An alternative to formulating an umbrella offence of family violence is to create aggravated offences that occur in a family violence context. This is the case in some jurisdictions. For example, South Australia’s criminal legislation provides that it is an aggravated offence if the offender committed the offence knowing that the victim was:
- a spouse, former spouse, domestic partner or former domestic partner of the offender; or
- a child in the custody of, or who normally resides with: the offender, a spouse, former spouse, domestic partner or former domestic partner of the offender.
In the Commissions’ preliminary view, the creation of aggravated offences within a family violence context is a more feasible and practical option for the criminal law to recognise family violence than the creation of an umbrella offence of family violence—although it would not preclude the creation of such an offence.
However, the Commissions have some concerns about the approach taken in South Australia and Western Australia to offences of a violent nature committed against certain family members. The creation of a two-tiered maximum penalty scheme—depending solely on whether the victim is a family member of the offender—signals that victims of family violence suffer inherently more than victims of stranger violence. It is not without controversy to suggest that an attack by an intimate partner is more deserving of censure than an attack by a stranger.
If aggravated offences in a family violence context are to be created, the Commissions are of the preliminary view that, in order to make the offence aggravated, there needs to be more than the mere fact that an alleged offender was in a particular family relationship with the victim. One option for the creation of an aggravated offence carrying a higher maximum penalty is to require not only the fact of a particular family relationship between offender and victim, but also evidence that the offence was committed as part of a pattern of controlling, coercive or dominating behaviour. Evidence of the latter provides justification for treating an offence as aggravating due, in part, to the inability of a victim to extract herself or himself from future violence.
An alternative approach would be to create separate offences—which may not necessarily carry higher penalties—but which emphasise the fact that an offence—such as assault or sexual assault—was committed by one family member against another family member. Creating separate offences could arguably serve as an educative measure in increasing the visibility and censure of crimes committed in a family context. However, the creation of additional offences—especially if they do not attract higher maximum penalties than their existing counterparts—may also unnecessarily clutter state and territory criminal statutory schemes.
The Commissions are interested in hearing stakeholder views in relation to these two alternative options for reform. In relation to each option, the Commissions are also interested in hearing views about the types of family relationships that should be included.
Question 7–2 Which, if either, of the following options for reform should be adopted:
- state and territory criminal legislation should provide that an offence is aggravated—and therefore a higher maximum penalty applies—if an offender is in a family relationship with the victim and the offence committed formed part of a pattern of controlling, coercive or dominating behaviour; or
- state and territory criminal legislation should be amended to include specific offences—such as assault and sexual assault—which are committed by an offender who is in a family relationship with the victim, but which do not attract a higher maximum penalty?
Question 7–3 What kind of family relationships should be included for the purposes of the offences referred to in Question 7–2?
Question 7–4 Should federal criminal legislation be amended to include specific offences committed by an offender who is in a family relationship with the victim? If so, which offences should be included and should they carry a higher maximum penalty?
Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(g).