Impact on Consent
Australia
Information on this website has collated some of the findings from the NCAS 2021 survey. The site includes fact sheets, summaries and full reports. Key findings for young people (aged 16-24) include:
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Young people’s understanding and attitudes have improved since 2017, with some exceptions
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Young people’s understanding and attitudes towards violence against women and gender inequality are stronger in some areas than others
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Young people more strongly reject sexual violence than domestic violence, but there is room for improvement across all types of violence
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Young people’s bystander responses depend on the context
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Young men’s understanding and rejection of violence lags behind that of young women and young non-binary people
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Young people have similar attitudes to people aged 15 years or older, but weaker understandings of violence against women
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Within the cohort of young people, 16-17 year olds and 18-24 year olds have similar understandings of violence against women and attitudes towards gender inequality, but rejection of violence against women strengthens with age.
Australian Bureau of Statistics (ABS), Personal Safety, Australia, 2016, ABS cat no. 4906.0 (2016).
This release presents information from the Australian Bureau of Statistics’ (ABS) 2016 Personal Safety Survey (PSS).
The survey collected detailed information from men and women aged 18 years and over about their experiences of violence since the age of 18, as well as experiences of current and previous partner violence, stalking, physical and sexual abuse and harassment, abuse before the age of 15, and general feelings of safety.
‘Approximately half of all women who experienced physical assault by a male perceived alcohol or another substance to be a contributing factor to the most recent incident (49% or 519,700)’ (see Table 8), while ‘[j]ust under two-thirds of men who experienced physical assault by a male perceived alcohol or another substance to be a contributing factor to the most recent incident (61% or 804,000)’ (see Table 9).
Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence – A National Legal Response, Report 114 (2010).
See p592 onwards which discusses ‘Economic and emotional abuse offences’, including recognition of fraud, and coercion of victims to claim social security payments in the context of domestic and family violence. Chapter 25 deals with sexual offences, including consent specifically (from p1147). Section [25.114] (p1156) Notes that ‘stakeholders emphasised that the issue of consent in the context of family violence and intimate relationships is complex; and that complexity is magnified where there is a history of violence and coerced ‘consent’. The disjunction between the criminal justice system’s focus on isolated incidents, as opposed to a pattern or history of family violence, was identified as a particular challenge in proving lack of consent.’
Section [25.118] (p1157) observes that stakeholders also suggested that the circumstances vitiating consent should be expanded to include:
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economic abuse;
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where consent is purported to be given by persons with a cognitive impairment to sexual activity with a carer;
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fear of force or fear of harm of any type; threats to harm animals; and
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threats to damage property.’
Australian Law Reform Commission, ‘Family Violence and Commonwealth Laws – Improving Legal Frameworks’ (ALRC Report 117, 2012).
See p72- discusses the contrast between autonomy and paternalism, particularly in the context of safety concerns. This section draws on particular examples of how paternalistic approaches can disempower people who are subject to abuse.
See chapter 6 ‘Social Security – Relationships’ in relation to consent in financial contexts, discussing difficulties that arise in relation to determining a person is a member of a couple, for the purposes of s4(3) of the Social Security Act (from p151). Concerns are raised from pp152 that ‘economic abuse may obviate consent to the ‘significant pooling of financial resources’’ (p153), and further, that people may be unable to leave a relationship due to violence. ‘The Commonwealth Ombudsman noted anecdotal instances when Centrelink has determined that a customer is a member of a couple, even where it appears the ‘relationship’ may have only continued as a result of duress or financial abuse’ (p153), while concerns were also raised that’ information about family violence—such as police reports—has been used to demonstrate the existence of a couple relationship, rather than finding that one did not exist’ (p154).
Bagshaw, Dale et al, ‘Family Violence and Family Law in Australia The Experiences and Views of Children and Adults from Families who Separated Post-1995 and Post-2006’ (Monash University for the Australian Attorney-General’s Department, 2010), vol 1.
This research was conducted to examine the impact of family violence, which had occurred before, during and or after parental relationship breakdown, on post-separation decision making and arrangements as viewed by children and parents both pre and post 2006 changes to family law. The report is based on data collected via an online survey of 931 adults; an online children survey of 65 children; phone-in interviews with 105 parents and phone-back interviews with 33 parents. Some of the key findings for the context of consent include:
At pp 6-7: ‘[t]he other group most affected was the post-2006 group. They reported being coerced by the combined pressure from legal advisors and family dispute resolution practitioners to agree to arrangements that were unsafe or inadequate for their children, including shared parenting, overnight or unsupervised contact, or any contact’.
‘Some of the female respondents reported that they had felt powerless at separation and still felt this way, although this was the smallest group. These respondents felt particularly powerless over sharing care of the children and finances and felt they had been pressured into agreements that were unfair. For example, as one respondent said: ‘the power he held over me during the relationship continued afterwards in regard to parenting arrangements and finances’. She was bluffed into thinking she must agree to the equal time, although this was prior to the 2006 legislation. Another respondent just said: ‘I made decisions based on my fear of him’’ (p50).
‘Just under 19% of those who did not access formal services indicated that they made that choice because family violence perpetrated against them made use of the services dangerous or impossible, that is, that victims were bullied into agreements outside the formal system or that the victims rejected formal services because they would provide further avenues for abuse (such as through family dispute resolution)’ (p64). Some ‘women noted that they were threatened with violence and with court action if they did not agree to arrangements for children’ (p79).
Cameron, Prue, ‘Relationship Problems and Money: Women Talk about Financial Abuse’ (Research Report, Wire Women’s Information, 2014).
This research draws on interviews, focus groups and surveys involving more than 200 women. The behaviours associated with economic abuse are explored from p11, noting the difference between controlling behaviours (e.g. preventing access to money or financial independence) and exploitative behaviours (e.g. being intimidated into assuming responsibility for debts and expenses). It notes that 15% of women in the study reported their partner used their name to take out loans or borrow credit (p12).
Carline, Anna and Patricia Easteal, Shades of Grey – Domestic and Sexual Violence Against Women (Routledge, 2014).
Partner rape is discussed from p208, including discussion of consent from p212. The authors comment that ‘unsurprisingly’ in a partner context, proving that the woman did not consent (a physical element) or an absence of consent that the defendant knew of, but chose to ignore (the fault element) is difficult, because of the history of consensual sexual intercourse (p212).
This literature review examines the intersection between sexual assault and domestic violence. In relation to consent, the paper highlights that the ability to provide consent for sexual activity may be compromised when it is occurring within the context of the perpetration of intimate partner violence (IPV). This is because the perpetration of IPV creates a climate of ongoing fear or control (p 29). Additionally, for sexual violence perpetrated by intimate partners, demonstrating lack of consent is complicated because sexual violence may have been perpetrated in a context where consensual relations may have taken place before and/or after the assault, and in the context of established patterns of sexual behaviours that do not include verbalised consent (p 29).
Understandings of consent in established relationships affect how intimate partner sexual violence is framed both by victims as well as third parties. See pages 47-48 for a discussion of the way social norms affect what is understood as “real rape” (non-consensual sexual activity). Importantly, research has found that intimate partner sexual violence is viewed by the community as both less serious and more justifiable than sexual assault by a stranger or acquaintance (p 47). Indeed, the greater the familiarity between the victim/survivor and perpetrator, the greater likelihood that reports will be considered a lie or misinterpretation (p 47).
IPSV victims/survivors themselves often face difficulty in recognising sexual violence as violence, assault or rape (p 26). Similarly, research shows that younger women rarely identify sexually coercive behaviours by boyfriends as sexual assault, and tend to excuse sexually violent behaviour by saying that their own behaviour justified the assault or by pointing to extenuating circumstances (p 48). This again points to the strength of commonly held perceptions of what “counts” as consensual or non-consensual sexual activity.
Cox, Peta, Violence against women in Australia: Additional analysis of the Australian Bureau of Statistics' Personal Safety Survey, 2012 (ANROWS, 2016 Rev.ed.).
This report provides substantial additional analysis of the data produced through the Australian Personal Safety Survey (PSS) 2012. In relation to consent, p36 notes that for female victims, ‘in over 900,000 incidents, alcohol or other drugs were believed to contribute to the most recent physical assault by a male. This is over half the incidents of physical assault of a female by a male (53.4%). In a similar percentage of cases alcohol or other drugs were believed to contribute to the most recent sexual assault by a male (474,600, 55.7%); and Physical threat by a male (351,700, 50%). Whether alcohol or drugs ‘contributed to the incident’ was defined to mean ‘whether they were under the influence of alcohol or other substances; whether alcohol or drugs were added to their drink without their consent; and whether they believed the perpetrator was under the influence of alcohol or drugs’ (p36). However, the author also highlighted that ‘of all incidents of sexual assault where women indicated that alcohol and other drugs contributed to the incident, it was mostly the perpetrator’s use that was assessed as being a contributing factor’ (p61). (Note: this article refers to a previous release of the ABS’ Personal Safety Survey, but the analysis remains useful. See Australian Personal Safety Survey (PSS) 2016 for most recent release.)
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 study examines cross-applications and resulting orders in two Queensland magistrates’ courts. It explores the context in which cross-applications are made and the outcomes in such cases. Consent to mutual cross-orders by victims is discussed on pp61-62, where the authors note concerns that cross-orders are often consented to ‘to avoid violent reactions from the perpetrator, expedite the process, and cooperate with busy lawyers and magistrates and, in some cases, police’ (p61).
Field, Rachael ‘FDR and Victims of Family Violence: Ensuring a Safe Process and Outcomes’ (2010) 21 Australian Dispute Resolution Journal 185.
This article discusses the range of issues that arise for victims of family violence in family dispute resolution that can make it a dangerous and unsafe process for them unless appropriate precautions are taken. See especially ‘Concerns for victims of family violence in mediation’ (from p189-191), identifying the fact that women’s self-determination is undermined in mediation where family violence is present. For example: ‘It is problematic to assume that the fear a victim experiences (because of the history of violence) can be addressed through basic process interventions such as giving him or her a fair opportunity to speak, or asking the perpetrator to stop interrupting. The reality is that these interventions, whilst appropriate and positive in supporting constructive negotiations in most other matters, cannot reverse what might be years of violent domination, coercion and control.’ (p191)
Hand, Tammy, Donna Chung and Margaret Peters, The Use of Information and Communication Technologies to Coerce and Control in Domestic Violence and Following Separation (Stakeholder Paper 6) (2009, Australian Domestic & Family Violence Clearinghouse, University of New South Wales).
This Stakeholder paper considers the issue of how victims ‘consent’ to have their phones and funds monitored by perpetrators through various means of technology. The authors note: ‘the checking [of phones] may be undertaken covertly, or overtly by demand; where a woman hesitates to ‘volunteer’ the phone for checking, the notion of ‘trust in relationships’ is employed to undermine the woman’s decision. In this situation, a woman is often told that she ‘must have something to hide’; that is, that she cannot be trusted. The woman is not viewed as having any right to privacy. This has the effect of making her the ‘difficult one’ in the couple. This form of coercive control over a women causes anxiety and can promote a woman’s self-blame that she is not more accommodating in the relationship’ (p4). The authors note that perpetrators may use physical violence against their current or former partners to force them to disclose their email passwords, so that they can monitor email communications (p6). Some perpetrators gain ‘consensual’ access to internet banking to view spending and sometimes to tamper with accounts (p6). See p6 ‘perpetrators may use physical violence against their current or former partners to pressure them to disclose their email passwords, so that they can monitor email communications.’
This study examines the processes by which women make custody decisions and manage co-parenting after divorce with abusive former husbands. Nineteen women who left abusive husbands were interviewed. The study identifies that fears, pragmatic concerns, and family ideology pushed many women toward child agreements that continued their involvement with former husbands after divorce. Men who were controlling during marriage were very involved with children post-divorce and continued to exert control over mothers. As a result, women managed conflict, set boundaries, and resisted control in the context of ongoing fear (see p558).
This Issues Paper identifies the relative silence about male partner sexual violence by women who have experienced it and by service providers. It examines some of these concerns through identifying and discussing five key areas including the law and legal treatment of the issue and the difficulties women face in recognising or naming their experience of sexual violence by a male partner as rape. For example the authors point that in cases where a male partner is charged with rape defence lawyers may attribute the ‘falsity’ of charges to her wanting a favourable property settlement; to secure custody of children, to continue an affair unobstructed; or as revenge (p7).
In relation to women’s reluctance to name partner sexual assault the authors posit a number of reasons based on research including: fears of retaliation, of being rejected or blamed by family members and friends; their fears of reporting to police, of revealing the details of what has remained secret; of having to reflect on the humiliation and degradation they have endured; fear of the loss of the relationship itself- having shared a life, children, a house, friendships; sense of shame they feel at having failed in their perceived duty as a wife, or in their failure to have made the relationship with their partner work (p15).
Note also the discussion of different levels of coercion in relation to male sexual behaviour including: cultural expectations of women to fulfil their “wifely duties” or the pressure to provide sexual services to their husbands regardless of their own desires; a degree of emotional manipulation that comes with women feeling obliged to have sex after their partners have threatened to seek sexual satisfaction elsewhere, or more simply, to keep the peace; the use or threat of force women described ranged from being held down, being subjected to degrading, humiliating or painful sexual acts, to being raped in the context of other physical violence and battering(p9).
Hunter, Rosemary, ‘Having Her Day in Court? Violence, Legal Remedies and Consent’ in Jan Breckenridge and Lesley Laing (eds), Challenging Silence: Innovative Responses to Sexual and Domestic Violence (Allen & Unwin, 1999) 61.
This book chapter is relevant for the discussion of the pros and cons for concluding legal proceedings by consent. Hunter observes consent can bring matters to a quicker and much less costly conclusion. Consent in family court matters does provide the litigant with some control over the outcome, rather than relying on an ‘unpredictable judicial decision-maker’. Hunter points out that family law litigants have no option to walk away they must either reach agreement of have one imposed upon them. In protection order cases there are advantages to consent- the applicant gets the order. Consent also saves trauma in having to relates experiences to the court in front of an abuser and a courtroom full of strangers. A consent order may result in the abuser being less aggressive and therefore she may be safer (see p65-66).
Kaspiew, Rae et al, ‘Evaluation of the 2006 Family Law Reforms’ (Australian Institute of Family Studies, 2009).
See Chapter 9: ‘Legal system professionals regularly made the point that women felt pressured to agree to outcomes in family law negotiations that they didn’t feel were in their children’s interests. While this was said to be happening frequently, particular concerns were expressed about the nature of the agreements reached in two different situations. The first concerned cases where there had been a history of family violence.
Also see ‘15.1.2 Consent orders’ (from p337), noting that ‘The tensions in this area are succinctly summarised in this comment by a legal practitioner about the choice litigants face in deciding whether or not to settle: “Most of them settle by consent and you’ve got a real tension because those that settle by consent feel as if they’ve been bullied into it, get a settlement because they can’t afford it and they want to get it over and done with. Those that run the full trial feel as though they got shafted anyway because they didn’t get heard properly. So either way they feel as though they’ve lost”. In reflecting on their practices concerning consent orders, a common observation among registrars and judicial officers was the limited supervisory role courts have in the context of a system that encourages parties to reach agreement by themselves.’
Kaye, M et al., Compromised ‘consent’ in Australian Family Law Proceedings. (2021) 35(1) International Journal of Law Policy and the Family 1-25, doi: 10.1093/lawfam/ebab033
Drawing on data from a large study that explored the experiences of self-represented litigants (SRLs) in Australian family law proceedings involving allegations about family violence, this article examines the pressures experienced by female SRLs, who are victims of family violence, to consent to orders. These pressures include judicial pressure, lawyers’ practices, fear of their former partner, and the financial and emotional costs of litigation. These pressures are significant and can impede the extent to which these agreements can be viewed as consensual. Participants reported that these significant and intersecting pressures resulted in them ‘agreeing’ to orders that they saw as unsafe, or financial orders that were less than they were entitled to. Whilst these orders are subject to judicial scrutiny; this study raises questions about the quality and utility of resultant consent orders.
Kaye, Miranda, Julie Stubbs and Julia Tolmie, ‘Domestic Violence and Child Contact Arrangements’ (2003) 17 Australian Journal of Family Law 93.
This article outlines the results of an Australian study examining the experiences of 40 women who negotiated and facilitated child contact arrangements with an ex-partner who has abused them. Results are supplemented by findings from interviews with 22 individuals and representatives of bodies professionally involved in the process of facilitating the development or implementation of child contact arrangements. See especially from pp9-11, discussing the concerns some interview participants had about whether agreements made by women were genuine or in the women’s and their children’s best interests. The study found that ‘Among those with concerns about unsafe outcomes, women who had consent orders and those with privately negotiated agreements gave similar reasons for having agreed to the arrangements. These included the fact that it was easier to give in to an uncooperative and abusive co-parent, or that they believed that the children had a right to see their father and they hoped that if they gave him what he wanted he would be easier to deal with. However, several women with consent orders also cited factors associated with the dispute resolution process as having shaped their decision. For example: they thought they were legally obliged to agree; they felt under pressure from their former partner and/or the counsellor to agree; and/or they thought the arrangements were standard’ (p11)
Lievore, Denise, ‘No Longer Silent: A Study of Women’s Help-Seeking Decisions and Service Responses to Sexual Assault’ (Report, Australian Institute of Criminology, June 2005).
Semi-structured interviews were conducted with 36 female victim/survivors of adult sexual assault; consultations were conducted with 65 individuals representing services across Australia and fifty-five staff at fourteen sexual assault services across Australia were consulted about their experiences of collaborating with criminal justice and forensic medical personnel. Case studies on p74 provide an insight into sexual coercion/lack of consent in the context of intimate partner violence, including:
Tanya: ‘From the beginning of their relationship her husband pressured her to engage in “sex” when she did not want to and in unwanted sexual acts. She gave in to his demands to keep him happy, but says “it wasn’t dutiful sex; it was more than that. I had no control over my own body. … Tanya did not report the sexual assault to police because she did not identify her experience as sexual assault until her doctor named it’; and Dianne: ‘Dianne met her husband when she was 15 and married when she was 18; she did not realise she could refuse consent and thought that if she pleased him he would love her for herself’.
Based on this research the author reports that ‘women who are sexually assaulted by intimate partners may feel more powerless than those sexually assaulted by strangers, while women who are physically and sexually assaulted by their partners may experience pronounced physical and psychological effects that are specific to intimate partner sexual assault’ (p76). The author notes ‘women who are raped in marriage feel violated even if they don’t have the words for their experience. It’s part of a continuum, but how do you name it? Women are being called frigid; there’s so-called persuasion; giving in to keep the peace; or men demanding sex as “reconciliation”, after giving their wives a bashing, so that women submit to avoid retaliation, but it would look like consent in a court of law’ (p105).
Abstract (abridged): This article explores 18 legal practitioners’ experiences of representing misidentified clients in the civil protection order system in the Australian State of Victoria. The findings suggest that legal practitioners face a number of challenges when representing clients who have been misidentified and that the magistrates’ courts are ill-equipped to respond to misidentification. As a consequence, a culture of respondents consenting to orders that should never have been made against them is maintained. This article calls for a greater focus on the role that the courts can play in providing a ‘safety net’ for victim-survivors who have been misidentified.
Stubbs, Julie, ‘Beyond Apology? Domestic Violence and Critical Questions for Restorative Justice’ (2007) 7(2) Criminology & Criminal Justice 169.
This paper explores key issues that remain under-developed in the restorative justice literature from a feminist perspective, taking domestic violence as a focus. The authors point out that the virtues claimed for restorative justice include its emotional engagement with crime and the opportunities afforded to participants by its discursive character, yet these issues are rarely explored from a perspective that is attentive to gendered or other asymmetrical forms of social relations. Central to this analysis are questions of victims' interests and safety, expectations about the victim's role and the appeal to apology and forgiveness in much of the restorative justice literature. It is argued that the challenge of taking gendered harms seriously may require an approach that differs from common restorative justice practices such as the development of hybrid models that draw from both conventional criminal justice and restorative justice. At p180 – ‘We need to move beyond polarized debates that characterize women as either free agents empowered through choice or as too victimized to act in their own interests and to recognize agency as constrained by material circumstances and cultural narratives and practices.’
Wangmann, Jane, ‘Incidents v Context: How Does the NSW Protection Order System Understand Intimate Partner Violence?’ (2012) 34 Sydney Law Review 695.
This article considers the protection order system in NSW. At p714-716 the article explores the emphasis on settlement in protection order proceedings, noting that the notion of consent in protection order proceedings is problematic. See p715 ‘While there are a range of benefits associated with the ability to consent to a protection order without the necessity of a contested hearing, there are also a range of disadvantages, for example, such a regime assumes that the parties are equal in their negotiations, that there are no other factors, such as intimidation and threats, that influence the willingness to consent, and it fails to provide a public forum in which the woman’s story is affirmed and the man’s actions are clearly denounced’.
Wangmann, Jane, ‘Gender and Intimate Partner Violence: A Case Study from NSW’ (2010) 33 University of New South Wales Law Journal 945.
This article examines the differences in men's and women's complaints for civil protection orders in NSW. The article looks at the ways in which perpetrators use cross-applications for protection orders as a way to continue their abuse. The author notes that cross-applications ‘are not only a mechanism through which a person may raise counter allegations about violence (and hence a data source to compare men’s and women’s allegations); they are also a legal mechanism that appears to be used by some men as a tactic or ‘bargaining tool’ to bring about a particular resolution- ideally mutual withdrawal. The research identifies that 45.5 per cent of cross applications in the court file sample resulted in mutual withdrawal; 28.6 per cent resulted in mutual orders; 18.2 per cent resulted in the woman being granted an order and not the man; and the remaining 7.8 per cent being were resolved by mutual dismissal’ (at p967).
Webster, Kim, Diemer, K., Honey, N., Mannix, S., Mickle, J., Morgan, J., … Ward, A, Australians’ attitudes to violence against women and gender equality. Findings from the 2017 National Community Attitudes towards Violence against Women Survey (NCAS) (ANROWS, 2018).
In 2017, ANROWS administered the National Community Attitudes towards Violence against Women Survey (2017 NCAS), a survey aiming to help understand attitudes toward violence against women, what influences those attitudes, and if there have been changes to those attitudes over time. One of the key studied themes is attitudes toward consent for sexual activity.
The 2017 NCAS shows the pervasiveness of concerning attitudes toward consent, such as (pp 11-12):
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31 percent of respondents agreed that “a lot of times”, women who say they were raped had “led the man on and then had regrets”;
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42 percent agreed that sexual assault accusations are commonly used to get back at a man;
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23 percent agreed that women find it flattering to be pursued, even if they are not interested;
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12 percent still agree that women “often” say no when they mean yes;
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28 percent believed that when a man is very sexually aroused, he may not realise that a women doesn’t want to have sex;
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33 percent agreed that rape results from men not being able to control their need for sex; and
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19 percent still do not agree that rape in marriage is a crime (p 6).
The 2017 NCAS also investigated whether or not Australians would justify non-consensual sex in different circumstances. The survey found that few Australians believed a man would be justified if he tried to have sex with a woman he was kissing after she had pushed him away. However, the proportion of Australians justifying the behaviour was greater in the scenario in which the woman had taken the man into the bedroom and started kissing him before pushing him away (p 13).
The findings show that a concerning number of Australians are unclear about what constitutes consent, and the line between consensual sex and coercion. The report states that “gendered power dynamics, expectations and stereotypes related to sexuality influence how consent is understood and negotiated” (for example, men as aggressive and women as submissive) (p 13).
International
Basile, Kathleen C, ‘Rape by Acquiescence: The Ways in Which Women “Give In” to Unwanted Sex with their Husbands’ (1999) 5(9) Violence Against Women 1036.
In this article, the author examines women's processes of acquiescence to unwanted sex in marriage. Analyses of 41 interviews with (USA based) women who have experienced some form of unwanted sex in a marital or long-term intimate relationship. Notably 21 women described severe coercion (including verbal bullying, physical force and/ or threats of force) (p1045). The author uncovers five types of acquiescence to unwanted sex and discusses the conditions under which women adopt a given type. Types of acquiescence (from p1045): unwanted turns to wanted; it’s my duty; easier not to argue; ‘[d]on’t know what might happen if I don’t’ (p1049), and ‘[k]now what will happen if I don’t’ (p1049). The latter two types especially draw on coercive and controlling behaviours in the relationships to explain women’s acquiescence to sex.
Cara Person, Kathryn Moracco, Christine Agnew-Brune and J. Michael Bowling, ‘“I Don’t Know That I’ve Ever Felt Like I Got the Full Story”: A Qualitative Study of Courtroom Interactions Between Judges and Litigants in Domestic Violence Protective Order Cases’ (2018) 24(12) Violence Against Women 1474-1496.
Intimate partner violence (IPV) is a widespread, ongoing and complex social problem. One in three women in the US has been exposed to IPV, and many seek domestic violence protective orders (DVPOs). The authors conducted DVPO hearing observations and phone interviews with District Court judges in North Carolina (US) to examine how courtroom interactions and information available to judges may influence DVPO decisions. The study provides insight into the varied engagement levels and demeanours of judges, the potential influence on litigant behaviour and judges’ use of perceptions of credibility and evidence when making decisions in DVPO cases. The courtroom observations and interviews both suggested that the information available to help judges make decisions in many DVPO cases may be insufficient as the information presented in the case file is often incomplete. Plaintiffs may not provide sufficient details about the incident of abuse, or may not present physical evidence or witnesses during the hearing. Information in relation to whether the defendant has access to firearms may also be unknown. In addition to the gaps in the information available to judges, judges have limited time to review case files and to hear each case.
Gauthier, Sonia, ‘The Perceptions of Judicial and Psychosocial Interveners of the Consequences of Dropped Charges in Domestic Violence Cases’ (2010) 16 Violence Against Women 1395.
This article presents a qualitative study exploring the dismissal of criminal charges in domestic violence cases and the various consequences of the decision to dismiss the charges. At p1376-1377 the article notes reasons why victims of domestic violence often do not cooperate with the judicial process including refusing to testify. Reasons include: fear of spousal retaliation, forgiveness of or reconciliation with the offender, emotional dependence on the offender, victim’s lack of confidence in the judicial system and inadequate protection for victim’s as a witness.
Goodmark, Leigh, ‘Autonomy Feminism: An Anti-Essentialist Critique of Mandatory Interventions In Domestic Violence Cases’ (2009) 37 Florida State University Law Review 1.
In this article Goodmark argues that domestic violence law and policy prioritizes the goals of policymakers and battered women's advocates - safety and batterer accountability- over the goals of individual women looking for a way to address the violence in their relationships. While the focus of this article is on mandatory policies, including prosecution and reporting, it can be extrapolated to other aspects of the justice process in Australia. It looks at the conflict between women’s autonomy in coercive and controlling relationships and their autonomy in the legal process (i.e. paternalism) from pp25-28. The article goes on to analyse (dis)empowerment, and its importance for battered women in the legal system.
Littwin, Angela, ‘Coerced Debt: The Role of Consumer Credit in Domestic Violence’ (2012) 100 California Law Review 951.
The author defines coerced debt as ‘all nonconsensual, credit-related transactions that occur in a violent relationship, not just matters that depend on the express application of force. Because intimidation and control pervade the type of abusive relationships in which coerced debt emerges, the line that separates fraudulent transactions from those of a coercive nature is blurry at best’ (p954). Specific methods of coercing debt are considered from p986, including through fraud (p986), force (p989), and misinformation (p990). The author highlights particular issues in these sections for women who may not read/speak English, and gay and lesbian victims. ‘Issues specific to secured debt’ (from p992) also discusses non-consensual refinancing and home equity fraud.
Logan, TK, Robert Walker and Jennifer Cole, ‘Silenced Suffering: The Need for a Better Understanding of Partner Sexual Violence’ (2015) 16 Trauma, Violence and Abuse 111.
This article considers how domestic violence limits a victim’s capacity to consent to sexual behaviour. At pp 112-113 the authors discuss the widely held assumption that prior consensual sex is evidence of present consent. The authors posit that there are three areas to examine to better define the role sexual violence plays in coercive control: (1) sexual degradation and humiliation often serve as a potentially significant undercurrent in the context of partner sexual violence (p121); (2) the boundaries of sexual autonomy and consent- identifies tactics used to obtain ‘consent’: sexual coercion in the context of implicit threat; substance facilitated; incapacitated (p122); (3) the trajectory of sexual violence with other forms of abuse (p121) considers links between separation and sexual violence and stalking and sexual violence. The authors analyse the role sexual violence plays in relationships characterised by coercive control – ‘the core of a violent relationship is coercive control, thus sexual consent may be rendered meaningless within the context of a controlling and abusive relationship’ (p122).
Impact on Disclosure
Australia
Australian Law Reform Commission, Family Violence – A National Legal Response, Report 114 (2010).
This report discusses reasons behind victim’s reluctance to disclose sexual offences. Includes considerations specific to those experiencing sexual or other abuse in domestic and family violence context: ongoing relationship between the victim and perpetrator; economic dependence and potential homelessness; the presence of children; and other avenues for redress such as civil protection orders. P1193-1196
Cox, Peta, Violence against women in Australia: Additional analysis of the Australian Bureau of Statistics' Personal Safety Survey, 2012 (ANROWS, 2016 Rev.ed.).
This report provides substantial additional analysis of the data produced through the Australian Personal Safety Survey (PSS) 2012. It highlights important statistics around rates of disclosure. (Note: this article refers to a previous release of the ABS’ Personal Safety Survey, but the analysis remains useful. See Australian Personal Safety Survey (PSS) 2016 for most recent release.)
In relation to their most recent incident of sexual assault by a male, one in six women had not told anyone about the sexual assault (p 3). When a woman’s most recent incident of male-perpetrated sexual assault was perpetrated by a male cohabiting partner and she did not contact the police, the three key reasons given were: they did not want to ask for help or felt they could deal with it themselves; fear of the person responsible; and that they did not regard it as a serious offence or crime (p 69). When a woman’s most recent incident of male-perpetrated physical assault was perpetrated by a male cohabiting partner, one in nine had not told anyone about the assault—this is higher than the number of women whose most recent incident of male-perpetrated physical assault was perpetrated by a stranger or an “other known male” (p 111). When a woman’s most recent incident of male-perpetrated physical assault was perpetrated by a male cohabiting partner and she did not contact the police, the two key reasons given were: they did not want to ask for help or felt they could deal with it themselves; fear of the person responsible (p 106). A graph on page 104 shows the low levels of perception of sexual and physical assault as a crime when it is perpetrated by a cohabiting partner.
Note: this article refers to a previous release of the ABS’ Personal Safety Survey, but the analysis remains useful. See Australian Personal Safety Survey (PSS) 2016 for most recent release.
Jennings, Chris ‘Disclose Family Violence and Risk Homelessness’ (2003) 16(10) Parity 24.
This paper reviews literature and identifies unique barriers to disclosure for women with disabilities including: greater social isolation; the impact of previous help-seeking experiences; the difficulty many experience in being believed or taken seriously; the sheer practical obstacles they face in obtaining information or assistance; a lack of awareness and skills on the part of service-providers in dealing with women with disabilities who experience domestic violence; a lack of coordination and cooperation across services regarding these women’s needs (p24).
Kaye, Miranda; Julie Stubbs and Julie Tolmie, ‘ Negotiating child residence and contact arrangements against a background of domestic violence: research report 1.’ Socio-Legal Research Centre, Griffith University, 2003.
This research study interviewed 40 women who were involved in child residence and contact negotiations with an abusive ex-partner. The report also includes interviews with 22 professional personnel, including lawyers, counsellors, refuge workers, domestic violence court assistant scheme workers and supervised contact centre workers, who have involvement in these cases. ‘In general, it appeared that women felt constrained by the lack of responsiveness of the system to hear and validate their thoughts about what was in the best interest of their children or to ensure that safety mechanisms were in place. Many questioned the ability of the court and professionals to determine these critical factors. Contrary to some views, 70.9% of women found it very difficult to disclose domestic violence to professionals they came in contact with, at least initially.
Kirkwood, Debbie Behind Closed Doors: Family Dispute Resolution and Family Violence (Discussion Paper No. 6) (2007, Domestic Violence and Incest Resource Centre, Melbourne).
Literature review considers issues around Family Dispute Resolution and family violence. Identifies that there are many reasons why women may not disclose family violence, including fear for their safety and that of their children or other family members, denial, embarrassment, concern about their children knowing about the abuse, and a lack of faith in other people’s ability to help them. The majority of victims do not report the violence to police or other services. Women from CALD backgrounds, Indigenous women and women with disabilities can experience even greater barriers to disclosure, including cultural and communication barriers and isolation. (p27) ‘The requirement to consider the willingness and ability of a parent to facilitate a close and continuing relationship between the child and the other parent fails to recognise that a reluctance to do so can result from genuine concern about the wellbeing of the child where there has been family violence or child abuse. This requirement may further discourage women from disclosing family violence because they fear being perceived as a ‘hostile’ parent’ (p12).
Lievore, Denise ‘Non-Reporting and Hidden Recording of Sexual Assault: An International Literature Review’ (Commonwealth Office of the Status of Women, AIC, 2003).
This review considers ‘non-reporting as a rational response’ (from p37). It discusses the reasons why a victim may not report sexual assault including victimisation, agency issues, self-esteem. It notes that ‘if agency is understood as an ongoing, negotiated process that is facilitated by social structures, practices, relationships and contexts, it becomes easier to understand that women’s silence around sexual victimisation is produced both by the effects of oppression and through their attempts to balance the varying and often conflicting demands of their personal and social situations’ (p38). It observes that ‘incentives and barriers to reporting are mediated by a range of factors, such as access to resources, the values of the community, knowledge about options and legal processes, geographical and social isolation, and so on. Apprehension of an offender who is a family member or intimate partner may deprive victims who are emotionally or socially dependent on the perpetrator of the minimal social and emotional resources already available’ (p38).
Meyer, Silke ‘Responding to Intimate Partner Violence Victimisation: Effective Options for Help-Seeking’ (2010) Trends and Issues in Crime and Criminal Justice, Australian Institute of Criminology No. 389.
Draws on International Violence Against Women Survey data (2002-2003- see Mouzos and Makkai below) and examines formal and informal forms of help-seeking among victims of intimate partner violence to identify predictors and illuminate opportunities for improving formal intervention measure.
In particular the ‘findings highlight the role of children, partners’ prior counselling experiences and the severity of abuse as key predictors of victims’ decisions to seek formal, in addition to informal, support’ ‘the observed association between abuse severity and victims’ help-seeking behaviours illuminates the opportunity for further reducing harm. Victims who experienced more severe and often life-threatening types of abuse are significantly more likely to approach formal sources including, but not limited to, medical professionals.’ (p5)
Mouzos, Jenny and Toni Makkai, Women’s Experience of Male Violence: Findings from the Australian Component of the International Violence Against Women Survey (IVAWS), Research and Policy Series No 56 (Australian Institute of Criminology, 2004).
This paper reports on the findings of the International Violence Against Women Survey (IVAWS), which was conducted across Australia between December 2002 and June 2003. A total of 6,677 women aged between 18 and 69 years participated in the survey, and provided information on their experiences of physical and sexual violence including childhood violence. Notes reasons for non-reporting: (pp97-98)
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In some cases women may not regard it as unacceptable behaviour (evidenced by the fact that only 26% of victims in the IVAWS considered their experience a crime), and may fear the reactions of others. The reactions and support of family and friends were reported to impact significantly on women’s wellbeing.
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Notes the Australian ideal of privacy in the home would also prevent many neighbours or friends from reporting known incidents of domestic violence to police.
From IVAWS survey data identifies statistics on lack of reporting:
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few women who experienced violence by an intimate partner or some other male had reported the most recent incident to police or judicial authorities (see figures 40 and 41).
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14 per cent of women who experienced violence from an intimate partner, and 16 per cent of women who experienced violence by someone else reported the most recent incident to police.
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Differences emerged in levels of reporting based on the victim-offender relationship. In terms of women victimised by intimate partners, a greater proportion of women who were victimised by a previous husband/partner reported the most recent incident to police (24%) compared to women who were victimised by a current husband/partner or current/previous boyfriend (8%; Figure 40).’ (p101)
Spangaro, Joanne M; Anthony B Zwi and Roslyn G Poulos, ‘“Persist. Persist”: A Qualitative Study of Women’s Decisions to Disclose and Their Perceptions of the Impact of Routine Screening for Intimate Partner Violence’ (2011) 1 Psychology of Violence 150.
This article presents the findings from a small qualitative study of routine screening for intimate partner violence (IPV) among health services in New South Wales. The researchers conducted interviews with 20 women six months after they had given positive response to IPV screening questions.
The research identifies three elements - direct asking, a trustworthy or trusted person, and choice, constituted key aspects of the screening that supported disclosure’ (p155). Results indicated that disclosure facilitated when women judged it safe on three dimensions; from the abuser, from shame and from losing control (p158).
Voce, Isabella and Hayley Boxall, Who Reports Domestic Violence to Police? A Review of the Evidence (Research Report No 559, September 2018, Australian Institute of Criminology)
The police play an important role in the management of immediate harm and risk associated with domestic violence. However, the hidden nature of domestic violence incidents means that the involvement of police is dependent on a report being made. Set against the backdrop of increasing levels of reporting of domestic violence in Australia, the current study analysed 21 Australian and international quantitative studies of victim self-report data to identify factors associated with victim reporting of domestic violence to police. The analysis found that victims who are female, non-white, experiencing frequent violence and who have been abused in the past are more likely to report. Incidents that involve serious violence, an intoxicated offender and/or child witnesses are also more likely to be reported to the police.
Victorian Law Reform Commission, Review of Family Violence Laws: Report (2006).
Notes: ‘ Victims report that sexual forms of family violence, such as rape or other forced sexual acts, are particularly difficult to talk about, even when other violence has been disclosed’ (p102)
Explains that in many courts applications for protection orders are made in a public place. Notes: ‘This is not only unsafe, but the application requires victims to list the reasons they need an order, which will require the disclosure of the family violence they have suffered. For some people, this constitutes the disclosure of many years of abuse, some of which may be of a particularly sensitive nature (eg sexual violence). A public place is obviously not the most appropriate venue for such a process’ (p226).
Wendt, Sarah, Donna Chung, Alison Elder, Antonia Hendrick and Angela Hartwig, Seeking help for domestic and family violence: Exploring regional, rural, and remote women’s coping experiences – Key findings and future directions (ANROWS, 2017).
This qualitative study examined the experiences of women seeking help for domestic and family violence who live in regional, rural, and remote areas in Australia. The research drew on interviews with 23 women and interviews / focus groups involving 37 managers and practitioners. Some key findings from the study help to understand experiences of women living in social and geographical isolation. This includes (p 4):
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Women coping alone with violence for extended periods through various active strategies such as placating and trying to help their partner;
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shame and embarrassment delaying help-seeking;
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Aboriginal women’s dignity and pride being associated with being able to keep their children safe and rely on families;
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Aboriginal women using temporary stays at refuges as a way of staying safe; and
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Social isolation affecting help-seeking more than physical distance from local communities”.
Wendt, Sarah, Donna Chung, Alison Elder, Lia Bryant, Seeking help for domestic violence: Exploring rural women’s coping experiences: State of knowledge paper (ANROWS, 2015).
This literature review focuses on the unique experiences and specific barriers faced by women experiencing family or domestic violence in rural and remote areas. It notes that women living in socially and geographically isolated places often cope with domestic and family violence by themselves for long periods of time (p 1). See p5-6 which discusses the structural barriers and cultural factors that prevent rural women from disclosing, including that ‘self-reliance was so valued and upheld in families that to disclose or ask for help about domestic and family violence was perceived as a failure or shameful’ (p 6).
The review notes that effect of social and geographical isolation is particularly important for Indigenous women’s ability to disclose, and that the small and tight-knit nature of Indigenous communities can influence decisions to report (p 10).
Pages 10-12 discuss the particular barriers for culturally and linguistically diverse women (such as racism, lack of access to interpreters, and cultural isolation), those identifying as LBTIQ (such as discrimination, homophobic or transphobic attitudes, and a lack of specialist services), and women with disabilities (such as relying on the abuser for transport, and a lack of specialist services).
Willis, Matthew ‘Non-Disclosure of Violence in Australian Indigenous Communities’ Trends and Issues in Crime and Criminal Justice (No 405, AIC, 2011).
This paper reviews literature and explores some of the reasons for the high rates of non-disclosure of violence generally and domestic violence specifically in Indigenous communities. Reasons include:
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‘Victims may fear retaliation from the perpetrator, friends or family. This may be particularly so if the victim feels that reporting the incident may lead to police intervention but not prosecution, such as where the police treat family violence or spousal sexual assault as a ‘private matter’ and deal with it through conciliation or mediation rather than charging. The victim’s decisions, particularly those of female victims in family violence situations, may also be heavily influenced by power, control and manipulation on the part of the offender’ (p4)
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‘Victims may not want to disrupt the perpetrator’s relationship with children, or affect relationships with other family members or friends. Anxiety about the effects on family was found to be the second most common reason for not reporting, after not being believed, in a New Zealand sample of sexual assault survivors/ victims. Whether the perpetrator is known to the victim or not, the victim may weigh up the impacts on the perpetrator of being charged with an offence, such as loss of employment, reputation or possible imprisonment’ (p4)
International
Alaggia, Ramona; Cheryl Regehr and Angelique Jenney, ‘Risky Business: An Ecological Analysis of Intimate Partner Violence Disclosure’ (2012) 22(3) Research on Social Work Practice 301.
This research reports on interviews with individuals and focus groups undertaken to collect data from 98 IPV survivors and service providers. The research concludes that ‘IPV disclosure remains a “risky business” with perceived negative outcomes outweighing benefits. Results reinforce that social work interventions need to occur at all levels of the human ecology in order to provide effective responses.’
This article provides a good overview of barriers to and decision-making around disclosing intimate partner violence. It considers intrapersonal factors (such as mental health and distress, resilience and resistance; p306), family and cultural dilemmas (such as shame, and presence of children), community services (including the inappropriate responses some women experienced, racism, accessibility, numerous issues around police intervention including losing control over the process that comes into play; p307), and policy and program impacts (including immigration and deportation issues, child welfare reporting, and financial vulnerability; p307-8). It concludes that ‘Individuals will carefully assess their situational context and only disclose in varied degrees and amounts, depending on their reading of anticipated risks and benefits. Until the benefits clearly outweigh the risks, disclosure will be withheld’ (p309).
Calton, Jenna M; Lauren Bennett Cattaneo and Kris T Gebhard, ‘Barriers to Help Seeking for Lesbian, Gay, Bisexual, Transgender, and Queer Survivors of Intimate Partner Violence’ (2015) (May) Trauma, Violence, Abuse.
This article reviews the literature on LGBTQ intimate partner violence and suggests three major barriers to help-seeking exist for LGBTQ IPV survivors: a limited understanding of the problem of LGBTQ IPV, stigma, and systemic inequities (p7).
Evans, Maggie A and Gene S Feder, ‘Help-Seeking Amongst Women Survivors of Domestic Violence: A Qualitative Study of Pathways towards Formal and Informal Support’ (2016) 19(1) Health Expectations 62.
This article reports on interviews with 31 women survivors of domestic violence abuse to explore their pathways to support and their experiences of barriers and facilitators to disclosure and help-seeking. Notes that ‘for most women, disclosure to others only began after leaving the relationship. Many justified not seeking help or leaving their partner sooner by prioritising their role as a mother who needed to keep the family together’ (p67). Barriers to disclosure identified include (from p68): women’s self-perception (i.e. not recognising behaviour as abusive, depression, low self-esteem, perceptions of their role in the family as supporting others, fearing a judgmental response); past relationship experience (i.e. multiple abusive relationships contributing to the perception that help would not be available or being fearful of change and not being taken seriously); and fear of repercussions of disclosure.
Fanslow, Janet L and Elizabeth M Robinson, ‘Help-Seeking Behaviors and Reasons for Help Seeking Reported by A Representative Sample of Women Victims of Intimate Partner Violence in New Zealand’ (2010) 25(5) Journal of Interpersonal Violence 929.
This article identifies the link between disclosure and help. Using data from the New Zealand Violence Against Women Study the authors report on the help-seeking behaviours of the women who had ever in their lifetime experienced physical and/or sexual violence by an intimate partner (n = 956). More than 75% of respondents reported that they had told someone about the violence however, more than 40% of women indicated that no one had helped them. (p942)
Ver Steegh, Nancy ‘The Uniform Collaborative Law Act and Intimate Partner Violence: A Roadmap for Collaborative (and Non-Collaborative) Lawyers’ (2009) 38 Hofstra Law Review 699.
Among other issues this article considers reasons why victims may not report abuse. The author observes: ‘Victims of coercive-controlling violence have good reason to deny or minimize violence. If disclosure is discovered or even suspected by the perpetrator, the victim and children will likely be subjected to additional abuse… A victim may be more likely to disclose coercive-controlling violence after establishing a trusted relationship with an open and empathetic listener’ (p719). Note also her suggestion that there should be multiple opportunities for victims to disclose throughout the process (p730).
A victim’s experiences of and vulnerabilities to domestic and family violence may affect their capacity to voluntarily consent to or willingness to disclose the violent behaviours, or other matters resulting from their relationship with the perpetrator, for example matters arising in relation to a protection order, a breach of a protection order, a parenting order, other legal remedies or proceedings, financial dealings.
The table below highlights some of the contexts or reasons that may affect a victim’s consent and disclosure having regard to vulnerabilities commonly experienced by victims of domestic and family violence and more particular vulnerabilities relating to the violent behaviour or the victim’s circumstances. In some cases, these contexts or reasons may intersect; in other words, a victim may not disclose certain behaviours or matters for the same reasons they have been coerced into consenting to them.
It may be appropriate for judicial officers in domestic and family violence related proceedings to inquire as to the contexts or reasons affecting the victim’s consent or disclosure in a particular case where the evidence before the court does not sufficiently address or explain these issues.
Vulnerabilities – common | Possible contexts or reasons for: | |
|---|---|---|
Consent | Non-disclosure | |
Capacity to voluntarily consent compromised over time due to physical, mental or emotional impacts of coercive and controlling behaviours | Coercive and controlling behaviours not recognised as domestic and family violence - seen as normal part of relationship Violence not seen as sufficiently serious to warrant disclosure | |
Relationship with perpetrator | Perceived need to preserve ongoing relationship with perpetrator Fear of further/escalation of violence Economic dependence on perpetrator, fear of poverty and homelessness | Perceived need to preserve ongoing relationship with perpetrator Fear of perpetrator retaliation, further/escalation of violence Economic and social dependence on perpetrator, fear of poverty and homelessness |
Sense of self-worth and entitlement to volunteer/withdraw consent diminished over time by coercive and controlling behaviours | Fear of others’ judgment – feelings of shame, humiliation, embarrassment about being in violent relationship or being disbelieved | |
Concern for children’s safety and wellbeing Perceived need to keep the family together Perceived need to preserve relationship between children and perpetrator | Concern for children’s safety and wellbeing Perceived need to keep the family together Perceived need to preserve relationship between children and perpetrator | |
Understanding/prior experience of legal and judicial processes | Lack of awareness of domestic and family violence related laws Lack of awareness of legal rights and available advice and support services Consent to orders compelled by expense and stress of ongoing proceedings and continuing opportunities for systems abuse by perpetrator | Lack of awareness of domestic and family violence related laws Lack of awareness of legal rights and available advice and support services Feeling that concerns won’t be believed or taken seriously Feeling of lack of control over process and outcomes Fear of criminal justice consequences for perpetrator Fear of child protection agency intervention, having children removed Fear of ‘hostile parent’ claim in parenting proceedings – being accused of alienating children from perpetrator |
Vulnerabilities – particular | Possible contexts or reasons for: | |
Consent | Non-disclosure | |
Violence is forced or unwanted – involuntary consent Past consensual relations between victim and perpetrator and victim difficulties in proving no consent Facilitated by alcohol or drugs Perceived need to comply with perpetrator’s sexual demands to keep the peace, minimise the violence already experienced, and avoid further/escalation of violence | Lack of awareness of criminality of violence Fear of losing relationship Feelings of shame, self-blame and failure Fear of perpetrator retaliation, further/escalation of violence Fear of rejection by family and friends Fear of health and reproductive consequences Fear of adverse police or judicial responses | |
Consent to financial dealings is demanded, forced or fraudulently obtained Emotional manipulation inferring secrecy or lack of trust if refusal to comply with demands Fear of further/escalation of violence | Fear of being legally/criminally implicated in fraud or other wrongdoing Fear of economic loss/insecurity Fear of perpetrator retaliation, further/escalation of violence | |
Exploitation of diminished capacity to voluntarily consent due to exacerbating circumstances or physical, mental or emotional disability, impairment or illness Cultural/community expectations and practices | Heightened physical, geographical or social isolation Practical difficulties in accessing advice and support services Advice and support services not properly equipped to address victim’s specific circumstances/needs Past negative experiences of legal and judicial processes eg people with disability Victim has offending/criminal record Fear of other legal consequences eg visa cancellation, deportation Cultural/community expectations and practices eg Aboriginal and Torres Strait Islander, culturally and linguistically diverse, remote and rural, LGBTIQ | |
A victim’s experiences of and vulnerabilities to domestic and family violence may affect their capacity to voluntarily consent to or willingness to disclose the violent behaviours, or other matters resulting from their relationship with the perpetrator, for example matters arising in relation to a protection order, a breach of a protection order, a parenting order, other legal remedies or proceedings, financial dealings.
The table below highlights some of the contexts or reasons that may affect a victim’s consent and disclosure having regard to vulnerabilities commonly experienced by victims of domestic and family violence and more particular vulnerabilities relating to the violent behaviour or the victim’s circumstances. In some cases, these contexts or reasons may intersect; in other words, a victim may not disclose certain behaviours or matters for the same reasons they have been coerced into consenting to them.
It may be appropriate for judicial officers in domestic and family violence related proceedings to inquire as to the contexts or reasons affecting the victim’s consent or disclosure in a particular case where the evidence before the court does not sufficiently address or explain these issues.
Vulnerabilities – common | Possible contexts or reasons for: | |
|---|---|---|
Consent | Non-disclosure | |
Capacity to voluntarily consent compromised over time due to physical, mental or emotional impacts of coercive and controlling behaviours | Coercive and controlling behaviours not recognised as domestic and family violence - seen as normal part of relationship Violence not seen as sufficiently serious to warrant disclosure | |
Relationship with perpetrator | Perceived need to preserve ongoing relationship with perpetrator Fear of further/escalation of violence Economic dependence on perpetrator, fear of poverty and homelessness | Perceived need to preserve ongoing relationship with perpetrator Fear of perpetrator retaliation, further/escalation of violence Economic and social dependence on perpetrator, fear of poverty and homelessness |
Sense of self-worth and entitlement to volunteer/withdraw consent diminished over time by coercive and controlling behaviours | Fear of others’ judgment – feelings of shame, humiliation, embarrassment about being in violent relationship or being disbelieved | |
Concern for children’s safety and wellbeing Perceived need to keep the family together Perceived need to preserve relationship between children and perpetrator | Concern for children’s safety and wellbeing Perceived need to keep the family together Perceived need to preserve relationship between children and perpetrator | |
Understanding/prior experience of legal and judicial processes | Lack of awareness of domestic and family violence related laws Lack of awareness of legal rights and available advice and support services Consent to orders compelled by expense and stress of ongoing proceedings and continuing opportunities for systems abuse by perpetrator | Lack of awareness of domestic and family violence related laws Lack of awareness of legal rights and available advice and support services Feeling that concerns won’t be believed or taken seriously Feeling of lack of control over process and outcomes Fear of criminal justice consequences for perpetrator Fear of child protection agency intervention, having children removed Fear of ‘hostile parent’ claim in parenting proceedings – being accused of alienating children from perpetrator |
Vulnerabilities – particular | Possible contexts or reasons for: | |
Consent | Non-disclosure | |
Violence is forced or unwanted – involuntary consent Past consensual relations between victim and perpetrator and victim difficulties in proving no consent Facilitated by alcohol or drugs Perceived need to comply with perpetrator’s sexual demands to keep the peace, minimise the violence already experienced, and avoid further/escalation of violence | Lack of awareness of criminality of violence Fear of losing relationship Feelings of shame, self-blame and failure Fear of perpetrator retaliation, further/escalation of violence Fear of rejection by family and friends Fear of health and reproductive consequences Fear of adverse police or judicial responses | |
Consent to financial dealings is demanded, forced or fraudulently obtained Emotional manipulation inferring secrecy or lack of trust if refusal to comply with demands Fear of further/escalation of violence | Fear of being legally/criminally implicated in fraud or other wrongdoing Fear of economic loss/insecurity Fear of perpetrator retaliation, further/escalation of violence | |
Exploitation of diminished capacity to voluntarily consent due to exacerbating circumstances or physical, mental or emotional disability, impairment or illness Cultural/community expectations and practices | Heightened physical, geographical or social isolation Practical difficulties in accessing advice and support services Advice and support services not properly equipped to address victim’s specific circumstances/needs Past negative experiences of legal and judicial processes eg people with disability Victim has offending/criminal record Fear of other legal consequences eg visa cancellation, deportation Cultural/community expectations and practices eg Aboriginal and Torres Strait Islander, culturally and linguistically diverse, remote and rural, LGBTIQ | |