Burdens of war service create a strong case for a veterans' court

This article is part of the Beyond Prison series, which examines better ways to reduce re-offending, following the recent State of Imprisonment series.

The centenary of the Gallipoli landings and other significant wartime anniversaries has prompted sober reflections on the enduring and multifaceted consequences of war in the 20th century. While it is well known that the experience of war or military service has a wide range of effects on soldiers, the way these affect war veterans charged with criminal offences on return to Australia is less well known.

For serving armed forces personnel, the military justice system is a closed system for dealing with offences. Former soldiers charged with offences are dealt with through the ordinary criminal justice system.

A special category of defendants

We might think that these ex-soldiers' treatment is indistinguishable from that of any other defendant. But research reveals such individuals are accorded special status in criminal adjudication and sentencing practices – as “veteran defendants”.

This category of “veteran defendants” – apparent by implication, rather than on the face of the law – exposes the way in which the changing social meanings of war, soldiers and soldiering affect the legal treatment of veterans.

The research, based on a qualitative study of criminal cases of ex-soldiers charged with serious offences, shows that different ideas about individual responsibility for crime run through these cases. These ideas centre on the ex-soldier as a complex figure, simultaneously agentic and victim-like, courageous and vulnerable, both more and less than other defendants.

The research indicates that the special status of “veteran defendants” has two dimensions.

On the one hand, “veteran defendants” are seen as über-citizens, civic models or exemplars. They are people to whom gratitude is owed and who generate responsibility in others involved in the adjudication and evaluation process.

On the other hand, they are legal persons with “diminished capacity”. This means they have impaired or reduced responsibility for crime.

What explains the specialness of “veteran defendants”? Early in the 20th century, notions of bravery, loyalty and sacrifice animate the legal treatment of such individuals. As one judge stated, in some cases of “exceptional valour” or serious injury, “society owes them [soldiers] much”.

In more recent decades, and particularly since the Vietnam War, the idea of war as traumatic, perhaps even criminogenic, has risen to the fore. With this has come an idea of the criminal actions of ex-soldiers as being in some way caused or determined. In the latter category of cases, an individual’s war trauma may form the basis of a defence (such as diminished responsibility) to the charge, or mitigate their sentence.

Even with reliance on clinical diagnoses such as post-traumatic stress disorder (PTSD), however, the complexity of the personal experience of war trauma remains hard for the criminal legal system to grasp.

It is clear from this research that judges are trying to accommodate the specific circumstances of “veteran defendants”. But it’s not clear that individuals with significant mental disorders and other treatment needs can be appropriately dealt with in prison, nor that such an approach serves either victims or the wider community well.

Veterans' courts point way to broader reform

US veterans' courts focus on rehabilitation to help prevent re-offending.NYS Health Foundation

Veterans’ courts offer an alternative. As they operate in the US, such specialist courts are therapeutic. They focus on treatment and rehabilitation rather than punishment.

Through such courts, drug treatment, job training and other programmes attempt to address the causes of criminal conduct. Judicial officers develop specific expertise in relevant cases.

Such specialist courts, like diversion and restorative justice approaches to crime, emphasise “participation, validation, collaboration and accountability” on the part of the defendant. These courts also have the potential to go some way to serving victims’ interests by reducing recidivism.

Australian experiences of war have varied significantly. But, despite declining numbers of active military personnel, fewer military casualties and scant public support for war or overseas troop deployments, the social status of returned service men and women has remained high.

Capitalising on this status, and seizing an opportunity to reset our approach to crime, the creation of veterans’ courts would represent another way of providing ongoing support to military veterans.

Discussion of such a proposal could be part of a wider community conversation about criminal justice and imprisonment. The latest evidence of the disconnect between imprisonment rates and crime rates provides yet more support for a fundamental reconsideration of criminal justice in Australia.

The creation of a specialist court for veterans may well generate real momentum for treatment-oriented courts. It would thus represent the vanguard of a wider, long-term movement towards a justice system that genuinely tackles the causes of crime.

You can read other articles in the Beyond Prison series here.

This research is supported by the Australian Research Council (ARC) grant Responsibility in Criminal Law (DE130100418).