It is time to review the legislature’s decision to place alleged acts of domestic and family violence (DFV) in a civil jurisdiction regime.
Under the Domestic and Family Violence Protection Act 2012, any proceedings under the Act proceed as a civil matter, with a civil standard of proof and no requirement to comply with the rules of evidence.
Despite the good intentions of the Act, its report card in 2021 would have to be a below average mark.
The suggested rating is anchored in the current staggering statistics, which indicates an alarming prevalence of domestic violence in the community as well as the anecdotal evidence of the practitioners who spend day in, day out in the Domestic Violence Courts throughout Queensland.
As stakeholders in this ubiquitous problem, many practitioners see the shortcomings of the current legislation regularly.
There is an urgent need to make changes to the current legislation regime to properly address domestic and family violence, which has been described at times as a scourge on our society.
One potential way of combating this scourge would be to make the alleged criminal acts arising out of a domestic relationship be charged as criminal acts.
Currently, the domestic violence system allows for serious criminal acts to be included in an Application for a Permanent Order simply as ‘acts of domestic violence,’ which are used as one of three elements a court must consider in determining to make a permanent order against a Respondent.
Far too often, the material before the Domestic Violence Court alleges strangulation, serious assaults and sexual assaults, but the Respondent is not charged with such serious offences. Instead, these allegations are treated as merely alleged acts of domestic violence for the purpose of the application before the Domestic Violence Court.
Consequently, often, Respondents intrinsically do not treat an Application for a Permanent Domestic Violence Order containing such allegations as serious.
In contrast, if alleged domestic violence acts were treated as criminal behaviour, the Respondent would likely treat the matter with the significance that a serious criminal charge carries.
The further benefit of treating such alleged acts as criminal acts also carries the accoutrements of a criminal charge such as bail conditions, ramifications of bail conditions if they are breached, the application of the rules of evidence and the balancing principles of the Penalties and Sentencing Act 1992 in sentencing any offender. It is not a new or novel concept that using the Bail Act 1980, particularly if there is a presumption against bail for a breach involving family and domestic violence matters, is far better weaponry than conditions contained in a temporary protection order.
Discussion around whether alleged acts of domestic violence should be treated as criminal is not new, and, indeed, the Minneapolis Domestic Violence Experiment1 is one of the most famous studies in the field of criminology and criminal justice.
Essentially, the research found that alleged perpetrators of domestic violence who were arrested and dealt with under the criminal justice process at first instance were less likely to re-offend. The authors of the research opined that the interaction with the criminal justice system for Respondents was a powerful deterrent to commit further acts of domestic violence.
The current system allows for some alleged perpetrators of acts of domestic violence to view the issuing of a Temporary or a Permanent Protection Order and the orders contained within them as not of serious consequence and the finding of guilt to an alleged breach of a temporary or final order as an inconvenience rather than a serious offence with serious punishment.
Acts of domestic violence are serious and too often result in death. There is now an urgent need for this behaviour to be called out for what it is and not rebranded as something less.
Footnotes
1 Lawrence W. Sherman and Richard A. Berk (1984) The Minneapolis Domestic Violence Experiment, Police Foundation Reports.
Jason Murakami is a partner at Behlau Murakami Grant, founder of the Griffith University Innocence Project, member of the QLS Domestic Violence Committee and has appeared as a solicitor advocate in over 100 domestic violence trials.
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