Since the 1980s there has been much law reform enacted to better protect those who experience violence in the home. This includes domestic violence (DV) legislation, criminal sanction for breaching an Order, anti-stalking legislation, and amendments to sentencing guidelines.
However, these reforms are limited by a collision of realities – differences between how the legal system and the community see domestic violence and sexual assault, and the reality for its victims
The Judicial Lens – Impeding Access to Justice
There is a tendency to minimise the harm caused by emotional, mental, or psychological abuses, as well as the harm of domestic violence full-stop. This likely correlates with beliefs that reduce an offender’s culpability, and deflect the responsibility for the violence, at least in part, onto the victims.
In a 2018 Alternative Law Journal article, we (Patricia Easteal, Bartels, and Mittal) considered recent Queensland sentencing in breaches, and highlight two ways in which the judicial lens may conflict with victims’ experiences: the failure to recognise the seriousness and harm of psychological or mental abuses; and the lack of understanding concerning the long-term effects of this type of violence on its victims.
For example, in TZL v Commissioner of Police, Kingham DCJ noted that, ‘This was an unusual sentence … The offending was entirely contact offending. There was no element of physical violence, actual, or threatened. There was no allegation the contact amounted to intimidation, harassment, or controlling behaviour.’
We were also surprised by some of the behaviours the Court defined as being non-physical violence. For example, in Taylor v Queensland Police Service, the appellant breached a temporary protection order with what was termed ‘non-physical’ violence. He punched a bathroom door numerous times, resulting in a number of holes in it. He then removed the bedroom and bathroom doors from their hinges, whilst yelling at the aggrieved, in hearing distance of her children. Both the magistrate and the appellate judge differentiated between violence against property, and violence against the person.
Gender Bias and Perceived Attitudes of Victims in Domestic Violence Cases
Furthermore, in some cases the perceived contribution or attitude of the victim was used to minimise the conduct and seriousness of the offence, especially where contact had been initiated by the victim. In this way, violence in the home may be seen as mutual, and therefore identifying a victim becomes problematic.
For example, Dearden DCJ in EAV v Commissioner of Police stated, ‘With respect, the learned magistrate has, in this matter, in my view, failed to give appropriate recognition to a number of factors, which should have persuaded the learned magistrate to consider a different outcome, namely: (1) there were mutual, cross-orders for domestic violence in place at the time of the offending; (2) the initial violence in the incident was, in fact, the complainant slapping the appellant; (3) the appellant’s violence, in response, was relatively low level (although nonetheless unacceptable) …’
The current relationship between an aggrieved person and appellant may be seen as mitigating, as Devereaux DCJ stated in RMR v Sinclair, ‘The glib medical statement offers no comfort to a court attempting to assess prospects of rehabilitation or degree of criminality. But taken with the information that his partner, the complainant, supported him at court and both intended to seek anger management counselling, the medical statement tends towards reducing culpability and promising improvement.’
In addition, in TND v Queensland Police Service, it was found to be in the appellant’s favour that, ‘his relationship with the aggrieved was a long-standing one, which was not characterised by actual violence’, and ‘he indicated remorse and insight into the effect of the offending on the aggrieved.’ To add to this, the lack of ‘actual violence’ evident in their relationship was considered a mitigating factor, despite the breach itself containing physical violence.
Domestic Violence Research – Colliding with the Victims’ Experience
Survivors of domestic violence may be full of inner fears and low self-esteem, which can make them vulnerable to duress and coercion. From the victim’s perspective, domestic violence is insidious and unpredictable. There are many manifestations of violence aside from the more apparent and harder-to-hide broken bones and bruises.
These less visible acts, like slaps and shoves, are about a need to exert power, and are enacted through emotional abuses, rape, financial exploitation, damaging property, injuring pets, harming the children, and death threats. The different masks of control are ongoing, generally gets more serious, and may be joined by a variety of other physical expressions of power.
The violence and its effects can result in feelings of shame and a lack of identity. This creates very similar conditions to a Stockholm syndrome type of trauma bonding to occur between the battered woman and her violent (ex-) partner; she may become a ‘hostage in the home.’ This is exacerbated by domestic violence’s insidiousness, unpredictability, and persistence following separation.
Therefore, what may appear as collusion by the woman, and reconciliation of the couple, could in fact be the opposite. Sentencing considerations that place weight on the ‘contribution of the victim’ and ‘support of the victim’ may be of concern and fail to appreciate the ongoing sequelae of domestic violence.
Domestic violence victims, ‘may be actively pressured to forgive their assailants, or compelled for other reasons to show a preparedness to forgive them,’ and precludes consideration of victims’ statements of forgiveness of the defendant as a relevant sentencing factor.
Limits of Women in Law Reform
Although Legal Light Bulbs has identified some examples of cases where judicial officers appeared to understand the nature of domestic violence and the victims’ reality, there is clearly scope to go further and thereby avoid collision between the ‘reality’ (mis)construed by some judicial officers and victims’ experiences.
The Queensland sample of judgements is illustrative of the benefits and limits of women and law reform in the domestic violence space. The Bench Book is undoubtedly an important step in the right direction, although our examination of cases in Queensland suggests it isn’t necessarily being applied consistently. Perhaps what is currently missing is application of this knowledge to the particular facts and dynamics of violence of the case in question.
Indeed, guidelines and laws are only as good as the judicial officers’ and other relevant stakeholders’ adjustment of their perceptual lenses to ensure they can see the victim’s perspective.
Legal Light Bulbs can play a role in this perceptual adjustment through domestic violence training, violence against women research, and the provision of expert court reports. Legal Light Bulbs provides the victims’ lenses (their way of seeing the situation) and works to contribute to the exercise of a more clear-sighted and victim-tailored exercise of judicial discretion.