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Proactivity vs Reactivity in Domestic Violence Matters

By Jenna Lewandoski, GTC Lawyers

Criminal offences today are categorised into different levels of severity, which have been largely shaped by the societal reaction. For example, a crime is committed; society then creates a label by which the individual will identify with, followed by an appropriate punishment in relation to the level of severity attaching to the offence. Domestic violence, however, differs from other common offences, as it is primarily committed in the privacy of one’s own home. Domestic violence has been a systematic issue for decades now, but has in recent times come to legislative attention in recognising that we need to distinguish domestic violence offences and focus on early intervention strategies rather than dealing with the matter after the offence has already occurred. The focus now is narrowing in on how New South Wales authorities can intervene before the perpetuation of domestic violence occurs and to offer assistance to both the victim as well as the perpetrator without acting in a reactive manner.

Definition 

Domestic violence is characterised as a patterned and repeated use of coercive and controlling behaviour to limit, direct, and shape a partner’s thoughts, feelings, and actions.[1] This repetitious behaviour ultimately immobilises the victim from seeking help as they may eventually feel as though it is too late or that there is nothing that can be done to stop it. Early intervention is therefore vitally important as domestic violence usually increases in frequency and severity over time. It is important to have a consistent definition of domestic violence as it ensures that the intimidating behaviour and psychological abuse can be addressed before the conduct increases in its frequency as well as seriousness. Unfortunately, New South Wales has remained relatively complacent in the way that domestic violence is dealt with and many people do not realise the extent and gravity that it has upon dealing with these matters in the future.

Legislation

In terms of legislative application, domestic violence did not attract the attention of law enforcers until the late 1980’s and even now, legislation that is inclusive of domestic violence is largely ambiguous.[2] In March 2008, the Crimes (Domestic and Personal Violence) Act 2007 was enacted which replaced the various sections of the Crimes Act 1900 (NSW) relating to domestic violence.[3] The aim of this legislation was to reduce trauma and stress for victims of domestic violence.

Research

Research on characteristics of perpetrators is now largely focused on developing typologies so that intervention strategies and resources can be matched appropriately to offenders.[4] Current intervention strategies seek to address the criminal law in making it more effective in dealing with common assault occurring within a private setting as well as providing protection from future violence and harassment for victims. In attaining both the legislative and preventative aims, the primary question is whether, within New South Wales, we can achieve a system whereby it addresses both the victims as well as the perpetrators needs in preventing these crimes from furthering themselves into the private sphere.

Recently, strategic approaches to prevention and early intervention have started to arise with the younger generation, as no matter how a good a role model is in the home, children and adolescents are also affected by the broader world; what they see on television (women being abused, kidnapped, sexualised), what they learn from friends at school and what they learn from their own personal experiences. Therefore, to prevent domestic violence, disrespectful and discriminatory attitudes and beliefs towards women must be adequately addressed.

Apprehended Domestic Violence Orders and their effectiveness in NSW

Under the Crimes (Domestic and Personal Violence) Act 2007, a Police Officer must apply for an Apprehended Domestic Violence Order (ADVO) if they believe a domestic violence offence has recently been committed, is being committed, or is likely to be committed. Whilst, strictly speaking, ADVOs form part of civil law, they are almost always sought in circumstances where a criminal offence is alleged to have occurred. Therefore, Police Officers have a wide ambit of discretion when making an ADVO application. It is important for the Police to consider both sides of the story when exercising their discretion to make an application as it can have severe consequences on both parties. This only comes with proper training practices and education in the Police Force

The making of an ADVO whether on an interim or final basis, can have significant consequences for the defendant including:

  1. A firearms licence will automatically be suspended;
  2. The tenancy of a tenant or co-tenant under a residential tenancy agreement may be terminated;
  3. A final ADVO can be considered in a Working with Children Check; and/or
  4. A final ADVO may impact in the area of Family Law.

There has been contention over whether ADVOs are effective as a preventative mechanism. ADVOs have a dual operation in that firstly, it allows for recognition of the fears the victims holds and secondly, it enforces restrictions and conditions upon the perpetrator to prevent any further violence against the victim. It is suggested however that particular victims may be more willing to pursue the application of an ADVO solely, rather than proceeding by providing an accurate statement which may form a criminal offence or lead to a charge.[5] This alludes to the fact that domestic violence has the ability to escape conviction.

Various commentators have criticised the emphasis on civil protection orders in NSW. For example, McGregor & Hopkins (1991) see the irony in the fact that the focus of the movement was towards the recognition of the criminal nature of domestic violence. Yet in many cases where common assaults have occurred, no charge is laid by the police and a civil order is taken instead.[6] Although the victim may be actively trying to avoid the prosecution of the perpetrator, the mere option of having these orders available enforces the idea that an ADVO should be the first port of call, ultimately maintaining the silence of abuse and violence.

Early Intervention Models

One of the most important early intervention models is to examine the process of behavioural attitudinal change for individual men and the process of societal change for men as a group.[7] Society has slowly begun to shift its expectations cast upon women, however, what remains stable is our uncertainty about precisely how deterrence through social control might actually ensure women’s safety. Objectively, it seems quite simple that changing men’s attitudes towards women would be the most effective way to address the prevalence of domestic violence, but literature is constantly reminding us that male perceptions of women are only surfacing issues.

It is fundamentally important for organisations to identify risk in a common way, as failure to do so will mean that victims of violence may fall through the gaps between agencies. In 1990, in a study undertaken at St Vincent’s Hospital in Sydney revealed that 12% of cases of alleged violence presenting to the Emergency Room were the result of domestic violence.[8] Therefore, it has become predominantly clear that women use the hospital (emergency room) as one of their primary port of calls when they are in a violent relationship. National and international literature reveals that women are very unlikely to disclose certain violent attacks by intimate partners unless asked directly by healthcare practitioners.[9] Hospitals and health care providers have recently begun to develop and implement training programs that are focused on domestic violence identification as an early intervention approach. Health care practitioners are known to treat an injury without actually enquiring into how the individual was injured. Professionals who therefore respond only to the perceived severity of the presenting violent incident risk missing the context of the continuing violent relationship in which it is most probably embedded.

It is not just the criminal justice system that can make a difference in the prevention of domestic violence abuse, but other areas of government agencies that can allow for this systemic issue to be properly addressed. Accuracy is a fundamental characteristic in domestic violence identification because if a health practitioner has any sort of inkling that a patient may be presenting to them due to an assault or a violent attack by a partner and they disregard it because they are not certain or do not want to offend that individual, often times the offence will go unnoticed. Asking questions is the first step in breaking the chain of events as these types of preventative models outline other possible intervention strategies that staff may provide including referral to the police, arranging overnight stay or providing information on services in the area.

Conclusion

It is estimated that domestic violence costs the NSW economy over $4.5 billion dollars annually.[10] The costs to vulnerable individuals and victims of domestic violence are however immeasurable. Domestic violence will not be effectively eliminated unless perpetrators are actually held accountable for their actions but at the same time, they must also be given relevant opportunities to change their behaviour. All government agencies, as well as non-government agencies, must coordinate with the victims’ and perpetrators’ needs in order to effectively reduce domestic violence. As a society, we must also consider whether our interventions and preventative techniques are designed to be radical or pragmatic, as at this time, NSW has revealed to be less equipped to handle such matters with efficiency than other countries which have developed a standardised domestic violence approach.

References

[1] Laing, L ‘Progress, Trends and Challenges in Australian Responses to Domestic Violence’ (2000) Australian Domestic and Family Violence Clearinghouse, 1,16

[2] Alexander, R, Domestic Violence in Australia: The legal Response (The Federation Press, 3rd Edition, 2002), 24

[3]
Hannon, L., De Vecchio R. & Burgum, P, ‘Apprehended Domestic Violence Orders: Review of the role of police in the application and enforcement of ADVO’s’ (2008) Police Association of NSW, 3

[4] Danis, F. S. ‘ The Criminalisation of Domestic Violence: What Social Workers Need to Know (2003) Social Work, 48 [2], 238

[5] Ibid, 4

[6] Ibid, 4

[7] Lewis, R., Dobash, R. E., Dobash R., P. and Cavanagh, K. ‘Law’s Progressive Potential: The Value of Engagement with the Law for Domestic Violence’ (2001) Social Legal Studies, 10 [1], 108

[8] Ramsden, C. and Bonner M. ‘An Early identification and intervention model for domestic violence’ (2002) Australia Emergency Nursing Journal, 5 [1], 15.

[9] Ibid, 16

[10] Ibid, 2

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