Abused Women Are Not Criminals


Imagine how it would feel to be assaulted by someone you love, to be cut off from your friends, family and support network, and to be threatened with further violence if you go to the police.

This is the position of many women who face domestic violence from a partner or close relative. The cycle of domestic violence relies on the abuser’s control over a vulnerable victim, and there are complex reasons why a woman may not pursue a police complaint. The choice between staying in a violent relationship or leaving are not always as clear cut as we may imagine, and many women are financially and emotionally dependent on their partners.

Putting a woman in jail because she is too scared to follow through with a complaint against an abusive partner is no solution to domestic violence. A recent report by The Australian has exposed how a number of Aboriginal women in NSW who are victims of domestic violence have faced criminal charges for recanting their allegations and in some cases, have been sentenced to terms of imprisonment, one for as long as 18 months.

In justifying the laying of these charges, NSW Police have stated that “falsely accusing a person of a crime is a serious offence”. While this is true, it represents a serious misunderstanding of the nature of domestic violence. It assumes that a woman who withdraws a complaint of domestic violence was lying in the initial allegation, and that when withdrawing her complaint, she does so voluntarily and without pressure or threat of further violence.

Charging a victim of domestic violence with a crime in these circumstances is a serious miscarriage of justice. Not only does it perpetuate the cycle of abuse and vulnerability, but it leads to a breakdown in the trust between the victim and the police. A woman who has faced this treatment in the past is hardly going to report violence to the police next time it happens.

But there are better ways to deal with domestic violence that recognise the reluctance a victim may have in following through with charges. Proactive prosecution strategies in New York, for example, have led to higher success rates in prosecuting perpetrators of domestic violence even when the victim does not cooperate with law enforcement efforts.

The Queens County District Attorney’s Office in New York has a specialised domestic violence bureau that has implemented innovative prosecution techniques in the absence of victim cooperation. Rather than drop charges when a victim does not wish to proceed or offer no evidence at the trial, as often occurs in NSW, the office presents evidence of abuse through photographs taken by police officers at the time of arrest, medical records, emergency calls, and initial statements made by the victim to the police. This type of “evidence-based” prosecution requires more preparation than cases in which a victim is willing to testify, and involves specialised prosecutors interviewing victims and police officers, as well as gathering documentary evidence of the assault, in order to build a strong case for trial.

The results demonstrate that this approach works. The Queens County bureau has a conviction rate that is 29 per cent higher than the rest of New York in domestic violence prosecutions. And only 13 per cent of cases end in acquittal or charges dropped, compared to a city-wide average of 60 per cent.

Methods like this could work in NSW too. The NSW Evidence Act contains provisions that allow prosecutors to introduce into evidence emergency calls and statements made to the police or witnesses shortly after an assault occurred. However as the New York experience shows, proving such cases requires dedication and a willingness on the part of prosecutors to devote time to a case.

The NSW Government must allocate more funding to domestic violence to allow prosecutions of this type to occur, and should introduce a specialised team of prosecutors to handle domestic violence offences. Domestic violence is a special category of crime because of the relationship that exists between the victim and the perpetrator, and creative prosecution techniques are needed to bring to justice those who commit violence against women. The New York experience shows that more can, and should, be done to prosecute domestic violence. It’s time to end the cycle of abuse and to stop blaming the victim for failed prosecutions.

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