Flowers left at the vigil for Hannah Clarke and her three children (Image: AAP/Sarah Marshall)

Every time there is a particularly horrific incident of violence against a woman, as there was this week with the brutal murder of Hannah Clarke and her three children by her separated husband, there are calls for something to be done.

That “something” includes suggestions to ramp up our legal responses to gender violence, with a lock ’em up, knee-jerk reaction born of frustration.

Will strengthening our domestic violence laws prevent the kind of violence we saw, and railed against, over the last week?

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There have been hard-won changes to domestic violence laws over the past decades, including improvements to protection orders aimed at preventing future acts of violence.

These are regularly issued and commonly breached, including by Rowan Baxter when he attacked his family. As with other law reforms on gendered violence, from sexual assault to sexual harassment laws, they have failed to stop the problem. 

Intimate partner violence still impacts one in four women, rates of sexual violence against women have increased, sexual harassment is so pervasive that there are very few women who haven’t experienced it and on average one woman a week is killed by an intimate partner.

Given this discouraging picture, is there any hope for future law reform?

There is, but not in the easy way that might be hoped for. Law is not a tool directly wielded to address a social problem. It’s never as simple as declaring violence unlawful.

Any piece of legislation is filtered through a complex tangle of social and legal interpretations, and many of those are still working against victims of violence.

Law doesn’t sit outside of the society in which women are hurt and killed; it is part of it and shaped by it. And that society routinely disbelieves women and minimises harm.

One in five Australians believe that a lot of what is called domestic violence is really just a normal reaction to day-to-day stress and frustration.

A huge 43% — including Pauline Hanson, appointed by the Morrison government to co-chair yet another family law inquiry — believe that women make up or exaggerate claims of domestic violence to improve their case in family law disputes. This, despite data showing that domestic violence is under-reported

We might be willing to condemn a man as a “monster” and “evil” after an extreme act of violence, but otherwise we are skewed towards taking the male perspective and excusing sexual or gender offences against women. Harm minimisation and victim blaming undermine legal efforts for change.

Queensland Detective Inspector Mark Thompson’s statement, since retracted, that police were keeping an “open mind” about whether Rowan Baxter was “driven” to his crime, was rightly condemned because it exemplified a broader view that good men are driven to violence by their victims.

Yet even after many years of working on law reform and seeing the problem of gender violence persist, I am still an optimist. We know so much more about what causes violence against women, and what could stop it.

Law can play an important role in that. We need evidence-based approaches that take what we know about domestic and family violence and turn that knowledge into law.

But there is no doubt that tackling gender violence requires a collective effort from every player at every level, within the legal system and from without. Otherwise attitudinal hurdles and entrenched biases in the system will derail it. 

Next: legislative and legal options to tackle domestic violence

Karen O’Connell is an associate professor in the law department of University Technology Sydney and previously worked at the Australian Human Rights Commission.

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Peter Fray
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