Intervention Orders (Prevention of Abuse) (Miscellaneous) Amendment Bill 2015
Which was introduced into the SA State Parliament on 6th May 2015
I have not been able to obtain a press release from the Attorney but The Advertiser Reports Yesterday, Attorney-General John Rau outlined details of legislation he will put to Parliament ... The changes will allow police to apply for an interim protection order on behalf of a frightened victim based on reports from the victim, their family members or neighbours without needing hard evidence in the first instance. This will give them time to gather evidence for a long-term order.Other changes include:REQUIRING courts to notify police when a protection order is changed or cancelled, such as at the request of the abuser. REQUIRING magistrates to check if an offender is subject to a custody order and take that order into account when setting conditions for the intervention order. This could prevent a victim having to face their abuser when exchanging custody of a child, for example. OFFENDERS who breach an order and are made to attend a treatment program can be made to pay for the treatment and be fined if they do not attend.
I am not too keen on the provisions which discard the rules of evidence. In my view that means that intervention orders may be applied for against the wishes of the victim – but I will leave that for others to argue. I wish to argue and pursue a more radical set of amendments. Because:
In the last 20 years there has been little effective reduction in domestic violence, little better protection for victims and little protection of future generations from continuing the cycle of abuse.
Our criminal system decides things one way or the other. Guilt or innocence.
Of course there are 100% innocent victims such as children who are sexually or physically abused, or neglected and victims of random or rampage shootings, and there are 100% responsible perpetrators, such as rapists and robbers of complete strangers
In between these two extremes there are victims who seek, challenge, tease, or entice the perpetrator or who are willing participants in fights or duels.
Domestic violence is complex, as is the relationship between men and women.
Since the book titled “Do not blame the victim” was published in 1971 it has been translated into: “do not explore the role of the victim”.
What about where the victim deserved it? For instance: Where a rapist is seriously injured or killed by his target, or the injury of an assailing drunk by his target, or a persistently abusive husband who is eventually seriously injured or killed by his wife?
In such cases the apparent victim has undoubtedly contributed to the consequences.
“Don’t blame the victim” is a mantra which prevents the exploration of victim’s characteristics and relationship with the perpetrator which could provide better tools to prevent domestic violence.
1970’s dogma that prevents exploration of this complexity by creating a fear against exploring the role of victims may be preventing the finding of solutions.
Remedies for domestic violence which refuse to explore the victims psychology are demonstrably not working.
Sending the husband to gaol is a temporary fix. Programs that require him to “totally accept all blame” will not help him because a proper analysis of the relationship may not bear this out.
Confirming the wife’s status as a victim may perpetuate further violence because it does not explore and explain her more subtle role in the violent relationship.
He leaves prison with more rage and she may simply find herself another abusive man.
While it is clear that abuse of women by men is unjustifiable under any circumstance, it is still important to differentiate between relative degrees of responsibility.
Dogma that victims are always completely innocent is absurd.
The denial of any victims capacity to predict or prevent, or even unconsciously invite abuse, is to reduce women to helpless, incapable creatures, and, re-victimizes them.
If a boy identifies with an abusive father, we can expect him to attempt to repeat the abusive behaviour. Similarly, a girl who observes her mother being abused is more likely to engage in such behaviour herself . It is not uncommon for a person to assume both roles and become an abuser as well as a victim.
When the culturally violent messages complement the familial ones, children may not have any other frame of reference, and are most likely to fall into the role of victims, victimizers, or both.
Instead of blame, what about another approach? What about ways to intervene and hopefully stop the patterns of violence.
Domestic violence happens in a relationship. Each participant's behaviour must be understood within its context.
The parties may unconsciously play mutually dependant and complementary roles.
Looking at the different roles the abuser and abused is fundamental to unlocking this approach. It needs to look at the currently taboo and ignored role of the victim.
We must understand the interplay between husband and wife and how their behaviours contribute to the maintenance and escalation of violence.
The focus should be on the destructive system they developed and maintain in the context of their family history, probably of abuse.
Of course necessary protection should continue to be provided, and the Attorney’s Intervention Order amendments just may enhance that process but this should not be the only focus.
The long-term goal is to help the victim and victimiser to new behaviour. Abuse of women by men is unjustifiable under any circumstance. At some point the physically stronger just has to restrain or be restrained.
Where appropriate, victims must be helped to develop an understanding of how they contribute to their own victimisation and to be able to break the dangerous and painful link between love and abuse while helping them realise that they deserve respect and dignity like any other human being.
As a community we have not yet come up with any successful response. One , or more, Australian women a week are killed by domestic violence. Tweaking or repeating current approaches, and that is all that this new Bill does, offers nothing.
Not taking the psychology of both domestic parties into account seems to be an omission; an omission that could be crucial to better outcomes.
It is proposed that the subject Act, Intervention Orders (Prevention of Abuse) Act 2009
Be more radically amended so that:
- the Court be given the power to order a psychological assessment and or assistance to both parties of a domestically violent relationship.
- the Court be empowered order a psychological assessment report of the perpetrator before permitting any access to the victim
- that Court be empowered order a psychological assessment report of the victim before permitting the victim to make any choice to access the perpetrator.
- the Court be specifically empowered to make orders with respect to the victim as well as to the defendant
The Intervention Orders (Prevention of Abuse) Act 2009
Section 6 should be amended to include the words underlined
6—Grounds for issuing intervention order
There are grounds for issuing an intervention order against a person (the defendant or the Victim) if--
- it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person; or
- it is reasonable to suspect that the victim will, without intervention, commit an act likely to bring about abuse against a person, including the victim,
Section 12 (2) should be amended to include the words underlined:
(2) An intervention order may specify--
(a) conditions under which a prohibition imposed by the order does not apply; and
(b) conditions that must be complied with by either the defendant or the victim in relation to a requirement imposed by the order.
Section 13 should be amended to include the words underlined
13—Terms of intervention order—intervention programs
(1) An intervention order may require the defendant or the victim or both to undergo an assessment by the intervention program manager to determine--
(a) a form of intervention program that is appropriate for the defendant or victim or both; and
(b) the defendant's or victim’s or both of them eligibility for the services included on the program.
(2) An intervention order issued by the Court may require the defendant or victim or both of them separately or together to undertake an intervention program if the intervention program manager has advised the Court that--
(a) the defendant is eligible for the services to be included on the program in accordance with applicable eligibility criteria (if any); and
(b) those services are available for the defendant at a suitable time and place.
(3) If an intervention order contains a requirement under this section, the defendant must comply with requirements regulating his or her participation in the assessment or intervention program notified from time to time by the defendant's case manager and a failure to comply with such a requirement constitutes a contravention of the term of the intervention order imposed under this section.
(4) Before making any order under this act the Court may require the defendant or the victim or any other party to the domestic relationship of the parties to undergo a psychological assessment and may adjourn making further orders before receiving a report from the assessing psychologist.
(5) The Court may make orders to keep confidential from such parties as it thinks fit any report received by it pursuant to this section.
John Bolton, Barrister and Solicitor. 7th May 2015