This article introduces the discussion of legal responses to violence against women. It provides the context for the more detailed examination of those legal issues to which the courts can respond. Its objective is to show the many ways in which violence is relevant to legal disputes, even where it is not the direct issue and even though it is often ignored. First, it discusses examples of different legal remedies that have been, or might usefully be, invoked in cases in which violence is the central issue, the reason for bringing the legal action. The examples illustrate briefly the possible role of areas of law other than criminal or quasi-criminal law. The paper presents examples of cases where, while the legal issue before the court did not directly involve violence, the judgment reveals that it was an underlying factor in the case. In these examples violence was not a focus of the discussion in the case but it emerges clearly from the judgment.
Violence and the law
As it explains, violence by men against women is a longstanding problem and remains widespread. Until recently it was sanctioned by the law’s indifference. While it may not be possible to envisage a complete and comprehensive legal response to violence, either by the Commonwealth or the State and Territories, the level of tolerance of it in different areas of the law needs to be examined and addressed. A brief reading of judicial decisions across a range of different legal issues shows that violence is quite often a part of the background or context of a legal dispute but it is either ignored or treated as irrelevant. This is not to say, however, that courts always ignore or miss the violence in cases involving domestic relationships when the case is not one legally classified as ‘about violence’. Indeed, the cases discussed below indicate that courts can respond to male violence against women. However, it was obvious from the response of women to the law that such judicial sensitivity to issues of violence was by no means uniform.
Gender bias and the judiciary
The Senate Standing Committee on Legal and Constitutional Affairs has recently examined the issue of gender bias in the judiciary. Its May 1994 report concentrates on issues of sexual violence against women. The Committee found that stereotypes deriving from historical, social attitudes which did not accept women’s status as equal, autonomous citizens continue to be used. While the Senate Committee focused on particular cases of sexual assault that had received widespread media coverage, they suggested that it was not an adequate response to the issue of gender bias merely to hold individual judges responsible. They saw the problem a real, significant but largely unconscious problem of a systemic nature calling for multiple solutions.
Violence and legal education
In traditional legal education, violence against women is not typically a subject in the law course in its own right nor, more importantly, is it a topic in a general compulsory course such as property law, contract, equity or administrative law. While it is an essential and comparatively visible part of criminal law in courses in Australian law schools, it should also be a prominent part of all traditional law subjects. Violence is often part of the context of a case, or essential to understanding the dispute between the parties, even while it is not the central focus of the case. The federal Department of Employment, Education and Training (DEET) has recognised this by providing funds for the development of course materials on key thematic areas, including violence, for inclusion in core subjects within the law curriculum.
Violence extends beyond the criminal law
As a result of the ways in which legal categories are structured, there is a tendency to see violence as relevant only to the criminal or quasi-criminal law, largely the responsibility of the States and Territories, and not to consider it as having any relevance to a range of other non-criminal law issues. There may well be a tendency not to recognise it at all in other areas. There has been considerable law reform effort in Australia around criminal law issues such as rape and sexual assault, violence by men against women in the home, child sexual abuse and homicide laws. The focus has been on male violence against women in its clearest and most direct forms. This work, evident in the reports of various task forces, committees and inquiries, including the National Committee on Violence Against Women, has been essential to make violence against women a more prominent concern in traditional criminal law. There has been much less attention to violence which arises less directly in the law and may take other forms. For example, women are subjected to a variety of different injuries. They may be harmed in their workplaces and the streets by sexual harassment. They may be vilified or infantilized or sexualized in media representations. They may be harmed in a seemingly infinite variety of forms of pornography. They may also be injured through medical abuses, particularly in relation to their reproductive capacities. As young women, they may be distinctively harmed by the juvenile justice system. Abuses against women are perceived as a ‘by-product’ of war. Yet male violence against women is routinely ignored outside criminal or quasi-criminal areas.
Legal responses to violence against women
The law can respond to violence against women in a number of different ways, as an examination of violence against women in the home illustrates. These responses include enforcement of existing criminal laws, such as the law of assault; resort to quasi-criminal laws, such as the use of protection/restraining/apprehended violence orders; the use of administrative law remedies, such as a writ of mandamus to compel police to exercise their powers under the criminal law in appropriate cases.
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