With the Victorian Royal Commission into Family Violence looking at practical solutions to improve the state’s response to domestic violence incidents, The Law Report takes a look at how police forces in the United States deal with the problem.
The Australian response to domestic violence needs to change, a leading legal expert has told The Law Report.
In Australia, police at the scene of a domestic violence incident usually focus on enforcing or seeking an intervention order.
Police are looking for a quick and easy answer to a situation, and a protection order is perhaps the simplest thing to do in that particular case.
PROFESSOR HEATHER DOUGLAS, UNIVERSITY OF QUEENSLAND.
In the USA, by comparison, police are more likely to criminally charge perpetrators of domestic violence under their country’s Violence Against Women Act.
‘We looked at about 800 applications for protection orders [in Australia] about 10 years ago, and we found that there were about three cases where there was a concurrent prosecution of a criminal offence,’ says Professor Heather Douglas, an ARC future fellow based at the TC Beirne School of Law at the University of Queensland.
The professor and her colleagues also found that even in cases of stalking, assault and criminal damage, most perpetrators are charged with breaching a protection order and fined as little as $200.
Protection and intervention orders are a civil matter, not a criminal one. According to Douglas that can leave victims feeling frustrated and isolated.
‘They ask the question, “Why? If he punched his mate at the pub he would have been charged with assault and there would have been a much more serious penalty, in my case all the police do is get me a protection order, and even that takes ages to serve and they are not very helpful.”‘
Read more: The psychology of domestic violence
Douglas believes police are reluctant to pursue charges because of the added workload and the difficulty of using victims as witnesses.
It can also be difficult to initiate criminal proceedings at the time of the crime.
‘Some women complain that they are asked if they want to make a complaint, which would initiate a charge, at the scene of the domestic violence callout—it’s quite tense, it’s high emotion, women are fearful, the man might be there or out in the car with the other police officer, and that’s the context in which they are asked the question.
‘Police are looking for a quick and easy answer to a situation, and a protection order is perhaps the simplest thing to do in that particular case.
‘Dealing with it as a criminal offence means collecting evidence, staying back, organising times for statements—there’s a lot more work involved. Witnesses or potential witnesses—the women who will be the complainants—they need a lot of support through that process.
‘It’s tough, it’s hard. It’s certainly not the easiest option but I think it’s important to be making that option available.’
In the United States, by contrast, criminal proceedings have become near-unavoidable when it comes to domestic violence.
According to Professor Leigh Goodmark from the University Of Maryland Francis King Carey School Of Law, there has been a conscientious effort by the US government since 1994.
‘The Violence Against Women Act is the legislation that was passed in 1994 that made all of the policy innovations in the criminal justice arena possible,’ says Goodmark.
‘It declared that domestic violence was a crime, it put hundreds of millions of dollars into supporting police and prosecutors and courts in building the criminal justice response. It’s an interesting example of what happens when you take the criminal justice response too far.
‘What it did was to say police aren’t making arrests and therefore we are going to make a policy that says in every case where they have probable cause to do so, police must make an arrest; that’s called a mandatory arrest policy.
‘A mandatory arrest was meant to cure the problems that Professor Douglas has talked about; the police’s unwillingness to bring charges, particularly when women were reluctant. But for us the pendulum has swung too far the other way and those mandatory policies are deeply problematic.’
Read more: Australia’s epidemic of domestic violence
According to Goodmark, the judgement of the individual victim as to whether or not to criminally charge their assailant has been completely replaced by the judgement of the state. The state always judges the answer to be ‘yes’ and proceeds with criminal charges.
‘When the police come to the scene, instead of … having a conversation where you say “these are the charges that might be laid, this is how long he might be held, this is what the expectations of you might be if this case proceeds in prosecution”, what officers were saying was “we are here and we have to make an arrest so we are making an arrest”.
‘So women lost the ability to say, “I need this person to be around, I don’t want a criminal prosecution, I don’t want to participate in prosecution, I need co-parenting assistance, I need economic support and all of those things will cease to exist if this person is prosecuted.”‘
Mandatory arrest policies have also led to an increase in women being arrested. Rates of dual arrests and rates of arrests of women have significantly increased due to the pressure on police to make arrests in complicated circumstances.
‘When there are defensive injuries on the man but no injuries that are visible on the woman—as is often the case with strangulation—you might get the woman arrested as a result of those defensive injuries,’ says Goodmark.
Furthermore, mandatory arrests do not mean the victim will necessarily co-operate during any further criminal proceedings. Advocates for domestic violence victims in the US have noted that few arrests proceed to trial, leading to so-called ‘no drop prosecutions’, in which women are subpoenaed to appear as witnesses against their will and potentially imprisoned if they don’t comply.
For Professor Heather Douglas, the challenge for the legal system in Australia is to provide victims with options. ‘I don’t think anybody in Australia that is arguing for better, more appropriate, more consistent application of the criminal justice process is arguing for any kind of mandatory response to domestic violence,’ she says.
‘Too often I think police just do the quick fix of going into a scene—and I appreciate they’re in a hurry, there is a lack of resources, there’s all sorts of reasons—and turn to the domestic violence protection order legislation without thinking it may be criminal activity. They should keep that in mind in their attendance at those scenes.
‘Some women tell me that their partner going into custody was the moment they had where they could get safe housing, they could get their kids in a safe school.
‘One woman started a diploma. She really got her life back on track in the six months that her violent partner was in custody.’
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