Yesterday I received my Law Society Journal, a monthly magazine distributed to my state’s 26,000 lawyers.
This month the focus is on violence against women and what reforms are needed in our criminal justice system in order to have a real effect on the numbers of lives lost (around 40 here in Australia), and the thousands of lives impacted and destroyed by this insidious, and largely unseen, abuse.
As a lawyer and a survivor, this is a subject about which I am passionate. I look forward to a day that the legal system that I have devoted my professional life to serving, adequately serves those whose lives are threatened by, or lost to, the devastating epidemic that is domestic violence.
Women like me.
My story
I am in my late forties, a successful lawyer with my own firm, a mother of a beautiful, unique adult son, a friend, daughter and sister. A lover of art and architecture, music and theater, books and knitting. A woman with a zest for life and a thirst for knowledge.
I’m also a survivor of long-term domestic violence that almost cost me everything.
I was with my abuser for 24 years, married for 18 of those. Long before the violence turned physical, I felt controlled by him. Now with the benefit of hindsight, I realize that I started tiptoeing around him, walking on eggshells before we even started living together, and long before we were married.
He had a temper and would fly into a rage if I wanted to do anything that didn’t involve him. He told me it was because he loved me so much, he couldn’t bear being away from me. As an insecure young woman, who had been deeply affected by high-school bullying in the year or two prior to meeting him, I fell for this explanation. I accepted it as a sign of his devotion.
Sadly, I was desperate for someone to love me.
Over many years I was slowly conditioned by his control. Eventually, everything I did was an attempt to achieve or maintain his approval. It wasn’t that I particularly valued his opinion, I simply wanted to avoid the consequences of displeasing him. His methods to keep me in line evolved over time and included torturing me with sleep deprivation, checking up on me constantly, isolating me from friends and family, sexually assaulting me in my sleep, monitoring my movements, throwing furniture, breaking my things and threatening self-harm.
The list goes on.
All the while I was the lead actress in my own facade, maintaining the image of the successful lawyer with the happy family.
And despite all my education and experience I would never have called what was happening to me domestic violence.
Because he never hit me.
The problem with our ‘domestic violence’ narrative
There are a multitude of resources available on-line that explain the various types of domestic violence and the signs that warn that it may be happening. The information makes it clear that physical violence does not have to be present for a relationship to be abusive. Thanks to the abundance of information available awareness is rising. Understanding that power and control are at the root of all domestic abuse is finally sinking in.
Yet, when it comes to utilizing the criminal justice system to protect victims and punish abusers we have remained blinkered.
We have looked at domestic violence as an incident or series of incidents, rather than a sustained pattern of behavior. Then we wonder why rates of domestic violence are skyrocketing with almost no perpetrators held to account.
As a lawyer, and a survivor, I believe that our legal systems around the world have let victims down because we look at domestic violence the same way as we look at other violent crime.
We look at the incident, we only look at the incident. This is entirely appropriate for the vast majority of criminal offences. Our justice system demands, and rightly so, that the Actus Reus (the physical action) and the Mens Rea (the mental intent) both being proven beyond reasonable doubt. Prior behavior, or patterns of behavior are irrelevant to whether or not the elements of a specific crime is made out.
Whether the person is guilty, or not guilty.
Trying to deal with domestic violence through the existing system is like trying to bang the proverbial square peg into a round hole.
Because domestic violence is not an incident or series of incidents. It is a sustained pattern of behavior.
A pattern of behavior perpetuated by the objective of exercising power and control over the victim.
Long before he threw things, broke things, or started holding me down or forcing me awake, I felt, for a reason I could not quite put my finger on, that my life was no longer my own.
The current definition under the law in New South Wales (and pretty much everywhere else)
As the law currently stands, domestic violence offences are offences under the Crimes Act perpetrated against a person within whom the accused in a domestic relationship. There are a series of references to offences listed in the Crimes Act ranging from murder, to assault, to stalking, sexual offences and damaging property. All of these things can form part of a pattern of abuse but for a conviction to be successful, all the elements of the offence need to be satisfied in respect of the specific incident. It’s no wonder few suspects are charged. To do so is futile unless there has been an act of overt physical violence with an abundance of evidence.
The underlying foundation of coercive control is not relevant.
The Scottish solution — A remedy for ‘but he never hit me’
On 1 February 2018 the Parliament of Scotland passed the Domestic Abuse (Scotland) Act 2018, the first legislation of its type in the world. The preamble reads:
An Act of the Scottish Parliament to create an offence with respect to the engaging by a person in a course of behavior which is abusive of the person’s partner or ex-partner; and to make rules of criminal procedure for that offence and also for offences subject to the statutory aggravation involving abuse of partners or ex-partners.
The words course of behavior brought tears of hope to my eyes. Finally, lawmakers, on the other side of the world admittedly, have taken seriously the plight of victims of constant coercive control.
Under the law, a person commits an offence if they engage in a course of behavior that a reasonable person would consider to be likely to cause physical or psychological harm (fear, alarm or distress) and that course of behavior is either reckless or intentional.
The definition of abusive behavior clearly illustrates the legislator’s insight into the purpose and consequence of coercive control.
It is defined as being either violent, threatening or intimidating behavior; or behavior that has as its purpose, the intention to achieve one or more effects on the victim.
Those affects are:
Making the victim dependent on, or subordinate to, the perpetrator; isolating the victim from friends, relatives or other sources of support; controlling, regulating or monitoring the victim’s day-to-day activities; depriving the victim of, or restricting the victim’s, freedom of action; and/or frightening, humiliating, degrading or punishing the victim.
The Scottish parliament has nailed the operatis mundi of a perpetrator of domestic abuse. To dehumanize the victim and then mold her to fulfill his purposes.
To erode her very identity.
This legislation gives women in Scotland hope. Hope for justice.
With no bruises or broken bones required.
The deterrent value of legislation of this type
The hope of course, as with all criminalization of behavior is that would be perpetrators will be deterred from committing the crime in the first place. That the world will become a safer place for all of us.
I can only hope that will be the case.
Education is still the key
Whilst the Scottish legislation is very much a step in the right direction the reality is that, right now, hundreds of thousands of people, mainly women, are in confusing, frightening, painful relationships and they do not know, or admit that they are victims of ongoing domestic violence.
I didn’t.
Women, and men who love women, need to call for a widespread educational campaign with a two-fold objective. Firstly, the aim to highlight domestic violence in all its forms.
Equally importantly, to teach young men that their life is their own, to control and take wherever they wish it to go.
And so it is for your sister, work colleague, and the girl next door.
Her life is hers, to do the same. It is not, has never been, and will never be, yours to control.
When that becomes common belief, then we will have justice.
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Previously published on “Equality Includes You”, a Medium publication.
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Photo credit: Tingey Injury Law Firm on Unsplash