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The literature reviewed in this section of the report focuses on criminal justice system responses to family violence across Australia, with some consideration of interventions undertaken in the United Kingdom, United States and New Zealand. Throughout the literature, the terms domestic violence and family violence are used to refer to acts of violence committed between family members. In a comparison of 2006 Australian public policy documents, Murray and Powell (2009) concluded that although the construction of family violence across Australia has some similarities, there are marked differences in how this type of violence is understood.
Murray and Powell (2009) suggest that varying definitions of family violence reflect differing levels of reliance on gendered understandings. Responses to family violence in Australia seek to identify the unique nature of this offence and the need for a tailored response, in that the antecedents to a family violence incident are unlike any other violent crime. Different models of intervention have been developed across Australia and overseas as specialised responses to family violence.
In a report on interagency responses to domestic violence, Wilcox (2008) compiled features of good practice, represented by the above interventions, which may be used to plan responses to family violence (see Table 3). Integrated family violence interventions that focus on the criminal justice system attempt to address a perceived gap between victims’ experiences of violence and the justice system’s response to that violence. One of the difficulties associated with responding to family violence is that victims are often reluctant to report their abuse. Financial dependence on the perpetrator is another barrier that is regularly identified as preventing many women from reporting domestic violence. Finally, one of the most frequently cited barriers to reporting domestic violence is the victim’s negative perception of the police response to previous incidents.
Mandatory arrest and pro-arrest policies are predicated on the belief that law enforcement agencies should be able to reduce domestic violence crime and victimisation through the application of criminal law (Clement et al. In the Australian Capital Territory, the guidelines for dealing with domestic violence matters stipulate that officers must take action ‘in the collection of evidence and the active pursuit of charges’ (Lines 2003: 34).
In a recent study, Iyengar (2009) compared domestic violence homicide rates between US jurisdictions that had mandatory arrest laws and those jurisdictions where arrest was only recommended The study, utilising FBI Supplementary Homicide Reports, found that mandatory arrest laws increased the number of domestic violence homicides. A number of studies, particularly in the United States, have explored the effect of arrest in domestic violence matters on subsequent offending.
Pro-active prosecution makes an important contribution to integrated responses to family violence. Police in many jurisdictions have taken on this greater responsibility and collect evidence while attending domestic violence incidents.
Guidelines prepared for the prosecution of domestic violence cases by the US Department of Justice Domestic Violence Prosecution Committee identify a number of recommendations to improve prosecution processes and support the rights of victims. Since the late 1990s, the number of domestic violence courts has been steadily increasing both in Australia and overseas.
Domestic Violence Courts may operate under different models—specialist jurisdiction, integrated and problem solving. However, these types of courts may employ similar components and attempt to achieve similar outcomes (see Figure 1). Some important evaluations have been conducted identifying the main principles of successful domestic violence courts both in Australia and overseas (Cook et al. Specialist courts require new judicial skills and training is needed for members of the court ‘team’, including the judge.
Judicial monitoring (oversight by the judge of the offender’s progress through the court programme) is believed to contribute to offender compliance and rates of retention in court programmes.
Some practitioners within the specialist court process, such as Hon Wayne Martin and Hon Michael S King, have observed that ‘the merits of court intervention programs cannot be measured by reference to the wellbeing of the participants’ alone (LRCWA 2008: 8). It has been observed that in seeking to evaluate these outcomes, domestic violence courts are limited by a lack of adequate control groups (Roberts & Indermaur 2007) and purported high levels of under-reporting. It is too early to conclude that domestic violence courts increase offender accountability, with further empirical research required in this area. The Home Office, in conjunction with Her Majesty’s Court Service, provides a highly detailed ‘resource manual’ for the successful operation of a domestic violence court system (UK Home Office 2008). Apart from seeking to assess victim safety and offender accountability, evaluations of the New Zealand domestic violence court process also address the time efficiency of the court process. In evaluating the NSW model of domestic violence courts, Rodwell and Smith (2008) found that a number of stakeholders raised concerns about the lack of consultation with and between agencies involved with ‘pre-existing’ service provision.
Figure 1 provides a visual representation, based on the literature reviewed, of the various components that may operate within successful domestic violence court models.
Over the past 15 years, therapeutic jurisprudence has become an increasingly popular theoretical and practical foundation in problem solving courts both in Australia and overseas. In this way, by providing not only a more positive experience of the court process but also a greater perfunctory role in the decision-making process, it can be argued that applying therapeutic jurisprudence in domestic violence courts produces outcomes that victims regard as being fairer than outcomes achieved through traditional adversarial processes. One of the primary difficulties in assessing the application of restorative justice to family violence is that there is no agreed definition of what restorative justice entails. In a review of the application of restorative justice to family violence, Stubbs (2004) identifies a number of generic models operating in Australia, Canada and New Zealand whose efficacy remain untested and under-evaluated. An integral part of an integrated criminal justice system response to family violence is the referral of an offender to a corrections-based family violence intervention program. One of the good practice principles for offender intervention programs established under the National Partnerships Against Domestic Violence program is mandatory participation for offenders in rehabilitation programs supported by strong sanctions for non-participation. Risk assessment is undertaken at various stages before and during the criminal justice system response to family violence.
In many cases, women who have suffered domestic violence come to the attention of health practitioners before they come to the attention of police.
Consequently, health service providers have an important role to play in identifying victims of domestic violence and starting the process of intervening to reduce the risk of harm. Police may also undertake an assessment of risk when attending a domestic violence incident. Coordinated Action Against Domestic Abuse is a UK-based charity established to encourage the use of independent advocacy to increase family violence victim safety.

In Australia, the Victorian Government has developed a risk assessment and risk management framework to support an integrated family violence service system.
The experience of eight women moving forward following domestic violence was explored in research undertaken by the Social Policy Research team of the NSW Benevolent Society (2009).
Research commissioned and compiled by the ACT VoCC explored the experience of Aboriginal family violence in the Australian Capital Territory. Due largely to the complex nature of family violence and associated interventions, evaluative research into specific domestic violence programs have tended to focus on component parts rather than system level impacts. A court dedicated to educate and protect, the Domestic Violence Court was instituted in April 2005.
Every appearance of a Kenner criminal domestic abuse case is held in Domestic Violence Court from the arraignment to trial.
The Duluth Model was designed in 1981 as a coordinated community response of law enforcement, the criminal and civil courts, and human service providers working together to make communities safer for victims and hold offenders accountable for their behavior. This Domestic Violence Court is not limited to certain dispositions on the outcome of domestic violence cases.
It does not explore the dynamics of family violence, effects on particular groups of victims or offenders, theoretical perspectives underpinning responses or the economic and social costs of family violence. The Gold Coast domestic violence criminal justice project identifies contextual differences between stranger and domestic violence which necessitate a differential community and criminal justice system response (see Table 2).
In 2008, the Australasian Police Commissioners committed to a policing strategy to prevent and reduce family violence (Commonwealth of Australia 2008). For this reason, the role of police in responding to domestic violence matters regularly goes beyond investigation and apprehension, in that police are often required to engage with victims to support their immediate needs.
Training and incident response protocols and procedures are now standard across jurisdictions to ensure the police response to family violence incidents promotes the safety of victims and accountability of offenders.
Previous guidelines did not clearly articulate either this position or the wider role of the police in domestic violence matters.
Part of the problem with prosecuting domestic violence cases is that unless sufficient evidence exists, the ability to prosecute is closely associated with the active participation of the victim. By expanding the role of the police to include the collection of evidence while attending a domestic violence incident, reliance on victim participation is significantly reduced. The first section reviews four prominent evaluative studies of domestic violence courts and outlines their various contributions to victim safety and offender accountability. Establishing a domestic violence court recognises that problems due to domestic violence are multiple and complex (Stewart 2005). There are over 300 operating in the United States (National Center for State Courts), more than 50 operating in the United Kingdom (Home Office) and there are specialist domestic violence courts operating throughout Canada, including in Winnipeg.
Specialist jurisdiction courts operate in a number of jurisdictions including Australia (Canberra), Canada (Winnipeg) and the United States (Brooklyn).
It is argued that unless specialist courts achieve outcomes that are beneficial for the whole community, as well as for victims and offenders, then their establishment cannot be justified. A significant number of incidents of domestic violence are not reported to police and even more do not progress to court. Apart from highlighting the components of effective governance and management of the court process, it also delineates basic requirements to develop an interagency collaborative response.
Specialist, integrated and problem-solving courts provide a unique opportunity for therapeutic outcomes to be delivered, such as perpetrator treatment and connecting victims with various support services. A supportive court process may, indeed, encourage more victims to report their crimes by reducing their fear of retaliation (King et al. The abuser cannot ignore her, as he could in a conventional court while she is giving her evidence; her story will be told not refracted through legal language, it will be told in her words, the words with which she always communicates with him so he cannot claim not to have understood any more than he can claim not to have heard. With victim safety (the primary focus of any family violence intervention), there are a number of factors that may need to be considered before restorative justice principles can be integrated with the traditional criminal justice system response. Tasmania Police conduct a risk assessment for all incidents utilising the Risk Assessment Screening Tool and produce a numerical score that indicates the level of risk the offender poses of repeating or escalating their violence to the victim. They do not purport to identify everything women want and need from justice following their experience of family violence, but they serve to illustrate what service providers may consider when assisting these victims. Criminal justice system responses to family violence involve a number of different initiatives and participants working together to achieve a shared outcome. Although this literature review has focused solely on family violence between intimate partners of opposite gender, a diverse range of other individuals are also involved in family violence incidents. Agreement, however, does exist that coordinated efforts are required to have an effective criminal justice system response to family violence.
Interventions such as pro-arrest and proactive prosecution policies and the development of specialist courts have demonstrated improvements in the ability of agencies to respond to family violence.
This type of court promotes consistency of case disposition and expertise in domestic abuse on the part of the Magistrate. Jail time, unsupervised probation, and 26 classes are some of the dispositions of this court.
Domestic violence has traditionally been used to describe violence between intimate partners where the offender is male and the victim female.
Within legislation, however, with the exception of Tasmania and Victoria, the definition of family violence is restricted to acts that fall under the umbrella of standard criminal legislation. However, the new guidelines make it clear that the police mandate in domestic violence is ‘pro-charge, pro-arrest and presumption against bail where evidence exists that a criminal offence has been committed’ (Lines 2003: 34). The second part outlines the main tenets of therapeutic jurisprudence and describes how they are applied in specialist courts both in Australia and overseas. Some have noted that domestic violence ‘is frequently linked to other issues, such as substance abuse, mental health problems, and family problems’ (Shaffer 2004: 4). Establishing a specialised court that understands the dynamics of domestic violence has the potential to improve victim safety by addressing the complex needs of offenders before their behaviour escalates. These courts overlay specialist procedures on a more traditional criminal justice court process.

The implication is that while there is benefit to the community in promoting victim safety and increasing offender accountability, the fundamental ‘purpose of court intervention programs is to reduce crime’ (LRCWA 2008: 8). Naturally, exact figures of unreported domestic violence do not exist; however, one study from New Zealand estimates that only 15 percent of total cases are dealt with by police (Lievore 2003).
Gover, Macdonald and Alpert (2003: 112) conclude that until further domestic violence recidivism research is conducted, ‘it is unclear whether designing specialised domestic violence courts provide any improvement over traditional methods of adjudicating domestic violence cases’.
Apart from streamlining the court process, this integrated approach allows for ongoing monitoring of both offender compliance and victim safety. Although treatment modalities differ, programs based on the Duluth model are underpinned by ‘principles that position domestic violence as an outcome of gender power imbalances’ (Day et al.
The risk assessment allows practitioners to exercise some professional judgment and incorporates the views of the clients who have divulged a family violence incident. From their analyses, Holder and Mayo (2003: 21) found that victims of family violence value ‘consistent, early information, dialogue and sustained support in their engagement with the criminal justice system’. The women identified the psychological and social effects the family violence had on them during that time and its continued impact on their self-esteem, memory and guilt.
The language used in policymaking and practice development should reflect an understanding of family violence as it is experienced by diverse groups (Humphreys, Houghton & Ellis 2008). Victims have also identified increased feelings of support and satisfaction with the specialist court model.
It is important to understand that this Domestic Violence Court is modeled after the Duluth Model.
This review briefly describes the construction of family violence across Australia, good practice components of intervention models, criminal justice system responses and requirements for developing good practice family violence frameworks.
Tasmanian legislation limits identification of family violence to current or former spouses and partner relationships. Responses focus on the individual needs of those affected by family violence, improvements to service delivery and changing social attitudes that underpin violence and allow it to continue (Mulroney 2003). The most prominent of these protocols has been the development of ‘pro-arrest’ policing for domestic violence. Integrated or multi-jurisdictional courts operate in locations in the United States (Brooklyn Felony Court, discussed below) and the United Kingdom (Croydon). In addition, University of Stirling academic Susan Eley offers a comprehensive outline of the various specialist domestic violence courts operating in the United States, Canada, the United Kingdom and Australia. Consequently, the success of specialist courts must be evaluated in light of their ability to produce demonstrable reductions in the number of domestic violence cases, over and above increasing victim safety. This section collates the key recommendations from these evaluations, as a synthesis of good practice principles in domestic violence courts. However, independent evaluations of the integrated court models used in the United Kingdom have found significant positive impacts on the court process. The New York domestic violence court addresses the needs of victims by providing them with a comprehensive range of support services.
This evaluation stressed the need to increase both the number of domestic violence courts as well as their operational times.
It is a more considered approach to the delivery of justice and has been utilised to resolve sociological problems such as domestic violence and substance abuse, which have traditionally been difficult to address within the adversarial system. Outcomes that are seen as therapeutic, such as rehabilitation and court monitoring, are often prescribed rather than requested by participants. In a national survey of domestic violence offender programs, Chung, O’Leary and Zannettinno (2004) identified that although many organisations claimed to deliver programs based on a Duluth model, they demonstrated inconsistent levels of adherence to the principles in ‘practice and conceptualisation’ (Day et al.
Tasmania’s Family Violence Act 2004 and Victoria’s Family Violence Protection Act 2008 broaden the definition of family violence to include economic and emotional abuse as well as other types of threatening and controlling behaviour. In order to overcome this heavy reliance on the participation of victims to prosecute domestic violence, there has been a move towards the development of ‘victimless prosecution’, whereby the evidentiary burden rests more with police and prosecutors than with victims.
The most notable of these is the Winnipeg Family Violence Court established in 1990, which is widely regarded as the pre-eminent model of a domestic violence court (Eley 2005: 112).
Nevertheless, preliminary evaluations have shown that once perpetrators reach the specialist court stage ‘about half were convicted, mainly following a guilty plea’ (Cook et al. Family violence is broadly seen as a more inclusive term and acknowledges that violence occurs within all family and domestic relationships. It is asserted that to produce just outcomes for all, particularly in domestic violence cases, the law must be ‘responsive to the circumstances of the particular case rather than subsuming individuals, acts and actors under general classes’ (Hudson cited in Douglas 2008: 440). In particular, integrated courts enable access to criminal, civil and other family jurisdictions rather than oblige victims and families to engage with multiple processes in multiple courts (Labriola et al. Moreover, the Plotnikoff and Woolfson (2005) authored review commissioned by the UK Department for Constitutional Affairs also provides a detailed account of various specialist courts that operate in English-speaking jurisdictions and the specific characteristics that contribute to their effectiveness. Interventions may need to address not only the nature of violent offending but also address any factors that may affect the person’s responsivity to the interventions.
Australian jurisdictions, other than South Australia and Tasmania, frame their legislation to include violence between all family members, spousal, defacto, ex-partner and other domestic relationships, regardless of gender.
For this reason, it may be of benefit to provide police officers with greater scope to assess the particular circumstances of a domestic violence case before arresting those involved.
The New York domestic violence court model places significant emphasis on both ensuring victim safety and incorporating victims actively in the judicial administration process.
The term family violence is also preferred by Indigenous people, as reflected in Australian Government policy and in this context, refers to the extended social and kinship ties that Indigenous peoples have with one another.
Problem solving courts, more traditionally associated with substance use issues, operate in a domestic violence context in both Alberta and the Yukon in Canada.

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