Women are increasingly ensnared in the criminal justice system as a result of domestic violence laws that were designed to protect women from men’s violence. This is especially the case for Aboriginal and Torres Strait Islander women.
The enormity of this problem is captured by the Queensland Domestic and Family Violence Death Review and Advisory Board, which reported that 44.5 percent of female adult victims, and nearly all Aboriginal family violence victims, had been identified by police as a respondent to a domestic violence protection order application on at least one occasion. That is, victims of domestic and family violence had been construed as perpetrators, prior to their domestic violence-related death.
Understanding how and why law that was originally designed to protect women from men’s violence is being used against them – and what to do about it – is the subject of my book, Unintended consequences of domestic violence law: Gendered aspirations and racialised realities, which was published in October. The limitations of the law as a site for justice and empowerment for women has long been the subject of feminist critique internationally (see, for example, the work of Carol Smart, Kathleen Ferraro, and Leigh Goodmark) and here in Australia (such as Rosemary Hunter’s book, Jane Wangmann’s doctoral dissertation and my journal article).
A key feminist concern is male power in law’s structure and processes, with debates centred on whether women should be treated the same as men, or differently. Others are equally concerned, or more so, about white power in the law (see, for example, The Aboriginal and Torres Strait Islander Women’s Task Force on Violence Report, as well as Hillary Potter’s Battle Cries and Beth E. Richie’s Arrested Justice), particularly where law’s structures and processes reflect neo-colonial power.
My research, using Queensland as a case study, addresses both concerns and pays attention to the intersections of gender, race and class in the cases of 185 people within four groups, roughly equal in number: Indigenous men, non-Indigenous men, Indigenous women and non-Indigenous women. (Note that ‘Indigenous’ is the term used in police and court records.) Each person in the research sample had been charged on at least one occasion with breaching a domestic violence order (DVO). Here is a sketch of what I found.
Coercive control and resistance
Although not explicitly framed as such, Queensland’s domestic violence law was originally intended to address an ongoing pattern of coercive control perpetrated by men against their intimate female partners (see chapter 3 of Nancarrow 2019). The law recognised non-physical abuse as tactics of control and assumed a particular kind of victim: a subjugated, powerless woman. Therefore, it gave the state (in other words, the police and the courts) powers to make civil DVOs without requiring the consent of the victim, and made the breach of a DVO a criminal offence.
The law is being appropriately applied in regard to the majority of the men in the sample, though less so for the Indigenous men. That is, most of the men had been charged with breaching a DVO on one or more occasions due to coercive controlling abuse. Their abuse was aimed at general, ongoing control of their partner: an attack on their “autonomy, liberty and equality”.
Fights, dispute resolution and chaos
But the law is not being applied according to its original intent when women are charged with breaches of DVOs. Nearly all of the women in the sample had been charged on one or more occasions with breaching a DVO due to fights: physical and verbal abuse in the absence of an ongoing pattern of coercive control. This was also true for some of the men, especially the Indigenous men.
Further, some of the fights that the Indigenous women and men engaged in were characteristic of contemporary forms of traditional Aboriginal dispute resolution (see Marcia Langton’s chapter in Being Black: Aboriginal cultures in ‘settled’ Australia). This is a process traditionally regulated by cultural rules and boundaries, but which may now manifest as less structured and potentially more dangerous due to colonial interference and associated trauma.
For about one-third (35%) of the Indigenous women, and 5% of the non-Indigenous women, fights (and related DVO breach charges) occurred in a context of “chaos” – a description frequently used by service providers and police prosecutors that I interviewed to help understand why Indigenous men and women were over-represented in DVO breach data. “Chaos context violence” (see Nancarrow 2019, chapter 7) typically involves a cluster of attributes including (but not limited to) extreme dysfunction arising from acquired brain injury, for example; trauma or poor mental health; and substance addiction.
Implications for theory and practice
Policy analysis must take account of the patriarchal and racist structures in which domestic and family violence occurs, and it must distinguish between coercive control and fights. Giving the state power to make DVOs without the consent of the victim is sound logic for cases of coercive control, but it is not sound for cases involving fights. Nevertheless, fights can be distressing, harmful and lethal, and alternative strategies are needed to address them. Restorative justice practices and couples counselling may be appropriate in such cases.
The logic of state power over victim choice in cases of chaos context violence is not only unsound, it is unjust. To some extent, it reflects the deployment of exceptional state power to punish people for behaviour resulting from violence perpetrated on them by the state. Ending chaos context violence ultimately requires structural reform to address racial and socio-economic inequality; at an individual level, it may involve therapeutic intervention and support.
Risks inherent in a paradigm shift
A paradigm shift in current mainstream responses to intimate partner violence, which distinguishes between coercive control and fights is needed, but there are significant risks associated with such a shift. Further development of knowledge and skills to assess and distinguish between coercive control and fights is needed for any approach. We cannot risk a return to the days when coercive control was dismissed as an argument, or a fight. Nor should we facilitate the criminalisation of women (especially Indigenous women) and some men (especially Indigenous men), whose use of violence is not an expression of patriarchal coercive control, but an expression of powerlessness in a society where power and resources are distributed unevenly along gendered and racialised lines.
My research represents challenges to orthodoxy within current domestic violence theory and practice. It calls for reconceptualising types of violence to take account of gendered and racialised contexts in which it occurs. I argue that the criminal justice system is not only ineffective in many cases, but it is unjust. Though there are undoubtedly challenges of achieving the recognition of women’s agency in fights; a victims’ choice in engaging agents of the criminal justice system; and unequivocal state sanctions against patriarchal coercive control of women, this nonetheless is what we must work towards.
Heather Nancarrow has a PhD in Criminology and Criminal Justice and has held many state and national leadership roles in regard to policy on the prevention of violence against women. She is currently the CEO of Australia’s National Research Organisation for Women’s Safety, an Adjunct Associate Professor at UNSW Sydney and an Adjunct Research Fellow, Griffith Criminology Institute, Griffith University. Her work has been recognised with several awards including the “Queenslander of the Year Community Spirit Award” in 2009; “Honours in recognition of outstanding leadership of the National Council to Reduce Violence against Women and their Children and advancing strategic implementation of the National Plan” awarded by Victim Support Australia in 2012, and in 2010 she was named a Rotary International Paul Harris Fellow.