of Experimental Social Psychology, 31(6), 493–517.
  3. Karen E. Dill, et al. (2008). Effects of exposure to sex-stereotyped video game characters on tolerance of sexual harassment. European Journal of Social Psychology, 44(5), 1402–1408.
  4. Mike Z. Yao, et al. (2010). Sexual Priming, Gender Stereotyping, and Likelihood to Sexually Harass: Examining the Cognitive Effects of Playing a Sexually-Explicit Video Game. Sex Roles, 62(1), 77-88.
  5. Jesse Fox, et al. (2013). The embodiment of sexualized virtual selves: The Proteus effect and experiences of self-objectification via avatar. Computers in Human Behaviour, 29(3), 930–938.
  6. Jesse Fox & Wai Yen Tang (2014). Sexism in online video games: The role of conformity to masculine norms and social dominance orientation. Computers in Human Behaviour, 33, 314–320.

The studies are all published in reputable journals which means it is not surprising that they are behind a pay-wall (even if it is frustrating). About the only point worth noting is that the Sex Roles journal is limited to articles written from a feminist perspective. I would expect there would be a certain ideological focus to the discussions in these studies but I would not expect that the methodologies employed would be any different.

Five of the links for the Women as Background Decoration video are not original research. I do not have access to the “How Fantasy Becomes Reality” book. I have read the other articles and watched the video, however I will only be commenting on the directly studies published in academic journals.

In the table below I have listed the various claims and attempted to match them with statements made in the conclusions of the studies.

FeministFrequency Claim Quote from Citation
exposure to [sexually objectifying] images negatively impacts perceptions and beliefs about real world women Loughnan – “The main effect of objectification emerged for all comparisons with objectified targets denied both mind and moral status. …objectification diminishes a second aspect of personhood, perceived moral status
reinforces harmful myths about sexual violence. Dill – “Detailed analysis revealed that males who saw the sex-typed images were most tolerant of sexual harassment when judging a real-life case of sexual harassment between a female college student and her male professor.
after having viewed sexually objectified female bodies, men in particular tend to view women as less intelligent Loughnan – “Objectification leads to people being viewed as lacking mental states…
view women as … less competent Rudman – “subjects [who viewed sexual advertisements] … (4) judged her as significantly less competent
express less concern for [women’s] physical well being and safety Loughnan – “objectified targets [were] given more [pain inducing] tablets than non-objectified targets

Loughnan – “Objectification leads to people being viewed as … being less deserving of moral status.

these sexist attitudes carry over to perceptions of all women … regardless of attire, activities or profession -
after long-term exposure to hyper-sexualized images, people of all genders tend to be more tolerant of the sexual harassment of women Dill – “those with more reported long-term exposure to violent video games increased tolerance towards sexual harassment
more readily accept rape myths Dill – “Subjects with higher violent video game exposure showed greater Rape Supportive Attitudes
Viewing media that frames women as objects or sexual playthings, profoundly impacts how real life women are perceived and treated Rudman – “subjects [who viewed sexual advertisements] … sat closer to [the woman], display more dominance during the interview, and behaved in a more sexualized manner.

Yao – “the present study found that playing a sexually-charged video game for merely 25 minutes might increase a self-reported tendency to engage in inappropriate sexual advances

women internalise [sexually objectifying] images and self-objectify. Fox – “this study has demonstrated that women can be affected negatively by the avatars they wear. Women may be at risk for experiencing self-objectification and developing greater rape
myth acceptance
[viewing sexually objectifying images] results in all kinds of social issues, everything from eating disorders -
clinical depression -
body shame -
habitual body monitoring Fox – “Women in sexualized avatars reported more body-related thoughts than women in nonsexualized avatars
decreases in self-worth -
decreases in … life satisfaction -
decreases in … cognitive functioning -
those who most strongly believe that media is just harmless entertainment are also the ones most likely to uncritically internalize harmful media messages. -

A number of the claims do not appear to be directly supported by the cited studies. It’s possible that support for this claims is contained within the book “How Fantasy Becomes Reality”. The background commentary in the studies I have read did include references to similar claims, so it is likely that supporting studies do exist. However, I do not plan to address these claims as I am focusing on the directly cited studies.

A surface level check of the studies does show clear support in the concluding discussions for most of the claims made in the FeministFrequency videos. Coupled with how they are described in the “Spillover Effect” effect article on the Psychology Today blog, it would seem their use by Sarkeesian is reasonable. However, being something of a sceptic I will be exploring the details of these studies before considering accepting the claims. To achieve that my next post leaves the pop-culture critic behind and enters the world of social psychology studies.

Freedom Bound

Sat 2 Mar 2013 01:42:15 Leave a comment

On Wednesday, the High Court ruled on two cases that involved questions about the extent of free speech in Australia. These cases are of interest because they provide an indication of the situations where the High Court might permit the government to interfere with free speech in a way the US Supreme Court might not. The first case involved the issue of whether the Adelaide council has the power to pass by-laws preventing preaching in the streets. The second, and perhaps more controversial case, involved the issue of whether the federal government has the power to criminalise sending offensive letters through the post. The important question answered was whether each of these laws unduly restrict the freedom of political communication implied by the constitution.

Constitutional Freedom

Before looking at the arguments in each of these cases, it’s important to consider the nature of the freedom as the law stands in Australia. The freedom is constructed out of sections 7 and 24 of the constitution which make reference to parliamentarians being ‘directly chosen’. The High Court has historically interpreted this as being part of a framework of ‘responsible government’. It has interpreted the phrase to mean the government had a positive duty to provide a mechanism for the choice (i.e. elections) as well as a duty to not interfere with that choice. The court interpreted the choice in a broad way by inferring the inclusion the pragmatic element of freedom of political communication, as a practical requirement of responsible government and consistent with the democratic expectations. As the government is bound by the constitution it cannot legislatively interfere with this political communication (at least to any extent that it will practically interfere with the people’s choice of representation). This makes it a limited pragmatic and public freedom in contrast to the ‘absolute’ formal or  private right associated with free speech in the United States.

This can be seen in the way the High Court formulates the legal test:

  1. Does the law effectively burden freedom of communication about government or political matters in its terms, operation or effect?
  2. If the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 of the Constitution for submitting a proposed amendment to the Constitution to the informed decision of the people?

It’s important to note that these questions must focus on the law itself, and not the actions of the individual in the particular cases. The facts of the particular case are at most a convenient illustration of the issue. In both these cases it was conceded that the laws did effectively burden freedom of communication, and thus the first question was answered positively. The arguments in the cases focused on how the court dealt with the second questions.

Common Law Right

Judgements in these cases also makes reference to the common law right of free speech. This is a related but separate right to the constitutional freedom. Although this right is much broader, having the generalised scope of the free speech right in the US, as it is part of common law it is something that parliament has the power to override. It’s significance is that when interpreting legislation, the courts will presume that parliament did not intend to infringe the common law right unless that intent is sufficiently clear in the legislation. Given the capacity of parliament to override it with properly drafted legislation it is not as politically significant or interesting as the constitutional freedom. It forces the politicians to clearly infringe the right in the legislation they pass and so in a sense provides some political protections against underhanded infringement,  but generally interest in the common law right is limited to those who draft and interpret legislation.

Street Preachers

The first case involved two brothers who felt they had the right to preach their faith in a public mall in Adelaide without having to get authorisation from the council. The by-law was “for the management of roads” and included:

Activities Requiring Permission
No person shall without permission on any road:

2.3 Preaching and Canvassing
preach, canvass, harangue, tout for business or conduct any survey or opinion poll provided that this restriction shall not apply to [a] designated area as resolved by the Council known as a ‘Speakers Corner’ and any survey or opinion poll conducted by or with the authority of a candidate during the course of a Federal, State or Local Government Election or during the course and for the purpose of a Referendum;

There are a number of key points in the law to note. Firstly, the purpose of the law is to manage the roads under its jurisdiction. In it’s judgement, the High Court accepted this was an important and legitimate function of the law, and it noted that proper management of the roads could even improve the capacity to communicate via efficient transportation. Secondly there are clear exceptions in place for dealing with communication explicitly to do with elections. Finally there is the possibility to gain permission for exceptions not identify directly in the law itself. The majority of the court concluded that these elements made the law reasonable and thus concluded it was valid under the constitution.

Heydon J, the dissenter, preferred to focus on the common law right. He used this to interpret the legislation empowering the by-laws as being worded too broadly include a power to infringe the right of free speech. This meant he considered the council lacked such a power and hence the section of the by-law was invalid as it exceeded the power of the council.

Offensive Letters

The second case involve a man sending offensive letters to families of soldiers who had died in Afghanistan. The Criminal Code (Commonwealth) creates an office in section 471.12 covering where a person uses the postal service:

… in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

For this offence, the code also requires the conduct be reckless. This means a person’s offensive use of the postal service will only constitute an offence if:

(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

This can be simplified into three elements that must be met for the use of the postal service to be an offence:

  1. a ‘reasonable person’ would consider the use offensive;
  2. the sender was aware of the risk that a reasonable person might find it offensive; and
  3. given this, the use was (objectively) unjustifiable.

The issues in this case line up differently than the first and for this reason it is more controversial. Firstly, the judgements identified the key purpose of the law as defending the individuals from unwanted intrusion in their private homes and businesses. Protection of individuals from the speech of others can be contrasted to manage a public space for a public purpose. Secondly the nature of the communication also shifted from communication in a public space to communication between private individuals. Arguably private communication is more important to the process of political communication and holding the government of the day responsible. These factors both suggest that the law in this case is less reasonable than the first case.

The High Court was split on the matter, ultimately leaving the decision of the Supreme Court in place and the law intact. Crennan, Kiefel and Bell JJ issued a joint judgement upholding the law as valid. They felt that there was sufficient flexibility within  the ‘reasonable person’ test and the ‘unjustifiable’ test to protect those using the post for political communication. They felt juries would see the vast majority of political communication as either not sufficiently offensive to a reasonable person particularly given the importance of political communication, or if it was considered offensive that the political nature would justify the risk. Their conclusion was that the law was sufficiently adapted for its purpose to be compatible with the constitution.

Arguing the law was invalid, French CJ and Hayne J both argued that preventing offence was not a legitimate purpose of the law, one completely incompatible with the constitutions democratic framework, and hence the question of reasonableness did not  even arise. Their concern was that in the legislation the term ‘offence’ was broad and the definition of ‘postal service’ was vague that it would cover an excessive amount of political communication, in particular communication in the form of robust debate.

In his final judgement before retiring, Heydon J briefly agreed with French CJ and Hayne J and then went on to sympathise with the families, quote some poetry, discuss how we shouldn’t have such a constitutional freedom in the first place and ultimately conclude:

Those who drafted the Constitution, those who secured legislative approval of it by each colonial legislature, and the people who approved it by their ballots would each say, if they could examine the authorities on the implied freedom of communication: “Non haec in foedera veni“. Yet in compacts other than constitutions, clearness and obviousness are common conditions precedent to the implication of terms.

Close examination of the implied freedom of political communication would involve analysis of these issues. That examination may reveal that it is a noble and idealistic enterprise which has failed, is failing, and will go on failing. That close examination cannot usefully take place until some litigant whose interests are damaged by the implied freedom argues in this Court, with leave if necessary, that the relevant authorities should be overruled. No endeavour of that kind was made in these appeals. Hence these appeals offered no occasion for close examination of the relevant questions. On the existing law, there is no alternative but to make the orders proposed by Hayne J – a result which, some may think, demonstrates how flawed that law is.

This perhaps suggests that the foundations of the constitutional freedom remain uncertain even while there is controversy over it’s application. Perhaps its just a call for one of the other judges to take on the role of the “Great Dissenter“.

Historical Context

The two cases where the constitutional freedom developed both involved laws directed at the political nature of the communication. Nationwide News v Wills involved a law that prevented bringing the Australian Industrial Relations Commission into disrepute. Australian Capital Television v The Commonwealth involved a law that heavily regulated the ability of political advertisements during election periods. The fact that both laws were directly regulating communication about political offices proved significant. In both cases the High Court held the laws were invalid because they were incompatible with the constitution.

Later in Lange v ABC, the High Court revised the limits of common law defamation to be consistent with the freedom of political communication identified in earlier cases. It was in this case that the court developed the second ‘reasonability’ part of the test used in later cases. The court held the general restraint on speech by defamation law was acceptable however extended the qualified privilege defence to those communicating defamatory political imputations. The defence required circumstantial and procedural hurdles be met in order to invoke the defence. Behaving as a responsible journalist would provide a shield against liability for defamation even if the facts turned out to be wrong, while shamelessly printing any old rumour could result in damages. While defamation law has since been reformed by legislation, the balance found in the modified defence provides an important example of the way the court views the issue.

These new cases can be seen as clarifying limits of the freedom established in previous cases. The laws in these cases involved imposed limits on communication generally, whether by mode (in the street) or content (offensive nature). Thus, like the law of defamation, they are capable of reasonably balancing their legislative purpose with the democratic nature of the constitution. The judicial split in the letters case indicates that the Commonwealth law has pushed limits of what is acceptable.

Beyond Streets and Letters

Other than the ‘reasonability’ test applied in the cases there remains no clear indication on the limits of the constitutional freedom in contexts. Any limits will need to be determined on a case by case basis as the matters reach the High Court.

One point to make is that the offence regarding offensive use of the postal service is essentially identical to an offence covering the use of a the use of phones or the internet (section 474.14 of the Criminal Code). The internet does provide functionally different modes of communication to the postal service, however such factors could easily be considered within the reasonable person or justifiability tests. I don’t see this as significantly changing the arguments either for against the validity of the law. So I wouldn’t count on freedom of political communication to protect people  in Australia that might act offensively on the internet.

There is also an ongoing debate over whether the political freedom should extend beyond communication to include association. There is a case the court is currently considering so there may be a resolution to that debate soon. Hayne J (at [136]) already made a reference to political association in the street preachers case:

Preventing the obstruction of roads is conducive to the maintenance of roads as a means of travel, interaction and association (including political interaction and association) among the people.

I wouldn’t be surprised if the capacity to organise candidates to be chosen from is seen as an important part of representatives being ‘directly chosen’ and hence freedom of association would be seen as an important democratic element. However I suspect that any freedom of political association will be similarly qualified to the freedom of political communication, and that ultimately it won’t be useful in invalidating well conceived laws. It will be interesting to see how the arguments pan out and how the court rules.

Personal Views

I’m as divided on the letters issue as the court. I don’t have a problem with the specific conduct in either case being sanctioned by the law. I think the law regulating the use of roads is perfectly reasonable, particularly with the express political exceptions included. I also think the law has a place in providing protection in situations where people are known to be especially emotionally vulnerable. There is no place in a lawful society for the callous exploitation of vulnerable people, whether for laughs or politics.

However, I do share the concern about the breadth of the postal service offence. The capacity of the reasonable person and justifiability elements to protect political communication relies on proper determination of fact. Mistakes in determination of fact are not as easy to appeal as mistakes in law. Review of decisions by higher courts is not likely to be effective in ensuring its application remains consistent with the constitution’s democratic framework. All it would take would be an over-zealous prosecutor and a jury influenced by a shift in the political winds and the law could become a significant burden on political communication. Going back a few decades, how difficult would it have been to make a convincing argument that posting same-sex marriage propaganda incorporating graphic depictions of homosexuals being affectionate and raising children constitutes offensive material?

Constructing the law to provide protection without excessively intruding on freedoms is a significant challenge. One step could be to specify a set of key factors that need to be considered in assessing whether the conduct was ‘offensive’ or ‘justifiable’. The qualified privilege defences that form part of modern defamation laws are an example of such an approach. It would still be necessary to avoid any hard definitions to avoid people exploiting them as a ‘legal loophole’.

Ultimately I think the Commonwealth should have drafted the legislation better and the protection of political communication is important enough that the law should have been considered invalid. I can also see the point that Heydon J was making about the very existence of such a constructed constitutional freedom, yet I think if it remains properly bound to a substantive notion of democratic ‘choice’ it will continue to serve us well.

 

Interpretive Pedantry

Sun 25 Nov 2012 13:12:25 2 comments

My brain seems to be stuck in legal mode as a result of exams, and so a recent post by Sinclair Davidson at Catallaxy grabbed my interest. In the post he claims that its illegal to vote informally. In the post he uses the phrases “against the law” and “illegal” to describe informal voting but it’s not until I read his comments that it became clear that he believes informal voting constitutes a punishable offence against the act.section describe the process. The broader context of his opinion can be seen in this comment: “Compulsory voting is an abomination.” Davidson’s position on the legality of informal votes is at odds with what the AEC is reported as saying. It’s also different to my understanding that while the law obligated people to show up and fill out a ballot, it didn’t control how they do so.

Since it’s been a while since I’ve revised the principles of statutory interpretation, I figured now would be a good chance to do so. The practical barriers to enforcement make this something of a purely academic question, but one I found interesting enough. If anything, it should provide an illustration of the substantial complexity and uncertainty faced by those who draft and interpret legislation.I should probably prefix my analysis with the fact that I generally support compulsory voting and think everyone has at least a moral duty to society to participate in the democratic process. I also appreciate the desire to signal dissatisfaction with the options available, but I’m just not sure informal voting is the best way to resolve the issue. That said the merits of compulsory voting are beyond the scope of this post, so on to the legal pedantry.

The Sections of the Act

The obvious first step to determine the extent of the legal duty to vote is to examine the legislation. This analysis will be limited to elections for the house of representatives as there is no relevant differences in regards to the senate other than an increased complexity in the ballot and marking process. The duty to vote is established, as Davidson indicated, in section 245 of the Commonwealth Electoral Act 1918:

245 Compulsory voting

(1) It shall be the duty of every elector to vote at each election.

It’s clear that everyone enrolled to vote has a duty to vote. The content of this duty is not as clear. The act does not provide a specific definition for the word “vote”. In common use to “vote” can mean anything from filling out a secret ballot at an election, to raising a hand in a room, or simply calling out “aye” or “nay” at a gathering. I don’t think it’s possible to determinatively exclude informal votes from the meaning of “vote” solely based on how it is used in that section. So it is necessary to look further in order to establish the scope of the duty. Davidson makes the case that the section that covers how a person is to mark the ballot can be used to determine the content of the duty:

240 Marking of votes in House of Representatives election

(1) In a House of Representatives election a person shall mark his or her vote on the ballot paper by:

(a) writing the number 1 in the square opposite the name of the candidate for whom the person votes as his or her first preference; and

(b) writing the numbers 2, 3, 4 (and so on, as the case requires) in the squares opposite the names of all the remaining candidates so as to indicate the order of the person’s preference for them.

(2) The numbers referred to in paragraph (1)(b) are to be consecutive numbers, without the repetition of any number.

These two sections by themselves could be read to infer the duty extends to how an elector marks the ballot. There are some questions raised by the language used (or not used). Section 240 uses the phrase “shall mark his or her vote on the ballot paper”, not “shall vote by marking the ballot paper”. This suggests that the legislation might consider voting and marking as separate concepts, enabling the duty to be interpreted as excluding how the ballot is marked. Further section 245 refers to a duty “to vote” and not a duty “to vote as directed by section 240″. Conversely, the wording also includes a duty “to vote” not merely a duty “to attend” or “to submit a ballot”. While the wording creates some uncertainty about the extent of the duty, it doesn’t provide a clear enough indication so further investigation is necessary.

Process of Interpretation

There are two plausible and competing interpretations based on the wording in the act. The Catallaxy post and comment thread identify a number of factors that could be used to justify one interpretation over another.  The question is which factors are most relevant.

Purpose

The Acts Interpretation Act 1901 instructs that the interpretation show follow the purposive approach:

15AA Interpretation best achieving Act’s purpose or object

In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.

The Commonwealth Electoral Act doesn’t provide an express purpose. Despite this, it is clear the purpose of the act (in general) is to describe in detail the process of how people are to choose their representatives as required and enabled by the Australian Constitution:

24 Constitution of House of Representatives

The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth …

31 Application of State laws

Until the Parliament otherwise provides, but subject to this Constitution, the laws in force in each State for the time being relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections in the State of members of the House of Representatives.

In this context the provisions in section 240 can be see as the Commonwealth Parliament providing the legislative description of the legal process by which the people directly choose their representatives. It would be a step beyond this to impose a duty on people to follow that process. Still, the question remains as to whether attaching provisions in section 240 to the duty in section 245 best achieves this purpose.

Structure of the Statute

It’s important to not focus purely on the words themselves, but to look beyond the immediate sections in questions on consider the structure of the act. As the High Court explained in CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2

[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise…

The most immediate context is another part of section 245. The same section that establishes the duty also establishes the offence for failing to meet the duty, the associated penalty and a specific defence:

245 Compulsory voting

(15)  An elector is guilty of an offence if the elector fails to vote at an election.

Penalty:  $50.

(15A)  Strict liability applies to an offence against subsection (15).

Note:          For strict liability , see section 6.1 of the Criminal Code .

(15B)  Subsection (15) does not apply if the elector has a valid and sufficient reason for the failure.

The offence under s 245(15A) imposes strict liability. This means that intent (whether the failure was ‘deliberate’ or not) is not necessary for the conduct to be considered an offence. In practice this means someone can’t simply claim they intended to vote but forgot in order to avoid the charge. If this offence extends to cover informal voting, it means that someone who accidentally fills out their ballot incorrectly has also committed an offence (the mistake of fact defence is still available, but it would be a bit of a stretch to claim a mistake about the state of the ballot paper in most circumstances). That seems a little harsh to me, particular when considering the oversized senate ballot.

The surrounding provisions provide an indication of how the offence is intended to be enforced:

232 Voters to be recorded

(1)  Immediately after handing a ballot paper to a person whose name is on the certified list of voters, or an approved list of voters, available at a polling place, the presiding officer or a polling official at the place must:

(a)  place a mark against the person’s name on the certified list; or

(b)  record electronically against the approved list the fact that the person has been handed a ballot paper.

(2)  The presiding officer at a polling place shall make a record of the name of each elector who casts a declaration vote at the polling place and, in the case of an absent voter, of the Division for which the elector declares under subsection 222(1) or (1A) that he or she is enrolled, and shall, at the close of the poll, forward the record, duly certified by the presiding officer, in accordance with section 228.

245 Compulsory voting

(2) The Electoral Commissioner must, after polling day at each election, prepare for each Division a list of the names and addresses of the electors who appear to have failed to vote at the election.

(3) Subject to subsection (4), within the period of 3 months after the polling day at each election, each DRO must:

(a) send a penalty notice by post; or

(b) arrange for a penalty notice to be delivered by other means;

to the latest known address of each elector whose name appears on the list prepared under subsection (2).

There are clear measures to enforce the elements of the offence that include a requirement to show up, get a ballot and get your name marked off. The presiding officers and assistants would be able to witness and hence enforce that each elector go into a booth, fold the ballot and put it in the box.

However, one of the key policy decisions made within the act is that voting to take place in private. The surrounding sections limit the capacity the government has to enforce how people mark their ballot:

233 Vote to be marked in private

(1) Except as otherwise prescribed the voter upon receipt of the ballot paper shall without delay:

(a) retire alone to some unoccupied compartment of the booth, and there, in private, mark his or her vote on the ballot paper;

(b) fold the ballot paper so as to conceal his or her vote and:

(i) if the voter is not an absent voter–deposit it in the ballot-box; or

(ii) if the voter is an absent voter–return it to the presiding officer; and

(c) quit the booth.

271 Officers not to mark ballot papers so that voter can be identified

Except as authorized by this Act or the regulations, an officer shall not place upon any ballot paper any mark or writing which would enable any person to identify the voter by whom it is used.

These provisions make it clear that parliament considers the private nature of voting as an important part of the act’s purpose. It does not make sense to interpret an offence beyond the limits of enforcement provided elsewhere in the act. Further, it would be contrary to the purposive approach to interpret an offence in such a way that any enforcement action would conflict with another key policy objective established elsewhere in the act. This suggests in creating the offence parliament is only concerned with those who fail to turn up, get their names marked off the list and follow the observable instructions, not those who fail to mark their vote according to section 240.

The Mischief Rule & Extrinsic Material

The law allows us to look further than just the act itself. Firstly, the common law has long interpreted acts of parliament by considering what mischief or defect the act is intended to remedy. This was also noted in the CIC Insurance case:

[T]he modern approach to statutory interpretation… (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which … one may discern the statute was intended to remedy.

In examining the history of the legislation, it can also be useful to consider extrinsic material (explanatory memoranda, speeches to parliament, etc) as provided for by Section 15AB of the Acts Interpretation Act. The obvious next step to consider then is the history of the act. There are two points to note about differences in the older version of section 245 (which was renumbered from 128A).

128A. Compulsory voting

(1) It shall be the duty of every elector to record his vote at each election.(12) Every elector who-

(a) fails to vote at an election without a valid and sufficient reason for such failure; or

shall be guilty of an offence.

The first is that the duty includes the obligation to not just “vote” but to “record [the] vote”. The second is that this requirement to record is missing from the offence related to the duty. This provides further argument that by removing the duty “to record”, parliament intended the duty in the current act to exclude that element. Although arguably the purpose of the amending act was to resolve language issues in the legislation and not change the extent of elector duties.

Section 119 (now repealed) also differs in two respects from its current equivalent (section 233).

119. Vote to be marked in private

Except as otherwise prescribed the voter upon receipt of the ballot-paper shall without delay-

(a) retire alone to some unoccupied compartment of the booth, and there, in private, mark his vote on the ballot-paper in the manner hereinafter described;

(b) fold the ballot-paper so as to conceal his vote and to show clearly the initials of the presiding officer, and exhibit it so folded to the presiding officer, and then forthwith openly, and without unfolding it, deposit it in the ballot-box; and

(c) quit the booth.

Firstly, it involved a partial inspection of the ballot before putting it in the box which is not particularly relevant to the issue at hand. Secondly, it included an express link between the process of handling the ballot and the manner in which it is marked. In this case the amending act was intended to “make the voting process simpler“. This change suggests an intention by parliament to remove the link between any public duty (and related offence) to attend and handle the ballot, and the private matter of how the ballot is marked.

This simplicity echoes the statements made back in 1924 with the introduction of compulsory voting legislation. The second reading speech of the act that introduced compulsory voting contained the explanation:

It is very simple, consisting of three clauses only, the principal one of which is clause 2. The bill provides that it shall be the duty of every elector to record his vote, and that after each election a list of those who did not vote shall be prepared by the returning officer.

Extending the content of the duty to include the detailed provisions of how the ballot is to be filled out conflicts with this intended simplicity. The natural limitation on enforcement was also acknowledged at the time:

Honorable members may say that we can take a horse to the water but we cannot make him drink. But by compelling people to vote, we are likely to arouse in them an intelligent interest, and to give them a political knowledge that they do not at present possess.

The interpretation I take from that is that parliament can take an elector to the booth, but cannot make them hold or express a preference. The overall purpose of the act is aided by the fact that being compelled to attend means people will often be induced to form a preference and express it.

The specific words in the sections don’t clearly indicate the extent of the duty and could arguably be interpreted as extending the duty to how a ballot is marked. However, when considered in their full context I think the better interpretation is that the duty is limited to attendance and simple handling of the ballot, and does not include the specific manner in which the ballot is marked.

Presumption of Last Resort

Any remaining uncertainty about the extent of the duty can be extinguished by reference to the common law assumption against creating a statutory offence. According to the High Court in R v Adams [1935] HCA 62:

 … when that language is capable of more than one meaning, or is vague or cloudy so that its denotation is uncertain and no sure conclusion can be reached by a consideration of the provisions and subject matter of the legislation, then it ought not to be construed as extending any penal category.

It is also reiterated by by Gibbs J in Beckwith v The Queen [1976] HCA 55:

The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences.

I think the structure and context of the act creates sufficient uncertainty about the link between the offence in section 245 and the provisions in section 240 to mean it is appropriate to assume there is none.

Case Law

It is prudent to consider the case law on this matter.  The cases have been about the constitution power of the Commonwealth to impose such a duty and the extent of the “valid and sufficient reason” defence. For the practical reasons discussed above there have been no cases requiring them to address the matter of whether it is an offence to mark the ballot contrary to section 240. This means the judicial commentary is obiter and somewhat inconsistent. The cases on constitutional power are of little assistance as I am not arguing on the basis the Commonwealth lacks the power to compel people to mark their ballot in a particular way.

The cases on valid and sufficient reasons are focused on the purpose and not the content of the duty. As explained in by Isaacs J in Judd v McKeon [1926] HCA 33, allowing a lack of preference to be a valid and sufficient reason would undermine the purpose of the duty:

When all opportunities are reduced to the actual candidatures and the time comes for each constituency to return its quota to the national Parliament, there is no force whatever in the contention that a valid and sufficient reason exists for non-compliance with the primary duty of voting, merely because no one of the ultimate candidates meets with the approval of the given elector. If that were admitted as a valid and  sufficient reason, compulsory voting would be practically impossible.

As explained in the second reading speech quoted above, the purpose of the duty goes beyond getting the elector to turn up and fill out a ballot. The purpose extents to inducing the elector to consider the election and form an opinion. Given the impossibility of imposing a duty to form an opinion, it is clear the purpose of the duty goes beyond its contents. Thus a reason to avoid the duty that conflicts with or undermines this purpose, as those found in the case law, can be considered not “valid and sufficient” even though there would be no direct effect resulting from the duty being fulfilled (i.e. turning up and voting informally). I’m not sure these cases can do much to clarify the matter about the content of the duty.

Perhaps the strongest authority in the case law comes from the High Court in a case where the older provisions were still in place, a case Davidson cited in his own article (Faderson v Bridger [1971] HCA 46 at [7], my emphasis):

Section 128A places a duty on every elector to record his vote. This is done by attending at a polling booth, accepting a ballot paper, and, as s. 119 provides, marking it and depositing it in the ballot box. A failure to vote therefore involves a failure to attend, accept the ballot paper and having marked it, to put it in the ballot box. Of course there is no offence committed by not marking the ballot paper in such a fashion that the elector’s vote is in law a valid vote.

The only other observation I’ll make from the case law, is that its amazing how many High Court challenges there have been to an offence that imposes such a small ($50) fine.

Consequences

The fact the law might not extend the duty or offence to include the provisions of how the ballot is to be marked does not mean there are no consequences for doing so. It is unlikely that the effort would be made to draft a provision detailing how something should be done without there also being some indication of the consequences when those provisions are not followed.

Comparison

Comparing section 240 to another one from the same act might help gain some perspective on the implications of failing to perform as the provision specifies. Consider the process for applying to vote via the post:

183 Grounds of application for postal vote

(1)  An elector may apply for a postal vote on any of the grounds set out in Schedule 2.

(2)  A person who is provisionally enrolled may apply for a postal vote.

184 Application for postal vote

(1)  An application must be in writing in the approved form and must contain a declaration by the applicant that he or she is an elector entitled to apply for a postal vote.

What happens if someone is eligible to apply for a postal vote under section 183, and attempts to apply for a postal vote:

  • over the phone;
  • not in an approved form; or
  • without including the required declaration?

Clearly they have applied contrary to the rules in section 184. The phrases Davidson used in his post could technically be used. One could say the person applied “against the law”, applied “illegally” or that the application was “unlawful”. Since such phrases are commonly used to describe crimes up to and including murder, they are perhaps not the best phrases to use outside a specific legal context. A better phrase would probably be that the application was “legally invalid”. Failing to apply for a postal vote in the prescribed manner hardly implies someone is a bad person or has harmed society in some meaningful way. There is a distinct difference between a provision that mandates how something must be done in order for it to have a certain legal affect, and a provision that mandates how something must be under threat of punishment (i.e. creates an offence).

The legal consequence of applying contrary to section 184 is that the application does not obligate a postal ballot be sent out, thus potentially preventing the person from voting via post:

188 Issue of certificate and ballot papers

(1)  A DRO or Assistant Returning Officer who receives an application for a postal vote that is in accordance with subsection 184(1) must (unless the application fails to meet the deadline as mentioned in subsection 184(5)) send, or arrange for the sending, to the applicant in accordance with whichever of subsections (2), (3) and (4) of this section applies:

(a)  a postal vote certificate printed on an envelope; and

Of course it is possible that failing to adhere to the statutory directions could cause indirect legal consequences. Failing to apply correctly for a postal vote may not be considered a valid and sufficient excuse for failing to show up on election day. It is also possible that failing to adhere to the statutory directions affects legal rights and obligations outside the immediate context. For example a police officer who fails to adhere to statutory limits on using force to arrest someone could be said to have used “unlawful force”. This might not just cause an evidence to be excluded in the criminal context, but they may also loose protection against civil liability for their actions. However, it is unlikely that any conduct with regarding the rights and duties of electors would extend beyond their electoral context.

This Case

There are two sections in the act that deal with the consequences of failing to mark a ballot in the way set out in section 240:

268 Informal ballot papers

(1)  A ballot paper shall (except as otherwise provided by section 239, and by the regulations relating to voting by post) be informal if:

(c)  in a House of Representatives election, it has no vote indicated on it, or it does not indicate the voter’s first preference for 1 candidate and an order of preference for all the remaining candidates:

Provided that, where the voter has indicated a first preference for 1 candidate and an order of preference for all the remaining candidates except 1 and the square opposite the name of that candidate has been left blank, it shall be deemed that the voter’s preference for that candidate is the voter’s last and that accordingly the voter has indicated an order of preference for all the candidates:

Provided further that, where there are 2 candidates only and the voter has indicated his or her vote by placing the figure 1 in the square opposite the name of 1 candidate and has left the other square blank or placed a figure other than 2 in it, the voter shall be deemed to have indicated an order of preference for all the candidates.

274 Scrutiny of votes in House of Representatives elections

(2)  Each Assistant Returning Officer shall, in the presence of a polling official, and of such authorized scrutineers as may attend:

(b)  reject all informal ballot papers…

The legislated (and rather obvious) consequence of not filling out the ballot paper correctly, is that it will likely be considered an informal ballot and rejected (i.e. not counted). Based on my conclusion that this does not constitute an offence, there do not appear to be any further legal consequences. That said, it is possible that in the hypothetical circumstance that someone confesses and is prosecuted that the court would end up ruling the way Davidson indicates and then they would face a $50 fine. However as far as I can see, the only way the law compels someone to actually mark their ballots correctly is by ‘threatening’ to do the very thing the complainants appear to want, that is to have their vote not count.

As for the immense imposition of turning up to fill out a ballot once every three years, the benefits as described back in 1924 would seem to me to be significantly beneficial enough to justify such a duty. That however is an argument for another post…

Categories: Uncategorized

A Fine Line

Sat 17 Nov 2012 03:15:38 9 comments

A couple of weeks ago, regular SkepticLawyer commenter kvd noted the interesting story about Melbourne City Council suing over the magistrates court ordering payments to charities. The topic was related to the criminal law and administration law subjects I studied this semester and for whatever reason the issue stuck with me throughout my exams. I figured I would break my blogging drought and have a crack at the issue with my freshly minted understanding, however given I’ve studied in a different jurisdiction (Queensland) and I’m yet to find out if I even passed this post might just be the ramblings of a failed law student. Also, since I’ve just spent the first day of post-exam freedom researching and writing this post, I’m also beginning to question my sanity…

Update: Added reference to the statistics Magistrates’ Court Annual Report. Added the historical perspective section. Enhanced the discussion on principles and added a more substantive conclusion. I think I’ve now learnt more about criminal through writing this post than I did throughout the semester…

Council Motivation

Reading the headlines this story is receiving, one might wonder what motivated a council to sue for money that was otherwise going to charity. The most likely reason is fiscal stress, possibly caused by reduced revenue in the current economic climate or poor fiscal management. I’m not up to speed with Melbourne politics to know the details, but it’s clear they’re motivated enough to ignore the bad look that comes with trying to take money from charities.

Regular fines provide hundreds of millions of dollars of revenue to the state government each year. The sentencing statistics indicate the alternative sentence type used in this case are used about 20% as often as standard fines. The Magistrates’ Court Annual Report indicates the payments to charity add up to about nine hundred thousand dollars, and Melbourne City Council wants its cut.

To understand why the council thinks it’s entitled to the money we need to look at the legislation that defines the offence committed. The Food Act (1984) contains a number of offences that have fines attached. The article doesn’t state the offence committed, so I’ll pick an offence from the act as an example:

14. Sale of food not complying with purchaser’s demand

(1) A person must not, in the course of carrying on a food business, supply food by way of sale if the food is not of the nature or substance demanded by the purchaser.

Penalty: $40 000 in the case of an individual and $200 000 in the case of a corporation.

As the legislation is a state law it would ordinarily be up to the state government to prosecuting the offenders. However this law grants the power to councils to bring prosecutions under the act:

45AC. Power to bring proceedings

The Secretary, a council, an authorised officer or a member of the police force may bring proceedings for an offence under this Act.

Any fines collected as punishment for state offences would also ordinarily be paid to the state government consolidated revenue.  Again, this law provides an exception by rewarding the prosecuting council with the money collected through fines.

57. Payment of penalties

(1) Where an offence against this Act has been prosecuted by the council, all penalties recovered in relation to the offence shall be paid into the municipal fund of that council.

So the state government has essentially recruited the councils into assisting with the enforcement of the Food Act by providing a revenue incentive in the form of fines. The Melbourne City Council has presumably spent the time and money to investigate and prosecute the offender on the understanding that, if they were successful, they would be compensated with any fine applied. However, having successfully prosecuted the offender they are left with the magistrate determining the offender should not be made to pay a fine (i.e. the council), but rather pay money to a charity. Given this context, I can understand why the council might be feeling a bit aggrieved by the situation and hence why chose to appeal the sentence.

The Court’s Power

Given the council appears to have a potentially legitimate claim to the money, it’s important to consider whether the court has the power to decide that the money should be paid to someone else. While the offences and maximum possible penalties are specified in the Food Act, the process for determining the sentence for each individual offender is set out in the Sentencing Act (1991). The sentencing options in the act fit into four basic categories: imprisonment, community correction orders, fines and “slaps on the wrist”. The last category includes formally recording a conviction and undertakings (“good behaviour bonds”) where the judges threatens to impose an actual penalty if you behave badly or break any imposed conditions.

Special Conditions

The payments to charity seem to be based on the undertaking provisions and not on the fines provisions. Section 75 provides (my emphasis):

75. Release on adjournment without conviction

(1) A court, on being satisfied that a person is guilty of an offence, may (without recording a conviction) adjourn the proceeding for a period of up to 60 months and release the offender on the offender giving an  undertaking with conditions attached.

(2) An undertaking under subsection (1) must have as conditions-

(a) that the offender attends before the court if called on to do so during the period of the adjournment and, if the court so specifies, at the time to which the further hearing is adjourned; and
(b) that the offender is of good behaviour during the period of the adjournment; and
(c) that the offender observes any special conditions imposed by the court.

I cannot find anything within the Sentencing Act that details the scope or contents specifically for these “special conditions”, so it’s not clear exactly what the parliament intended them to cover. This means there is a definite question of whether the conditions can include a payment to the court fund (or otherwise) for charitable conditions. The only directly relevant case law I can find involves the Supreme Court imposing a condition of continuing mental health treatment, and no discussion of other possibilities or limits. In other jurisdictions and legal contexts such conditions are usually used to ensure rehabilitation and reduce risk of further offences with examples including drug treatment or avoiding certain people and places.

One important limit on the conditions is the section detailing their possible purposes (my emphasis):

5. Sentencing guidelines

(1) The only purposes for which sentences may be imposed are-

(a) to punish the offender to an extent and in a manner which is just in all of the circumstances; or
(b) to deter the offender or other persons from committing offences of the same or a similar character; or
(c) to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated; or
(d) to manifest the denunciation by the court of the type of conduct in which the offender engaged; or
(e) to protect the community from the offender; or
(f) a combination of two or more of those purposes.

Interestingly, there are no principles of restorative justice listed despite the inclusion of restitution and compensation provisions elsewhere in the act. It’s easy to see how a treatment condition fits within the purpose of rehabilitation, and an avoidance condition can fit within the protection purpose. These conditions also appear consistent with the range of conditions that the court has express powers to attach to community correction orders:

48C. Unpaid community work condition
48D. Treatment and rehabilitation condition
48E. Supervision condition
48F. Non-association condition
48G. Residence restriction or exclusion condition
48H. Place or area exclusion condition
48I. Curfew condition
48J. Alcohol exclusion condition
48K. Judicial monitoring condition

Fines

Charitable payments could arguably fulfil the same purpose as fines, both punishing the offender and denouncing their offence. However, their nature appears to be at odds with the provisions that cover fines. Most important is the issue of who the money is paid to:

59. Application of fines etc.

The whole or any part of a fine, penalty or sum of money which by or under any Act is authorised or directed to be imposed on a person forms part of, and must be paid into, the Consolidated Fund if no other way of appropriating or applying it is prescribed by law.

Fines can only be paid to the government unless otherwise specific, which in this case means the council. Thus, payments to charity can only be valid if they are not a classified as a fine. Conveniently the Sentencing Act provides a definition of what a fine is:

fine means the sum of money payable by an offender under an order of a court made on the offender being convicted or found guilty of an offence and includes costs but does not include money payable by way of restitution or compensation or any costs of or incidental to an application for restitution or compensation payable by an offender under an order of a court;

I think it’s going to be an uphill battle to argue the payments are not fines. Under the act, restitution is about stolen property and compensation is about personal injury, so these terms can’t be used to avoid such payments being defined as fines. The undertakings are in some respects voluntary as the offender must effectively consent (“make the undertaking to do something”). However, given it’s an offence to breach the conditions I think it is hard to argue that a payment condition on an undertaking isn’t payable “under an order of a court”. Curiously on the magistrates court page it lists three forms of other (not fines) monetary penalties: “court fund”, restitution and compensation. These latter two terms are clearly provided for in the legislation but I can’t find any reference to “Court Fund”.

Conceptual Difficulties

There are also other provisions in the act that suggest that such payments aren’t intended to be within the scope of special conditions (my emphasis):

5. Sentencing guidelines

(7) A court must not impose a fine unless it considers that the purpose or
purposes for which the sentence is imposed cannot be achieved by a dismissal,
discharge or adjournment.

It’s hard to see how in the majority of cases, payments to charity wouldn’t be comparable to fines in punitive capacity. If charitable payments are available as a condition of adjournments, the logical conclusion from the above provision is that they should be used in preference to fines. This conclusion is at odds with the detailed provisions covering fines relative to the complete lack of provisions covering charitable payments. It’s also at odds with current sentencing practices which show a clear preference for fines over undertakings.

A quick look at other jurisdictions shows New South Wales legislation now expressly excludes payments from forming part of such conditions, while Queensland legislation leaves it as vague as “any additional conditions that [the court] considers appropriate“. A strong authority against allowing the payments comes from a statement by Gleeson CJ sitting on the NSW Court of Appeal, made prior to the express exclusion (R v Ingrassia (1997) 41 NSWLR 447). The Crimes Act 1900 (NSW) contained the (now repealed) s556A(1A), which allowed for orders discharge an offender conditioned on “such terms and conditions as the court shall order”. The statement reads (actually quoted in the Victorian Sentencing Manual):

There was some argument before this Court as to whether the word ‘fine’ was strictly applicable to a payment of the kind now in contemplation. What was involved, counsel said, was more in the nature of a donation to the revenue. That suggestion underlines the conceptual difficulty. If donations to the State Treasury can be made the subject of conditions under s556A then so, presumably, can donations to other equally worthy objects of bounty, such as charities or victims.

If the law does not permit the imposition of a fine when an offender is dealt with under s556A, and if the imposition of a punishment would be inconsistent with the hypothesis that the court is not proceeding to convict the offender, then it would represent a triumph of words over ideas to avoid that consequence by describing the payment as a donation to the revenue. In any event, s556A is not a provision to be used for the purpose of soliciting gifts, whether to the revenue, to charities, or to anyone else.

While there is a technical difference in the nature of that case (the Sentencing Act does allow for fine with no conviction), it wouldn’t surprise me if the Victorian Supreme court echoed the same sentiment in response to this case. Thus as the law currently stands, I don’t think the magistrates’ court has the legal authority to make such payments.

Historical Perspective

To understand why the magistrates might have developed a practice of ordering payments to charity, it is necessary to consider the history of punishment in trivial cases and engage in a bit of speculation. Blackstone’s Commentaries provides details about the state of the common law in the mid 18th century. While the basic structure of the law at that time remains recognisable to modern law students, both major and minor changes have occur as the law developed over the years. Most notable is the abolishment of execution and corporal punishments such as (even then described by Blackstone as “shocking” and “disgusting”):

mutilation or dismembering, by cutting off the hand or ears; others fix a lasting stigma on the offender, by slitting the nostrils, or branding in the hand or cheek … whipping, hard labour in the house of correction or otherwise, the pillory, the stocks, and the ducking-stool.

Two important elements that Blackstone noted within the common law include firstly that a finding a guilt meant by definition the person was convicted, and secondly that a person could not be punished unless they were convicted:

[U]pon such his acquittal, or discharge for want of prosecution, he shall be immediately set at large without payment of any fee to the gaoler. But if the jury find him guilty, he is then said to be convicted of the crime whereof he stands indicted; which conviction may accrue two ways,—either by his confessing the offence and pleading guilty, or by his being found so by the verdict of his country.

Further to that, is was clear that while the judge had discretion over the length of imprisonment or amount of fine, they lacked the authority to discharge a convicted person without penalty:

[I]t is moreover one of the glories of our English law that the species, though not always the quantity or degree, of punishment is ascertained for every offence; and that it is not left in the breast of any judge, nor even of a jury, to alter that judgment, which the law has beforehand ordained for every subject alike, without respect of persons. For, if judgments were to be the private opinions of the judge, men would then be slaves to their magistrates, and would live in society without knowing exactly the conditions and obligations which it lays them under.

That said, there was still the capacity to appeal to the crown for a pardon, :

[I]f it be a small felony, or any favourable circumstances appear in the criminal’s character, in order to give room to apply to the crown for either an absolute or conditional pardon.

It appears that in Victoria the principle of mandatory punishment was overridden at least a early as 1915 and the courts in certain circumstances were granted the power to suspend the sentence and discharge a convicted offender on their own recognisance. This included the ability to attach conditions to be of good behaviour, report to police, avoid people or places and “generally for securing that the offender shall lead an honest and industrious life”. In 1949 the courts were granted the power to suspend proceedings before a conviction was recorded and release the person on a bond of good behaviour.

The distinction between these two changes is important. The mere conviction can significantly affect the future of an offender in both directly in legal matters and indirectly through impacts on employment opportunities. This means the mere conviction itself can potentially have a far more punitive effect than are justified by the circumstances of the offence. The change allowed for the courts to avoid such negative impacts in cases of trivial offences. The case law indicates that the granting of power to suspend proceedings prior to conviction did not override the  (R v Ingrassia (1997) 41 NSWLR 447, Gleeson CJ):

common law principle that a person who has not been convicted of an offence should be punished by order of a court.

This meant that at this stage it was not within the discretion of the court to impose a fine unless a conviction was recorded. This left a gap in the sentencing discretion available to judges in cases where recording a conviction would be excessive but an unconditional discharge would be inadequate.  Presumably at some stage some creative legal minds realised that while they couldn’t apply a fine, they could use the power to impose conditions to include payments to charity. The fact such conditions could only be imposed with consent and could be said to be encourage an “industrious life”; a method of proving one’s good character rather than a punishment. This means the court could have believed the condition was not substantively a punishment and therefore not contrary to the common law principle against punishment without conviction. This enabled the courts to impose what was effectively a modest financial penalty on the offender in cases where a conviction would be considered excessive.

When the power to use common law bonds was abolished by the current legislation and replaced with the undertaking provisions detailed above, it’s likely the magistrates court looked at the “special conditions” (discussed above) and assumed they could use this power to order payments to charity in the same way they had used the common law bonds. However, the modern legislation removes the common law barrier to punishment without convictions and the courts now have the power to impose a fine without recording a conviction:

7. Sentences

(1) If a court finds a person guilty of an offence, it may, subject to any specific provision relating to the offence and subject to this Part-

(f) with or without recording a conviction, order the offender to pay a fine;

This undermines the justification for imposing payments to charity as a legal mechanism for avoiding the barrier to punishment.

Given these types of sentences would be imposed as a relatively lenient outcome for an offender and entered into voluntarily, there would be little incentive for the offender to appeal any sentence involving such payments. Appeals against sentence by the prosecution are both rare and more restricted than appeals by the offender. The minor nature of the offences involved means there would be little incentive for an ordinary prosecutor to bother appealing the sentence. As a consequence, the practice of the lower courts in imposing payments to charity has likely avoided much scrutiny by the higher courts until now (at least in Victoria, the issue has clearly been tacked in New South Wales).

Underlying Principles

While it appears that the courts may currently lack the authority to require payments to charity it’s also interesting to consider whether they should have that power. The two substantive differences between these payments and fines are the requirement for the consent of the offender and the beneficiary of the payment.

The Case For

I say consent is a factor because the offender must be accept the undertaking in order for it to be imposed. If they refuse then the courts can resort to the other sentencing options which would likely mean a fine. Although this means the consent is far from being free and unencumbered, the willingness to pay and benefit someone could be said to demonstrate a sense of remorse. This could make it meaningful in the same way a guilty plea at the end of a trial in the face of overwhelming evidence is still meaningful. This could mean such payments have a role, however minor, in fulfilling the rehabilitation purpose of the sentence.

The power to determine the benefactor of such payments could also assist in fulfilling sentencing purposes. Many times an offences will be against a community more so then against particular individual(s). Payments to appropriately related charities could be part of the compensation purpose in sentencing where there isn’t a case for more direct compensation. Additionally, having the offender see their money applied to restoring the harm done could play a rehabilitation role as well.

Outside the purposes of criminal punishment, the charities themselves are worthy beneficiaries. Particular charities could be seen to be more directly associated with rectifying harm caused by offences than the government in general. There seems something inherently wrong with halting the funding charities through a mechanism that seems to have had a long standing acceptance of the community.

The Case Against

There is an important principle that stands against allowing courts to making such decisions. Separation of powers is a fundamental aspect of all Australian governments and it places the powers to collect and appropriate money rest with the democratically elected parliaments. Currently the Victorian Parliament has granted their courts the power to collect money from offenders in the form of fines. The power for the courts to appropriate these same funds however appears to still be quite limited.

At sentencing, the courts will have completed a detailed review of the nature and circumstances of the offence and the offender. This places them in a good position to assess the appropriate amount of financial hardship to place on the offender. However, they won’t necessarily have the knowledge or expertise to know where the money would best be spent, and lack the democratic authority to make arbitrary determinations on behalf of society. Further there is a lack of any meaningful accountability in regards to deciding where the funds go. The courts are intentionally insulated from external influence in order to ensure their impartiality on judicial matters. The only practical review mechanism available is the appeals process, and as discussed above this would likely not be sufficient to regulate decisions regarding the recipient of the payments. Thus it’s not appropriate for the judiciary to take it upon themselves to assign payments to third parties unrelated to the matter at hand, particularly against the express will of parliament found in the legislation, regardless of the noble intent of the judge or charitable nature of the recipient.

It is the elected legislature that is best placed to determine the principles of how the money should be spent, and the executive that has the resources (army of bureaucrats) to best deal with the details of implementation. In this particular case they have already made that determination, in that any fines are assigned to the council in order to fund the enforcement of the Food Act. Enforcement of the act protects the community from being exposed to harmful food, preventing a significant medical costs and associated loss of productivity. Having the funding of enforcement at least partially linked to successful prosecutions could help the funding remain in proportion to the level of offences and insulate it from other pressures on general revenue sources.

Finally, there is nothing in the current law to prevent defendants pre-emptively making charitable payments. The sentencing act provides that offender’s character and mitigating circumstances must be considered, and that significant contributions made to the community can play a part of that consideration. It would none the less be a bit of a gamble, as the court would be under no obligation to accept the payments as significant enough to impact any sentence.

Alternative Solutions

Alternatively legislation could be passed to grant such powers to the courts. Such legislation should suitably restrict the determination of the beneficiaries in such a way to ensure sentences remain consistent their intended purposes. There appears to be a functioning model in Canada that is one of the diversion programs structured as a complete alternative to prosecution. Importantly these alternatives require a three way agreement between the accused, the prosecutor and the court, and are structured programs developed by the executive government. The significant involvement of the government of establishing and administrating the programs ensures any payments remain within political accountability. The requirement for the approval of the courts helps protect individuals from the imposition of unjust burdens by the prosecutors. Perhaps the only criticism I could make of this system, is that it is the prosecution and not the court that has the role of assessing the evidence which could leave that assessment open to questions about its independence.  This was most likely done to expedite the process and reduce costs.

I found some interesting articles on the ability of ASIC to accept restorative undertakings in matters under their jurisdiction. One of them looked favourably on the theory behind the the flexibility of undertakings, however found that while undertakings focused on compensating victims had worked well, undertakings that focused on benefiting the community in general were very rarely entered into. This perhaps indicates the difficulty of contemplating how to best benefit the community while trying to resolve a specific offence. Although clearly there is a strong demand for such mechanisms in the magistrates’ court, so these difficulties may be limited to the nature of offences or offenders ASIC deals with.

Conclusions

The idea of a governmental institution, particularly one within the judicial branch, taking it upon themselves to go beyond specific legislated powers to order payment of money to third parties is something that sits very uncomfortably with the rule of law. It is judicial officers who ought to be most concerned with not exceeding the powers granted to them by parliament, over and above any noble motive to assist charitable causes they might favour. I think this principle overrides any sympathy that can be held for the charities or the people that ultimately benefit from their service, that will otherwise be denied a source of funds. In this case in particular, the enforcement of the Food act is sufficiently worthy to justify the payment being made to the charity. Beyond this particular case, the impact on the charities from losing close to a million dollars of funding has the potential to be quite significant. If the law does close of this source of funding I hope the state government takes swift action to ensure at least some continuity of funding.

In a more general sense, I think there is room for payments to charity to play a role in the justice system. I would have a preference for any such mechanisms to require a three way agreement as in the Canadian system, although think there may be a case to have the court, rather than the prosecution make the judgment about the weight of evidence. I think requiring at least the consent of the prosecution would be favourable to the practice currently in place. Of course any legislative action brings us to the matter of political will and consequentially to the issue of fiscal stress I raised at the start of this post. In the present economic and political environment, I can’t see any progressive sentencing changes being made in the short term, particularly where that change involves less money going into government coffers.

Categories: law, university
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