Identifying the ‘primary aggressor’

9.158 The Commissions heard concerns throughout the Inquiry that police may sometimes fail to identify the ‘primary aggressor’ and the ‘primary victim’ when attending a scene of family violence. This may mean that victims are wrongly charged with family-violence related offences and inappropriately having protection orders taken out against them.[247] Accurate and comparable data about dual arrests for family violence are not available in Australia, but the number of dual arrests has reportedly increased in the United States (US) since the 1980s.[248]

9.159 Primary aggressor policies arose in the US after mandatory or pro-arrest statutes began to be implemented and police, applying the law strictly, chose to arrest both parties.[249] Mandatory arrest laws in the US, it has been said:

may lead officers to adopt a legalistic orientation. Considering it inappropriate to use discretion, they apply the law in a mechanistic style. Thus, when faced with a situation that appears to involve two mutual combatants, they opt to arrest both, leaving it to the prosecutor, and perhaps the court, to determine culpability.[250]

9.160 Primary aggressor policies, as Wangmann has argued, require police to look beyond the incident they are presented with and consider ‘a wider contextual framework’—including:

  • whether there is a history of violence perpetrated by one party against the other;
  • the nature of the injuries sustained by both parties;
  • the likelihood of violence in the future; and
  • whether one person was acting in self-defence.[251]
  • The policy is not just about ‘always arresting the guy’, it has been said, but asks police to consider that ‘violence has different meanings in different contexts’.

9.161 In March 2010, the Queensland Department of Communities in its Consultation Paper on the review of Queensland’s family violence legislation, noted problems in identifying the primary aggressor. It asked whether legislation should help identify the primary aggressor or protect the party at risk, noting that some states in the US:[253]

have primary aggressor laws which are designed to reduce the rate of dual arrests by requiring police officers to consider a number of factors such as history of domestic violence, the comparative extent of injuries (where both parties exhibit injuries) and the existence of self-defence.[254]

9.162 In Ohio, for example, to determine who is the ‘primary physical aggressor’, officers are required to consider, in addition to any other relevant circumstances:

(i) Any history of domestic violence or of any other violent acts by either person...;

(ii) If violence is alleged, whether the alleged violence was caused by a person acting in self-defense;

(iii) Each person’s fear of physical harm, if any, resulting from the other person’s threatened use of force against any person or resulting from the other person’s use or history of the use of force against any person, and the reasonableness of that fear;

(iv) The comparative severity of any injuries suffered by the persons involved in the alleged offense.[255]

9.163 The WA Review of family violence legislation also noted concerns about police issuing orders to both parties, and not always correctly identifying the primary aggressor and the primary victim.[256]

The view put forward by the Western Australia Police is that, although understanding the nature of domestic violence is crucial to ensuring an effective response, ultimately members are only able to respond to the circumstances before them. In ambiguous circumstances, an understanding of who is likely to be the primary aggressor will be a useful guide. However, if the female is the one who clearly appears to be threatening to commit an act of family and domestic violence, the police are obliged to respond to the circumstance before them. According to police, this means that, just as it is not the role of police to take into consideration circumstances that may amount to a defence when considering whether to arrest for the commission of an offence, police are obliged to issue an order against the woman notwithstanding that she may have been subjected to acts of domestic violence many times in the past.[257]

9.164 The WA Review stated that it is evident that police continue to have difficulty in responding to family and domestic violence incidents:

Given the highly charged and emotional atmosphere in these situations that is not surprising. In the ACT service providers attend domestic violence incidents with the police. If the complexity of domestic violence investigation requires the assistance of skilled counsellors, then such a change to police investigation procedures in Western Australia needs to be considered.[258]

9.165 Evidence concerning the impact of primary aggressor policies varies in the United States; fewer women are being arrested in some jurisdictions; in other jurisdictions the arrest rate has continued to rise.[259] One recent study from the US concluded that the impact of primary aggressor legislation on the decision to arrest merited further examination, but found that ‘the passage of a primary aggressor law clearly does not negate the relationship between mandatory arrest laws and higher dual arrest rates’.[260]

Submissions and consultations

9.166 In the Consultation Paper, the Commissions asked whether there was a need for legislative amendments to provide guidance in identifying the primary aggressor in family violence cases.[261] Most submissions agreed that it was important for police to identify properly the primary aggressors. It was said to be ‘imperative’[262] and that it was ‘critical that police have an understanding of the complex nature of domestic violence and the manipulation and power dynamics that are involved’.[263] Women’s Legal Service Victoria submitted, for example, that police need to know who is at greater risk and who should be excluded from the home.[264] Sometimes the aggressor gets to the police first; sometimes the victim is not a strong communicator.[265] A female victim might be upset and ‘take it out on an attending officer’ and thus seem to be the aggressor when, in fact, she is not.[266]

9.167 Centacare Safer Families Support Service submitted that identifying a ‘predominant aggressor’

charges officers with the responsibility of determining who has the most potential for doing the most harm, and what actions were done in self-defence. It encourages officers to desist from ‘equalizing’ the violence or seeing domestic violence as mutual combat. Factors to consider include the history of domestic violence between the people involved, the threats and fear level of each person, and whether either person acted in self defence.[267]

9.168 National Legal Aid submitted that there were ‘a number of incidents’ in NSW ‘where if a proper investigation of the incident had taken place, charges against the victim should not have been laid’. It also submitted that it had anecdotal evidence that in WA ‘there are numerous cases where women have been issued with police orders and evicted from their homes despite a history of family violence towards them’.[268] The Wirringa Baiya Aboriginal Women’s Legal Centre was also aware, anecdotally,

of a number of incidents where Aboriginal women have been charged for family violence offences, when in fact she has been the primary victim of family violence for a long period of time.[269]

9.169 Wangmann referred to the work of Trish Erwin, who noted that in the US, the language of ‘primary’ aggressor led police to focus on ‘who started it’. So many states and local police departments in the US adopted one the following phrases: ‘predominant physical aggressor’, ‘principal physical aggressor’ or ‘dominant aggressor’. However, these changes in terminology have not necessarily brought about the changes sought, Erwin argued:

Predominant physical aggressor language is, in some ways, trying to make the law do what it does not want to do: it is designed to remedy power differentials in the use of violence within intimate relationships, but it is at odds with the goal of the law in providing a neutral standard upon which to determine a legal action, eg probable cause.[270]

9.170 There was some support for giving guidance in determining the primary aggressor in legislation.[271] Reasons included that it might reduce the number of cross-applications[272] and that without legislated practice, police might ‘not pay enough attention to the assessment issues ... in cases where men persuasively present themselves as the primary victim’.[273] The Queensland Law Society considered that it would

focus the minds of judges, police and lawyers as to whether or not it is appropriate for an order to be made and, if so, what the conditions of that order ought to be and/or what punishment there ought to be for a breach of the order. In addition to any other benefit, this may be of benefit in any Family Law Act proceedings between the parties.[274]

9.171 However, many submissions thought that the problem should be addressed through education, training, and police codes of practice,[275] and not in legislation,[276] although it was recognised that this would not be easy because ‘this is a very complex area and training should be comprehensive’.[277]

9.172 Submissions also stressed the value of counsellors and other family violence workers helping to identify primary aggressors.[278] The Victorian Government also suggested that ‘social context information for judicial officers’ could be provided in a model bench book.[279]

9.173 One group that campaigns for the recognition of men as victims of family violence submitted that police should be given discretion, and should not always have to identify the primary aggressor, because ‘mutual or reciprocal violence is more common than one-sided or unilateral violence, and often there simply is no primary aggressor’—although in other cases, ‘the definition is entirely appropriate’.[280] The Christian group Family Voice Australia was also concerned about gender bias:

Given the widespread misconception that women are the sole victims of domestic violence any insistence that a primary aggressor be identified in every case of cross-applications is likely to lead to further injustice against male victims.[281]

9.174 The Inner City Legal Centre and The Safe Relationships Project submitted that it may be even more difficult to identify the ‘primary aggressor’ where there is violence between same-sex couples. In such cases,

it seems it will always be difficult to identify who is the primary aggressor. That said, if police question both parties separately, asking domestic violence screening questions and questions about the history of the relationship, we think that would be beneficial in working out who is the primary aggressor.[282]

9.175 If police are given additional obligations, there may be resource implications, noted the Queensland Government.

Requiring police to utilise evidence kits, take photographs and video recordings and obtain statements from independent witnesses would increase the time and cost associated with attending domestic violence incidents. Clearly, this needs to be measured against the benefit that identification of the primary aggressor may bring.[283]

Commissions’ views

9.176 The Commissions note the concerns of some stakeholders that police might sometimes fail to identify primary aggressors and primary victims, and that this can result in victims being inappropriately charged with crimes or having protection orders made against them. The Commissions consider that this problem can best be avoided through improved police education and training about the dynamics of family violence.[284]

9.177 The Commissions consider that guidance to police about identifying primary aggressors need not be in legislation. The task of identifying ‘primary aggressors’ and ‘primary victims’ can be difficult and nuanced and better addressed through education, training, and police codes of practice.

9.178 The phrase ‘primary aggressor’, however, may imply that there must be a secondary aggressor, that is, that both parties might at least partly have been aggressive. Though this will sometimes be the case, it will not always be so. As a matter of semantics, it might not even be possible to have a primary and secondary aggressor, where there are only two parties to a dispute, because the term ‘aggressor’ means ‘someone who attacks first; someone who begins hostilities; an assailant or invader’;[285] ‘a person who attacks without provocation’.[286]

9.179 Accordingly, the Commissions recommend that police be trained to identify persons who have used family violence and persons who need to be protected from family violence. This formulation reflects the importance of identifying those who are most in need of protection.

9.180 The Commissions also endorse the suggestion made by the WA Review of family violence legislation that consideration should be given to having skilled counsellors attend family violence incidents together with police.

Recommendation 9–5 Police should be trained to better identify persons who have used family violence and persons who need to be protected from family violence, and to distinguish one from the other. Guidance should also be included in police codes of practice and guidelines.

[247] NSW Ombudsman, Domestic Violence Community Stakeholders Forum, 9 December 2009. See also National Council to Reduce Violence against Women and their Children, Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children, 2009–2021 (2009), 114 which raises the issue of ‘dual arrests’ of a victim and an offender, following police intervention, and how such action re-victimises victims of family violence.

[248] R Braaf, Arresting Policies: Implications of Pro and Mandatory Arrest Policies for Victims of Domestic and Family Violence (2008) Australian Domestic & Family Violence Clearinghouse, 3.

[249] T Erwin, When is Arrest Not an Option? The Dilemmas of Predominant Physical Aggressor Language and the Regulation of Domestic Violence (2004) Battered Women’s Justice Project, 4.

[250] E Buzawa, D Faggiani, D Hirschel and A Pattavina, ‘Domestic Violence and Mandatory Arrest Laws: To What Extent Do They Influence Police Arrest Decisions?’ (2007–2008) 98 J. Crim. L. & Criminology 255, 296 (citations omitted).

[251] J Wangmann, ‘“She Said …” “He said …” : Cross Applications in NSW Apprehended Domestic Violence Order Proceedings’, Thesis, University of Sydney, 2009 (citations omitted).

[252] T Erwin, When is Arrest Not an Option? The Dilemmas of Predominant Physical Aggressor Language and the Regulation of Domestic Violence (2004) Battered Women’s Justice Project, 15.

[253] Department of Communities (Qld), Review of the Domestic and Family Violence Protection Act 1989: Consultation Paper (2010), 17–18, Question 2.2.1.

[254] Ibid, 17.

[255]Ohio Revised Code § 2935.032(A)(1)(a)(ii), 2935.03(B)(3)(d).

[256] Department of the Attorney General (WA), A Review of Part 2 Division 3A of the Restraining Orders Act 1997 (2008), 21.

[257] Ibid, 21–22.

[258] Ibid, 22.

[259] J Wangmann, ‘“She Said …” “He said …” : Cross Applications in NSW Apprehended Domestic Violence Order Proceedings’, Thesis, University of Sydney, 2009 (citations omitted).

[260] E Buzawa, D Faggiani, D Hirschel and A Pattavina, ‘Domestic Violence and Mandatory Arrest Laws: To What Extent Do They Influence Police Arrest Decisions?’ (2007–2008) 98 J. Crim. L. & Criminology 255, 296–297 (citations omitted).

[261] Consultation Paper, Question 5–12.

[262] Queensland Law Society, Submission FV 178, 25 June 2010.

[263] National Legal Aid, Submission FV 232, 15 July 2010.

[264] Women’s Legal Service Victoria, Submission FV 189, 25 June 2010.

[265] Confidential, Submission FV 164, 25 June 2010.

[266] Confidential, Submission FV 198, 25 June 2010.

[267] Centacare Safer Families Support Service, Submission FV 118, 15 June 2010.

[268] National Legal Aid, Submission FV 232, 15 July 2010.

[269] Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010.

[270] T Erwin, When is Arrest Not an Option? The Dilemmas of Predominant Physical Aggressor Language and the Regulation of Domestic Violence (2004) Battered Women’s Justice Project, 14–15.

[271] See, eg, Berry Street Inc, Submission FV 163, 25 June 2010; Better Care of Children, Submission FV 72, 24 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010.

[272] Queensland Government, Submission FV 229, 14 July 2010.

[273] No To Violence Male Family Violence Prevention Association Inc, Submission FV 136, 22 June 2010.

[274] Queensland Law Society, Submission FV 178, 25 June 2010.

[275] National Legal Aid, Submission FV 232, 15 July 2010; Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; J Wangmann, Submission FV 170, 25 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010; Victorian Government, Submission FV 120, 15 June 2010.

[276] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010; Victorian Government, Submission FV 120, 15 June 2010.

[277] Legal Aid NSW, Submission FV 219, 1 July 2010.

[278] Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; Women’s Legal Centre (ACT & Region) Inc, Submission FV 175, 25 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010.

[279] Victorian Government, Submission FV 120, 15 June 2010.

[280] One in Three Campaign, Submission FV 35, 12 May 2010.

[281] Family Voice Australia, Submission FV 75, 2 June 2010.

[282] Inner City Legal Centre and The Safe Relationships Project, Submission FV 192, 25 June 2010.

[283] Queensland Government, Submission FV 229, 14 July 2010.

[284] Chs 31 and 32 consider broader questions of police education and training, and the benefits that may flow from having police officers or police units that specialise in family violence.

[285] S Butler, Macquarie Dictionary Online Macquarie Dictionary Publishers <http://www.
macquariedictionary.com.au> at 15 September 2010.

[286] J Hughes, P Mitchell and W Ramson, The Australian Concise Oxford Dictionary (2nd ed, 1992).