The murder of Hannah Clarke and her children has rightly sparked outrage and calls for stronger laws against domestic violence.
Domestic violence is commonly thought of as a “wicked problem” with multiple causes and no single solution. But that doesn’t mean it can’t be prevented.
We have had decades to see what works, most recently with a royal commission in Victoria and a special taskforce in Queensland. Given that, are there any new laws that could prevent the kind of tragic murder we saw last week?
Law has always been best at dealing with incidents of physical violence that happen in public. It has not been good at dealing with the kinds of harms that women in particular experience: those inflicted in intimate relationships, in private, over time.
Domestic violence is commonly a pattern of controlling behaviour. A man might control his partner’s access to money, prevent contact with family or friends, tell her what to wear or eat, monitor her phone, criticise or humiliate her in front of others. Domestic violence may or may not include physical and sexual assault. Yet law still skews towards protecting incidents of physical assault rather than escalating patterns of control.
There is a current push to criminalise the controlling patterns of behaviour that are the hallmark of domestic violence. The UK, Ireland and Scotland have all recently passed laws that make “coercive control” a criminal offence.
These laws protect against controlling or coercive behaviour where it causes harm to another person. There have been calls for equivalent laws to be passed in Australia.
The benefit of such laws is that they are genuinely reflective of the experience of domestic violence and target the kinds of behaviours that are causing some of its most devastating psychological injuries. The hope, too, is that by preventing currently overlooked forms of domestic violence they will offer protection before more women are murdered.
And yet many advocates don’t think that passing new laws is the solution to domestic violence. This is because of systemic problems with the criminal justice system.
Law is a complex set of practices and mechanisms. You don’t put your coins in and out comes the packet of chips you wanted. It’s more like putting coins into a pinball machine: you watch your carefully crafted legal provisions go ricocheting in unexpected new directions once they enter the system.
Criminal laws are implemented by police, argued by lawyers and interpreted by judges, and all of these legal actors are a product of the same society in which misconceptions of what “real” domestic violence is persist.
The concern is that by putting new criminal coercion laws into a system that is skewed towards a physical, incident-based understanding of domestic violence we could create unintended outcomes.
We might create an approach in which coercive relationships are treated as a separate and distinct offence, allowing the rest of the system to continue, undisturbed and often ineffective, with a bias toward incidents of physical violence.
What we really need is for the legal system as a whole to get better at recognising the kinds of harms that characterise domestic violence.
If we do pass laws against coercive control, they have to be part of a broader set of reforms aimed at changing perceptions of domestic violence. We have a host of recommendations from the Queensland and Victorian inquiries that could be implemented to that end — from improving police practice in identifying family violence, to better recognising who is at risk of harm.
Rather than a new law, we need all of our existing laws, and the people who implement those laws, to integrate a more accurate understanding of domestic violence. Domestic violence remains an epidemic in part because we fail to see it for what it is.
If you or someone you know is impacted by sexual assault, domestic or family violence call 1800RESPECT on 1800 737 732 or visit 1800RESPECT.org.au.
Karen O’Connell is an associate professor in law at University of Technology Sydney.