For the past decade Colleen Wainwright has represented countless domestic violence victims working as a police prosecutor.
She’s one of many in the sector calling for changes in legislation that would allow body-worn camera footage to be used in court proceedings in place of violence victims being required to attend court.
“It’s very often a credible account of what has taken place,” she said.
Currently, to proceed with criminal action on a domestic violence matter in Queensland, a victim is required to testify in court. The process can often be daunting, and as a result many choose not to go ahead with the proceedings.
“The greatest frustration would have to be an aggrieved who decides she no longer wishes to proceed with the application, we as police have an obligation to proceed because it’s the only way we can bring this perpetrator to account,” Ms Wainwright said.
Almost 13,400 domestic violence breaches were reported across Queensland in the six months from October to March.
“It’s a sad situation in some respects that a court now makes an order telling someone to be of good behaviour toward their partner which is something that should be a given,” Ms Wainwright said.
Violence Victims Often Experience Testifying Traumatic
In the UK, an alleged domestic violence victim has been jailed for two weeks after refusing to testify against her husband.
Donna Kiddie was found to be in contempt of court and sentenced to 14 days in prison after she said she couldn’t swear that her husband had hit her.
Scottish Women’s Aid chief executive Marsha Scott told the Scottish Daily Record: “This is increasingly unusual as our system improves but it’s not unheard of in the past that a victim would be cited for contempt when she felt unable to testify. I have to say we abhorred that as an outcome.
“In general, the practice of trying to improve evidence in a case by coercing a witness re-victimises victims and breaches their human rights.”
In family law proceedings, a perpetrator of family violence who is not legally represented can directly cross-examine a victim. Unlike other federal and State legislation, the Family Law Act 1975 does not contain any specific protections about giving evidence regarding vulnerability for victims of family violence or other witnesses more broadly, says Women’s Legal Services Australia.
This is of particular significance because:
- the high numbers of cases involving family violence in the family courts;
- the inability of many victims to obtain legal aid for legal representation in family law, despite the issue being a legal aid priority; and
- the high number of court users who have mental health concerns.
For women who are victims of family violence, who have been raped, assaulted or psychologically abused by their ex-partner, appearing unrepresented in a family law trial is a frightening prospect. The experience of direct-cross-examination by an abusive ex-partner:
- can result in re-traumatisation of the victim;
- can compromise the quality of evidence given to the court; which can affect the court’s ability to make safe and effective orders;
- provides an avenue for the perpetrator to ask the victim directly about incidents of violence and abuse, as this is relevant to determining the best interests of the child;
- can be a disincentive for victims to proceed to trial;
- can pressure some victims into consent agreements that may be unsafe or unworkable, to avoid the trial experience;
Medical experts agree that requiring violence victims to testify can be as damaging as the abuse itself. Disclosing a traumatic secret — telling your story in all its awful detail — is a dicey proposition that may or may not bring relief, depending on who’s listening and the nature of the trauma itself.
“The assumption that telling the story will automatically be healing is optimistic,” said Nadine Wathen, a researcher at the University of Western Ontario’s Center for Research and Education on Violence Against Women and Children. “All women have different experiences of abuse — all people dealing with trauma do.”
In a 2009 study, a research team including Dr. Wathen tested the impact of giving women who visit emergency rooms and other health clinics a domestic violence questionnaire — a brief, confidential checklist. Providers got the results of the questionnaire before seeing the women, and advised them based on the added information; the study tracked them over 18 months.
The questionnaires made no difference: the women who got them fared no better or worse than women in a comparison group who did not.
“The underlying dynamic of so much abuse is coercive control, so pushing people to disclose can replicate those patterns of coercion” and backfire, Dr. Wathen said.
One of the more surprising recent findings was the discrediting of what is called critical incident stress debriefing: the practice, once common, of pushing people still reeling from a traumatic event, like an earthquake or school shooting, to talk through its effects.
Studies have found that such debriefings had no impact on subsequent symptoms of traumatic stress for most people — and made some individuals feel worse. The implication was that recounting a tale of trauma shortly after it happens does not necessarily contribute to healing it.