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Tom Percy: Sanctions alone won’t keep women safe from domestic violence

by TOM PERCY
PerthNow, 14 Sep 2015 2:00AM

THERE are a lot of strange things contained in my earliest copy of the Criminal Code, the one I learnt from in law school about 40 years ago.

I still have it on my shelf to remind me of exactly what was seen as appropriate decades ago in WA. The most obvious anachronism, of course, was the death penalty, which as a civilised community we no longer keep on the statute books. Not far behind was the criminalisation of homosexual acts between consenting parties – which in those days carried a lengthy prison sentence. While today it is illegal even to discriminate against someone on the basis of their sexual preference, in those days to commit what was quaintly referred to as “an act of carnal knowledge against the order of nature” was a serious criminal offence. It is also interesting to note how differently we dealt with violence against women back then. Until the mid-1980s an act of rape (as we called it in those days) was only possible against someone other than your wife. But it wasn’t just the black letter of the law that was so different (and wrong) in those days, it was the way in which we were actually taught to practise the law. It was commonplace to hear lawyers justify an assault by a man against his wife or girlfriend on the basis that it was just “a domestic” altercation. Common thinking back then was that if you assaulted a woman who was a complete stranger to you it was a far more serious offence than it was to assault a member of your own household. While this line of approach was generally accepted by judges and magistrates (who in those days were almost invariably male) I always considered the approach a curious one, and seriously wrong. But times change and this sort of thinking has mercifully disappeared as the death penalty did. Unfortunately, the incidence of domestic violence hasn’t disappeared in quite the same way. If the statistics are anything to go by, then despite a complete change in judicial and community tolerance towards it, domestic violence remains a major problem. As with any social problem that rears its ugly head in the public domain from time to time, (like drugs, murder, home invasion and whatever other issue might seem to have any current electoral appeal) the Government has just revealed a new set of initiatives to deal with the prevalence of domestic violence. Predictably, the proposed measures contain little that is new and little that gives one any confidence of being successful. Expanding the access to and impact of violence restraining orders is well intentioned, but at the end of the day the whole system of restraining orders is essentially an honour system. While it’s better than nothing, reality shows that in recent years too many women have been killed while subject to the “protection” of violence restraining orders. These kind of orders operate in much the same way as licence disqualifications. A court order banning someone from driving is only effective as long as the person in question, of his own volition, decides to play the game. Unfortunately, many don’t. It’s a complete impossibility for police to monitor 24/7 everyone subject to a driving disqualification, in much the same way as it is impractical for them to enforce a violence restraining order around the clock. The best they can do is charge offenders for breaching the orders, but that usually happens after the damage has been done. The problem with domestic violence is that our response to it has traditionally been reactive, dealing with the consequences rather than the causes. It is exactly the same way we currently deal with the rampant problem of methamphetamine. The government approach is generally based on the thinking that if there is a big enough “stick” out there waiting for potential offenders then people will be less likely to offend. That sort of approach has failed. You only need to look at the seizure this week of 320kg of methamphetamine (in a single arrest) in Perth. Obviously, the very big sticks that we have out there waiting for drug dealers are not terrifying any of them into submission. The same applies to the comparatively new mandatory sentences for repeat restraining order breaches, which has been equally as impotent. The interaction between drugs and domestic violence is perhaps something that needs more careful consideration. My experience at the coalface with these matters suggests to me that the escalation in domestic violence in WA (we are now second nationally for offences on a per capita basis) is closely linked to the fact that methamphetamine (where we now also lead the nation, despite having by far the most draconian drug laws in the Commonwealth) is also virtually out of control in WA. And then there is our unenviable record in relation to alcohol, which is well documented and which makes the likelihood of any real improvement on the domestic violence front an illusion. Any new initiative by the State Government in relation to domestic violence needs to be a holistic one encompassing drugs, alcohol and the role of the judiciary and the police in the process. Any reliance on more stringent sanctions for offenders as a means of making some inroads into the problem is bereft of any prospect of success. Tom Percy is a Perth QC