Fighting the Shadow Pandemic: Introducing a Domestic Violence Tort

[TW: This article references sensitive topics, including domestic and family violence]


Overview

Intimate partner violence against women is the shadow pandemic. At present, victims can seek financial assistance through the victims of crime compensation scheme or, alternatively, a tortious claim of battery, assault or false imprisonment. I propose the introduction of a new, gendered, tort through which female victims can claim financial redress for the harm they have suffered.


Why not advocate for criminal law reform?

A new tort must complement existing criminal laws and compensatory schemes. Currently, crimes of battery and assault can be prosecuted by the State and victims are eligible for financial assistance under the Victims of Crime Assistance Act 1996 (Vic). However, monetary relief under this legislation is low and fails to adequately support women in financing their recovery (Forster 2013; Seear et al. 2017). In stating this, it is a scheme that must be retained for the benefit of all women. Many victims are able to access psychological sessions, as part of their emotional recovery, through the provision of this funding (Danis 2003). By expanding the civil law to include a domestic violence tort, existing compensatory mechanisms are not interfered with nor are punitive criminal laws. Rather, flexibility in the law empowers female victims to choose whether to bring a specific civil action or criminal case.


Why advocate for civil law reform?

As an alternate mechanism, the civil sphere offers women a greater sense of empowerment. By actively participating in their civil cases as plaintiffs, women have an opportunity to ‘run their own case’. This differs from the criminal sphere where the same victims are passive participants in trials against their perpetrators. In addition to this, the sum of damages in tort law is often far greater than the assistance available under the compensation scheme. This allows women to fund a full, rather than partial, recovery.


However, victims rarely succeed in establishing tortious claims such as battery, assault and false imprisonment. Bodies of domestic violence literature reveal that legal representation is difficult to attain and retain given the lack of financial incentives for litigators (Jones 2001). Once a case is on foot, issues also arise in proving each separate head of tort (Jones 2001). Domestic violence involves a myriad of coercive control tactics (Jones 2001). Establishing each tort independently detracts from the overarching nature of coercive control that underpins domestic violence cases (Jones 2001). Currently, awards of damages are also insufficient to fund a full recovery (Jones 2001). Cumulatively, these issues disincentivise victims from pursuing torts claims. For this reason, the interrelationship between different tortious heads and coercive control is best addressed under a new domestic violence tort.


Why a gendered tort?

Domestic violence does not discriminate between the sexes. This thesis adopts a gendered lens, it does not, however, suggest that violence against men is any less disgusting (Szilassy 2019). A gendered study also involves subordinating the interests of the LGBTIQ+ community. As an advocate for equality and equal rights, the notion of discriminating against a particular group sits uncomfortably with me. It is for this reason that the gendered component of this tort is proposed as a temporary mechanism, to be reformed, once the goal of reducing violence against women is met. In stating this, a gendered tort is an appropriate response to the disproportionate rates of violence against women (Bryant & Bricknell 2017).


Summary

Law reform must adequately address the domestic violence crisis. By introducing a specific domestic violence tort, female victims may experience greater support in accessing justice. Resultantly, women will have the ability to finance a full recovery from the physical and emotional harm suffered. Statistical disparities between violence against men and women are best addressed through a gendered argument, though this is not without its criticisms. Importantly, there is no place for intimate partner violence against women not now and not ever.


References:

Bryant, W & Bricknell, S 2017, Homicide in Australia 2012-2014: National Homicide Monitoring Program report, Australian Institute of Criminology, Canberra.


Danis, F 2003, ‘Domestic Violence and Crime Victim Compensation’, Sage Journals, vol. 9, no. 3, pp. 374-390.


Forster, C 2013, ‘Victims of crime compensation schemes: Compensating victims of family violence’, Precedent, no. 116, pp. 40-44.


Jones, J (2001) ‘Integrating Domestic Violence Issues into the Law School Torts Curriculum’, Loyola Law Review, vol. 47, no. 1, pp. 59-80.


Seear, K, Fraser, S, Moore, D, Keane, H & Valentine, K (2017) Victorian Law Reform Commission Reference on Victims of Crime, Victorian Law Reform Commission, accessed 23 August 2021.


Szilassy, E (2019) ‘Male victims of domestic abuse face barriers to accessing support services – new study’, The Conversation, accessed 23 August 2021. https://theconversation.com/male-victims-of-domestic-abuse-face-barriers-to-accessing-support-services-new-study-118705.


Image: EyeEm


Rhea Warrior is a final year law student. Her thesis is centred around the introduction of a new domestic violence tort. As an aspiring family lawyer, Rhea is a firm believer that Australian women are in need of significant law reform in response to the violence against women crisis. This is particularly true in the wake of the global pandemic.


Her thesis draws upon new and emerging literature on how torts have been used by victims/survivors of domestic violence before it proposes a new tortious approach. Ultimately, the purpose of this paper is to empower women by affording greater flexibility in the civil sphere as a complement to the criminal jurisdiction.


Rhea would like to acknowledge Snr Lec. Jennifer Lindstrom and Assoc Lec. Liam Elphick for their instrumental roles in guiding her through her research.

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