Victim blaming can affect trial outcomes

The language used in child protection service documents can affect outcomes of trials involving domestic violence, a University of Sydney analysis finds.

Such documents include case notes, assessments and outcomes, court documents, and applications.

Child protection service documents are often proffered as evidence in family law, criminal, and other trials that involve domestic and family violence (DFV). They can also be or inform the basis for litigation, as well as court findings and orders.

Due to the language used in these documents, judgments can place more weight on the responses of victims/survivors than on the actions of men who perpetrate domestic violence. For example, documents used in court proceedings throughout Australia often framed domestic violence as ‘fights between parents’, ‘parental conflict’ or ‘mutual combat’, or domestic violence was framed as the outcome of a ‘dysfunctional relationship’. This can result in women being blamed for their own victimisation, or even being accused of complicity in the abuse of their children who are exposed to domestic violence.

“It’s essentially victim-blaming,” said analysis co-author, University of Sydney Associate Professor Susan Heward-Belle.

“Three particular representations we found in case notes were of mothers who fail to protect their children in a DFV context; domestically violent men being rendered invisible; and survivors’ mental distress and/or problematic substance misuse being de-contextualised.”

All of these representations are evident in a case note that observes:

“Jackson, a newborn baby, is at significant risk of harm due to his mother’s mental ill-health, significant history of drug misuse and her involvement in domestically violent relationships. It is recommended that Jackson be placed in alternative care as he is considered to be at an unacceptable risk of harm in her care, due to the aforementioned issues associated with her lifestyle choices. Despite being a victim of repeated assaults, the mother appears reluctant to leave the relationship.”

Associate Professor Heward-Belle, a DFV expert in the Sydney School of Education & Social Work, says the consequences of such representations can be stark. For example, legal orders that remove children from the care of their mothers for reasons directly attributable to male violence can be imposed. This is a large and expanding issue in Australia: in 2015–16, 55,600 children were placed in out-of-home care many for reasons directly connected with DFV.

The analysis, published in Current Issues in Criminal Justice, offers a roadmap to rectify these potentially harmful practices, endorsing the Safe & Together™ Model. Developed in the US, the model aims to help child welfare professionals become ‘domestic violence informed’ by suggesting a shift in how they view risk: from assessing a protective parent as the source of risk to a child/ren, to instead focus on the actions of a perpetrator as the source of risk. The model also advocates for better documentation of a perpetrator’s behaviour, which supports better safety planning with the non-offending parent.

The model has been successfully rolled out by the Queensland Government, which has trained child safety officers, lawyers, and Family Court staff in its use. For example, following Safe and Together training, an excerpt from a child services case note read as follows:

“It is my assessment that the child would be at an unacceptable risk of physical and emotional harm without further departmental intervention due to the following:

(1)  A history of and current domestic violence perpetrated by the father against the mother.”

“This alternate approach has the potential to deliver better outcomes to survivors of domestic violence and their children. Research attests that children have better outcomes when they remain together with their non-offending parent,” Associate Professor Heward-Belle said.

“The approach also has the potential to invite domestically violent men to change their behaviours and for the legal and social service system to hold them to account for criminal behaviours.”

Associate Professor Heward-Belle says the model can be applied to other legal jurisdictions and branches of law that involve DFV – for example, criminal law. 

The researchers – Associate Professor Heward-Belle and Tracey De Simone, Official Solicitor, Department of Child Safety, Youth and Women, Queensland – drew on their previous studies to inform the findings of the present one, including the PATRICIA project (2018); the Invisible Practices: Working With Fathers Who Use Violence Project (2019); and the STACY Project (Safe & Together Addressing Complexity) (2020). They also drew on composite case studies (composited for ethical reasons).

According to the Australian Human Rights Commission, violence against women is one of the most common manifestations of human rights abuse in Australia, with one in four Australian women experiencing at least one incident of violence by an intimate partner since the age of 15 years. 

Exposure to DFV is also a common experience for many Australian children, with one in ten men and one in eight women witnessing violence towards their mother by a partner before the age of 15 years.

Hero image: A childhood sexual abuse survivor by two adult men speaks out about her experience as an adult after fighting for more than seven years for the justice she deserved. It took her until she was 40 and had a child the same age she was when the abuse began to comprehend the effect it had on her and across her life. In that moment, she knew it was no longer her secret, but his - and that her words had power. She writes about her experiences on her blog Jennadesigns.net and advocates for other survivors and to reform statute of limitations law in her state and nationwide. Credit: Jen Theodore on Unsplash.