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Gender approach misses the mark

Gender approach misses the mark

The all-pervasive message that family violence is overwhelmingly one-sided is both wrong in fact and almost certainly contrary to human rights law, Roger Smith says. Extend protection, and advocate for ALL victims, he counsels.

Gender-based approach misses the mark in tackling family violence

By Roger Smith*, November 2010


November 25 marks another White Ribbon Day and the all-pervasive message condemning violence against women.  White Ribbon Day (WRD), like all campaigns that raise awareness of and reduce the incidence of violence, deserves our support and there is no doubt that this campaign has made some otherwise violent men think twice before engaging in destructive behaviour.

However, one of the primary principles of any social movement or NGO activism, particularly applied and used as a point of reference by aid organisations is the ‘Do No Harm’ rule; that is, at the very minimum, interventions by civil society groups must do no harm in their attempts to do good.  While not wanting to denigrate WRD and the good results that it undoubtedly produces in many instances, like any NGO or social movement, it can do better.  There are at least a few areas where gender-based anti-violence groups may sometimes be off pitch in their zeal to reduce a particular form of violence.

Firstly, the gender-centric message gives the impression – perhaps unintentionally – that domestic violence and partner abuse is only committed by men. The best evidence suggests that this is far from the truth. When the Australian Bureau of Statistics in its Personal Safety Survey, Australia, 2006 (ABS Catalogue No. 4906.0) surveyed the extent to which respondents had experienced physical assault in the home within the previous 12 months, it found that 60,900 men (compared to 125,100 women) had experienced such domestic violence by a perpetrator of the opposite sex.

In addition, nearly all rigorous peer-reviewed academic population-based studies published in academic journals around the world have found that at least one-third, and often one half or more, of the victims of domestic violence are men. An example in our part of the world is: ‘Partner Violence and Mental Health Outcomes in a New Zealand Birth Cohort’ by Fergusson, Horwood & Ridder published in the Journal of Family and Marriage (vol. 67. no. 5, Dec 2005, pp1103-1119). Its key findings were that men and women have similar incidence of victimisation and perpetration of domestic violence and that the mental health effects of domestic violence are equally as severe for men as for women.

Similarly, the Australian Institute of Family Studies’ Evaluation of the 2006 Family Law Reforms, released earlier this year, found that 53 per cent of fathers and 65 per cent of mothers had suffered family violence (physical hurt or emotional abuse) before or during separation (pp25-26).

If we are serious about tackling family violence, we must not ignore these findings. Tackling two-thirds or one-half of the problem, while ignoring the other third to half, is doing a disservice to Australian families. We need to found the solutions to domestic violence firmly on the evidence base.

Secondly, gender-based campaigns state that the key to tackling domestic violence is to ‘break the silence’.  In this they are absolutely right!  However, by constantly referring to it as a women’s issue or a gender issue, they seem to be unintentionally enforcing silence on male victims—the very thing they claim to be against. The fact that this message is so insistent and that specialist services are largely withheld from male victims of domestic violence means that this group must usually suffer in appalling silence that has lasting health consequences on them, their children and families. The incessant message that men are perpetrators and women are victims means that men who do have the courage to come forward and make claims of this nature will often be treated as ‘less than a man’, or liars…or both. Where are they to turn? Domestic violence policy should not become a weapon for inflicting domestic violence by making this class of victim voiceless.

Thirdly, gender-based campaigners state that domestic violence at its worst often involves the exploitation of power imbalances. Again this is absolutely right. But the message propagated by some of the more strident groups that ‘domestic violence can ONLY be men’s responsibility’ in itself creates a very real imbalance of power. It is simply human nature that some women will unfortunately abuse this situation. Anecdotally, it has led to incidents where women initiate violence against their husbands or boyfriends knowing that he will be the one who gets the blame, especially if he tries to physically defend himself. Some extreme feminist groups assume that women’s use of violence against male partners is always in self-defence and therefore always justifiable.

Like the famous line in Frost-Nixon that ‘if the president does it, it’s not illegal’, so it sometimes seems that if a woman does it, it’s not domestic violence!  This is how far the ideology has taken us in some instances. But implied impunity for any group in society only makes the situation worse and will increase the rates of domestic violence and family dysfunction.

Fourthly, the irony of gender-based campaigns that mandate discriminatory legal regimes is that they can only be achieved by also discarding the principles of English common law and twentieth century international human rights law. The erosion of these principles becomes collateral damage, or in economists’ jargon, a ‘negative externality’ in the quest to advance a particular cultural agenda.

We would certainly never tolerate a law against terrorism that states that a crime of this nature is predominately committed by Muslims. Even anti-hooning laws, to be human rights-compliant, could never state that these offences are predominantly committed by young males—even if this is statistically correct—because it would erode the ability of the justice system to fairly and effectively deal with offenders of whatever socio-demographic background.  

Unfortunately, however, these same human rights norms are not respected when it comes to domestic violence. Recently enacted domestic violence acts in several states are prefaced by the words: ‘domestic violence is predominantly perpetrated by men against women and children’ (eg. s.9 (3) of the NSW Crimes (Domestic and Personal Violence) Act 2007). The Australian Law Reform Commission (ALRC) in its far-reaching report Family Violence—A National Legal Response released earlier this month has recommended that similar discriminatory words preface all state and federal laws dealing with domestic violence, including the Family Law Act (see Recommendations 7-2 and 7-3 of its report).

Racial (or in this case, gender) profiling, of offenders is controversial in law enforcement procedures, but to upgrade it into legislation is nothing short of extraordinary. It creates an obvious bias in the minds of judges and magistrates that a particular class of defendants is more likely to be guilty by reason of his gender or race than would be the case if he were of a different gender or race (and likewise the other gender or race more likely to be innocent).

In the case of the Family Law Act, its only possible application would be to prejudice fathers in parenting disputes since the court would be required to assume that fathers are more likely to be abusive toward their children than mothers. To suggest that courts are somehow able to discard such bias in determining individual cases, while maintaining the general rule as to which groups are most likely to commit certain offences, is naïve and stupid. And if the bias is to somehow be withheld in the determination of individual cases, then why legislatively prescribe it in the first place?

The intent to breach international human rights provisions on discrimination – in particular, Articles 2, 4, 23 (4) and 26 of the International Covenant on Civil and Political Rights (ICCPR), and Articles 2, 7, and 16 (1) of the Universal Declaration of Human Rights – is so brazen as to be almost beyond belief. But we need to remind ourselves that we are entering into a world where ideology reigns. Assuming the ALRC recommendation is adopted, which seems likely, we have to accept that for the foreseeable future at least our country will be a place where justice is blind, but apparently not gender-blind.

In fact, laws of this type represent arguably the first time in the history of our system of law, or of any civilized system of law, where statute prescribes the socio-demographic characteristics of the persons who predominantly commit a particular crime. Even the criminal codes of apartheid-era South Africa did not prescribe which race or ethnic group was prone to committing a particular offence. Apparently criminologists will no longer need to conduct studies into these issues; they can just look it up in the statute!

Whereas in the past, male victims of domestic violence already faced substantial cultural biases that trivialised and ignored their suffering, in an enlightened age they now have a legislatively-prescribed presumption that they are more abusive than women in their family relationships and more dangerous to children.

What is also extraordinary about these developments is that the evidence base and the position of researchers, psychologists, psychiatrists, male health experts and sociologists in Western countries—as shown by the Australian Institute of Family Studies report, academic journal articles and the One in Three Campaign launched last year to help male victims—is increasingly moving toward an inclusive view of domestic violence that highlights the need to assist all victims regardless of their gender or socio-demographic background. Even Richard Chisholm’s Family Courts Violence Review released in January 2010 explicitly rejected a gender-based approach to domestic violence in family law proceedings (see page 46 of his report).

On the other hand, if the ALRC report is accepted, policy will be moving in a 180 degree opposite direction. By seeming to institutionalise discrimination, the ALRC could very well weaken public confidence and support for anti-violence measures and weaken confidence in the legal system itself.

The victims of violence, whether male or female, deserve better than this. Family violence law and policy is not an arena to argue which group in society is more abusive than the other. We are never going to reduce violence with a one-sided ideological approach. The challenge now for practitioners, activists, police and legislators is to move beyond the gender blame game. Most of all, innocent children caught up in their parents’ messes require us to put inclusion before ideology, safety before sexism and protection before parochialism.

We need to take the next logical, evidence-based step in the campaign that was pioneered by White Ribbon.  Extend the protection and advocate for all victims! 

*   Roger Smith is a CLA member and lawyer. This article appeared first in ON LINE Opinion.

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