Anni Gethin
Image of King Street Court House Sydney by Kgbo, used under a CC BY-SA 4.0 license
The costs of being a victim of domestic violence (DV) are huge. Prolonged abuse by a partner results in psychological, physical, and financial devastation. Leaving the abuser brings a set of formidable challenges, including staying safe, impaired capacity to work, sole parenthood, and high risk of poverty and homelessness. DV costs victims and the Australian economy AU$22 billion a year, yet the people responsible – DV perpetrators – are almost never required to pay for the damage they have caused.
Suing DV perpetrators in civil actions is one way to put accountability back where it belongs, and to bring some measure of just compensation to victims. In Australia, Domestic Violence Redress, a joint venture between survivor charity, The Brigid Project, and law firm, The People’s Solicitors, aims to make these actions widely available to DV survivors.
Most people don’t know that suing an abusive ex-partner is even possible, but it certainly is; in 2018, I took legal action against my former partner and obtained an AU$100,000 settlement in DV-related damages. That my case was unusual was obvious from the reaction of the judges during the five interlocutory hearings – they had clearly never seen a similar case.
Researching the topic, I found there had only been 9 heard cases in Australia where DV survivors had sued the perpetrator (these cases are Jackson v Jackson (NSWSC, 26 March 1999, unreported); Ainsworth v Ainsworth [2002] NSWCA 130; Penn v Caprioglio [2002] VCC 37; Grosse v Purvis [2003] QDC 151; Varmedja v Varmedja [2008] NSWCA 177 Giller v Procopets [2004] VSC 113; [2008] VSCA 236; Elliott v Kotsopoulos [2009] NSWDC 164; Morris v Karunaratne [2009] NSWDC 346; Cooper v Mulcahy Mulcahy v Cooper [2013] NSWCA 160). Similarly, an international search only found a very small numbers of cases in other common law countries.
I got the idea for suing my ex-partner from the litigious United States, specifically the OJ Simpson civil case – this case suggested that if the criminal system fails you, then you can bring a civil suit. The criminal system had failed me: it was traumatising and disempowering and did nothing to compensate for the debilitating post-traumatic stress disorder that resulted from the abusive and violent behaviour of my former partner, nor the associated loss of income from being unable to work for two years. The criminal process also delivers little to nothing in terms of perpetrator accountability.
Tort law, by contrast, can compel a person or company pay money for the harm they have caused, whether by negligence or on purpose. Tortious harms can occur from events such as a street assault, being defamed, or trespass on your property; tort also applies to some domestic violence behaviour. In Australia, there are around 25 intentional torts. DV victims can potentially use a number of these torts to sue perpetrators, although tort law does not by any means cover the full scope of domestic violence.
Where there has been physical violence, then the tort of battery is relatively easy to establish as it makes actionable any touching without consent. Battery includes slapping, pushing, punching, hair pulling, sexual assaults, and attacks causing serious injury or disability. It also includes physical contact that is primarily degrading, such as urinating on the victim (see Morris v Karunaratne [2009] NSWDC 346, 3), or pouring beer on her (see Cooper v Mulcahy [2012] NSWSC 373, 204).
DV perpetrators commonly stop their partners from leaving the house, even tying them up or locking them in the home; these behaviours could result in an action for wrongful imprisonment. Intentional infliction of emotional harm is a tort that potentially makes the more shocking emotional abuseby perpetrators actionable, such as sexually abusing children or slaughtering pets. The tort of deceit brings into scope fraud and financially abusive behaviours, such as forcing a victim to sign loan documents.
There are also torts which I call the ‘stalker torts’, because they enable actions against this common form of DV. Stalking is typically used by perpetrators to control a partner, and to terrorise a victim if the victim attempts to leave. Trespass to land, nuisance, and breach of privacy torts were all used in a landmark Queensland case where the survivor successfully sued an ex-lover who stalked and harassed her for many years (Grosse v Purvis [2003] QDC 151).
There are benefits to bringing an action in torts. Damages payouts can be substantial. The largest payout in the DV cases was $800,000 (in Penn v Caprioglio [2002] VCC 37), with damages in six of the nine DV cases exceeding $150,000. These sums should be compared to the tiny amounts available through victims’ compensation schemes. Civil litigation also puts the survivor in control: it is their case, and they instruct their lawyers. This contrasts with criminal cases in Australia where the victim has no role, and the prosecutor and defence can make deals that effectively erase offences. Importantly too, that of the nine DV cases, the women were from a wide range of socio-economic backgrounds. This is not just an action for middle class victims.
Despite the potential benefits, suing the perpetrator is definitely not for every DV survivor. Perpetrators regularly kill and seriously assault their former partners, and civil courts have none of the protections of family and criminal courts. If a defendant has no money, there is no point pursuing damages. The survivor will also have to relive the trauma to make out their claim, and will need to prove injury or loss. Larger damages payouts can only be expected where the victim has experienced substantial physical or psychiatric injury, and/or a large loss of income connected to the DV.
Even given these limitations, 1 in 4 Australian women are subjected to DV, so there are thousands of viable cases. Domestic Violence Redress aims to start running actions in 2020, with an initial target of 25 cases. These will run on a no-win no-fee basis, and we will establish a fund to cover the initial costs of litigation and any adverse costs orders. Opening up this legal avenue for redress will make an important contribution to compensating DV survivors. It will also profoundly challenge current social expectations of perpetrator accountability.
Dr. Anni Gethin is a health social scientist with an interest in domestic violence law reform. She coordinates The Brigid Project, a peer support charity for survivors of domestic violence, runs a research consulting business, and lectures in public health and criminology at Western Sydney University. Anni holds a doctorate in population health and, to further her interests in law reform, is completing a Juris Doctor at UNSW. Her current research focuses on legal remedies for victims of domestic violence, and perpetrator accountability.
16 Days Blogathon 
