A culture of consent: The challenges faced by legal practitioners when representing family violence victim-survivors who have been misidentified as predominant aggressors
Miss Ellen Reeves1
1Monash University, Clayton, Australia
2Monash Gender and Family Violence Prevention Centre, Clayton, Australia
Since the 1980s, US-based family violence research has extensively documented the misidentification of women victim-survivors of family violence as predominant aggressors. This body of research is set against the backdrop of the criminalisation of family violence and the introduction of pro and mandatory arrest policies, which saw an unprecedented number of women arrested for family violence perpetration. Misidentification, however, occurs in other legal contexts, including the civil protection order (CPO) system. In Australia, approximately 75 per cent of all CPO applications are police-initiated, meaning that many of the unintended consequences of criminalisation observed in the US, translate to Australia’s quasi-criminal CPO system, including misidentification. Increasingly, Australian family violence research is drawing attention to the failings of police responses and the perpetration of ‘systems abuse’ by family violence perpetrators – key contributors to misidentification. However, despite this emerging body of knowledge, little consideration has been offered to the role of legal practitioners and their strategies for supporting and representing clients who have been misidentified as predominant aggressors on CPOs. Misidentified victim-survivors are often faced with a lose-lose situation when it comes to choosing to consent or contest a CPO, and legal practitioners face challenges in navigating this difficult space. This paper considers Victorian legal practitioner perspectives on consent negotiation in Victoria’s family violence intervention order (FVIO) system, with a focus on best practice and the challenges in representing women who have been misidentified as predominant aggressors.
Ellen Reeves is a Postdoctoral Research Fellow at Monash University, working within the Monash Gender and Family Violence Prevention Centre. Her research is focused on the unintended consequences of family violence law reform and women victim-survivors’ experiences with the legal system. This paper draws on Ellen’s PhD research, which examined the misidentification of women victim-survivors as ‘predominant aggressors’ in Victoria’s family violence intervention order system.