Australian Literature
Australian Human Rights Commission 2022, Wiyi Yani U Thangani First Nations Women’s Safety Policy Forum Outcomes Report November 2022.
This Report acknowledges that First Nations people prefer the term “family violence” to describe the range of violent behaviour impacting their communities, including across extended families, kinship networks and broader relationships. Sexual assault, often perpetrated my non-family members, was more appropriately identified as sexual violence, rather than “family violence”[27].
Australian Law Reform Commission, Family Violence: A National Legal Response, Consultation Paper No 1 (2010); New South Wales Law Reform Commission, Family Violence: A National Legal Response, Consultation Paper No 9 (2010).
This Report acknowledges that descriptors such as ‘domestic violence’, ‘family and domestic violence’, ‘family violence’, ‘domestic harm’, ‘domestic abuse’, ‘domestic control’, ‘violence against women’ and ‘intimate partner violence’ have frequently been and are often interchangeably adopted in other reports, and by academics and commentators writing in this area. Importantly, the Report acknowledges that although terminology differs, each term ‘attempts to refer to the same type of conduct’ (p110). The Report is critical of the term ‘domestic’ and cites almost exclusively the comments made by Fehlberg and Behrens (see reference below) on the disadvantages of this term. However no attempt is made to justify why ‘family violence’ is the ALRC Report’s preferred descriptor other than stating that it is to be used ‘to reflect the language used in the Terms of Reference’ (p110).
Behrens, Juliet, ‘Ending the Silence, But… Family Violence under the Family Law Reform Act 1995’ (1996) 10 Australian Journal of Family Law 35.
This article examines the relevance of the term ‘family violence’ in the context of amendments made under the Family Law Reform Act 1995. Behrens is highly critical of the term, claiming that ‘the problem with the term “family violence” is…the picture it paints that violence in the family is something in which all members are complicit’ (p39). The author takes issue with the fact that the term is ungendered and further submits that the descriptor ‘is even less acceptable than the more commonly used “domestic violence”’ (p39).
Commonwealth of Australia (Department of Social Services) 2022, National Plan to End Violence Against Women and Children 2022-2032.
The new National Plan proposes nationally consistent definitions of gender-based violence, to inform and support program design, public and private sector policies and legislation across States and Territories to ensure equality of access to support and justice [37]. In particular, “intimate partner violence”, “family violence”, “coercive control”, “sexual violence” and “consent” are defined [37]-[38] and a detailed glossary is annexed defining relevant terminology [124]-[134].
Council of Australian Governments. (2019). Fourth action plan: National plan to reduce violence against women and their children 2010-2022. Canberra, Commonwealth of Australia.
Extract: The Fourth Action Plan sets out eight principles to guide the way all industries, sectors and areas of government work together to address domestic, family and sexual violence. These principles inform 20 practical actions across five priority areas. The priority areas represent the range of responses needed to tackle domestic, family and sexual violence: from primary prevention to improving service and support systems. The Fourth Action Plan commits to leaving no one behind. It recognises the need to respect Aboriginal and Torres Strait Islander communities and listen to the diverse lived experiences of people affected by violence across all of our responses. Commonwealth, state and territory governments will develop a national implementation plan over 2019 that will outline how governments will deliver actions and measure their impact to address the national priority.
Fehlberg, Belinda et al, Australian Family Law – The Contemporary Context (Oxford University Press, 2015).
See especially [5.3] Fehlberg and Behrens focus on the term ‘family violence’ in their analysis. The authors note that behind considerations of the appropriate definition or the types of conduct that fall within the purview of domestic or family violence, there have been long-standing debates regarding appropriate descriptors. They list those terms that are most commonly applied, including ‘family violence’, ‘domestic violence’, ‘family and domestic violence’ and ‘intimate partner violence’. Although stating that ‘all of these terms are seen to have strengths and drawbacks,’ the authors don’t explain the strengths and drawbacks. They do, however, note that ‘[a] central concern in developing and applying terminology [is] to recognise that the behaviour being described occurs in the context of relationships…but not to allow the words acknowledging this to suggest the behaviour is somehow less serious than violence that occurs in other contexts’ (p134).
Fisher, Stephen, ‘From Violence to Coercive Control: Renaming Men’s Abuse of Women’ (2012) 4 Australasian Policing 35.
Fisher begins this article with a statement that ‘social problems are understood and responded to in terms of how they are named’ and that the label assigned to a phenomenon has important implications for those experiencing the issue as well as those seeking to find a solution (p35). The author divides his analysis between five key sections in seeking to demonstrate that the term ‘coercive control’ is a more appropriate descriptor than that of the word ‘violence’. The sections are: ‘gendering violence’, ‘medicalising or individualising violence’, ‘violence as criminal’, ‘avoiding the narrow focus on physical incidents’ and ‘recognising the dynamic and strategic actions of the perpetrator’. The author adopts a feminist analysis of the issues, advocating that gender neutral language masks the reality that domestic violence is overwhelmingly perpetrated by men against women. The author also examines the use of the term ‘violence’, arguing that the risk in using this term is that the focus is primarily on physical acts that cause bodily injury (p36). He offers the term ‘coercive control’ as an alternative descriptor which he contends ‘usefully describes a whole pattern of strategies’ and avoids a narrow focus on physical acts alone (p37).
Harland, Alexandra, Donna Cooper, Zoe Rathus and Renata Alexander, Family Law Principles (Thomson Reuters, 2011).
At [6.70] the authors refer to the ‘bewildering array of terms’ used to describe domestic and family violence in the broader context of examining the nature and scope of such violence (p89). They attribute this to various efforts to encapsulate different types of conduct and relationships in a single term, as well as the ‘socio-political contexts that have informed the development of the particular concepts’ (p89). While the authors do not explore either of these points in any detail, they do, however, examine the descriptors ‘domestic violence’ and ‘family violence’. The authors note that the former tends to refer to interpersonal violence that occurs in domestic settings and within family and intimate relationships, and is a term most often attributed to ‘violence by a man against his female partner, including violence perpetrated after separation’ (p.89). This is then contrasted with ‘family violence’ with the authors noting that term is often preferred to describe forms of violence that occur in Indigenous communities and the wider family.
MacDonald, Helen, What’s in a Name? Definitions and Domestic Violence, (Domestic Violence and Incest Resource Centre, Brunswick, 1998).
Given the terms ‘domestic violence’, ‘family violence’ and ‘violence against women’ are often referenced in research, policy reports and reform papers, the author argues that it is necessary for these terms to be critically analysed and defined. As the author notes, ‘each name has a history that is ongoing and often contentious’ (p2). MacDonald discusses various definitions of domestic violence, ranging from dictionary definitions to those used by government departments, the United Nations, as well as legal definitions. The different definitions used within Australian state and federal laws are also discussed (though many have since been amended or repealed), and a brief history of laws relating to domestic violence is given. Sub-categories of behaviour such as physical, sexual and emotional violence, as well as economic and child abuse are also discussed.
International Literature
Ashcraft, Catherine, ‘Naming Knowledge: A Language for Reconstructing Domestic Violence and System Gender Inequality’ (2000) 23 Women and Language 3.
The author seeks to broaden the options for framing domestic violence to incorporate the concept of domestic control. Ashcraft submits that, ‘[p]roviding terminology that accurately reflects the range, injustice and inequality [of the behaviour] would help prevent [it] from occurring’ (p9). This article is written from a feminist legal theory perspective and the author argues that although attempts have been made to privilege women’s voices and challenge dominant representations of domestic violence, ‘the communicative choices and discursive practices employed in accomplishing these goals have unintentionally…silence[d] certain women's voices and reproduce[d] dominant constructions of domestic violence and gender relations’ (p8).
The importance of this article in the context of appropriate terminology is threefold. Firstly, the author examines the emergence of descriptors and definitions to describe domestic violence during the battered women’s movement of the 1970s. This is useful for providing a historical context and deepening understandings of the development of the term ‘domestic violence’. Secondly, Ashcraft makes an observation about naming debates, stating that ‘[t]he key to providing women with the tools necessary to address complex and varied marital inequalities is ensuring that the terminology remains fluid and flexible’ (p7). Finally, the author comments on the importance of retaining the integrity of existing descriptors such as ‘domestic violence’ to avoid undermining those who currently identify with the term, which is to be balanced with a move towards descriptors that will (hopefully) increase understandings of the dynamics and types of relationships in which the violence occurs.
Declaration on the Elimination of Violence against Women 20 December 1993, UN GAOR, A/RES/48/104 (entered into force generally on 23 February 1994) art 1.
The United Nations Declaration on the Elimination of Violence against Women offers the following definition: ‘the term "violence against women" means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life’.
DeKeseredy, Walter, and Martin Schwartz, ‘Theoretical and Definitional Issues in Violence against Women’ in Claire Renzetti, Jeffrey Edleson and Raquel Bergen, Sourcebook on Violence Against Women (Sage Publications, 2011) 3.
An important objective of this chapter is to critically analyse narrow, broad, gender-neutral and gender-specific definitions of domestic violence. The authors note that there is no agreed upon definition of violence against women and observe that there is a tension in the act of naming this issue given that ‘many people use language that specifically names women as the objects of abuse or names men as the abusers’ (p3). Examples include ‘woman abuse’, ‘violence against women’ or ‘male-to-female violence’. These can be contrasted to the more gender-neutral terms such as ‘domestic violence’, ‘family violence’ or ‘intimate partner violence’. DeKeseredy and Schwartz clearly favour the use of gender-specific terms and language and do so on the basis that ‘women are the overwhelmingly predominant victims of intimate adult violence’ (p11). The authors criticise statistical findings in North America using the Conflict Tactics Scale (‘CTS’) on the basis that ‘crude counts of behaviour alone cannot accurately determine gender variations’ (p11). These comments, however, are of limited use in the Australian context.
Goodmark, Leigh, A Troubled Marriage: Domestic Violence and the Legal System (New York University Press, 2011).
In this American publication, Goodmark argues that current legal definitions of domestic violence are excessively focused on physical acts, which results in a failure to provide protection from non-physical behaviours, such as psychological and economic abuse and coercive and controlling behaviours. Although the author is not expressly concerned with the topic of labelling, the first two chapters are useful in defining and historicising domestic violence laws over the past 40 years in the United States providing context to the development of the term ‘domestic violence’, and ‘family violence’ to a lesser extent (pp29-53).
Kelly, Joan, and Michael Johnson, ‘ Differentiation Among Types of Intimate Partner Violence: Research Update and Implications for Interventions’ (2008) 46 Family Court Review 476.
Kelly and Johnson set out a short section in this article titled ‘Types and Terminologies: Searching for Accurate Descriptors’. The authors use four uncommon terms to describe patterns of violence: ‘coercive controlling violence’, ‘violent resistance’, ‘situational couple violence’ and ‘separation-instigated violence’. The authors argue that while these descriptors have limited application, differentiating between types of domestic violence can have important policy implications and can enhance public understanding of the issues.
Kelly, Liz, and Jill Radford, ‘“Nothing Really Happened”: the invalidation of women’s experiences of sexual violence’ (1990) 10 Critical Social Policy 39.
A central theme of Kelly and Radford’s argument is that in order to avoid silencing victims and to provide them with a means of speaking about their experiences, we must attempt to name and define the phenomenon. They state that ‘[n]ames provide social definitions; make visible what is invisible; define as unacceptable what was accepted; make sayable what was unspeakable’ (p40). Although the article is primarily focused on definitions of sexual violence, the authors assert the importance of terminology and how this can affect public perceptions of what is regarded as a criminal offence.
Groves, Nicola, and Terry Thomas, Domestic Violence and Criminal Justice (Taylor and Francis, 2013).
This book aims to provide an up-to-date and comprehensive introduction to the subject of domestic violence and its interaction with the criminal justice system. The authors dedicate a chapter to naming and defining domestic violence as well as exploring its nature and extent, including the historical and political contexts of related terms. The descriptors explored include ‘domestic violence’, ‘domestic abuse’, ‘intimate partner violence’, ‘family violence’, ‘gender violence’ and ‘coercive control’.
Cautionary note: some people may find reading the content in chapter 3 distressing or traumatising.
Long-standing debates exist over the most appropriate terminology to use when identifying violence and abuse between spouses, partners, and family members. Increasingly it is recognised that coercive control is almost always an underpinning dynamic of domestic and family violence. Terminology is fragmented across the policing, legal and service sectors in Australian and overseas jurisdictions, and is complicated by the range and diversity of cultural, socio-economic, sexual, geographical and familial structures that are intended to be captured by any one label. Moreover, key terms (and definitions) in Australian State, Territory and Commonwealth domestic-violence related legislation lack consistency.
Descriptors such as ‘domestic violence’, ‘domestic abuse’, ‘domestic and family violence’, ‘family violence’, ‘domestic harm’, ‘domestic abuse’, ‘domestic control’, ‘violence against women’, ‘gender-based violence’ and ‘intimate partner violence’ have frequently been and are often interchangeably adopted in reports and by academics and commentators writing in this area. To varying degrees, each of these terms has limitations.
For example, proponents of the term ‘violence against women’ argue that the descriptors ‘domestic violence’ and ‘family violence’ mask the reality that violence in this context is gendered and, in an overwhelming majority of cases, is perpetrated by men against women. This descriptor has, however, been criticised on the basis that it excludes the reality that some violence, albeit at significantly lower rates, is perpetrated by women against men.It is recognised that the terminology is evolving.
While acknowledging there is no widespread consensus regarding its use, the descriptor adopted in this bench book is ‘domestic and family violence’. There are, however, a number of important points to note.
The word ‘domestic’ may suggest that the violence is limited to conduct occurring only in the home between people living together in a relationship. The risk is that conduct occurring outside the physical confines of the home or between estranged individuals or other parties – including, parent to child or adolescent, sibling to sibling, or adolescent to parent – may be overlooked.
The inclusion of the word ‘family’ in the descriptor endeavours to address this potential limitation and aligns more closely with statutory definitions. Proponents also note that the reference to ‘family’ more accurately reflects the context and dynamic of violent behaviours occurring in certain groups within the community. For example, in Aboriginal and Torres Strait Islander communities, it recognises the absence of demarcation between private and public spheres; and encompasses the range of behaviours that may occur within intimate, immediate and extended family and other communal or extended kinship relationships of mutual obligation and support. Further, in culturally and linguistically diverse communities, where migrant and refugee women are more likely to move in with their husband’s family after marriage, victims may experience violence and abuse perpetrated by not only their partners, but their ‘in-laws’ and other extended family members.
Use of the term ‘violence’ may risk a focus on physical acts causing bodily injury. There may be reluctance by some victims to name their experience as one of ‘violence’ unless it involves severe and physically damaging behaviour. The majority of State, Territory and Commonwealth legislation now recognise that ‘violence’ includes physical, sexual, emotional and psychological abuse or injury, as well as conduct designed to exert power by restricting access to financial, familial and cultural resources and limiting social autonomy, sometimes referred to as coercive control. For consistency, the term adopted in this bench book is ‘violence’.
The National Plan to End Violence Against Women and Children 2022-2032 encourages nationally consistent definitions of gender-based violence, and provides distinct definitions of intimate partner or domestic violence (“any behaviour within an intimate relationship (including current or past marriages, domestic partnerships or dates) that causes physical, sexual or psychological harm”) and family violence (a broader term referring “not only to violence between intimate partners but also to violence perpetrated by parents (and guardians) against children, between other family members and in family-like settings”, and notes that it is also the term preferred by Aboriginal and Torres Strait Islander peoples, reflecting the occurrence of violence across extended family networks. It also can include forms of modern slavery including forced marriage and servitude.
Cautionary note: some people may find reading the content in chapter 3 distressing or traumatising.
Long-standing debates exist over the most appropriate terminology to use when identifying violence and abuse between spouses, partners, and family members. Increasingly it is recognised that coercive control is almost always an underpinning dynamic of domestic and family violence. Terminology is fragmented across the policing, legal and service sectors in Australian and overseas jurisdictions, and is complicated by the range and diversity of cultural, socio-economic, sexual, geographical and familial structures that are intended to be captured by any one label. Moreover, key terms (and definitions) in Australian State, Territory and Commonwealth domestic-violence related legislation lack consistency.
Descriptors such as ‘domestic violence’, ‘domestic abuse’, ‘domestic and family violence’, ‘family violence’, ‘domestic harm’, ‘domestic abuse’, ‘domestic control’, ‘violence against women’, ‘gender-based violence’ and ‘intimate partner violence’ have frequently been and are often interchangeably adopted in reports and by academics and commentators writing in this area. To varying degrees, each of these terms has limitations.
For example, proponents of the term ‘violence against women’ argue that the descriptors ‘domestic violence’ and ‘family violence’ mask the reality that violence in this context is gendered and, in an overwhelming majority of cases, is perpetrated by men against women. This descriptor has, however, been criticised on the basis that it excludes the reality that some violence, albeit at significantly lower rates, is perpetrated by women against men.It is recognised that the terminology is evolving.
While acknowledging there is no widespread consensus regarding its use, the descriptor adopted in this bench book is ‘domestic and family violence’. There are, however, a number of important points to note.
The word ‘domestic’ may suggest that the violence is limited to conduct occurring only in the home between people living together in a relationship. The risk is that conduct occurring outside the physical confines of the home or between estranged individuals or other parties – including, parent to child or adolescent, sibling to sibling, or adolescent to parent – may be overlooked.
The inclusion of the word ‘family’ in the descriptor endeavours to address this potential limitation and aligns more closely with statutory definitions. Proponents also note that the reference to ‘family’ more accurately reflects the context and dynamic of violent behaviours occurring in certain groups within the community. For example, in Aboriginal and Torres Strait Islander communities, it recognises the absence of demarcation between private and public spheres; and encompasses the range of behaviours that may occur within intimate, immediate and extended family and other communal or extended kinship relationships of mutual obligation and support. Further, in culturally and linguistically diverse communities, where migrant and refugee women are more likely to move in with their husband’s family after marriage, victims may experience violence and abuse perpetrated by not only their partners, but their ‘in-laws’ and other extended family members.
Use of the term ‘violence’ may risk a focus on physical acts causing bodily injury. There may be reluctance by some victims to name their experience as one of ‘violence’ unless it involves severe and physically damaging behaviour. The majority of State, Territory and Commonwealth legislation now recognise that ‘violence’ includes physical, sexual, emotional and psychological abuse or injury, as well as conduct designed to exert power by restricting access to financial, familial and cultural resources and limiting social autonomy, sometimes referred to as coercive control. For consistency, the term adopted in this bench book is ‘violence’.
The National Plan to End Violence Against Women and Children 2022-2032 encourages nationally consistent definitions of gender-based violence, and provides distinct definitions of intimate partner or domestic violence (“any behaviour within an intimate relationship (including current or past marriages, domestic partnerships or dates) that causes physical, sexual or psychological harm”) and family violence (a broader term referring “not only to violence between intimate partners but also to violence perpetrated by parents (and guardians) against children, between other family members and in family-like settings”, and notes that it is also the term preferred by Aboriginal and Torres Strait Islander peoples, reflecting the occurrence of violence across extended family networks. It also can include forms of modern slavery including forced marriage and servitude.