Criminal law deals best with incident-focused behaviour rather than patterns of controlling non-physical behaviour. The relative absence of a concept of ‘family violence’ in criminal law means that the criminal law—unlike the civil law—typically responds only to parts of the overall pattern of family violence. This may limit the role the criminal law can play in addressing family violence, and may distort the handling of family violence within the criminal system.
Commentators have argued that the limited focus of the criminal law means that it fails to recognise in family violence cases both ‘the patterns of power and control’ and the ‘full measure of injury that these patterns inflict’. This has a number of consequences. In particular, it means that the criminal law does not adequately punish the harm done. This may be attributed to a number of reasons, including the fact that family violence may occur over a long period of time; is typically under-reported and under-enforced, and may occur in non-physical forms. As a result, it may be difficult to prove each particular incident of family violence. This effect flows on to other legal frameworks that depend on the criminal law, such as victims’ compensation, with the effect that family violence victims are also typically under-compensated.
The Commissions acknowledge that the creation of an umbrella offence of ‘family violence’ may be fraught with difficulties—not least that associated with conceptualising the exact parameters of the offence and, in particular, whether such offence should be framed to include conduct of a non-physical nature that is captured by the definition of ‘family violence’ in family violence laws—such as emotional and economic abuse.
The Commissions are, however, interested in stakeholder views about whether it is necessary and feasible to create an umbrella offence of family violence and how such an offence could be framed. For example, would it be feasible to create a two-tiered offence which captures both coercive conduct and physical violence in a family violence context?
In the Commissions’ preliminary view, there may be alternative ways for the criminal law to deal better with cases of family violence, short of creating an offence of family violence but nonetheless responding to the seriousness of the conduct. These include options exercisable at the point of charging a person for an offence, as well options which emphasise family violence on sentencing. These options are discussed below.
Question 7–1 Is it necessary or feasible for state and territory criminal laws to introduce a specific offence of committing family violence? If so, how should such an offence be conceptualised? For example, would it be feasible to create a two-tiered offence which captures both coercive conduct and physical violence in a family violence context?
D Tuerkheimer, ‘Recognizing and Remedying the Harm to Battering: A Call to Criminalize Domestic Violence’ (2003) 94 Journal of Criminal Law & Criminology 959, 972.