Posted in Legislation/law
Domestic and family violence disclosure schemes
Wednesday, 6th March 2019
Dr. Jane Wangmann is the lead researcher for the ANROWS project Exploring the impact and effect of self-representation by one or both parties in Family Law proceedings involving allegations of family violence. Dr. Wangmann’s research centres on legal responses to domestic and family violence (DFV). Her seminar for the Women’s Legal Service NSW Feminist Legal Perspectives Seminar Series, “Has he been violent before? Domestic Violence Disclosure Schemes” explored the operation of domestic violence disclosure schemes (DVDS) and the criticisms that have been raised about these schemes, with a focus on the pilot scheme which has been operating in NSW.
DVDSs provide a mechanism for people who are concerned about their current or former partner to make an application to the police for information about that person’s history of domestic violence offending. In NSW the information that can be disclosed under the DVDS is currently confined to convictions for domestic violence related offences and a small number of other offences. It is also possible under the NSW scheme for a third party (for example, a family member, friend or professional) to make an application, however any disclosure about past offending is made directly to the potential victim.
Schemes such as the NSW DVDS aim to prioritise early intervention and to facilitate informed choices. These types of schemes operate in a number of other places, including England and Wales, Scotland, New Zealand, Saskatchewan in Canada, and most recently in South Australia. At the same time, other jurisdictions have rejected the idea of implementing these schemes, for example the Queensland Law Reform Commission most recently recommended against this (see also the Royal Commission into Family Violence in Victoria and the Law Reform Commission of Western Australia).
The NSW DVDS was piloted in four police Local Area Commands (Oxley, Shoalhaven, Sutherland and St George). The pilot was evaluated by Urbis (2018) and found limited use of the DVDS to date. There are aspects of the scheme that the evaluation found encouraging, such as linking of applicants to support services. Dr. Wangmann, too, identified potential positive aspects, such as a disclosure validating an applicant’s experience. However, Dr. Wangmann also identified a number of key concerns that emerged from the evaluation, including:
- the costliness of the scheme (which averaged $3,959 per application);
- the lack of information about what applicants do with the disclosure once made and whether it enhances safety;
- that the return of “nothing to disclose” may provide an applicant with a false sense of security, or serve to de-legitimise their concerns about their partner’s behaviour;
- the limited picture of DFV offending provided by a focus on convictions;
- despite being described as an early intervention mechanism, a large proportion of applicants had been in a relationship with their current/former partner for a year or more (48%), three-quarters were not living with the person (75%), many had already experienced physical violence (38%), threats of violence (41%) or been harassed (26%), and 40% already had an Apprehended Domestic Violence Order (ADVO) against the person that they sought a disclosure about. This suggests that people may be accessing the scheme for a range of different reasons, and at different stages in their relationship that warrants further investigation.
Fundamentally, Dr Wangmann’s main criticism of schemes such as this is that the onus remains on the victim/survivor to take action. A key extension of this is that the scheme is premised on an underlying assumption that information or knowledge of a perpetrator’s dangerousness is all a victim/survivor needs to leave a dangerous situation. This assumption goes against what is known about the dynamics of DFV: that is, that negotiating information/knowledge about an abusive partner is complex and problematic, and that doing something with that information/knowledge is impacted by multiple, intersecting barriers at the personal, familial, social, structural, and institutional levels. Left absent from the DVDS is any focus on preventing the violent behaviour of the perpetrator.
For further information see:
Urbis, NSW Domestic Violence Disclosure Scheme Evaluation, Crisis Assistance Service Review: Pilots – Final Report (2018)
Wangmann, J., ‘Has he been violent before? Domestic violence Disclosure Schemes’ (2016) 41(4) Alternative Law Journal 230-234.
Wangmann, J., ‘Violent offenders registers sound good, but are a costly, unproven distraction’, The Conversation (8 July 2015). Available at https://theconversation.com/violent-offenders-registers-sound-good-but-are-a-costly-unproven-distraction-44182