Speaking to Lawyers Weekly ahead of the March 2016 Salvos Legal Lecture Series, Michelle Swift, a barrister at Forbes Chambers, said punishing the perpetrators of domestic violence is not always the best way to support victims.
“[Domestic violence] is criminal activity but there are a lot of criminal activities where harm minimisation is a better approach than just punishing someone,” she said.
Often victims of domestic violence are less likely to involve the police when they know their partner is likely to receive a jail sentence, she explained.
Losing a partner can be a blow financially and emotionally to victims of violence, she said.
“What the legal system doesn't take into account is this idea of love – that these people still love each other.
“Lots of people call the police because they want [the offender] gone at that time because they are drinking or violent. It doesn't mean they don't want them back; they just want the behaviour to stop.”
Imposing harsh punishments on perpetrators “seems to be a state-based idea” that does not correlate with the lived experience of many victims, she added.
The standard responses to incidents of domestic violence by police and the courts are also not sensitive to the dilemmas victims face, according to Ms Swift.
For instance, some victims are compelled to give statements to police, take out AVOs and appear in court when these actions are damaging to their welfare and the relationships they wish to preserve.
“The law is essentially a blunt tool,” said Ms Swift.
A better solution in many instances could be the creation of a domestic violence court, she said. This would mirror the attitude of the drug courts by promoting good behaviour and preventing people from re-offending.
These courts would try to get to the root of the problem by offering financial counselling for the victims and anger or violence management for the perpetrator.
“Perhaps applying some of those different policies in a domestic violence situation would make a difference but it requires a big commitment to structure and support,” said Ms Swift.
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