The Australian government should consider introducing specialist courts for defendants who are war veterans, according to a Sydney criminal law researcher who has analysed 50 court cases involving veterans across nine decades.
Associate professor Arlie Loughnan found post-traumatic stress disorder and other serious mental health issues associated with serving were commonly taken into account by the courts, which at some times worked more strongly in favour of the defendants and at other times, did not.
Her analysis of criminal trials, appeals and sentencing hearings between 1921 and 2013 involved serious offences such as murder, drug crimes and incest, with her findings published in the journal Critical Analysis of Law.
Loughnan, a senior lecturer from the University of Sydney’s law faculty, said she found court treatment of veterans had changed over time as social perceptions of war also changed.
“I found much earlier in the century, with more positive associations around war and less controversy, treatment of veterans by the courts was correspondingly more focussed on the heroism and sacrifices that person had made for the benefit of the country,” she said.
After the Vietnam War, the longest war Australia was involved in and which was marked by controversy, veterans were still often treated as special cases, but for different reasons, she said.
“It becomes quite clear that after Vietnam, veterans as distinct and special became more based in their diminished status, and wrapped up in an idea of incapacity, trauma and diminished autonomy and therefore, diminished responsibility,” she said.
Being a veteran did not always help a defendant’s case, she said. In a South Australian case from 1987, the court deliberated over whether it was service alone that warranted special treatment, or only serving as part of dangerous mission that did.
The court lamented that there was not “more concrete and specific submissions” about the defendant’s war record, because it could help them justify special treatment.
“These are the sorts of calculation that happen in attempting to evaluate an individual, that seem to be made based on social attitudes to service,” she said.
“It’s quite a nuanced way of considering a case, to say society owes ‘braver’ soldiers more than less stellar servicemen or women.”
The sensitivity and complexity of these cases meant Australia should consider specialist veterans’ courts similar to those of the US, she said, because such courts were more likely to consider the significant treatment needs of veterans which prisons could not provide.
The research highlighted the importance of providing ongoing support to people returning from war or military service and addressing the root causes of serious offences they had allegedly committed, if rehabilitation was the goal.
“Specialist courts were pioneered in the US, where there are also domestic violence courts and drugs courts, and they operate on a treatment rather than a retribution rationale,” she said.
“US sentences are very severe in that they go up to the death penalty, and these courts allow a way of stepping outside that trajectory and allow a different rationale to sentencing.”
However, opponents to the courts may argue it was not just veterans who may have sympathetic causes of their offending, she said.
“There are other types of disadvantage, like social disadvantage, that could be just as relevant and which we are less open to considering as mitigating factors, and there’s a fear [that] allowing special courts for certain groups may open up a slippery slope of finding no one responsible for anything,” Loughnan said.
The Returned Services League national president, Rear Admiral Ken Doolan, said that the League agreed with Loughnan that specialist courts should be considered because rehabilitation would be a more likely consideration, given such courts had staff with expertise.
“Veterans charged with offences, where it can be established or is highly likely that the commission of these offences is due to the long-term deleterious impact on their mental health of operational service, should be dealt with by the criminal justice system with compassion and understanding,” he said.
“They are themselves victims as it can be cogently argued that they probably would not have committed the offences with which they are charged had they not suffered the mental trauma brought about by their operational service.”
The League would welcome any initiative which will lead to a better understanding of and treatment for veterans suffering post-traumatic stress disorder or other mental traumas resulting from their service, he said.
The establishment of veterans’ courts is unlikely to become a reality any time soon, according to the minister for veterans’ affairs, senator Michael Ronaldson.
“This is not under consideration, nor will it be,” he told Guardian Australia.
