Australia
Bartels, Lorana, Violent offending by and against Indigenous women. (2012) 8(1) Indigenous Law Bulletin 19-22.
Boxall, Hayley, Christopher Dowling and Anthony Morgan, Female perpetrated domestic violence: Prevalence of self-defensive and retaliatory violence. Trends and Issues No. 584, January 2020, Australian Institute of Criminology.
Domestic and Family Violence Death Review and Advisory Board, 2019–20 Annual Report (2020) Queensland Government, Brisbane.
Douglas, Heather and Robin Fitzgerald, ‘Legal Processes and Gendered Violence: Cross-Applications For Domestic Violence Protection Orders’ (2013) 36(1) University of New South Wales Law Journal 56.
Douglas, Heather and Robin Fitzgerald, The domestic violence protection order system as entry to the criminal justice system for Aboriginal and Torres Strait Islander people. (2018) 7 (3) International Journal for Crime, Justice And Social Democracy 41-57.
Douglas, H., McGlade, H., Tarrant, S., & Tolmie, J. (2020). Facts seen and unseen: improving justice responses by using a social entrapment lens for cases involving abused women (as offenders or victims). Current Issues in Criminal Justice.
Douglas, H., Tarrant, S. and Tolmie, J. (2021) Social entrapment evidence: understanding its role in self-defence cases involving intimate partner violence. UNSW Law Journal Vol 44 (1).
Illiadis M., Harris B., Vakhitova Z., Woodlock D., Flynn A. and Tyson D. (2024) How police body-worn cameras can facilitate misidentification in domestic and family violence responses Australian Institute of Criminology
Jillard, Alicia and Julia Mansour, Women victims of violence defending intervention orders. (2014) 39(4) Alternative Law Journal 235-240.
Meyer, S, Reeves, E, Fitz-Gibbon, K. The intergenerational transmission of family violence: Mothers' perceptions of children's experiences and use of violence in the home. Child & Family Social Work. 2021; 1– 9.
Nancarrow, Heather (2019) Unintended Consequences of domestic violence law: Gendered consequences and racialised realities. Palgrave, Cham.
Nancarrow, H., Thomas, K., Ringland, V., & Modini, T. (2020). Accurately identifying the “person most in need of protection” in domestic and family violence law (Research report, 23/2020). Sydney: ANROWS.
Nash, C and Dioso-Villa, R. (2024) ‘Australia’s divergent legal responses to women who kill their abusive partners, Violence Against Women 30(9):2275-2301, doi: 10.1177/10778012231156154.
No to Violence (NTV). (2019) Discussion paper: Predominant aggressor identification and victim misidentification, (Melbourne, No to Violence).
Reeves, E. ‘I’m Not at All Protected and I Think Other Women Should Know That, That They’re Not Protected Either’: Victim–Survivors’ Experiences of ‘Misidentification’ in Victoria’s Family Violence System. (2021) 10 (4) International Journal for Crime, Justice and Social Democracy 39-51.
Reeves, Ellen, Family violence, protection orders and systems abuse: views of legal practitioners. (2019) 32 Current Issues in Criminal Justice 91-110.
Sheehy, Elizabeth, Julie Stubbs and Julia Tolmie, ‘Securing just outcomes for battered women charged with homicide: Analysing defence lawyering in R v Falls’ (2014) 38(2) Melbourne University Law Review 666
Sleep, Lyndal (2019) Domestic violence, social security and the couple rule ANROWS
Tarrant, Stella, Julia Tolmie and George Giudice, Transforming legal understandings of intimate partner violence: Final report (ANROWS, 2019).
Voce, Isabella and Samantha Bricknall (2020). Female perpetrated intimate partner homicide: Indigenous and non-Indigenous offenders. Statistical Report No. 20. Australian Institute of Criminology
Wangmann, Jane, ‘Gender and Intimate Partner Violence: A Case Study from NSW’ (2010) 33 University of New South Wales Law Journal 945.
Wangmann, J, Laing, L & Stubbs, J 2020, ‘Exploring Gender Differences in Domestic Violence Reported to the NSW Police Force’, Current Issues in Criminal Justice, vol. 32, no. 3, pp. 255–276.
‘Findings from this study indicate the importance of contextual factors in understanding the identification of women as POIs in DV cases. Whilst the woman may have used violence in the presenting incident (and violence requiring the attention of the law), this is less likely (compared to male offenders) to be her dominant position within the relationship when examined over time’ at 273.
International
Ali, Parveen and Julie McGarry (2016) ‘Classifications of Domestic Violence and Abuse’, in Parveen Ali and Julie McGarry, eds. Domestic Violence in Health Contexts: A Guide for Healthcare Professions Springer, 35-49
Bachman, Ronet and Dianne Carmody, Fighting fire with fire: The effects of victim resistance in intimate versus stranger perpetrated assaults against females. (1994) 9 Journal of Family Violence 317-331.
Barlow, Charlotte and Siobhan Weare, ‘Women as Co-Offenders: Pathways into Crime and Offending Motivations’ (2019) 58(1) The Howard Journal of Crime and Justice 86-103.
Coker, Donna and Ahjane Macquoid ‘Why Opposing Hyper-Incarceration Should Be Central to the Work of the Anti-Domestic Violence Movement’ (2015) 5 University of Miami Race and Social Justice Law Review 585.
Durfee, Alesha and Leigh Goodmark, Is there a protection order to prison pipeline? Gendered dimensions of cross-petitions. (2019) Journal of Aggression, Maltreatment & Trauma, 1–20.
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Goodmark, Leigh, When Is a Battered Woman Not a Battered Woman? When She Fights Back (2008) 20 Yale Journal of Law and Feminism 75-129
Hester, Marianne Portrayal of Women as Intimate Partner Domestic Violence Perpetrators (2012) 18(9) Violence Against Women 1067–1082.
Larance, Lisa, Leigh Goodmark, Susan Miller and Shamita Dasgupta, Understanding and Addressing Women’s Use of Force in Intimate Relationships: A Retrospective. (2019) 25(1) Violence Against Women 56–80.
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Larance, Lisa and Susan Miller, In Her Own Words: Women Describe Their Use of Force Resulting in Court-Ordered Intervention. (2017) 23(12) Violence Against Women 1536–1559.
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Miller, Susan & Michelle Meloy (2006) Women’s Use of Force: Voices of Women Arrested for Domestic Violence. Violence Against Women, 12(1), 89–115.
Nouri, Shevan (2015). Critiquing the defence of compulsion as it applies to women in abusive relationships.Auckland University Law Review, 12(1), 21, 168–192.
Sheehy, Elizabeth ‘Expert Evidence on coercive control in support of self-defence: The trial of Theresa Craig’ (2018) 18 (1) Criminology & Criminal Justice 100
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Tolmie, Julia, Rachel Smith, Jacqueline Short, Denise Wilson and Julie Sach, Social entrapment: A realistic understanding of the criminal offending of primary victims of intimate partner violence (2018) 2 New Zealand Law Review, 181-217
Adult victims of domestic and family violence (primary victims) may be accused of perpetrating domestic and family violence or (other) criminal or unlawful acts, and misidentified by the criminal justice system as the primary aggressor. Primary victims of domestic and family violence may:
(This is not an exhaustive list)
•
offend because their abusive partner has demanded that they do so;
•
offend in response to a dangerous situation (for example sudden and unexpected homelessness) that has arisen as a result of violence perpetrated against them;
•
use physical violence to resist violence and/or defend themselves and/or their children;
•
use retaliatory aggression after experiencing a build-up of abusive behaviours;
•
assist or encourage their violent partner or family member to offend because it may be unsafe for them to do otherwise;
•
claim work and income support that they are not entitled to because they are coerced to do so, or in order to pay for rent and food when their abusive partner refuses to financially support them and their children and/or undermines their own capacity to provide that support;
•
commit neonaticide, kill or harm their children whilst in a state of extreme trauma or dissociation as a result of their experience as a victim of domestic and family violence;
•
know that their partner is also abusing their children but be unable to stop them from doing so;
•
be impeded in their ability to parent because they are suffering from trauma or other mental health issues as a result of their partner’s violence;
•
offend in order to spend time in prison as a break from the violence;
•
be named as the respondent or cross-applicant in protection order proceedings;
•
behave in a manner perceived as obstructive by family courts and/or breach family court orders in an attempt to keep their children safe from a violent former partner;
•
appear agitated or uncooperative with first responders based on prior negative experiences, whereas perpetrators may present as calmer, more cooperative and more convincing, often in a deliberate attempt to persuade others that they are not abusive.
•
breach sentence conditions for offending (for example, shoplifting) because of their circumstances and experience as a victim of domestic and family violence, sometimes with the consequence that these are escalated to higher-tariff sentences;
•
be spuriously reported for child abuse or domestic abuse because of systems abuse.
In understanding a primary victim’s presentation, behaviour and constraints, it may be appropriate for the decision-maker to consider:
•
the abuser’s pattern of coercive and controlling behaviour, the true nature of which may appear benign to others;
•
the realistic safety options available to the primary victim; and
•
the broader structural inequalities that limit available options for the primary victim.
This combination of factors is sometimes referred to as ‘social entrapment’.
The impact of trauma on victims of abuse may also influence presentation and behaviour of a primary victim.
In some cases it may be useful and appropriate to hear expert evidence about these factors.
Some primary victims may not be able safely separate from an abusive partner given the level of risk and/or resources available to them.
Some concepts like "Battered Woman Syndrome" do not take into account the safety options available to the primary victim or the structural inequalities faced.
Decision-makers may perceive primary perpetrators of domestic and family violence as victims when only the immediate circumstances of alleged domestic and family violence or (other) offending are considered.
Adult victims of domestic and family violence (primary victims) may be accused of perpetrating domestic and family violence or (other) criminal or unlawful acts, and misidentified by the criminal justice system as the primary aggressor. Primary victims of domestic and family violence may:
(This is not an exhaustive list)
•
offend because their abusive partner has demanded that they do so;
•
offend in response to a dangerous situation (for example sudden and unexpected homelessness) that has arisen as a result of violence perpetrated against them;
•
use physical violence to resist violence and/or defend themselves and/or their children;
•
use retaliatory aggression after experiencing a build-up of abusive behaviours;
•
assist or encourage their violent partner or family member to offend because it may be unsafe for them to do otherwise;
•
claim work and income support that they are not entitled to because they are coerced to do so, or in order to pay for rent and food when their abusive partner refuses to financially support them and their children and/or undermines their own capacity to provide that support;
•
commit neonaticide, kill or harm their children whilst in a state of extreme trauma or dissociation as a result of their experience as a victim of domestic and family violence;
•
know that their partner is also abusing their children but be unable to stop them from doing so;
•
be impeded in their ability to parent because they are suffering from trauma or other mental health issues as a result of their partner’s violence;
•
offend in order to spend time in prison as a break from the violence;
•
be named as the respondent or cross-applicant in protection order proceedings;
•
behave in a manner perceived as obstructive by family courts and/or breach family court orders in an attempt to keep their children safe from a violent former partner;
•
appear agitated or uncooperative with first responders based on prior negative experiences, whereas perpetrators may present as calmer, more cooperative and more convincing, often in a deliberate attempt to persuade others that they are not abusive.
•
breach sentence conditions for offending (for example, shoplifting) because of their circumstances and experience as a victim of domestic and family violence, sometimes with the consequence that these are escalated to higher-tariff sentences;
•
be spuriously reported for child abuse or domestic abuse because of systems abuse.
In understanding a primary victim’s presentation, behaviour and constraints, it may be appropriate for the decision-maker to consider:
•
the abuser’s pattern of coercive and controlling behaviour, the true nature of which may appear benign to others;
•
the realistic safety options available to the primary victim; and
•
the broader structural inequalities that limit available options for the primary victim.
This combination of factors is sometimes referred to as ‘social entrapment’.
The impact of trauma on victims of abuse may also influence presentation and behaviour of a primary victim.
In some cases it may be useful and appropriate to hear expert evidence about these factors.
Some primary victims may not be able safely separate from an abusive partner given the level of risk and/or resources available to them.
Some concepts like "Battered Woman Syndrome" do not take into account the safety options available to the primary victim or the structural inequalities faced.
Decision-makers may perceive primary perpetrators of domestic and family violence as victims when only the immediate circumstances of alleged domestic and family violence or (other) offending are considered.