The hospital at the bottom of the DV cliff

May 7, 2024
Sydney, Australia. 27th April 2024. Protesters marched from Belmore Park to Hyde Park in a rally hosted by ?What Were You Wearing? described as ?Between the 26-28th, people from all over Australia are coming together in their communities to rally against violence! 28 women have been killed since the start of 2024, and we are beyond fed up! Domestic, Family & Sexual violence are at an all time high and nothing enough is being done about it.? Image: Alamy/Richard Milnes/Alamy Live News

A sense of crisis now pervades discussion of what to do about violence against women, made obvious by recent marches demanding action, statistics suggesting that the rate of fatal attacks is increasing, and general unease after several knife attacks in Sydney, in one of which women represented five of the six victims.

Anthony Albanese and federal ministers conducted a meeting with premiers and chief ministers to develop the momentum. They have announced a five-year program of spending to assist victims of domestic violence. Though domestic violence, or general violence against women, as crime, is primarily a matter for state and territory police forces and state jurisdictions, Albanese and his ministers see the necessity to take a lead. A lead, at least, in recognising they must take action. What is not clear is what they should be doing.

Frontline agencies in the legal, welfare and community sectors feel under-resourced in dealing with the immediate and considerable problems of victims. Whether rates of domestic violence are increasing or not (a matter of some debate), or whether there are more cases in the modern era in which violence is escalating into homicide and serious assaults may be moot. But there’s no doubting their sense of being overwhelmed, the feeling they are running a hospital at the bottom of a cliff. They might all like to deal with long-term cultural problems, including misogyny, and programs designed to identify potential perpetrators representing particular risks, as well as women and children at special risk of serious incidents. Or to do programs on anger management, the de-escalation of conflict, and means of improving reaction times at moments of confrontation.

In recent decades, police performance in dealing with domestic violence has improved enormously. Special squads have been established, and police take a lead in helping women get domestic violence orders, in serving them on offenders (many of whom will not know of the orders until served and given notice of requirements to keep away from the home of victims and other orders). They are also taking more charge of pushing prosecutions of their own initiative when assaults or other threatening or controlling behaviour is involved. Earlier practice tended to downgrade the significance of “domestics,” and to be cynical about prosecuting on the grounds that victims would later seek to withdraw charges. This might be because of threats from the perpetrator, or a victim’s realization that the help or protection that she and her family could expect if the perpetrator were in jail would make their position seem to be worse.

Police and the court system have been criticised because, it is said, far too many violent perpetrators are released on bail, and a significant subset of them promptly return to the victim’s premises, in violation of orders, and repeat their assaults.

Some DVOs are followed by escalating violence, leading to murder.

There are distinct types of personalities of offender. There are some for whom the intervention of the law and demands about staying away from partners seems (to them) to represent a particular outrage, to be responded to with increased violence. Over time, many of these have a marked tendency to dial up the anger and the violence, with some reaching the point of the murder of partners and children, and sometimes murder-suicide. In most cases of homicide, the offender will have already been known to the system. If he was bailed, as has happened recently, there will be any number of people, some with their own axes to grind, who will seek to blame the slackness of the bail system, or the weakness of magistrates, rather than systemic faults.

Some of these faults are by design, often for good reason. A DVO is usually obtained without the presence of the person subject to the order, on an application by the person in fear of him (or her). The order has legal effect, but does not represent any sort of conviction, or formal finding by a magistrate that the person is guilty of any offence. It does not figure on a criminal record. This is built in because otherwise it would be impossible and very cumbersome for the courts to act quickly to protect victims. The magistrate can grant an order if satisfied, on evidence before them, that the victim is in fear of assault, often further assault. Those made subject to orders will often claim belligerently that they want to plead not guilty to the allegation. They are told that because the order does not count as any sort of conviction, there will be no hearing. The alleged offender must simply abide by the order to keep their distance.

Of course that does not prevent a simultaneous charge of assault, with police presenting evidence about what they saw on their attendance at the victim’s home. The victim may give evidence, as many other witnesses, including civilians who heard the hullaballoo and called police. There is, usually, little to be gained by attempting to attack the credit of the victim, or to closely dispute the assault if there are other witnesses. In serious cases, perpetrators can and will get jail.

Some personality types obey orders. Indeed the orders may serve as a circuit breaker in a relationship crisis, prompting a perpetrator to get some help, to recognise that a relationship is over, or to understand that any attempt to repeat violence or threatening behaviour will imperil their job, wider family relationships and, quite possibly, access to children. An overwhelming proportion of orders are obeyed.

But any disobedience to orders is too many if it puts victims at continuing, or escalating risk. Even tiny fractions of breaches of orders amount to hundreds of cases. It may well be that the next reform in the law will be to put those judged as particular threats under greater supervision, perhaps on remand. Police, counsellors and criminologists claim that modern predictive technology, including personality testing, can predict those offenders most likely to cause continuing problems. Predictive technology now exists, at least in most jurisdictions, but is not usually deployed. It can make mistakes but is usually far more accurate than any seat-of-the-pants judgments by a police officer attending a confrontation. Such an offender could of course be made subject to the DVO immediately, but also required to report to the police, or a domestic violence centre soon after. At that interview, efforts would be made to do a risk assessment which is better than most of those now in operation.

The point of this is that it could provide the evidence for more intensive orders, or for detaining the alleged perpetrator as a serious threat to the safety and security of the alleged victim.

Detention might be best for those predicted to disobey.

No one thinks that all men are perpetrators of violence against women or their partners. But some say that the problem is so extensive, and the threat to life and limb so great, that there should almost be a presumption of detention whenever the allegation arises. Too draconian? Some, especially those involved in men’s rights groups, would say so. Others would point to the fact that domestic violence is far more common than domestic terrorism, kills more people, especially women and children, and causes much more mayhem and threat to life. Yet the risk of terrorism is held to be such that all manner of highly illiberal legislation, including reversed onuses of proof, preventive detention, compulsory questioning, is permitted. At what point can it be said that the clear and present danger of being assaulted by a partner is such as to justify such preventive interference with ordinary civil liberties? When, such people might say, is protection of potential victims to be rated more highly than the civil rights of people who have already shown themselves to be a risk to their partners or former partners?

I do not believe that we have reached the point that we have to throw out protection of human rights. Indeed, I do not believe there is justification for the inroads on human rights made by the anti-terror or national security legislation. Moreover, it is doubtful when, from a practical point of view, it would be possible to greatly extend the accommodation available in Australian jails without a massive re-investment. Thanks particularly to law-and-order panics by Bob Carr (as hectored by Alan Jones) in the mid-1990s, NSW then Australian prison populations doubled in less than 15 years. This was although almost all crime rates, including murder, serious assaults and serious property offences fell significantly. Even in the ACT – home of the most liberally sentencing judges and magistrates – the prison population is about twice what was planned or expected.

We haven’t the jail space to house everyone who breaches a DVO. We need to be thinking of smart technology to tell when someone is breaching an order by being too close and raise alarms.

Most Australians, especially women, want a tougher regime to stop women being murdered. That’s no mere matter of uninformed populism. It represents increasing dissatisfaction, particularly but by no means exclusively among women, with the protections provided by the law, its guardians and the government to women. It is based on anger at the death toll and that so many women are living in fear. It is rising higher and higher on the political agenda. It’s not a matter of so-called wokeness, or of any intention to suppress the rights or personality of being men. But it’s about the establishment of new forms of relationships, dropping notions of dominance and mastery for concepts of equality, non-discrimination and mutual respect. By no means does this imply some transition to a utopia where all crime fades away and everyone is perfect. But it presupposes that we all start from the same place and don’t live in fear of each other.

Women and men are showing themselves increasingly impatient at the pace of change. That is a feeling not only affecting the political sphere directly. It is also affecting, even out of the direct arena, what citizens expect from good government and civil society.

The popular perception that Scott Morrison was weak and half-hearted about such protections was one of the factors that brought him down. One need look only at his conduct over the women’s march of 2022, his response to allegations of widespread harassment of women in parliament, and statements that he wanted to improve women’s rights, but not at the expense of men.

That women marched again recently, with a new fervour associated with recent domestic violence killings, shows that the pressure has moved on to Albanese, and that neither he, not Labor gets any sort of free pass. Although the focus of the recent march was on domestic violence, it has also borrowed from unease at reports of systemic problems with sexual assault investigations in the ACT, including very low prosecution rates, and the recent Federal Court decision in which a judge declared himself satisfied, at least to a civil standard, that Bruce Lehrmann had raped a young parliamentary staffer.

Changing the culture of male violence.

Of course, best practice policy over domestic violence would not be focused only on picking up the pieces when people assault their partners. Nor merely in shielding victims and their children from further contact with perpetrators or providing help with accommodation and expenses if they must find alternative accommodation. These are all necessary now. But the best programs would be working to prevent domestic assaults before they happen. By work among women and other potential victims, but equally among potential perpetrators. It should start in schools. Ideally, it would work on cultural problems of toxic masculinity, resort to violence and attitudes of male superiority: the foundation not only for partnership violence but also sexual assault. This is much slower, more patient stuff, and for a long time, there will be groups who will deride any campaigns as woke, as politically correct and as being calculated to undermine men. That there will be such opposition is inevitable but that does not mean it cannot change the conversation and working ideas of how Australians interact with each other. We simply want people to understand that domestic violence and sexual assault are unmanly and totally unacceptable.

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