Domestic Violence and the innocent accused
The “STOP domestic violence” media campaign is a painful reminder that people (particularly women) are being assaulted in the sanctity of their own homes, and a lot of violent criminals are playing at “happy families”.
This blog is difficult. The 2 lawyers at Local Court Lawyers (Sally McPherson, the principal of the firm, and Steve Gerrish) have co-written this, because we want to capture more than one perspective on the way DV matters are handled. This blog recognises that some domestic violence matters are not as simple as they first appear. Sometimes, particularly where there are family law disputes (involving custody of kids), innocent men are falsely accused. Important to note: *We have decided, in this blog, to reflect the statistical likelihood that the victims of DV are women, and the perpetrators are men; but also the possibility that a man is falsely accused of domestic violence, and wants to defend the allegation.
It is uncontentious that domestic violence is a shameful and painful blemish on our society. It’s uncontentious that resources should be directed to assisting victims (such as money, police, court officers, therapists, emergency housing).
Domestic violence generally involves a strength and power imbalance – reflected in the unequal strengths of the man and woman. But what we need to be careful of is to not further layer the power imbalance, with another power imbalance – being the assumption that the man committed an assault, and the assumption he is guilty, and the assumption he was not merely attempting to defend himself. (The reasonableness of a claim of self-defence, and the reasonableness of the force used, is for the court to decide.)
The legal position is: domestic or otherwise, the police must prove an assault happened, before someone can be convicted of an assault. Too often police look at these types of offences as a domestic-offence first, and an assault second. There is no such offence as a “domestic-offence”. There are assaults that happen in a domestic setting. However whether or not there was an assault still has to meet the legal threshold test: is it ‘beyond reasonable doubt’ that he assaulted her? There is no lesser test required simply because the assault happened at home. At home, or out; a family member or a stranger; – first the police must prove, beyond reasonable doubt, that the assault happened. Then it’s fair to assess whether there is a defence – such as self-defence – that resulted in the actions of the defendant. Don’t mistake what we are saying:- As recently as 2016 I was shoved from behind, with such force, into an open cupboard, I only just managed to raise my hands to stop from smashing my nose and forehead into a cupboard shelf. This was in my home, by a former (drunk) boyfriend. It is NOT OK. His action was an assault. Absolutely no doubt he could, and (in hindsight) probably should have, been charged. Domestic violence is NOT OK. However as a defence lawyer, I have seen weeping men, falsely accused, and situations manipulated, by women who have ulterior motives – so vengeful or greedy, that to leave their former partner with a wrongful conviction suits their end-game. It is NOT OK to convict an innocent man – an innocent person – for any offence, ever.
In the past, police were accused of sweeping domestic violence offences under the carpet. That’s no longer the case. Good. The prevalence of victims being assaulted, even murdered, in their own homes, obtained the national profile it deserved. Step one: the profile of the offence has obtained national attention.
But has step two gone too far? Opinions differ – and that’s important to note. In the past, when the victim alleged she had been assaulted, she made a statement to police (hours or days later), and if the man pleaded not-guilty, a hearing followed. At a hearing the victim would be compelled to go into the witness box and give her evidence. Just like any other hearing. The aim of this is to allow the Magistrate to examine the demeanour of the witness as she gives evidence, and maybe as she builds upon, or retracts, some of her statement. It also allowed the man, claiming he was not guilty, to “test” her evidence (for example: “you said I didn’t get home until 10pm, but you called the police at 9pm. Why?”). But with the media attention and the power imbalance, the system changed so that instead of a woman making a statement to police, noted down and signed by her when typed, the police now record an interview, at the time, on the scene, when it’s all still fresh and raw and accurate. It’s called a DVEC (a recording of the DV evidence in chief). And it means the victim no longer gives police a statement when things have calmed down, because the DVEC is her statement, and is admitted to the court AS her evidence. This is fantastic for genuine victims, and women afraid of the perpetrators, women who – because of fear or love or something else – have decided they don’t want to give evidence and consequently the man ‘gets away with it’. The taking of evidence in chief by DVEC is part of a new regime, and some-say is fantastic for victims.
But not for the men in the rare (but not insignificant) number of cases where the allegations are false. If the police are called, regardless of wether an assault is first proven, a DVEC is recorded. Little weight is given to the possible unreliability of the evidence of the complainant. Little weight is given to the anger, emotion and vengeance the woman may have been feeling when the DVEC was recorded – all of which emotions are paramount in family law disputes where the women fear children maybe be removed from them (the point being: these feelings are not isolated to domestic assaults. These feelings, captured in the DVEC, could come from another place entirely, and be motivated by something other than fear for her safety.)
This puts the accused at a distinct disadvantage. Often these videos contain inadmissible evidence of irrelevant events, non-physical but abusive arguments, made-up events or threats, allegations of unreported and unsubstantiated prior assaults, statements which would not otherwise be admitted into evidence – all of which are highly prejudicial if the male accused is totally innocent of the assault being alleged. A defendant then has to argue (to varying degrees of success) to have inadmissible content removed.
Even if the alleged victim gives evidence in the witness box inconsistent with her recorded (DVEC) evidence, and favourable to the defence, provided the first version discloses a domestic violence offence, the courts are tending to convict. It’s the notion of a ‘domestic offence’. There is the assumption, if her evidences changes, that they ‘kissed and made up’. Or the assumption she is afraid and changed her story. And this can happen – absolutely it can happen. But, what if, as we have seen in practice, the original version given to police is unreliable, and dangerous and unsafe to convict on? What if it was motivated by something other than an assault and/or fear for her safety? What if the DVEC version was born out of anger, emotion and vengeance? What if the DVEC was recorded when she was affected by alcohol, drugs and/or prescribed medications, or she suffers from a mental health issue? These possibilities should also not be swept under the carpet.
Don’t mistake our position…Domestic violence is serious. And I reiterate: the new system of DVEC’s, recorded at and in the moment, is effective most of the time. But not all the time.
The position of the joint-writers is this: alongside the statistics, and national media attention to the horrors of DV, and the new DVEC system of recording evidence; is the parallel need to respect our current system – innocent until proven guilty, being of a ‘domestic’ nature does not reduce the required standard of proof, and the availability of a defence.
We need to protect the rights of the victims, but not at the expense of the rights of the wrongly accused.
There is plenty of help out there for couples who are in what might be described as the ‘build up’ phase. If you are having difficulties in your relationship get help now! You will be amazed at how a dysfunctional relationship can be turned around into something harmonious. If you have children then you owe it to them. If you do not, then you owe it to each other.