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Gender-based Approach Misses the Mark in Tackling Family Violence

By Roger Smith - posted Thursday, 25 November 2010


Fourthly, the irony of gender-based campaigns that mandate discriminatory legal regimes is that they can only be achieved by also discarding the principles of English common law and twentieth century international human rights law. The erosion of these principles becomes collateral damage, or in economists' jargon, a "negative externality" in the quest to advance a particular cultural agenda.

We would certainly never tolerate a law against terrorism that states that a crime of this nature is predominately committed by Muslims. Even anti-hooning laws, to be human rights-compliant, could never state that these offences are predominantly committed by young males - even if this is statistically correct - because it would erode the ability of the justice system to fairly and effectively deal with offenders of whatever socio-demographic background.

Unfortunately, however, these same human rights norms are not respected when it comes to domestic violence. Recently enacted domestic violence acts in several states are prefaced by the words:"domestic violence is predominantly perpetrated by men against women and children" (eg. s.9 (3) of the NSW Crimes (Domestic and Personal Violence) Act 2007).

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The Australian Law Reform Commission (ALRC) in its far-reaching report Family Violence - A National Legal Response released earlier this month has recommended that similar discriminatory words preface all state and federal laws dealing with domestic violence, including the Family Law Act (see Recommendations 7-2 and 7-3 of its report).

Racial, or in this case gender-profiling, of offenders is controversial in law enforcement procedures, but to upgrade it into legislation is nothing short of extraordinary. It creates an obvious bias in the minds of judges and magistrates that a particular class of defendants is more likely to be guilty by reason of his gender or race than would be the case if he were of a different gender or race (and likewise the other gender or race more likely to be innocent).

In the case of the Family Law Act, its only possible application would be to prejudice fathers in parenting disputes since the Court would be required to assume that fathers are more likely to be abusive toward their children than mothers. To suggest that courts are somehow able to discard such bias in determining individual cases, while maintaining the general rule as to which groups are most likely to commit certain offences, is naïve and stupid. And if the bias is to somehow be withheld in the determination of individual cases, then why legislatively prescribe it in the first place?

The intent to breach international human rights provisions on discrimination - in particular, Articles 2, 4, 23 (4) and 26 of the International Covenant on Civil and Political Rights (ICCPR), and Articles 2, 7, and 16 (1) of the Universal Declaration of Human Rights - is so brazen as to be almost beyond belief. But we need to remind ourselves that we are entering into a world where ideology reigns.

Assuming the ALRC recommendation is adopted, which seems likely, we have to accept that for the foreseeable future at least our country will be a place where justice is blind, but apparently not gender-blind.

In fact, laws of this type represent arguably the first time in the history of our system of law, or of any civilized system of law, where statute prescribes the socio-demographic characteristics of the persons who predominantly commit a particular crime. Even the criminal codes of Apartheid-era South Africa did not prescribe which race or ethnic group was prone to committing a particular offence.

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Apparently criminologists will no longer need to conduct studies into these issues; they can just look it up in the statute! Whereas in the past, male victims of domestic violence already faced substantial cultural biases that trivialised and ignored their suffering, in an enlightened age, they now have a legislatively-prescribed presumption that they are more abusive than women in their family relationships and more dangerous to children.

What is also extraordinary about these developments is that the evidence base and the position of researchers, psychologists, psychiatrists, male health experts and sociologists in Western countries - as shown by the Australian Institute of Family Studies report, academic journal articles and the One in Three Campaign launched last year to help male victims - is increasingly moving toward an inclusive view of domestic violence that highlights the need to assist all victims regardless of their gender or socio-demographic background.

Even Richard Chisholm's Family Courts Violence Review released in January this year explicitly rejected a gender-based approach to domestic violence in family law proceedings (see page 46 of his report). On the other hand, if the ALRC report is accepted, policy will be moving in a 180 degree opposite direction. By seeming to institutionalise discrimination, the ALRC could very well weaken public confidence and support for anti-violence measures and weaken confidence in the legal system itself.

The victims of violence, whether male or female, deserve better than this. Family violence law and policy is not an arena to argue which group in society is more abusive than the other. We are never going to reduce violence with a one-sided ideological approach. The challenge now for practitioners, activists, police and legislators is to move beyond the gender blame game. Most of all, innocent children caught up in their parents' messes require us to put inclusion before ideology, safety before sexism and protection before parochialism.

We need to take the next logical, evidence-based step in the campaign that was pioneered by White Ribbon. Extend the protection and advocate for all victims!

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About the Author

Originally trained as a lawyer, Roger Smith lived in Indonesia and East Timor from 1995 to 2004 where he worked in the justice, human rights and trade union arenas.

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