Sexual assault in the family violence context

24.33 The important features of sexual assault in a family violence context include: multiple forms of sexual violence; a likelihood of repetition; and the fact that sexual violence is likely to be accompanied by other forms of violence.

Multiple forms of sexual violence

24.34 While this Inquiry is primarily concerned with sexual acts that are against the law, a range of unwanted or coercive sexual acts are experienced by many women and children in the context of their relationships.[46] Recognising the broader range is contextually important to understanding women’s and children’s experiences of sexual violence—and family violence more generally.

24.35 The findings of the Australian component of the IVAWS emphasise the importance of acknowledging this context. The ‘most frequent type of sexual violence reported’ by women who participated in that survey was ‘unwanted sexual touching’. However, ‘few women reported experiencing attempted forced sexual intercourse or actual forced sexual intercourse’ over the same period.[47]

24.36 The ABS Personal Safety Survey also documented the range of unwanted sexual experiences of men and women. 32.5% of women reported that since they were aged 15, they had experienced inappropriate comments about their body or sex life, compared to only 11.7% of men. In addition, just over a quarter of women reported that they had experienced unwanted sexual touching, compared to 9.9% of men.[48]

24.37 Research has found that some women who experience family violence may also be subject to indecent assaults or unwanted touching. They may be exposed to pornography, have sexually explicit photographs taken without their permission, be subjected to degrading comments about their sexuality or sexual performance, or called sexually demeaning names. They may be constantly questioned about sexual activities with other people and placed under surveillance, or forced to engage in sexual activity without the protection of a condom.[49]

Repetition of sexual violence

24.38 It is also important to recognise the extent to which sexual violence perpetrated in a family violence context is repeated and that this has ‘cumulative impacts’.[50] Unlike stranger sexual assault, which is far more likely to be a single incident, sexual violence within a relationship is likely to be repeated given the ongoing nature of the relationship and the opportunity this provides for continued perpetration.[51] For victims who are unable to escape such violence, the prospects of self-criticism and acquiescence are enhanced, as is the ‘normalisation’ of such conduct.

24.39 In a recent New Zealand study on pathways to recovery from sexual assault, over two thirds[52] of the participants who had been sexually assaulted by a current or former intimate partner or family or whānau (extended family) member,[53] reported that they had been sexually assaulted by that person before. The experience of repeat sexual assaults was highest for those reporting sexual assault by a former intimate partner (80%), followed by assaults by a current intimate partner (69%) and a family or whānau member (60%).[54]

24.40 In this Inquiry, family violence services noted their experience that sexual violence and sexual assaults occur frequently in the context of intimate partner relationships and some women report repeated experience of sexual violence and sexual assault throughout their relationships.[55]

Coexistence with other forms of violence and abuse

24.41 Various research reports and studies have documented the extent to which women and children experience multiple forms of violence in a family violence context.[56] The World Health Organisation in its multi-country study on domestic violence and women’s health found ‘substantial overlap’ between the experience of physical violence and sexual violence by an intimate partner:

In all sites, more than half of the women who reported partner violence reported either physical violence only or physical violence accompanied by sexual violence. In most sites between 30% and 56% of women who had ever experienced any violence, reported both physical and sexual violence.[57]

Indigenous communities

24.42 The National Council to Reduce Violence Against Women and Children (the National Council) report, Time for Action, emphasised that there is no ‘one-size fits all approach’ to the problem of family violence against women and children; and acknowledged that different responses are needed for a range of vulnerable groups, including Aboriginal and Torres Strait Islander peoples.[58]

24.43 Family violence, encompassing sexual violence and assault and child sexual abuse, involving Aboriginal and Torres Strait Islander people, has been the subject of much attention over the past decade.

24.44 Numerous reports have discussed the context and impact of sexual violence and documented potential approaches to understanding and countering its impact on Aboriginal and Torres Strait Islander people.[59] The literature and reports which consider the interface between Indigenous family violence, child abuse and the criminal law,[60] focus on enhanced service delivery and exploring approaches that ‘attend to needs of all members of the community’.[61] However, as discussed above, inconsistent reporting and collection of information means there is a lack of comprehensive data in relation to the experience of family violence by Aboriginal and Torres Strait Islander women and children.[62]

24.45 It is clear that sexual violence affects Indigenous communities disproportionately. In essence, ‘sexual violence in Indigenous communities occurs at rates that far exceed those for non-Indigenous Australians’[63] and is ‘reported to be at crisis levels’.[64] However, the lack of reliable data, including in relation to the effectiveness of measures introduced to reduce violence, hampers understandings about how to prevent and address such violence.[65]

24.46 In preventing and addressing family violence, the importance of an historically and culturally-sensitive understanding of the causes and nature of Indigenous family violence, and the specific interactions between Indigenous people and the legal system cannot be underestimated.

24.47 Dr Kylie Cripps and Hannah McGlade consider that the causes of Aboriginal and Torres Strait Islander family violence are ‘a multitude of inter-related factors’ which can usefully be understood by categorising them into two groups:

Group 1 factors include colonisation: policies and practices; dispossession and cultural dislocation; and dislocation of families through removal. Group 2 factors include: marginalisation as a minority; direct and indirect racism; unemployment; welfare dependency; past history of abuse; poverty; destructive coping behaviours; addictions; health and mental health issues; and low self-esteem and a sense of powerlessness.[66]

24.48 There are two key access to justice issues for Aboriginal and Torres Strait Islander women and children: first, a number of barriers impede access to assistance; secondly, services do not adequately recognise and respond to Indigenous experiences of family violence. A more nuanced understanding of family violence in Indigenous communities requires recognition of:

  • the cumulative effects of ‘poor health, alcohol, drug abuse, gambling, pornography, unemployment, poor education and housing and general disempowerment [which] lead inexorably to family and other violence and then on to sexual abuse...’;[67]

  • the endemic and intergenerational nature and ‘normalisation’ of violence;

  • the impact of Indigenous concepts of family and community, including a culture of blame being shifted to victims and associated pressure or retribution for reporting violence or pursuing legal avenues of redress;

  • Indigenous peoples’ relationship with police, government agencies and courts, including a ‘belief that both authorities and mainstream sexual assault services will not respond appropriately’;[68]

  • cultural, systemic and institutional barriers faced by Indigenous people in seeking assistance; [69] and

  • the importance of framing family violence in a human rights context, in particular to ensure that violence against Indigenous women and children cannot be minimised by reference to cultural practices or arguments which supposedly condone violence.

24.49 Above all, it is important to recognise that neither Aboriginal and Torres Strait Islander women and children nor their experiences are the same, and to acknowledge the ‘diversity of peoples within and across Indigenous communities’; the variation ‘between communities in their current situation in terms of violence’;[70] and the need to address the issues in a holistic way, if any real outcomes are to be achieved.[71]

24.50 In addition, tensions may exist between mainstream approaches and those of Indigenous women and communities to understanding and responding to violence. Mainstream approaches are said to have ‘relied more heavily on feminist analyses of violence’[72] and Indigenous community members

have consistently criticised [the approach to violence that largely criminalises violence and relies on the institutionalisation of the offender to protect the victim] as being irrelevant, discriminatory and a repeat of the kinds of violence inherent in policies and practises of colonisation. Indigenous experiences with these approaches have found them to be disempowering and processes by which methods of power and control can be reinforced.[73]

24.51 In this part of the Report, the Commissions have recognised the particular experiences and needs of Aboriginal and Torres Strait Islander victims of sexual assault in a family violence context in developing their recommendations for reform.

[46] L Kelly, ‘Promising Practices Addressing Sexual Violence’ (Paper presented at Violence Against Women: Good Practices in Combating and Eliminating Violence Against Women Expert Group Meeting, Vienna, 17–20 May 2005).

[47] J Mouzos and T Makkai, Women’s Experiences of Male Violence: Findings of the Australian Component of the International Violence Against Women Survey (2004), 25.

[48] Australian Bureau of Statistics, Personal Safety Survey, Catalogue No 4906.0 (2005).

[49] See types of behaviour detailed in K Basile and L Saltzman, Sexual Violence Surveillance: Uniform Definitions and Recommended Data Elements (2009), 9–10. See also D Parkinson, Partner Rape and Rurality (2008), prepared for the Australian Centre for the Study of Sexual Assault, 27–37; E Stark, Coercive Control: How Men Entrap Women in Personal Life (2007), 243.

[50]L Kelly, ‘Promising Practices Addressing Sexual Violence’ (Paper presented at Violence Against Women: Good Practices in Combating and Eliminating Violence Against Women Expert Group Meeting, Vienna, 17–20 May 2005).

[51] L McOrmond-Plummer, Considering the Differences: Intimate Partner Sexual Violence in Sexual Assault and Domestic Violence Discourse (2009), 2; E Stark, Coercive Control: How Men Entrap Women in Personal Life (2007), 388; D Lievore, Non-Reporting and Hidden Recording of Sexual Assault: An International Review (2003), prepared for the Commonwealth Office of the Status of Women, 8. The vast majority of case studies presented in Parkinson’s study of partner rape document multiple rapes experienced by the women who participated in that study: D Parkinson, Partner Rape and Rurality (2008), prepared for the Australian Centre for the Study of Sexual Assault, 27–35.

[52] 22 out of 33 participants.

[53] V Kingi and J Jordan, Responding to Sexual Violence: Pathways to Recovery (2009), prepared for the Ministry of Women’s Affairs (NZ), 48. 59% of the people in this study indicated that they had been sexually assaulted in a family violence context (ie, by a current/former intimate partner or by a family/whānau member). Only 8% were described as stranger assaults.

[54] Ibid, 52. See also, in the US, P Tjaden and N Thoennes, Extent, Nature and Consequences of Intimate Partner Violence: Findings from the National Violence Against Women Survey Research Report (2000), prepared for the National Institute of Justice (US).

[55] 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.

[56] L Schafran, S Lopez-Boy and M Davis, Making Marital Rape a Crime: A Long Road Travelled, A Long Way to Go (2009), prepared for the Washington Coalition of Sexual Assault Programs; E Stark, Coercive Control: How Men Entrap Women in Personal Life (2007), 388.

[57] C García-Moreno and others, WHO Multi-Country Study on Women’s Health and Domestic Violence Against Women: Initial Results on Prevalence, Health Outcomes and Women’s Responses (2005), 32. See also L Kelly, Surviving Sexual Violence (1988), 53, 127–32.

[58] 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), 14.

[59] See, eg: Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, Little Children are Sacred: Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse (2007); Aboriginal Child Sexual Assault Taskforce (NSW), Breaking the Silence: Creating the Future. Addressing Child Sexual Assault in Aboriginal communities in NSW (2006).

[60] See, eg, K Cripps and H McGlade, ‘Indigenous Family Violence and Sexual Abuse: Considering Pathways Forward’ (2008) 14 Journal of Family Studies 240; Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, Little Children are Sacred: Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse (2007); Aboriginal Child Sexual Assault Taskforce (NSW), Breaking the Silence: Creating the Future. Addressing Child Sexual Assault in Aboriginal communities in NSW (2006); M Keel, Family Violence and Sexual Assault in Indigenous Communities: ‘Walking the Talk’ (2004); S Gordon, K Hallahan and D Henry, Putting the Picture Together, Inquiry into Response by Government Agencies to Complaints of Family Violence and Child Abuse in Aboriginal Communities (2002).

[61] M Keel, Family Violence and Sexual Assault in Indigenous Communities: ‘Walking the Talk’ (2004).

[62] Barriers to reporting sexual assault are discussed in Ch 26.

[63] D Lievore, Non-Reporting and Hidden Recording of Sexual Assault: An International Review (2003), prepared for the Commonwealth Office of the Status of Women, 56.

[64] M Keel, Family Violence and Sexual Assault in Indigenous Communities: ‘Walking the Talk’ (2004), 1.

[65] See, eg, 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), 54 (Strategies 1.5.2, 1.5.3); Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, Little Children are Sacred: Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse (2007), Part II: Supporting Research; Australian Institute of Health and Welfare, Family Violence Among Aboriginal and Torres Strait Islander Peoples (2006), 118–123.

[66] K Cripps and H McGlade, ‘Indigenous Family Violence and Sexual Abuse: Considering Pathways Forward’ (2008) 14 Journal of Family Studies 240, 242.

[67] Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, Little Children are Sacred: Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse (2007), 6.

[68] L Thorpe, R Solomon and M Dimopoulos, From Shame to Pride: Access to Sexual Assault Services for Indigenous People (2004). These barriers were also highlighted in consultations and submissions including: Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010; H McGlade, Submission FV 84, 2 June 2010.

[69] Barriers faced by Aboriginal and Torres Strait Islander women in reporting family violence and sexual assault are discussed in Ch 26.

[70]M Keel, Family Violence and Sexual Assault in Indigenous Communities: ‘Walking the Talk’ (2004), 5. See, also, Queensland Police Service, Statistical Comparisons 2002–2003 (2003); H Blagg, D Ray, R Murphy and E Macarthy, Crisis Intervention in Aboriginal Family Violence: Strategies and Models for Western Australia (2000), prepared for the Partnerships Against Domestic Violence.

[71] L Thorpe, R Solomon and M Dimopoulos, From Shame to Pride: Access to Sexual Assault Services for Indigenous People (2004), 21.

[72] M Keel, Family Violence and Sexual Assault in Indigenous Communities: ‘Walking the Talk’ (2004), 3.

[73] K Cripps and H McGlade, ‘Indigenous Family Violence and Sexual Abuse: Considering Pathways Forward’ (2008) 14 Journal of Family Studies 240, 243.