Patterns of Victimisation and Domestic Violence

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Apprehended violence orders can be made for the protection of people who fear abuse from others. These can be domestic (where the two persons are in/were in a domestic relationship), or personal (general). Orders are made under the Crimes (Domestic and Personal Violence) Act 2007, s 16 (domestic) and s 19 (personal). The requirements that must be satisfied for the application to succeed are as follows:

  • The court must be satisfied on the balance of probabilities that the complainant has reasonable grounds to fear, and in fact fears:
    • (a) that the defendant will commit violence against him
    • (b) that the defendant will perform the following conduct to the extent that it justifies an apprehended violence order:
      • (i) intimidate him, or another person with who the complainant is in a domestic relationship with.
        • Intimidation does not always require actual or threatened violence to the person or their property.
      • (ii) stalks him.
  • The 'in fact fears' requirement is not necessary if:
    • the order is for a child.
    • the order is made for a person with appreciably below average general intelligence function.
    • in the opinion of the court:
      • the person for whom the order is made has been subjected to conduct constituting a violent offence in the past, and
      • there is a reasonable likelihood that the defendant may commit a personal violence offence against him person, and
      • the making of the order is necessary in the circumstances to protect the person from further violence.
  • If a ADVO is applied for, the complainant must have had a domestic relationship with the defendant.
    • A domestic relationship is defined covers a wide range of relationships, including marriages, de facto partners, house-mates, relatives, dependents etc: s 5.

This article is a topic within the subject Criminal Laws.

Contents

Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 677-692.

Patterns of Victimisation

[1] Key themes are:

  • The largely hidden nature of violent crime due to under-reporting.
  • The familial or relational nature of much violence.
  • Male violence against women.
  • Adult violence against children.
  • The importance of age and gender differences.
  • The influence of social and group differences (eg racist violence, violence against gays and “official” or “institutional” violence by state agents such as police or prison officials).

[2] R Hogg and D Brown identify a number of patterns and characteristics of violence:

Male Violence

  • Excessive alcohol consumption is often present.
  • Offenders are mainly young males from lower socio-economic backgrounds.
    • Males were the victims in 75% of cases and the offender in 85%, in a study of police data.
  • There is a general reluctance to call police when altercations occur at licensed premises, as staff may consider it to be “an in-house matter”.
  • Police appeared to regard victims as at fault in some cases, due to their patronage of ‘rough’ premises or because they were drunk.
  • Violence among family members frequently involves power and strength inequalities and is related to the “emotional and material dependencies that characterise intimate relationships.”

Family Violence

  • The high incidence of family homicides suggests that non-fatal violence must also be extremely widespread.
  • Unemployment and low socio-economic status were often characteristics of both the victim and the offender in domestic violence situations.
  • Higher socio-economic brackets were characterised by different patterns of violence – usually short-term and resolved by separation (which is more problematic financially for other groups.)

Violence in Aboriginal Communities

  • The chronic levels of violence are the legacy of “government policies of dispossession, forcible resettlement, segregation and breaking up of families and communities by the systematic removal of children and other measures.” Many Aboriginal adults of today grew up under these policies and as a “body of attitudes, de facto policies and routine practices, many characteristics of segregation continue to be entrenched in local communities and institutions.”
  • Other problems also affect the communities on a large scale and contribute to assault patterns: under-employment, chronically bad and overcrowded housing, horrific health standards, high levels of alcoholism and limited educational opportunities for the young.
  • Homicide rates are seven times that of the general population, this and other evidence suggests that non-fatal violence is very high.
  • The official rates of serious assault are more than five time the State average and twenty times the average for Palm Island.
  • “Drinking sessions and accompanying conflict constitute a pervasive form of sociality which is far less circumscribed by the conventional segmentation of time and activity between work, home and leisure.
  • The usual solutions to violence – prosecution and incarceration – may actually worsen the problems by further destroying and reducing the population of the community.

See the Textbook page 681 for referrals to more sources on patterns of violence in Australia.

Domestic Violence and Legal Change

[3] According to the NSW Ombudsman, in 1998-99, more resources were used by police responding to domestic violence than to any other crime.

  • A NSW Judicial Commission survey of magistrates found that two thirds of magistrates estimated that they spent 10-20% of their work on apprehended violence orders.

See textbook page 682 for further statistics and sources.

History

[4]

  • ‘Dependent wives across the class spectrum appear to have been vulnerable to domestic violence.’
  • Historically, only when the assault amounted to malicious wounding or attempted murder was the intervention of law enforcement deemed appropriate.
  • The cost of litigation is highly class-biased and restricts legal remedies for poorer citizens.

Legislative Changes

[5] In the latter part of the 20th century, there was a shift in policy towards intervention in domestic violence. Reforms were in the form of the Crimes (Domestic Violence) Amendment Act 1982 and 1983. The aims were to make the police and courts more effective in dealing with domestic violence and to treat it as assault. The legislation:

  • Established procedures for obtaining an apprehended domestic violence order (ADVO), which could be made either by police or the victim.
  • Defined a domestic violence act (s 5) to include violence between spouses, de facto couples and those separated or divorced.
  • Clarified police powers of entry in dwellings.
  • Introduced bail conditions to help protect victims.

In addition:

  • Police were educated about the reforms and practices were changed to enhance practicality of procedure for victims.
  • A number of domestic violence liaison officers were created.
  • Access to legal aid, community education, training and services, and women’s refuges and housing were also reviewed.

There was a substantial increase in the number of domestic violence matters dealt with by the criminal justice system and in the portion of cases initiated by police on behalf of assault females, in the years following the reforms.

The current law

[6] The Crimes (Apprehended Violence) Act 1999 created two distinct orders:

  • Apprehended domestic violence orders (ADVO) - for domestic relationships.
  • Apprehended personal violence orders (APVO) - other circumstances.

The grounds upon which the orders are considered are generally the same (see below). Some key procedural differences include:

  • An ADVO applicant is not liable to costs even if his claim fails (unless the claim is frivolous or vexatious), whilst an APVO applicant is liable if the claim fails.[7]
  • In dealing with an APVO, a judge has the discretion to refuse to process a complaint (ie, immediately dismiss) “if satisfied the complaint is frivolous, vexatious, without substance or has no reasonable prospect of success”.[8]

s 16 of the Crimes (Domestic and Personal Violence) Act 2007, provides the grounds on which an ADVO may be made. The subsections are sumamrised as follows:

  1. The court must be satisfied on the balance of probabilities that the complainant had a domestic relationship with the defendant and has reasonable grounds to fear and in fact fears:
    • (a) that the defendant will commit violence against him
    • (b) that the defendant will perform the following conduct to the extent that it justifies an AVDO order:
      • (i) intimidate him, or another person with who the complainant is in a domestic relationship with.
      • (ii) stalks him.
  2. Despite subsection 1, the 'in fact fears' requirement is not necessary if:
    • (a) the person for whom the order is made is a child.
    • (b) the person for whom the order is made is, in the opinion of the court, suffering from an appreciably below average general intelligence function.
    • (c) in the opinion of the court:
      • (i) the person for whom the order is made has been subjected to conduct constituting a violent offence in the past, and
      • (ii) there is a reasonable likelihood that the defendant may commit a personal violence offence against him person, and
      • (iii) the making of the order is necessary in the circumstances to protect the person from further violence.
  3. For the purposes of this section, conduct may amount to intimidation of a person even though:
    • (a) it does not involve actual or threatened violence to the person, or
    • (b) it consists only of actual or threatened damage to property belonging to, in the possession of or used by the person.

s 19 specifies the ground necessary for a personal violence order. They are the same, besides the domestic relationship requirement.

  • A domestic relationship is defined in s 5 and covers a wide range of relationships, including marriages, de facto partners, house-mates, relatives, dependents etc.

Effect of the Order

  • The prohibitions and restrictions contained in an order are listed in s 35. All orders include a prohibition on intimidating and stalking (s 36) and extend to other persons with whom the protected person has a domestic relationship (also s 36).
  • Duration of an order is specified by the court.
  • Contravention of a restriction is punishable by up to two years’ imprisonment or 50 penalty units or both.
  • Under s 9A of the Bail Act 1978, the presumption in favour of bail is removed for most domestic violence offences, including a breach of an ADVO by an act of violence or stalking.
  • Interim orders may be granted if immediate protection is deemed necessary before a full court hearing can be granted. This may be made by telephone application by a police officer.

Reform

Reforms have extended the scope of orders regardless of domestic relationship. The Criminal Law Review Division examined the issue:[9]

  • “It is arguable that the lack of differentiation between ADVOs and APVOs has done a disservice to victims of domestic violence...” and may “impinge upon the integrity of legislation that was principally designed to address the problem of domestic violence.”
  • Added risks to domestic violence include homicide statistics, reluctance of authorities to intervene and barriers to escaping.
  • APVO subjects were significantly less likely to be assaulted or threatened by the defendant than ADVO subjects.
  • The main categories of people seeking APVOs were neighbours, work relationships, friends or acquaintances, strangers or flatmates. Commentators expressed alarm at the amount of these claims which they considered to be frivolous or “trifling”.

[10] In 2005, two specialised domestic courts were established at Cambelltown and Wagga Wagga, victims and stakeholders have expressed satisfaction with the pilot programs and they remain in place.

  • The Domestic Violence Review Team was set up following the shooting of Melissa Cook in 2008 at her workplace, shortly after divorce proceedings were finalised, whilst she was under the protection of an ADVO.

The policing of domestic violence

[11] See textbook, page 686 for referrals to theory sources.

  • Reports by the NSW Ombudsman in 1999 and 2006 suggest that some police may have inappropriate attitudes which are dismissive of victims and the seriousness of crimes.
  • Failure to provide adequate support for victims and failure to arrest for breach of an order were also identified as problems.
  • In 2009, the NSW Police Force issued the Code of Practice for the NSW Police Force Response to Domestic and Family Violence.

Research examining the effectiveness of AVOs

[12] For the vast majority of recipients, AVOs are beneficial in reducing or even stopping altogether, stalking, violence and intimidation by the defendant after the first 3 months.

  • One of the main problems with AVOs is police inaction in dealing with breaches.
  • See pages 687-88 of the Textbook for women’s experiences of AVOs, including the serious levels of violence experienced, such as shooting and stabbing in 7% of victims.
  • Women who experience more serious levels of violence and have children are more likely to seek legal protection than others.

Other services

[13]

  • The Domestic Violence Advocacy Service – provides free telephone legal advice and legal representation in some courts.
  • The Women’s Domestic Violence Court Assistance Program – provides a range of support services at 55 local courts.
  • The Domestic Violence Solicitor Scheme – provides rostered solicitors for representation n 12 Sydney and Central Coast courts.
  • The Premier’s Council on Preventing Violence Against Women – provides high level advice to government concerning violence against women.
  • The Violence Prevention Coordination Unit in the Department of Premier and Cabinet – facilitates cooperation between agencies and develops policy.
  • Regional Violence Prevention Specialists – conduct community education and training and develop prevention programs.

Programs for perpetrators have been a contentious issue as there are concerns that they may serve to decriminalise violence, offer a “softer” option than criminal conviction and sentencing, undermine the message that domestic violence is a crime and do not sufficiently attribute responsibility to the offender.

Patterns of domestic violence

[14] See textbook for further information on trends relating to Aboriginality, gender and social disadvantage in relation to violence and domestic violence.

Stalking and intimidation

[15] Stalking is a Table 2 offence and is therefore usually dealt with summarily, unless elected otherwise by the prosecution.

  • The requirement in assault of an “immediate prospect of the threat being carried out” creates problems prosecuting those who “stalk” or intimidate another. In 1993, after several high profile cases, the offence of stalking was introduced.
  • The offence includes an intention to cause the other person to fear mental or physical harm.
  • The phenomenon of cyberstalking has recently attracted attention. It includes sending harassing emails and publishing information about the victim on the internet.

The Crimes (Domestic and Personal Violence) Act 2007 provides:

13 - Stalking or intimidation with intent to cause fear of physical or mental harm:

(1) A person who stalks or intimidates another person with the intention of causing
    the other person to fear physical or mental harm is guilty of an offence.
    
    Maximum penalty: Imprisonment for 5 years or 50 penalty units, or both.

s 8 - Meaning of “stalking”:

(1) In this Act, stalking includes the following of a person about or the watching or
    frequenting of the vicinity of, or an approach to, a person’s place of residence,
    business or work or any place that a person frequents for the purposes of any
    social or leisure activity.

s 7 - Meaning of “intimidation”:

(1) For the purposes of this Act, intimidation of a person means:
      (a) conduct amounting to harassment or molestation of the person, or
      (b) an approach made to the person by any means (including by telephone,
          telephone text messaging, e-mailing and other technologically assisted
          means) that causes the person to fear for his or her safety, or
      (c) any conduct that causes a reasonable apprehension of injury to a person or
          to a person with whom he or she has a domestic relationship, or of violence
          or damage to any person or property.

End

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References

Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. Textbook, p. 677.
  2. Hogg and Brown, Rethinking Law and Order (1998) in Textbook, pp. 677-81.
  3. Textbook, p. 677.
  4. J Allen, “The Invention of the Pathological Family: a historical study of violence in NSW” In C O’Donnell and J Craney (eds), Family Violence in Australia (1982) in Textbook, pp. 682-3.
  5. Textbook, p. 683.
  6. Textbook, pp. 684-6.
  7. Crimes (Domestic and Personal Violence) Act 2007, s 99.
  8. Crimes (Domestic and Personal Violence) Act 2007, s 53.
  9. Criminal Law Review Division, Apprehended Violence Orders: A Review of the Law, Discussion Paper (1999)
  10. Textbook, pp. 688-9.
  11. Textbook, pp. 686-7.
  12. Textbook, pp. 687-8.
  13. Textbook, pp. 689-90.
  14. Textbook, pp. 690-1.
  15. Textbook, pp. 691-2.
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