Australia
Bartels, Lorana, Violent offending by and against Indigenous women. (2012) 8(1) Indigenous Law Bulletin 19-22.
The author examines the relationship between violent offending by Indigenous women and their victimisation, observing that most Indigenous women who violently offend are themselves victims of violence. Indigenous women violent offenders are also overrepresented in prison populations to a greater extent compared with the general female prisoner population and also to a greater extent than the Indigenous male violent offender prisoner population is compared with the general male prisoner population. Greater study of the relationship between Indigenous women’s victimisation and violent offending is recommended.
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.
This article examined the prevalence of self-defensive and retaliatory violence in incidents where women were identified as persons of interest (POIs) in investigated domestic violence reports. As compared to male POIs female POIs were more likely to be historically recorded victims of violence by a domestic partner. Half of reported female domestic violence episodes involved violent resistance. 20% of episodes were directly preceded by a tipping point involving abusive actions or intimidation by their male partner. 33% had previously been the victim of their current male partner based on police data. Indigenous women were more likely to have engaged in violent resistance than non-Indigenous women and also more likely than non-Indigenous women to still be in a relationship with the reported victim, while those continuing relationships were often unstable.
Domestic and Family Violence Death Review and Advisory Board, 2019–20 Annual Report (2020) Queensland Government, Brisbane.
Extract: Domestic and family violence death review processes are a key component of a robust service system response to domestic and family violence. They function for the purposes of learning from such tragedies and aim to improve systems, services and practices in the hopes of preventing future deaths from occurring. Accordingly, the Board is established under section 91A of the Coroners Act 2003 to:
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identify preventative measures to reduce the likelihood of domestic and family violence deaths in Queensland;
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increase recognition of the impact of, and circumstances surrounding, domestic and family violence and gain a greater understanding of the context in which these types of deaths occur; and
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make recommendations to the Attorney-General for implementation by government and non-government entities to prevent or reduce the likelihood of domestic and family violence deaths.
During the 2019-20 reporting period, the Board completed in-depth systemic reviews into five cases involving seven deaths. Based on its discussion of these cases, the Board released two systemic reports of the intimate partner homicides of ‘Jack’ and ‘George’.
In both cases the female victim of domestic and family violence killed her male intimate partner in the context of domestic and family violence perpetrated primarily by the deceased. The Board decided to release its findings in these cases due to the compelling themes identified upon its review. Both cases highlight the impact of cumulative trauma and victimisation experienced by women that can persist throughout their life course and the issues experienced by women who may not present as the ‘ideal victim’, a concept that is explored further in Chapter 3.
In addition, the Board identified a need for services to improve their understanding of the patterns of behaviour used by perpetrators of domestic and family violence to avoid detection and accountability for their violence. These findings are not new and have been consistently been made by the Board in prior Annual Reports. In this year of operation, the Board sought to extend and reflect upon its prior findings and recommendations as it remains clear that more needs to be done.
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.
This article reviews cross-applications and orders in Queensland’s courts (2008-2010). It identifies concerns around the misuse of DVPOs for vindictive, strategic or tactical reasons (pp58; 60-62). Tactics include cross-orders being used to pressure the other party to mutually withdraw their application (p86).
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.
The authors examine Queensland court administrative records in relation to domestic violence protection orders. Their analysis concludes that a disproportionate number of ATSI people are named on DVOs (as both aggrieved and respondent) and subsequently charged with contravention of a DVO, compared to non-Indigenous people. ATSI women are overrepresented in these charges compared to non-Indigenous women and 69 per cent of women who were sentenced to serve a period of imprisonment for a contravention of a DVO in the 2013-2014 year were ATSI women (while only 3.3 per cent of the Qld population were ATSI women).
They argue that the political commitment to strong responses to DFV has resulted in increased sentences for breaches of a DVO which disproportionately impacts ATSI women. Studies have shown ATSI women may be more likely than other victims of DFV to use physical violence and fight back in response to DFV. This makes it more likely police will make applications for DVOs against ATSI women and in turn more likely they will be charged with contravention of a DVO. They reference literature that finds a formulaic police response fails to consider circumstances of coercive control and other factors that influence patterns of violence and victimisation and this may contribute to high incarceration rates for ATSI women. The higher rate of applications and cross-applications for DVOs by police where ATSI people are the respondents also contribute.
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.
Abstract: This article explores two recent cases. The first, where a woman from a culturally and linguistically diverse background (Rinnabel Blackmore) was killed by her abusive partner and the second, where an Aboriginal woman (Jody Gore) killed her abusive partner. In both cases, we consider the implications of using a social entrapment lens, which focuses on coercive control, the limits of the family violence safety response and the role of structural intersectionality to understand the form of violence the woman faced before being killed by her abuser or killing her abuser. We show how a social entrapment framework can reveal relevant facts and improve understanding of the dynamics of violence and might have led to different actions and decisions by the agencies and individuals responding to the violence in these cases.
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).
This article considers what evidence juries need to help them apply the defence of self-defence where a woman claims she has killed an abusive partner to save her own life. Drawing on recent research and cases we argue that expert evidence admitted in these types of cases generally fails to provide evidence about the nature of abuse, the limitations in the systemic safety responses and the structural inequality that abused women routinely face. Evidence of the reality of the woman’s safety options, including access to, and the realistic support offered by, services such as police, housing, childcare, safety planning and financial support should be presented. In essence, juries need evidence about what has been called social entrapment so they can understand how women’s safety options are deeply intertwined with their degree of danger and therefore with the question of whether their response (of killing their abuser) was necessary based on reasonable grounds. We consider the types of evidence that may be important in helping juries understand the concept and particular circumstances of social entrapment, including the role of experts in this context.
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
Explores how women DFV victim-survivors view and experience Body Worn Cameras in police call-outs and legal proceedings. Informed by a national survey of 119 victim-survivors, study explores two key concerns relating to the potential consequences of BWC footage: (1) it may facilitate misidentification of the primary aggressor, and (2) perpetrators may use the BWC to present (false) evidence of themselves as blameless.
Jillard, Alicia and Julia Mansour, Women victims of violence defending intervention orders. (2014) 39(4) Alternative Law Journal 235-240.
This article summarises the findings of the Women’s Legal Service (WLS) "Women Defendants Report" which examined the increase in WLS clients defending NSW ADVO proceedings and criminal charges of domestic violence offences instructing that they are the victims of violence in their relationship and that the person seeking protection is the perpetrator. The report analysed all relevant 2010 WLS client cases. It found that 2/3 of women clients defending ADVOs instructed that they were the primary victim of violence in their relationship with the person seeking protection and a significant number said they were the primary victim of the incident that prompted the ADVO application. 1/5 had an existing final ADVO against the person seeking protection and the clear majority of ADVO applications against women were made by police. Many reported they felt police perceived them as lacking credibility due to their state of stress and anxiety when police were called. A number believed the person seeking protection initiated proceedings as a form of legal abuse or means to control their future behaviour with threats of reports to police. Nearly all final orders against women were either made by consent or following an uncontested hearing and women reported a reluctance to face the other party in court.
The article also considers the potential consequences of other proposed amendments to streamline the grant of provisional ADVOs and information sharing consequences for vulnerable women where incorrect information is relied upon.
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.
Abstract: Intimate partner violence (IPV) on average affects one in four women, with the majority of victim survivors identifying as mothers in national survey data. Children experiencing parental IPV are now equally understood as victims. Extensive research documents the short- and long-term impacts of children's experiences of IPV on their safety and wellbeing. More recently, research has started to examine adolescent children's use of violence in the home as adolescent family violence (AFV). Contributing to this emerging body of research, we draw on narrative interview data from mothers who participated in a larger study on IPV, help-seeking and the perceived impact on children to better understand how mothers make sense of children's use of violence in the home. Mothers identified an emergence of AFV in male children with childhood experiences of adult IPV. Although mothers' experiences of adult and adolescent violence highlight their dual victimisation, mothers frame their abusive children as victims rather than perpetrators. Implications for future research, policy and trauma-informed practice are discussed.
Nancarrow, Heather (2019) Unintended Consequences of domestic violence law: Gendered consequences and racialised realities. Palgrave, Cham.
See especially chapter 7 which focusses on the gendered and racialised power in the law. It seeks to explain how and why laws designed to stop men’s violence against women resulted in increased criminalisation of women, particularly Indigenous women. It posits three parts to the explanation: 1. Formal equality in the law embeds gender and racialised power relationships. 2. The formulaic implementation of the law reinforces these relationships to the detriment of women – in particular Indigenous women. 3. Feminist advocates had not envisioned (or had ignored) a complex set of meanings and motivations for violence in couple relations. (pp 187-207).
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.
Abstract: This in-house project was conducted by ANROWS. It aimed to support the effective identification of the “person most in need of protection” in cases where there is some ambiguity about who perpetrated domestic violence and abuse.
The research responded to a recommendation of the Queensland Domestic Violence Death Review and Advisory Board in its 2016-17 Annual Report. The Advisory Board reported that in just under half (44.4%) of all cases of female deaths subject to the review, the woman had been identified as a respondent to a domestic and family violence (DFV) protection order on at least one occasion. Further, in nearly all of the DFV-related deaths of Aboriginal people, the deceased had been recorded as both respondent and aggrieved prior to their death (p. 82). The Board’s report recommended research to identify how best to respond to the person most in need of protection where there are mutual allegations of violence and abuse (Recommendation 16).
Responding to that recommendation, the research used a mixed methods approach. This included a national analysis of statistical data (domestic violence order applications, police-issued orders and related criminal charges) and a national desktop review of existing legislative and police requirements and guidance on identifying the DFV victim or perpetrator. The project also involved an in-depth case study of Queensland as a state that has already incorporated the concept of the person most in need of protection into legislation.
The final report emphasises the need for improved guidance for police on identifying patterns of coercive control, and guidance for magistrates on how and when they can dismiss inappropriate applications and/or orders. It recommends clarifying processes of decision-making and accountability between police and the courts as a way of addressing the current ambiguity surrounding responsibility for the determination of the person most in need of protection.
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.
Concerns over the legal treatment of women who kill in response to domestic abuse have driven several jurisdictions to reform their homicide laws in recent years. This article examines how abused women are currently treated within the Australian legal system by anaylysing homicide cases involving women prosecuted for killing an abusive partner in Australia from 2010 to 2020. The findings reveal the limitations of legal reforms to improve access to justice for abused women. Instead, there needs to be an increased focus toward pre-trial stages of criminal proceedings and to address persistent misconceptions and stereotypes associated with domestic abuse.
No to Violence (NTV). (2019) Discussion paper: Predominant aggressor identification and victim misidentification, (Melbourne, No to Violence).
This paper provides a discussion of misidentification of victims of intimate partner violence as perpetrators. It defines misidentification ‘as falsely assessing victims of IPV as perpetrators by members of the justice system’ (p6). The discussion identifies a number of factors that contribute to misidentification including police perspectives (p11), assumptions about the perfect victims (p12), and stereotypes about perpetrators (p13).
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.
This article explores the impacts of misidentification on the lives of women victim–survivors of family violence in Victoria (Australia. Using data from interviews with 32 system stakeholders and survey responses from 11 women who have experienced misidentification in Victoria, this study explores misidentification within the family violence intervention order system. It demonstrates that being misidentified as a predominant aggressor on a family violence intervention order can have a significant impact on women’s lives and their access to safety, highlighting the need for improved policing and court responses to the issue beyond existing reforms.
Reeves, Ellen, Family violence, protection orders and systems abuse: views of legal practitioners. (2019) 32 Current Issues in Criminal Justice 91-110.
This article drew on interviews with lawyers who represent women defendants to family violence intervention orders (FVIO) applications to examine the use of FVIOs by perpetrators of domestic violence to "play the system" and use them as a tool to further their abuse of their partners. The author spoke to 8 female lawyers who represent women respondents to FVIO applications and reports their observations drawn from their experience. The article concludes that greater awareness of systems abuse by all stakeholders may reduce the inconsistency of legal responses to victim misidentification.
Observations included that victim distress could be used by perpetrators to support their claims, and that victims presenting as angry and victims who have mental health or substance misuse issues can have their credibility questioned by police. CALD women were seen as particularly vulnerable to having their agency and narrative taken by the perpetrator as their partners often had better English language skills which could be used to frame the woman as perpetrator, and may even be called upon to translate for police. One lawyer noted that where court personnel and police had received domestic violence training they observed fewer incidences of misidentification that where inadequate training had been provided. A number felt prosecutors were inadequately empowered to change their decisions to support FVIO applications were systems abuse was identified or suspected.
Where 2/3 of FVIO applications are made by police factors leading to perpetrator misidentification include poor police understanding of domestic violence, erroneous beliefs that women provoke their partner, are able to leave at any time, a single incident of violence is a one-off, not indicative of a systematic pattern of control and abuse and a failure to identify emotional abuse, vexatious applications and non-physical family violence. Time constraints and lack of legal aid meant it was difficult to encourage women to contest applications for FVIOs and it was observed that the grant of interim FVIOs could often negatively impact family law outcomes for women, especially where respondents were rendered homeless quickly establishing the "status quo" for contact with and residence of children.
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
This article documents strategies that may support successful defences of abused women seeking to rely on a defence of self-defence with specific reference to R v Falls, in which a battered woman charged with murder in ‘non-confrontational circumstances’ was acquitted on the basis of self-defence.
Sleep, Lyndal (2019) Domestic violence, social security and the couple rule ANROWS
This project considered the use of the couple rule by Centrelink to determine the eligibility of applicants to social security payments tying abused women’s access to social security payments to the income and assets of their perpetrator. It uses reports of domestic violence as evidence of a committed relationship.
This project detailed the dynamic between domestic violence, social security payment, and the couple rule. It examined the pre-existing data set of Administrative Appeal Tribunal decisions of couple rule matters and compared this to decisions made in New Zealand (where domestic violence is interpreted as evidence of no relationship).
A summary of the research contained in Tarrant, Stella, Julia Tolmie and George Giudice, Transforming legal understandings of intimate partner violence: Final report (ANROWS, 2019).
Tarrant, Stella, Julia Tolmie and George Giudice, Transforming legal understandings of intimate partner violence: Final report (ANROWS, 2019).
The report examines homicide trials in which self-defence is raised by women who have killed an abusive intimate partner. It explores how legal professionals and experts understand intimate partner violence (IPV). These understandings influence which facts are selected and presented as relevant to understanding a case, the language used to frame those facts, and the conclusions drawn from them. The report outlines and applies a "social entrapment framework" analysis. A social entrapment framework recognises, in line with current research, that the victim’s ability to resist abuse is constrained by the abuser’s behaviour, her available safety options, and broader structural inequities in her life. Using a social entrapment framework requires analysis at three levels:
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documenting the full suite of coercive and controlling behaviours employed by the abuser, including the strategic and responsive dimensions of this behaviour (and the isolation and fear that this creates for the victim);
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examining the responses of family, community and agencies to the abuse; and
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examining the manner in which any structural inequities experienced by the victim supported the abuser’s use of violence (including thwarting her attempts to resist the abuse).
Voce, Isabella and Samantha Bricknall (2020). Female perpetrated intimate partner homicide: Indigenous and non-Indigenous offenders. Statistical Report No. 20. Australian Institute of Criminology
The report is a statistical analysis of female perpetrated intimate partner homicide (IPH) in Australia aiming to identify the personal, contextual and situational factors that contribute to IPH offending and whether these factors differ between indigenous and non-indigenous IPH offenders. It finds that most female IPH perpetrators are in established relationships with their victim, half characterised by a history of domestic violence. 67% of Indigenous female IPH perpetrators are in abusive relationships and 61% of perpetrators’ partners had violent criminal histories. The authors suggest that future studies consider offender access to and engagement with formal support services and whether this decreases the likelihood of violence towards intimate partners.
Wangmann, Jane, ‘Gender and Intimate Partner Violence: A Case Study from NSW’ (2010) 33 University of New South Wales Law Journal 945.
This article reviews cross-applications and orders in NSW courts (2002-2003). The article argues that the use of cross-applications is a form of harassment or a bargaining tool (from p967). The article draws on interviews with women and professionals who suggest cross-applications are ‘a possible extension of the violence and abuse itself’ and identify that ‘the use of the law against victims of domestic violence is rarely depicted as part of their continuing experience of violence, yet it is seen that way by victims and clearly evidences a type of act that is directed at exerting control (or reasserting control)’ (p968).
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.
Abstract: Whether men and women are equally violent in their intimate relationships has animated considerable debate in the scholarly literature, and increasingly, in policy and law reform processes. This debate about the gendered nature of domestic violence (DV) has re-intensified over the past decade with police data from various countries documenting an increase in women identified as DV offenders. While there has been considerable research exploring the increase in women DV offenders overseas (particularly in the USA) there has been little research in Australia. This article seeks to fill some of these gaps. It reports on a NSW study which explored differences between women and men identified as ‘persons of interest’ in an incident reported to police in 2010, and then over time (2006–2012) to see whether that person was the predominant victim or offender. This article focuses on cases in which the police intended to take legal action arising from the 2010 incident; this is important, as one would anticipate greater similarity between men’s and women’s use of violence in cases warranting the attention of the law. The article highlights the limitations of an incident focus when examining a patterned form of behaviour such as DV.
‘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
This guide identifies three types of women perpetrators: (1) women who use violence in self-defence; (2) women who abuse and exert power and control in a mutually abusive relationship; and (3) women who are the primary perpetrator of the violence.
Swan and Snow’s Typology
Research involved 108 DVA perpetrator women and "explored women’s experience of victimisation and perpetration of DVA" (43). The study identified three subtypes of women: victims (women were violent, but their partners were much more abusive); abused aggressors (women were more abusive than their partners); and mixed relationships (women were either more physically abusive than their partners but their partners were more coercive, or, women were less physically abusive but more coercive). 43% of women fell within the victims category; 12% in abused aggressors; and 50% in mixed relationships.
Miller and Meloy’s Typology
Research involved 108 DVA perpetrator women and "explored women’s experience of victimisation and perpetration of DVA" (43). The study identified three subtypes of women: victims (women were violent, but their partners were much more abusive); abused aggressors (women were more abusive than their partners); and mixed relationships (women were either more physically abusive than their partners but their partners were more coercive, or, women were less physically abusive but more coercive). 43% of women fell within the victims category; 12% in abused aggressors; and 50% in mixed relationships.
Miller and Meloy’s Typology
Study of 95 female offenders attending treatment programs. The study identified three types of violence: generalised violent behaviour; frustration response; and defensive behaviour. 30% of women fell within the frustration response category, meaning their abusive behaviour was in response to abuse by their partner. The study noted that while the women used force in an attempted to stop the abuse, their violence did not "change their partner’s abusive behaviour or the power dynamics in their relationship" (44). 65% of women fell within the self-defence category.
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.
This article explores the extent to which victim resistance, either physical or verbal/passive, during an assault differentially produced injury between intimate and stranger perpetrated assaults. It relied on the responses of 647 women who reported intimate partner violence and 257 women who reported being assaulted by a stranger to the National Crime Victimisation Survey (US) between 1987-1990.
Review of Existing Literature
The study was particularly influenced by 1980s research suggesting that the more likely husbands perceived it was that their wife would hit them back, the more likely they were to abuse.
Results:
78% of victims of IPV reported using some form of self-protection. Only 52% of these women believed their efforts helped, while 19% believed self-protection made the situation worse. The results in Table II revealed that an IPV victim’s use of self-protection actually increased the probability of injury: "[T]he odds of sustaining injury from intimate assaults increased by a factor of 1.7 if the victim used any physical self-protection measure. Further, the odds of the victim sustaining injury almost doubled (a factor of 1.978) if she responded to her assaulter verbally (e.g, pleading or arguing)." (327). The study noted that while the probability of a victim of IPV sustaining an injury increases if she tries to self-protect, the extent to which female victims of intimate assaults needed medical care did not. The researchers provided that this may be because the women "fear retaliation from their abuser for seeking public assistance with their injuries or they may suffer embarrassment and shame as the result of their victimisation." (329).
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.
This article examines a qualitative study in the UK which aimed to investigate co-offending women’s pathways into, and motivations for engaging in, criminal behaviour. It considers not only the impact of co-offending relationships on women’s criminality, but also factors which intersect with these relationships in their lives. Interviews with eight women who accessed a women’s advice and support centre were conducted. Findings showed that while co-offending relationships were a central pathway into offending, this often intersected with other circumstances in the women’s lives, including drug addiction, socio-economic circumstances, and ‘significant life events’. Moreover, women who co-offended with female friends were more likely to acknowledge their agency than those who co-offended with intimate male partners. Findings also demonstrated the significance of understanding the complex nature of the lives co-offending women, and the decision-making process.
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.
The authors argue that the hyper-incarceration observed in the United States has increased the risk of domestic violence in vulnerable populations. They observe that incarceration rates of women have increased 80% since the late 1970s and that poor women of colour are particularly vulnerable to incarceration. A significant number of those women are in prison as a result of attempts to escape, survive or ameliorate their violent victimisation, particularly at the hands of their abusive domestic partners. They identify that the limitations of the defence of duress, limits to reduction in sentences on the basis of coercion and the broad application of conspiracy law have all contributed to long sentences for women who are coerced to offend by abusive partners or who play minor roles in drug crimes largely perpetrated by their abusive partner. Patterns of racist imagery in public and political discourse have contributed to withdrawal of investment in vulnerable communities, diminishment of the welfare state and to increases in incarceration rates, all leading to increasing disadvantage to poor women of colour.
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.
This article examines cross-filings for protection orders. It analyses 313 cross-filings (cross-applications) for protection orders, comparing them to 1,004 single-filings. It finds that cross-filings are a gendered phenomenon, with men more likely to be involved in cross-filings than women, and men less likely than women to report the types of abuse that qualifies for an order. Cross-filings may be an example of abusers leveraging the legal system to extend control over victim/survivors, rendering victim/survivors ineligible for resources and making them vulnerable to arrest and other forms of state control.
Fanslow, Janet, Pauline Gulliver, Robyn Dixon and Irene Ayallo Hitting back: Women’s use of physical violence against violent male partners, in the context of a violent episode. (2015) 30(17) Journal of Interpersonal Violence 2963–2979.
This article explores women's use of physical violence in the context of experiencing intimate partner violence (IPV). Data were drawn from the New Zealand Violence Against Women Study, a cross-sectional household survey. Of the 843 women who had experienced physical violence perpetrated by an intimate partner, 64% reported fighting back at least once or twice whereas 36% never fought back. Analyses showed that women's use of violence more than once or twice was associated with experience of severe IPV, IPV that had "a lot of effect" on their mental health, and with children being present when the woman was being physically abused. Women's use of physical violence only once or twice was associated with both partners having alcohol problems and both having been exposed to violence as a child. Of the women who fought back, 66% reported that this did not result in the violence stopping.
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
This article looks at the conflicting narratives of victims of domestic violence who ask the civil justice system for assistance. It first discusses the importance of narrative in the construction of identity, both in constituting one's self and in determining how that self is presented to the world. It then juxtaposes the prevailing narrative of the domestic violence victim-the passive, middle-class white woman-against the narratives of women who fight back. The Article argues that victims of violence are encouraged to tailor their stories as closely as possible to the prevailing narrative to persuade the legal system of their need for protection, and presents the consequences both for victims and for their advocates in constructing narratives that deny women the right to defend themselves.
Hester, Marianne Portrayal of Women as Intimate Partner Domestic Violence Perpetrators (2012) 18(9) Violence Against Women 1067–1082.
The study followed 128 cases of IPV over the course of six years with the aim of exploring the portrayal of women as perpetrators of IPV in police records. More specifically, the study looked at the extent to which women are characterised as what may be termed ‘batterers’, their identification as primary aggressors, and shifts in positioning from female victim to female perpetrator (1069). Of the 128 participants, 32 of the women were the sole perpetrators of IPV while in a further 32 cases women were ‘dual’ perpetrators. The data used in the study was collected from "a comprehensive computer-based system for recording and linking domestic violence incidents across police districts" (1071).
Results:
The research found that the behaviours exhibited by female perpetrators did not fit within the ‘batterer’ description normally attached to male perpetrators as females rarely acted with the intention to control their partner. The research also found that "women were 3 times more likely than men to be arrested when they were identified as a primary aggressor in a particular incident, and the police appeared more ready to arrest women: (1075). Furthermore, women were arrested for a wider range of offences than male perpetrators, particularly as their use of weapons for self-defence was often overlooked or dismissed due to the focus of English police on individual incidents rather than viewing the woman’s actions within a history of victimisation. There was some evidence, however, to suggest that police officers were beginning to move away from this ‘individual incident’ approach at the advice of the Association of Chief Police Officers and instead "taking a gender-sensitive approach to determining the primary aggressor" in situations with dual perpetrators (1076). This involved officers looking at any pattern of incidents over time. The researchers thus noted that an understanding of gender dynamics was essential to police being able to accurately identify the primary aggressor and enabled them to contextualise any retaliatory violence by a female victim and thus allowing officers to ensure the women’s safety (1079-80).
The study also found that male victims were often able to use their ‘gendered position of power’ to ensure their own safety, diffusing the situation by escaping the vicinity of their violent partner and/or removing weapons or imposing restraints.
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.
The article explores the use of force in intimate relationships by women in marginalised communities, the law’s response to this use of force, and the development of and best practices in gender-responsive programming to respond to women’s use of force in their intimate heterosexual relationships.
Black Battered Women The study noted that black women were disproportionately affected by IPV. More specifically, "the Bureau of Justice Statistics found that Black women experience IPV at a rate 35% higher than that of White women and about 2.5 times the rate of women of other races". It was also noted that black women were less likely to report IPV due to fears of discrimination, distrust of police and negative stereotyping" with these fears considerably narrowing the help available to them (59).
South Asian Immigrant Battered Women Fear of racism, cultural restrictions and family pressures often prevent South Asian battered women from seeking help and disclosing details of their abuse. The women are also hindered by the belief of South Asian communities "that no good can come of engaging with the police and the legal system in family matters" (61) and by fear that their abusive husband might withdraw their immigration sponsorship. When the women do manage to seek help, language barriers force police to turn to the abuser to gather information. This creates further issues as the abusers use the opportunity to their advantage by either omitting their violence entirely or exaggerating their partners.
Legal Response to Women’s Use of Force In 1994, mandatory arrest laws were introduced in America to meet the demands of early anti-violence movements. While the laws deterred recidivism in some states, it either had no impact or contributed to violence against women in others. Female arrests rates rose significantly, particularly in marginalised communities as law enforcements focussed on "gender neutrality in policing IPV’ and lacked "sensitivity to the cultural contexts and individual barriers that move many women to resist abuse with force" (63).
Programming for Women Who Use Force "The programs and their curricula share the goal of providing gender-responsive advocacy, support, and intervention while reducing and eradicating IPV" (69).
Larance et al., ‘Understanding and Addressing Women’s Use of Force in Intimate Relationships: A Retrospective’ (2019) 25(1) Violence Against Women 56–80.
This article surveys the evolving US-based understanding of women’s use of force in intimate heterosexual relationships and explores the common characteristics of women who use force. Most women who use force in intimate relationships have been victimised by their male partners; however the notion of a woman retaliating against her abusive partner is at odds with prevailing stereotypes applied to women subjected to abuse. Through an intersectional lens, the authors also consider the experiences of women in marginalised communities, for example, South Asian immigrant battered women. Further, the article examines how the legal response to intimate partner violence has affected women who used force and how that response has evolved to address women’s use of force. To conclude, the article identifies the challenges in effectively responding to women’s use of force.
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.
The article examines use of force by 208 women as well as their consequent arrest and court-ordered participation in anti-violence intervention programming. The data used was collected from two separate intervention programs over a period of six months and eventually sorted into nine categories: aggressive use of force (n2) – use of force without a history of abuse; anticipatory (n8) – using force as a result of historical substantive harm causing the women to believe she will soon be abused; both use force (n1); self-defence (n61); asserting dignity (n79) – defined as "women seeking autonomy by using non-self-defensive force" (pg 1547); edgework (n4); false accusations (n32) – "partner embellishing events from the incident to leverage law enforcement against her" (1549); partner self-inflicts injuries (n4); and horizontal hostility (n17 women) – when a woman uses force against a third party.
The substantial number of women within the ‘Asserting Dignity’ category "brings attention to the critical importance of understanding context" (1551). Experiences of women who fell within the ‘Horizonal Hostility’ category indicate that a "closer look must always be taken to better understand who orchestrated the events that led to the presenting incident" (1552). The large number of women falling within the ‘Self-Defence’ category suggests that "the only difference between a women’s court order to intervention and encouragement for her to seek voluntary survivor support services may be the extent of the responding officer’s investigation" (1551). The study also found that Women were more likely to admit to the use of violence and/or detail their actions in full than men. "This contributes to the likelihood that they will be arrested instead or in addition to the men who have abused them" (1540).
Li, Simiao, Ani Levick, Adelaide Eichman, and Judy Chang, Women’s Perspectives on the Context of Violence and Role of Police in Their Intimate Partner Violence Arrest Experiences. (2015) 30(3) Journal of Interpersonal Violence 400–419.
Researchers conducted 18 semi-structured qualitative interviews with women who were court-ordered to attend IPV education groups with the aim of investigating the women’s experiences with violence and arrest.
The women’s use of violence could be divided into four categories: (1) self-defence (typically an isolated occurrence in direct response to an immediate physical threat); (2) driven to violence (had chronically experienced verbal and physical violence from their partners); (3) proving a point (violence was a messaged they wished to convey to others, particularly the abusers); and (4) protecting others (406). These categories align with those from existing research. The study also supports previous findings regarding motivations for violence (e.g., social, historical, institutional, and individual variables) however did not find coercion to be a motivator (414).
Participants who called police themselves were generally seeking help and protection while when the women’s partners called police it was it was often to avoid their own arrest or minimise their abuse. The study noted that, to counter this, "police should made aware of the possibility that male partners may falsely portray themselves as victims or even use calls to the police as methods of controlling or manipulating their victims" (415).
Most women reported negative arrest experiences. While some officers allowed them to explain the situation, others arrested the women "based on a literal interpretation of the mandatory arrest law" and demonstrated a very limited understanding of the situation’s context and the use of self-defence (411). Furthermore, "where injuries were used to determine which party would be arrested, the women’s injuries were often unnoticed or did not appear until later" (412-13).
Miller, Susan & Michelle Meloy (2006) Women’s Use of Force: Voices of Women Arrested for Domestic Violence. Violence Against Women, 12(1), 89–115.
The article ‘explores the perceptions and experiences of arrested women enrolled in three domestic violence treatment programs in one state’. Researchers observed the participation of 95 women in these programs for a period of six months through watching the tape-recorded group sessions and reading their transcripts. Analysis revealed three violence different categories of violent behaviour which led to participants’ arrest:
•
‘generalised violent behaviour’: (5% of women) the use of violence in many circumstances, not just in intimate relationships. These women did not have the control or power over their targets; experiences of participants they used violence in response to an immediate incident rather than form part of a history of victimisation and violence.
•
‘frustration response (or ‘end of her rope’) behaviour’ (30% of women). These women often had histories of domestic abuse in their backgrounds…and reacted violently when nothing else seemed to stop his behaviour’ (100/12). The violent behaviour of the women in this category ‘did nothing to change the abuse and power dynamics of their relationships’ (101).
•
‘defensive behaviour’: (65% of women). ‘Women who exhibited defensive behaviour were trying to get away during a violent incident or were trying to leave to avoid violence when they knew they partners was about to become violent’ (102). The participants were often unable to escape their partners during these situations or acted in protection of a child.
Women in all three categories took responsibility for their violent behaviour during the treatment sessions. The study noted this to be a primary difference between female and male perpetrators as research on male batterer treatment groups has typically found men to minimise and deny their violent behaviour (105). By accepting this responsibility and being willing to actively participant in the treatment, the women felt more empowered and better able to deal with the frustrations and issues in their lives (105).
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.
Examines the cases of women who commit offences under threat of harm from their abusive partners. Considers the New Zealand defence of compulsion and whether it provides an adequate defence for victims of family violence. Argues the defence is too narrowly framed to adequately provide a defence for victims who offend at their abusive partner.
Sheehy, Elizabeth ‘Expert Evidence on coercive control in support of self-defence: The trial of Theresa Craig’ (2018) 18 (1) Criminology & Criminal Justice 100
This article examines defence evidence led in the first Canadian case where an attempt was made to use coercive control expert evidence to support a defence of self-defence by an abused woman who killed her abuser. Evan Stark, an academic in social work, gave evidence of the nature of coercive control.
Skubak, Marie and Emily Wright, Intimate Partner Violence and the Victim-Offender overlap. (20130 51(1) Journal of Research in Crime and Delinquency 29-55.
This article examines the prevalence and correlates of intimate partner violence (IPV) victimization and offending, as well as the overlap of these experiences. Data from wave 4 of the National (US) Longitudinal Study of Adolescent Health were analysed to examine IPV among 5,114 adults ages 24 to 33. Approximately 20% of respondents reported some IPV involvement in the past year, one-third of whom reported victimization and perpetration. The victim-offender overlap was observed for males and females across various measures of IPV. Bivariate correlations suggest victimization and perpetration have common correlates. Multivariate analysis, however, reveals considerable differences once we distinguish between victims, offenders, and victim-offenders and control for other variables. Perpetrators and victim-perpetrators were more likely to live with a non-spouse partner; feel isolated; display negative temperaments; and report substance use problems. "Victims only" were more likely to live with children and have lower household incomes.
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
This article argues that understanding intimate partner violence as a form of social entrapment can assist the application of the law to victims of intimate partner violence who are also offenders. By way of example it considers self-defence to homicide where the primary victim kills their abuser and the prosecution of mothers who are victims for neglectful parenting. Note the appendix to this article by the New Zealand Death Review Committee which proposes an evidential approach to the defence of victims of intimate partner violence who are also offenders.
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.