WWDA Response to the Domestic Violence Legislation Working Group Discussion Paper ‘A Model Domestic Violence Law for Australia’


In 1998, Domestic Violence Legislation Working Group (Attorney General’s Department of the Commonwealth Government) released a Discussion Paper on the development of A Model Domestic Violence Law for Australia. This is a copy of WWDA’s submission to the Domestic Violence Legislation Working Group in response to that Discussion Paper. Copyright WWDA 1998.


Women with Disabilities Australia (WWDA)

Women With Disabilities Australia (WWDA) is an organisation of individuals and networks in each State and Territory made up of women with disabilities and associated organisations. WWDA is an organisation run by women with disabilities, for women with disabilities. The national WWDA office is located in Canberra.

WWDA seeks to ensure opportunities in all walks of life for all women with disabilities. In this it aims to increase awareness of, and address issues faced by, women with disabilities in the community. It links women with disabilities from around Australia, providing opportunities to identify and discuss issues of common concern. WWDA works in partnership with other disability organisations and women’s organisations, and generates and disseminates information to women with disabilities, their families and carers, service providers, government and the media.

WWDA is inclusive and does not discriminate against any disability.


 

Violence Against Women With Disabilities – Background and Context

There is no statistical information available in Australia on the rates of violence against women with disabilities, including domestic violence. However, anecdotal evidence from women with disabilities about the incidence and significance of violence has been accumulating, and it is now so compelling it cannot be ignored (Sceriha 1996).

Although there has been very little research in Australia to date on the issue of violence against women with disabilities, overseas studies have found that women with disabilities, regardless of age, race, ethnicity, sexual orientation or class are assaulted, raped and abused at a rate of at least two times greater than non-disabled women (Sobsey, 1988, 1994; Cusitar,1994; Stimpson and Best,1991; DisAbled Women’s Network (DAWN), 1988).

Sobsey (1988) suggested that 83% of women with disabilities will be sexually assaulted during their lifetime. Fifty percent of women with disabilities have been sexually abused as children, and 39%-68% of girls with developmental disabilities before the age of 18 will be assaulted (Roeher Institute, 1988). Researchers states that the more disabled a woman is, the greater the risk of her being assaulted (Sobsey, 1994; DAWN, 1988).

Women with disabilities, like women without disabilities, are wives, girlfriends, daughters, sisters, lovers, carers and mothers. This means that women with disabilities, like women without disabilities, experience violence in all its forms, including domestic violence. The research which does exist, along with anecdotal evidence suggests however, that violence against women with disabilities differs in significant ways to violence against other women. For instance, it seems that there are factors which make women with disabilities both more likely to be targets of violence, and at the same time less likely to receive assistance or services if they experience violence. For example:

  • Women who are dependent on carers may be more vulnerable to violence than women who don’t depend on carers. Many women with disabilities are in positions where they rely on a carer to provide a range of needs – from basic needs such as eating and dressing – to more complex ones such as transportation. The control the carer has on the lives of women with disabilities can be misused and often the women do not have a choice. This is particularly the case when the carer is a spouse/partner.
  • A woman who is unable to speak may be seen by a defendant as an ‘easier’ target for abuse.
  • Women with intellectual disabilities and women with mental health issues who are living in an institution are more vulnerable to violence because of the nature of institutional settings.
  • Similarly, many women with disabilities are not believed when they disclose their experiences of violence. People in positions of power such as doctors, police, carers, spouses and family may deny that the woman’s evidence is credible.

Women with disabilities are marginalised by their disability and further discriminated against through their gender. As Chenoweth ( 1993) states: ‘Deeply rooted in hatred towards people with disabilities and compounded by the cultural oppression of women, abuse and violence towards women with disabilities is easier to inflict’.

Strahan (1997) asserts that the factors that lead to an increased targeting and vulnerability of disabled women and girls to sexual and domestic violence include:

  • social isolation and segregation;
  • low rates of education and employment;
  • powerlessness;
  • poverty;
  • dependence on carers;
  • ignorance that violence is criminal;
  • discrimination;
  • exploitation;
  • not being believed;
  • not knowing about services available to help;
  • a social denial that women and girls with disabilities are targets of violence;
  • lack of accessible information about violence;
  • lack of accessible and inclusive violence services.

Disabled survivors of domestic violence often have a difficult time escaping from their assailants. They are often financially dependent on these individuals, and the physical means of fleeing assault, such as accessible transportation, are often unavailable on short notice. Even if a disabled woman does escape, very few women’s shelters are accessible. Facilities without ramps and lifts, TTY’s or attendant care are not an option for women with disabilities. A woman with quadriplegia, in such an instance, could expect to find herself referred to a hospital or institution.

In addition, disabled women with children who flee abusive situations run the risk of losing custody of their children because authorities may question their ability to care for them alone.

Research into access to services for women with disabilities who are subjected tom violence (National Committee on Violence Against Women 1993) suggests that support and legal services generally have failed to respond adequately to women with disabilities who are subject to violence.

A lack of knowledge of disability in general, and the needs of women with disabilities in particular, often prevents service providers effectively supporting women wit disabilities after they have been subjected to violence.


 

The Domestic Violence Model Laws Discussion Paper – Comments

Development of the Proposed Model Law

WWDA welcomes and supports the development of a Model Domestic Violence Law. However, it appears from the Discussion Paper document that the Model Law has been developed by taking parts of each State/Territory law and putting them together to make up a model Law. Whilst WWDA recognises the usefulness of utilising existing material when developing such a Model, we believe that such a process may not result in the development of the best possible Model Law. A ‘Model’ should be the ideal – a model of best practice. It is unlikely that the States and territories will adopt uniform domestic violence legislation. Therefore, WWDA believes that the Model Domestic Violence Law should represent a model of best practice to which the States and Territories can work towards.

Definition of Domestic Violence (p. 6)

The definition of domestic violence as stated in the Discussion Paper appears to be somewhat limiting. WWDA believes that the definition as set out in the Paper does not go far enough. Although the definition as it stands does appear to include a range of important forms of violence (such as injury, abduction etc) it does not appear to include other forms of violence, which are equally important. These forms include:

  • emotional and psychological abuse;
  • financial abuse;
  • stalking;
  • demeaning and humiliating behaviour;
  • threats against third parties (such as children, animals);
  • threats to withdraw services and or care.

Definition of Property (p.10)

The definition of ‘property’ in the Discussion Paper does not seem to include property of the protected person which is on loan to another person, or in a place often frequented by the protected person (such as a day care centre).

Definition of ‘Protected Person’ (p.10)

The definition of protected person as it stands in the Discussion Paper raises issues for women with disabilities. As outlined earlier, women with disabilities, like women without disabilities, assume the roles of spouse, partner and these women will be covered to a certain extent by the current definition. However, there are women with disabilities for whom the definition of ‘protected person’ does not cover. There are many domestic situations in which women with disabilities live, such as community based group homes, residential institutions, boarding houses, transition houses, shelters etc. The definition does not appear to include domestic situations such as these. There is the issue of whether the definition of protected person will provide protection for women (and men) with disabilities who are in the care of another person who is not a spouse, relative, or regular household member – an example being those people with disabilities who require attendant care or those who live in a group home in a community setting which is not considered an ‘institution’ but which has staff employed in caring capacity.

The definition of protected person in the Model Laws sets the scope of the legislation. WWDA recognises that it is difficult to develop a Law which will cater to the many possible scenarios and variables for people with disabilities such as those outlined above. It may well be that there is other legislation already in existence which would deal with these types of situations. Then again, there may not be such legislation.

This is a difficult area. There are some people who believe that Domestic Violence Laws should not attempt to address every possible situation and/or scenario. The main argument against a broad definition of ‘protected person’ is that it loses the focus on what is the most common form of domestic violence, that involving husbands/male partners against wives/female partners (WESNET 1998). Some people believe that there should be separate laws which deal specifically with violence against women with disabilities. Still, others believe in more of a dual strategy approach – that there should be separate laws which deal with violence against women with disabilities, but at the same times there should be provisions in any Domestic Violence Legislation which caters for women with disabilities in all the various domestic situations.

The reality is that there is currently no legislation which deals only and specifically with violence against women with disabilities. Whilst this may occur sometime in the future although unlikely), what happens between now and then? If the Model Domestic Violence Laws do not cater for people with disabilities who live in domestic situations other than those defined in the Discussion Paper, what laws, mechanisms and/or processes will there be to protect them? There is a risk that women with disabilities will continue to ‘fall through the gaps’ because there is no legislation which caters for them.

WWDA believes that the Model Domestic Violence Law should broaden its scope with the aim to cover people with disabilities who live in those domestic situations which are not currently recognised in the Discussion Paper. It is after all, a Model, and people with disabilities have the right to the same protection by domestic violence laws against violence in their domestic situations as the rest of the community. Accordingly, the definition of ‘protected person’ should be amended to reflect this.

Grounds for Obtaining a Protection Order (pp. 14-17)

As the Model currently stands, the proposed grounds for obtaining a protection order require:

  • that an act of domestic violence has been committed;
  • that the act of domestic violence is likely to be repeated;
  • that if the act of domestic violence was a threat, the threat is likely to be carried out.

This raises several questions and issues:

  • WWDA understands that Model Domestic Violence Laws are not only about dealing with domestic violence once it has occurred, but are also a mechanism and strategy aimed at preventing domestic violence. The grounds for obtaining a protection order (as outlined in the Discussion Paper) do not appear to reflect this fundamental premise of prevention of domestic violence.
  • The Discussion Paper rejects the approach which requires the protected person to show that she has reasonable grounds to fear domestic violence. The Discussion Paper sites the rationale for this as being that it is a) open to abuse; and b) focuses too much on the emotions of the victim rather than the conduct of the defendant. These do not appear to be strong enough reasons to reject reasonable grounds to fear domestic violence. The Discussion Paper itself, in the Introduction, highlights that ‘there does not appear to be firm evidence that misuse of the legislation is rampant’. It also notes that ‘there are serious criminal offences relating to perjury and false allegations which are available to deal with alleged abuse of the legislation’. If this is the case, why remove the reasonable grounds to fear domestic violence clause?

WWDA believes that the inclusion of fear or apprehension of domestic violence as grounds for obtaining a protection order is warranted and justified.

Behaviour or conduct of the defendant which may not seem threatening to an objective observer can be extremely frightening to a woman with a disability who is in an abusive relationship. Many women with disabilities are acutely aware of their own powerlessness – they may be more likely to fear harm due to the impact of their disability, particularly any physical, psychological or emotional dependency.

A major issue for many women with disabilities when reporting acts of domestic violence and seeking protection orders is credibility. Very powerful myths suggest that women with disabilities should not be believed when they report any form of violence against them. It is also quite clear that in many instances service providers will focus on the disability rather than the abuse (New South Wales Department for Women 1996). This is borne out in anecdotal evidence from women with disabilities. For example – a woman interviewed as part of a research project in New South Wales in 1996 said that when the police arrived after she had been assaulted by her partner and left bleeding in the gutter, the first question they asked her was whether she had taken her medication (New South Wales Department for Women 1996). Women in situations such as this, should have the same access to a protection order as women without disabilities. Focusing on the disability rather than the abuse has far reaching implications for women with disabilities who have been subjected to violence. It can result in their disabilities being ‘blamed’ for the abuse, in appropriate service provision, and in not being believed. Lack of credibility only contributes to further vulnerability for women with disabilities.

Focusing on the particular discrete acts of domestic violence of the defendant suggests a lack of understanding of the continuing nature of domestic violence. It also fails to acknowledge the issue of women with disabilities being seen as less credible than people without disabilities who report domestic violence.

Restrictions In Order (pp.18-23)

Securing a safe home for the protected person and her children by excluding the defendant from the premises/former family home is one of the most important purposes of a protection order. However, it is understood that many women are discouraged from seeking exclusion orders because they are rarely granted and that magistrates are often reported as taking the view that if a woman is in a refuge, or has access to a refuge, her accommodation needs are adequately met (WESNET 1998).

As outlined earlier in this paper, women with disabilities face a multitude of barriers when attempting to access refuges. The main barriers for women with disabilities in accessing refuges can be grouped into the following areas: communication; information; attitudes; physical environment; accessing/using a service; and skills of workers (For more detailed information relating to these areas, see the report enclosed with this paper – ‘More Than Just A Ramp’ produced by WWDA in December 1997).

If the protected person feels safe to remain in the family home and apply for an exclusion order, there needs to be consideration given to the infrastructure which will be required to support this, particularly in the case of women with disabilities who have relied on the defendant for care. As there are very few refuges which are accessible to women with disabilities (and in reality, often nowhere else for them to go), remaining in the family home may end up being the protected persons only choice.

Prescribed Counselling for Defendants (p.18)

As it currently stands, the Model Law provides that a magistrate can (as part of a protection order) ‘recommend that the defendant participate in prescribed counselling’. There are several questions/issues to consider here:

  • would recommendation to attend counselling be part of every protection order, and if not, on what basis will defendants be recommended to attend counselling? Would there be some sort of assessment process to gauge whether a defendant is considered ‘suitable’ for counselling?
  • is there any evidence to suggest that counselling of defendants is effective? Compulsory counselling is not a desirable, nor effective option (and in reality, could in fact put the protected person further at risk if the defendant ‘blames’ the protected person for having to attend counselling);
  • recommendation for counselling could be seen as giving the courts a ‘soft option’ for dealing with violent behaviour. Domestic Violence is a crime.

Duration of Order (p.24)

The section in the Discussion Paper on duration of the protection order is not clear. A Model Domestic Violence Law should have provisions which require the Courts to specify the period of the Order, rather than leaving it up to the Courts discretion, which appears to be the case in the proposed Model Laws.

Complaints for Protection Orders (p.26)

Whilst it is encouraging to see that the Model Law makes provision for ‘any other person with the written consent of the aggrieved protected person…’ to apply for a protection order, there are issues here for women with disabilities that do not appear to have been considered in the drafting of the Discussion Paper. For example, ‘written consent’ will certainly be difficult for those women with disabilities who do not write, as well as women with literacy difficulties. There must be flexibility in this section to cater for women with communication methods other than the written word. As well as written consent, there needs to be provisions for women to give their consent in other formats. There are several sections in the proposed Model which specify for ‘written’ requirements – all of these must be reconsidered to include the provision for other formats.

Interim Orders (p.30)

Again, there are concerns in this section for women with disabilities. The proposed Model Law states (sec.10(4) ) ‘the Court must not make an Interim Protection Order unless the complaint is supported by oral evidence, except in the case of a complaint made by telephone….or where the complainant is so incapacitated that evidence cannot be given orally, in which case it may be given by affidavit.’

There will be protected persons for whom this is simply not possible. This section must include some provision that enables people to give evidence in a wide range of formats where required. This whole section is rather confusing. For example, it is not really clear whose oral evidence is required (we have assumed it is the protected persons’). There also needs to be further consideration given to the granting of the order on affidavit (written statement) evidence where there is incapacity to give oral evidence. Again, there are issues here for women with disabilities who do not write.

Telephone Interim Orders (p.34)

WWDA supports the provision for interim telephone orders which can be particularly useful for women in isolated areas and situations. Section 11(4) states that a police officer need not make an application for an order……….if the police officer believes………b) that there is good reason not to make the application. The concerns raised earlier in this Paper about women with disabilities not being believed and not being regarded as credible witnesses applies in this section also (see under heading: Grounds for Obtaining a Protection Order). The Model Domestic Violence Law should have provision to enable designated persons (other than the police) to apply for a telephone order.

Explanation of Orders (p.52)

WWDA supports the provision in this section that orders are understood by both parties. This section should go further, however, by stating a requirement that the Courts provide the necessary mechanisms/tools/processes etc to ensure that this happens. In practice, this will mean a requirement to obtain Interpreters (Auslan and interpreters for non-English speaking background people); a requirement to provide the information in braille where required (for people with vision impairments); and in any other way necessary to facilitate communication of the information. For people with intellectual disabilities, as well as those with acquired brain injury, or any other cognitive impairment, there should be a requirement that the information is provided in plain English.

Breach of an Order (p.76)

Several people participating in consultations for this paper have raised the issue that in many cases, police take no action in response to breaches of Orders (Restraining Orders; Apprehended Violence Orders etc.) This is perceived to be a common occurrence and is borne out by data from NSW which shows that police took no action in 73% of the breaches reported to them (WESNET 1998; Disability Council of NSW 1998). With this in mind, it is imperative that the Model Domestic Violence Laws are supported with the development of Model Police Protocols and Standing Orders. These Protocols and Orders must have a component that deals specifically with women with disabilities and domestic violence.

The Discussion Paper asks for comments on whether it should be a defence to the breach offence that the protected person consents to the breach. This notion is quite alarming for several reasons:

  • it does not reflect an analysis or understanding of power as it relates to domestic violence;
  • it takes the emphasis off the fact that the defendant should bear responsibility for his actions and their consequences – which means complying with the order;
  • it would increase the vulnerability of the protected person and create further scope for intimidation and manipulation by the defendant – this is of particular concern for women with disabilities;
  • it provides a reason not to prosecute for breach;
  • it is a further way of reinforcing the myth that somehow the protected person is to blame for the violence.