Researcher and senior lawyer to the Victorian Sentencing Advisory Council, Paul McGorrery, said there is growing concern that family violence perpetrators are not being held accountable for the mental trauma inflicted on their victims.
To try and combat this, Mr McGorrery said he is investigating ways to improve understanding about prosecuting the offence, noting that while causing someone psychological harm is already a crime in every Australian state, not a single person has ever been prosecuted for it.
“Through my research I hope to promote a better understanding of the laws we already have, laws which already prohibit people from causing psychological harm to one another,” Mr McGorrery said.
“In this way, police and prosecutors might have a better understanding about how to enforce those laws and rethink their approach to prosecuting non-physical forms of family violence.”
Commenting on what sparked his decision to investigate this matter, Mr McGorrery said his career has shown him that the issue of psychological harm in the criminal law needs to be highlighted more prominently.
“I started in workers’ compensation law, where 33 per cent of all money paid to injured employees was for psychological injuries caused by their workplace, but then I found myself in criminal law, where psychological injuries caused by someone else were almost an afterthought,” he said.
“Then there was a case I worked on as a criminal prosecutor where a man was being prosecuted for a particularly horrific attack on his wife.
“The problem I faced in that case was that the criminal law was ready to punish him for the physical injuries he had inflicted, however, while they certainly were not trivial, they paled in comparison to the lasting psychological trauma she had suffered.
“And at the time, the criminal law wasn’t ready to punish him for that.”
Mr McGorrery noted its now the time “to give criminal law a nudge, with society and the legal system more than mature enough to see appropriate punishments applied for psychological harm”.
“Psychological conditions such as post-traumatic stress disorder and depression are no longer ‘invisible’ conditions that can’t be proven in a court of law,” he added.
“We are also in the middle of a revolution in how we define and respond to family violence. No longer is family violence protected by the privacy of the home. No longer is family violence restricted to physical forms of abuse. And no longer are governments standing idly by while this travesty continues.”
As part of his research, Mr McGorrery is exploring the boundaries that need to be put around what behaviours should be punished and what harms should raise the criminal law’s attention, according to a statement.
“How do you differentiate between a family violence offender who criminally causes psychological harm, and a heartless fiancé who breaks off an engagement and causes his partner to suffer anxiety and depression?” he said.
“I am also reviewing the legal and medical definitions of psychological harm. Is it only a crime if a medical expert can point to a specific diagnosis out of a medical textbook? Or should it be broader than that, so that there is a point at which the psychological harm is serious enough, regardless of any specific diagnosis?”
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