by Kyle Lovett
In 2009, the Council of Australian Governments (COAG) headed by Australian Prime Minister Julia Gillard, approved a ‘framework for action’ called ‘Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children, 2009-2021′. The effort was spearheaded by Tanya Plibersek, former Australian Minister for Housing and Minister for the Status of Women and Jenny Macklin, former Minister for Families, Housing, Community Services and Indigenous Affairs. The main body of work was completed by the National Council’s Advisory Group which is chaired by Libby Lloyd, who founded the White Ribbon Foundation in 2003.
The plan is split into several parts, which puts forth recommendations for new legislation, changes to judicial processes, requests for funding and ideas for domestic programs targeted at reducing domestic and sexual violence against women. The advisory council has some powers to implement programs through the Office of Women among other agencies, but much of what the government funded program calls for requires approval by Parliament. Since we have already explored the disingenuous and dishonest use of statistics, and the conscious decision to obfuscate the realities concerning child abuse, let’s take a look at what the National Advisory Council has recommended Australia enact in terms of judicial and legislative changes.
Components of The PlanWhile ‘the Plan’ includes dozens of different recommendations to reduce violence against women and their children, many of the more controversial and contentious propositions are found in the following areas:
- Endorsement of civil and criminal laws to be made ‘gendered’ or ‘gender sensitive’
- Expanding the definition of what legally constitutes domestic violence
- Guidance on several changes to the Judicial processes and requests for new judicial entities
- Broadening of the State’s powers to allow for numerous different legally binding orders
- Granting the State broad powers over the relationships of children and their parents
- Formalizing new sexual assault laws, which define legally consensual sexual intercourse
- Recommend the State be granted new powers, to take extrajudicial actions against fathers and men
Gendering of Civil and Criminal Family Violence Laws
It’s important to note that the council members make it quite clear that all civil and criminal laws and procedures regarding domestic violence and sexual assault must become “gendered.” That is, the National Council recommends that the rule of law, both civil and criminal, will be greatly influenced based the sex of an accused person. In November, 2011 the council directly asked “Make criminal and civil laws gender sensitive.” The Australian Law Reform Commission’s (ALRC) 2010 Inquiry took up this issue of gendered laws in it’s 1,556 page report to the National Council.
“The National Council to Reduce Violence Against Women and their Children acknowledged that while women as well as men can commit—as well as be victims of—family violence or sexual assault, the research shows that ‘the overwhelming majority of violence and abuse is perpetrated by men against women’. Put very simply, ‘[t]he biggest risk factor for becoming a victim of sexual assault and/or domestic and family violence is being a woman’.”[13-pg51]
While the ALRC doesn’t commit to equal protection under the law, they attempt to say the gendered treatment for civil and criminal law benefits everyone, stipulating that “reforming legal frameworks with the aim of improving the safety of all victims of family violence—the effect will be to the benefit of all victims, whether male or female.”[13-pg51]
The ALRC again reaffirms that both men and women can be victims of domestic violence and sexual assault, but again, never affirms the legal principle of equal protection under the law stating that:
The first part of ALRC statement is false, as the “majority of violence is perpetrated by men against other men.” Their second point is contentious, as many studies show that domestic violence is perpetrated equally between men and women; however, even by their statistics, 1/3rd of domestic violence is committed by women against men. Furthermore, women are the overwhelmingly majority of perpetrators that commit violence, abuse and neglect against children, which is neither taken into account the number of young boys who are victims of abuse, nor that the National Advisory Council never actually addresses the “reduction of violence” against children. Indeed, the ALRC states that:
“‘the overwhelming majority of violence and abuse is perpetrated by men against women’, and that ‘[t]he biggest risk factor for becoming a victim of sexual assault and/or domestic and family violence is being a woman’. Such findings lie behind the National Council’s strategies that, in turn, led to the Terms of Reference for this Inquiry being focused on the reduction of violence against ‘women and their children’.” [13-pg102]
I’m curious when the National Advisory Council will feel it is an appropriate time to address the disturbing issue of child abuse? The Council members argue in ‘The Plan’ why they think there is a legal power imbalance between the sexes, and the reasoning behind the gendering of civil and criminal laws:
“The Commissions acknowledge that family violence occurs against men and in the gay, lesbian, transgender and intersex communities and, as such, family violence in such contexts may be matters which deserve separate consideration by government at an appropriate time.”[13-pg103]
In reality, gendering civil and criminal laws is much like what State sponsored racial profiling would be, in that it demands the civil and criminal authorities presume there is a reasonable assumption of guilt of a person based solely on a human characteristic, in this case their sex. In regards to gendering law, the Council and the ALRC argue that “the measures recommended can be seen to be a ‘litmus test’ for how well the legal system is working.”[13-pg103] It is nothing less than a State mandated segregation of its citizens legal rights, which violates not only Australian laws and charters, but Article 55 of the United Nations Charter to which Australia is a signatory nation.
“Women and men in our society have unequal access to social and economic power. The evidence demonstrates that while there is no single cause of sexual assault or domestic and family violence, many risk factors associated with these types of violence can be influenced by obvious and covert expressions of inequality in the community.”[1-pg37]
The National Advisory Council gives one of many examples on how gendered laws will work, with its recommendation for a gendered policy of arrest.
It is not known if Australia’s Parliament will pass laws which constitute legal discrimination towards half its population, but there is no question that the government sanctioned National Advisory Council firmly believes that discrimination, legalized sexism and bigotry are required to make their plan successful.
“Efforts to increase the application of the criminal law have centred on ‘pro-arrest’ and ‘no-drop’ prosecution policies that remove or limit police and judicial discretion in decision-making. However, these policies have resulted in a number of unintended consequences, including the arrest of both parties after police intervention, commonly referred to as ‘dual arrests’. In effect, dual arrests are frequently re-victimising women who are the victims of domestic and family violence.”[1 -pg116]
Judicial Changes and New ‘Family Law’ or Domestic Violence Courts and Specialized Personnel
In outcome 4 of the National Plan, the council reiterates its insistence on further integration of State sanctioned gender bias into how the Judicial system in Australia works:
- Make criminal and civil laws gender sensitive.
- Ensure access to justice for women.
- Provide civil remedies in conjunction with criminal penalties.
- Provide for adequate reparation and compensation.
- Enact national plans of action and gender mainstreaming.
- Undertake research and compilation of sex disaggregated data.
On page 95 of the Plan, the council lists out how they want wish to establish new specialized court offices and personnel to deal with cases of domestic and sexual violence against women.[1-pg95]
- widening the definition of offences so that women’s and children’s experiences of violence are more appropriately recognised and encompassed within the law;
- introducing pro-arrest policies and risk assessment tools to improve police practices when responding to reports of violence;
- introducing specialist approaches such as priority listing of sexual offence cases and of domestic and family violence hearings;
- establishing specialist court support services and introducing more flexible arrangements within courts to reduce the extent to which victims feel intimidated and alienated;
- attending to procedural reforms aimed at improving the experience of giving evidence (such as introducing alternative arrangements for giving evidence and prohibiting or limiting the extent to which the accused, or the defendant, can directly cross-examine the victim)
Broadened Definitions of Domestic Violence
The National Advisory Council also put forth their new and expanded definitions of what should be including in the legal definition of Domestic Violence and Abuse. Some of these items are considered criminal and other non-criminal. The use of these expanded definitions will be used for; cause for police to enter a residence, specialized Family Law courts issuance of various orders and injunctions, as add on incriminations against the accused in criminal proceedings, as guidelines for those under court ordered restrictions to conform to and as fair and acceptable reason for a woman to contact the authorities or Family Law Courts to initiate a formal investigation. It is important that these new rules will be considered ‘gendered’, therefore a lower standard of proof is needed to take action on these items, as men will face a “gendered” assumption of guilt . The definitions are (with the more contentious ones in bold):[1-Pg188-189]
- blaming the victim for all problems in the relationship, constantly comparing the victim with others to undermine self-esteem and self-worth, sporadic sulking, withdrawing all interest and engagement (for example weeks of silence), emotional blackmail.
- swearing and continual humiliation, either in private or in public, with attacks following clear themes that focus on intelligence, sexuality, body image and capacity as a parent and spouse
- systematic isolation from family and friends through techniques such as ongoing rudeness to family and friends to alienate them; instigating and controlling the move to a location where the victim has no established social circle or employment opportunities; and forbidding or physically preventing the victim from going out and meeting people.
- complete control of all money, including: forbidding access to bank accounts; providing only an inadequate ‘allowance’; not allowing the victim to seek or hold employment; and using all wages earned by the victim for household expenses.
- includes: driving dangerously; destruction of property; abuse of pets in front of family members; making threats regarding custody of any children; asserting that the police and justice system will not assist, support or believe the victim; and denying an individual’s reality.
- denial and/or misuse of religious beliefs or practices to force victims into subordinate roles; or misuse of religious or spiritual traditions to justify physical violence or other forms of abuse.
- includes: direct assault on the body (strangulation or choking, shaking, eye injuries, slapping, pushing, spitting, punching, or kicking); use of weapons including objects; assault of children; locking the victim out of the house; and sleep and food deprivation.
- any form of pressured/unwanted sex or sexual degradation by an intimate partner or ex-partner, such as sexual activity without consent; causing pain during sex; assaulting genitals; coercive sex without protection against pregnancy or sexually transmitted disease; making the victim perform sexual acts unwillingly (including talking explicit photos without their consent); criticising, or using sexually degrading insults.
While almost all of these items would be considered by most people to be rude, inconsiderate or insulting , (though many of these things are absurd) it is not known why these actions would rise to the level of legal court intervention including issuing various protection orders. Many couples have arguments which often times involve several of these listed definitions, so it is unclear why the State would wish to dictate the personal actions of just the father/man (since these are gendered by law). Furthermore, since the National Advisory Council, in both ‘The Plan’ and the ALRC review stand by their gendered system of civil and criminal laws, and never stated that both parties in a relationship are held to the same standards nor are equally culpable under the law, aren’t these definitions in practice just granting women specialized permissions to abuse men without the same consequences that would be faced by their partner? Would the police come and investigate a ‘family abuse’ case if the husband contacted the authorities and stated that his wife was giving him the ‘silent treatment’ and ‘denying his reality’? By the letter of their law, no.
These kinds of polices and gendered laws are not only a violation of the essential civil rights of Australian men, they border on the State sanctioned violation of basic human rights.
The National Advisory Council in conjunction with the ALRC have proposed 187 recommendations for legal reform. Some of them are requests for new courts, some are changes to existing laws and others are proposals for procedural change. The most important items covered discuss new definitions of rape and sexual assault, expanding the State’s powers to issue protection type orders against men more liberally and most controversial of all are the child protection initiatives. Listed below are some of the more controversial recommendations from the National Advisory Council’s Plan and the ALRC. I’ve included a summary list up top, and the longer narrative and references below.Summary Items:
(References to summary items if not listed here, are referenced in the narrative beneath)
- The State will ensure that a defense against the crime of homicide, must take into consideration the experiences of family violence of the “victim” who murdered their partner.(Standardizing the battered spouse defense in murder cases)
- As gendered civil and criminal laws, police have a greater latitude to enter the premise of a dwelling where they believe domestic or family violence may be occurring if they believe the perpatrator to be a man
- Special Courts, police prosecutors or a domestic violence specialist may submit a ‘No Contact Order’, even if no criminal charges are brought against the ‘accused’
- Special Courts, police prosecutors or a domestic violence specialist may submit a ‘Protection Order’, even if no criminal charges are brought against the ‘accused’
- Special Courts, police prosecutors or a domestic violence specialist may submit an ‘Ouster / Exclusion Order’, even if no criminal charges are brought against the ‘accused’
- An Ouster/Exclusion Order forces a man from his own premises and it is up to him to seek alternative shelter
- The Special Court have the power to amend the lease of the family dwelling to remove the name of the man. This does not release him from his financial responsibility to the residence
- Once a domestic of family violence complaint is lodged against a man, he must be placed on a nationwide Domestic Violence Registry
- The council reiterates its recommendation that calls for only the man to be arrested, and considers any violence the woman committed, except in extreme cases, was in self defense
- The Council recommends reversal of “pro-contact” laws which endorse the relationship between a father and his children. The Council asks that if the State believes the man could commit ‘family violence’ after a domestic violence order is issued, that his parental privilege to his children may be severed indefinitely. This does not release the man from his child support responsibilities
- Women are given priority over men when seeking domestic violence counseling or public services[1-pg78]
- While men constitute the vast majority of homeless in Australia, the council recommends direct action to ensure an end to homelessness among women[1-pg82]
- If a domestic violence order is issued against a man, the council recommends the State find funding (Crisis funding) for their housing, as well as security upgrades to their residence if the mother/wife cannot afford it[1-pg83]
- If the Mother attempts a reconciliation between the children and their father, the Council recommends that the State have the legal authority to remove the children from the mother, and into State care if they believe the father may commit “family violence”
- The Council recommends that legal sexual consent can only be given if a man asks the woman for permission to engage in sexual activity, and receives an affirmative verbal answer
- The Council recommends that silence equals non-consent
- The Council recommends that if a man is accused of rape or sexual assault, and he utilizes the “mistaken-belief” defense, that the onus is on him to prove consent was given
- If a woman has consumed drugs or alcohol prior to a sexual encounter, the Council recommends that she loses her ability to consent to any sexual activities
- The council recommends several changes to the procedures of a criminal case of rape or sexual assault, please see[13-pg40-43] for new recommended procedures
Judicial Homicide Accommodations for Victims of Domestic Violence who Murder their PartnerSection 14 of the ALRC report asks “legislation should ensure that defences to homicide accommodate the experiences of family violence victims who kill, recognising the dynamics and features of family violence.”[13-pg27] The ALRC also recommends that the State must take into serious consideration the family dynamics when pursing a homicide case against “victim of family violence kills the person who was violent.” In essence, the National Council is asking that the battered spouse defense be more readily available for persons who commit murder. (See Sec 31-2 of the ALRC report)
Protection Orders / No Contact OrdersThe National Council requests that Protection Orders and No Contact orders be issued with lowered standards of proof, such as an accusation or belief from a court, a police protection specialist or a domestic violence service specialist, that domestic violence has occurred or “might” occur in the future. The allowable reasonings in the consideration for a protection or no contact orders may fall into any violations stated in the expanding definitions of domestic violence.[1-pg188]
“The civil nature of the order allows for a lower standard of proof, making orders easier to obtain than a conviction and can be tailored to each situation, prohibiting behaviour not always covered by the criminal law.”[1- pg100-2]
National Registry of Domestic ViolenceThe council requests a national registry for those accused, have standing orders against them or have been convicted of domestic violence. Once any protection order or no contact order is issued, the burden of proof lays with the accused to prove that the accusations are false. A conviction is not necessary for these orders, but the orders themselves are legally binding.
“The issues of natural justice, safe transition and continued protection across jurisdictions, as well as supporting efficiency for courts, could be addressed through a national protection order registration scheme. Under this scheme, a domestic and family violence order would be automatically included on the national register upon being made by the relevant court, and subsequent registrations and adaptations in other jurisdictions would also be automatically registered and coordinated in the national registration system.”[1-pg100]
“This model assumes that the perpetrators of violence should be held accountable for their actions and removed from the family home, allowing women and children to stay. All Australian jurisdictions now have laws which provide for exclusion orders as a condition of domestic violence orders, allowing the person seeking protection from domestic violence to remain in the family home, while the perpetrator is required to seek other accommodation.”
The National Council examined how best to utilize this order:
These order can force a man from his own property, who then must find alternative housing or shelter, based solely on the an allegation of abuse. The National Council wishes the Australian government to strengthen these ‘ouster’ or ‘exclusion orders’. They want to give social service workers and police prosecutors the legal authority to issue them liberally. ‘The Road Home’, a government report on homelessness explains how this would work.[5-p33]
“In particular, The Road Home and the Plan of Action focus on the need to increase the application of ‘ouster’ or ‘exclusion’ orders provided for in all State and Territory domestic and family violence laws.”[1-pg85]
Another Safe at Home provision, which falls within the scope of the Ouster/Exclusion Orders is increased police powers to detain men without charge and remove them from their property.“Safe at Home legislation provides police with a considerable extension of their powers to detain a person without charge. Another key feature of the Safe at Home model is that it allows families to stay within the home while the perpetrators are removed.
Preambles within legislation that acknowledge the social realities and dynamics of violence, including the gendered nature of domestic and family violence.”[1 -pg115]
Examination of Exclusion Laws of Fathers from his Children’s LivesThe National Advisory Council believes that a father’s involvement in the life of their child can be considered harmful if they believe that abuse or violence has or will occur, therefore, they wish to revisit the “pro-contact” laws, and initiate a revision to forbid fathers any contact with their children indefinitely, even against the wishes of the mother.
“Under the Family Law Amendment (Shared Parental Responsibility) Act 2006, it is left to the court to decide how to reconcile the objectives of a child’s right to a meaningful relationship with both parents and the protection of the child from exposure to violence when there is conflict. Section 61DA also states that: “[w]hen making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”While the legislation does not necessarily privilege either of the primary considerations, it seems that there have been considerable problems in reconciling the two in practice. Under previous (almost identical) legislation, evidence emerged that a very strong pro-contact culture had arisen and that the “the opportunity for a significant relationship with both parents” took precedence over a history or even recent experiences of violence and abuse. Evidence from the Council’s consultations, and from the judiciary itself, tends to show that such a presumption is inappropriate for a great number of families using the Act.
Firstly, the legislation places the burden of rebutting this presumption on the most vulnerable people who are using the Act (namely women and children escaping violence and abuse). This is because evidence is required to show that there are reasonable grounds that the parent of the child has engaged in abuse, or family violence, or that it is not in the child’s best interests to have shared parental responsibility.And, finally, the tension between the children’s long-term need to “know their father” in a “pro-contact” culture, over their safety and wellbeing and damage to their neurological development requires early evaluation and review. The Council therefore proposes that any future reform be informed by both empirical research and the views of those involved in the family law system.”[1-pg104-5]
State Intervention Against Mother’s Parental DecisionsMothers who attempt to enable a relationship between their children and the father, can and will have the state take the children into their custody if the social workers or courts feel like their has been, or will be abuse or violence.
Formalized Method of Legal Consent for Sexual IntercourseAustralia is attempting to formalize a method in which it is legally acceptable for a man and a women to engage in sexual intercourse. Specifically, they are seeking to require the man to get verbal consent via requesting the consent to perform various acts which are done per a direct question to the woman. They wish to consider silence as non-consent. The man must, by the proposed rule, receive a verbal affirmative answer as consent.
“Secondly, where there is violence, women are commonly unable to meet both the “protective parent” criteria and the criteria for a “friendly parent”, defined as “the willingness of each parent to facilitate the child’s relationship with the other parent”, and they risk state child protection intervention without a protective stance towards the safety and well-being of their children.”[1-pg105]
“Most States and Territories have moved towards a definition of consent that applies a “communicative” model through defining consent as “free agreement” or “free and voluntary agreement”. These new definitions require juries to consider what a complainant has said or done to indicate their free agreement, rather than assume that silence or submission equals consent. Some also stipulate that inactivity and/or silence should be equated with non-consent.For example, Victoria’s provisions state that: “the fact that a person did not say or do anything to indicate free agreement to a sexual act is normally enough to show that the act took place without that person’s free agreement”.[1-pg110]
Female Agency for Consent
“A number of jurisdictions have also created lists of vitiating circumstances under which free agreement cannot be said to have been given (such as under force of threat or of physical or economic harm, under the influence of heavy drug or alcohol consumption, or if the complainant is asleep) and has introduced judicial directions to juries to help them apply these modern definitions. Mandatory jury directions are designed to ensure consistency and “formalise good practice”.[1-pg110]
Mistaken-Belief Consent – Burden of Proof on AccusedAccused must show proof of consent when using certain defenses in criminal proceedings such as the “mistaken-belief” defense. “Mistaken-belief” consent means he felt that she gave consent, and she denies giving consent.
“Another contentious aspect of rape law has been the extent to which an accused can claim to have held an honest, though unreasonable, belief in consent.In the past, an honest, though unreasonable, belief in consent could amount to a complete defence, even if the accused had done nothing to find out whether the complainant was consenting. This provided poor protection for the law’s claim to protect sexual autonomy, placing “the onus on a person approached for sex to indicate lack of consent, instead of requiring the initiator to ascertain whether the other person is consenting”. Trials tended to focus on the complainant’s conduct and mental state rather than on that of the accused, often resulting in re-victimisation of the complainant.
These models represent different approaches to restricting the availability of mistaken-belief defences that are worthy of consideration by other jurisdictions.”[1 -pg111]
Conclusions? I have no conclusions, I have no words to describe how disturbing this stuff is. Let’s hope wiser heads prevail in Australia before any of this becomes law.
(8) Angus G & Hall G (1996). Child Abuse and Neglect Australia 1994-1995. Canberra: Australian Institute of Health and Welfare. (Australian Institute of Health and Welfare Series; no 16)
(9) Tomison A (1996). “Protecting Children: Updating The National Picture” in Child Abuse and Neglect Australia 1994-1995, Child Welfare Series No.16, Australian Institute of Health and Welfare, AGPS, Canberra
(10) Broadbent A & Bentley R (1997). Child Abuse and Neglect Australia 1995-1996. Australian Institute of Health and Welfare Catalogue No CWS 1. Canberra: Australian Institute of Health and Welfare (Child Welfare Series No 17)
(12) Fitzroy 2003 – ‘The violence of women: Making sense of child abuse perpetrated by mothers’ Australian Institute of Family Studies
(15) Headey, B., Scott, D., & de Vaus, D. (1999). Domestic violence in Australia: Are Women and Men Equally Violent? Australian Social Monitor 2:57-62
(16) Dutton D. G. (2007). Female Intimate Partner Violence and Developmental Trajectories of Abusive Families. International Journal of Men’s Health, 6, 54-71
(17) Archer J (2000). Sex Differences in Physically Aggressive Acts between Heterosexual Partners: A Meta-Analytic Review. Psychological Bulletin, 126, 651-680