Updated 9 minutes ago Sun 6 Oct 2019, 8:47am
So far today police in Australia would have dealt with on average 270 domestic violence matters
I have seen and heard a lot in my time about the abuse of Aboriginal women by the justice system, but the case of Jody Gore, who in 2016 was found guilty of murdering her former partner and sentenced to life behind bars, deeply shocked and upset me.
I first met Jody at the Bandyup women’s prison in Perth, where she told me her story and showed me the scars on her body left by her ex’s violence.
She seemed very down and traumatised and was probably wondering how I appeared in her life.
When I left Bandyup that day, I knew I would not forget Jody and the fate that had been delivered to her.
I soon learnt from court transcripts that for almost two decades Jody experienced severe domestic violence and abuse from her former partner, who suffered mental illness.
But during her trial, no expert witnesses were called to give evidence on her behalf and a jury took less than three hours to find her guilty, rejecting her claim she had acted in self-defence.
Justice Lindy Jenkins sentenced Jody to 12 years with no parole, even though Jody’s poor health meant she would likely not survive the sentence and she would be separated from her children.
There was “far too much drunken violence in the Kimberley”, Jenkins said of her need to deter others.
‘We were able to put it behind us, but others are not so lucky’
Jody and I are very different people. She’s Miriwoong from up north and I’m Noongar from the south.
As a law student, I worried about my sister, seeing her with black eyes and bruises which she denied were a result of family violence — we spoke even less about abuse back then.
She eventually left her partner and came home with the children, but one day he came after her in a state of rage and affected by mental illness.
Terrified, I hid the children while my mother and her partner, a former war veteran, managed to fight him off. I cleaned pools of blood from the floor, in shock but relieved no-one had been killed.
The next day police surrounded our home. They handcuffed and arrested my mother, taking her away.
I tried to tell them what had happened, how violent my sister’s partner was, but they ignored me and acted as if they didn’t care.
Fortunately, a jury acquitted my mother of grievous bodily harm and we were able put it behind us. But others are not so lucky.
After meeting Jody, I ended up working with Annabel Hennessey from The West Australian newspaper to highlight her wrongful incarceration.
We uncovered significant evidence from an expert psychiatrist and a women’s refuge Jody had attended that we believed supported her claim of self-defence, but which was not provided to the court.
As a result of our efforts — together with lawyers George Giudice and Carol Bahemia, and the University of WA’s Stella Tarrant — Jody was last week freed from prison
after the Western Australian Government applied “mercy laws”, reserved for rare cases where prisoners deserve compassionate treatment and release.
Jody’s story is not an isolated one
When I heard Attorney-General John Quigley announce he would also introduce new laws to improve courts’ responses to victims of family violence who defend themselves against their abusers, I was overjoyed.
These reforms are important because Jody’s story is not an isolated one in Australian Indigenous communities.
A few years ago a state prosecutor told me she was seeing more Aboriginal women who’d killed violent partners come through the justice system.
I told her it was well known many Aboriginal women fight back in response to severe violence.
Research has found Aboriginal mothers in Western Australia are 17.5 times more likely to be killed than non-Aboriginal mothers, while Indigenous women generally are more than 21 times more likely to be imprisoned than non-Indigenous women.
This over-representation of Aboriginal women — both as victims of abuse and as prisoners — is well documented.
In 2018, the Australian Law Reform Commission highlighted the over-incarceration of Aboriginal women, finding family violence and sexual assault were significant factors fuelling their imprisonment.
The inquiry recommended sweeping reforms aimed at reducing women’s victimisation and offending, but to date there has been no official response.
We will not stay silent
I had been an adviser to the inquiry and the lack of response is deeply disappointing and contributing to even more intergenerational trauma and suffering.
Evidence of this crisis appears frequently in media reports.
In the weeks before Jody’s release from prison, Jessica Bairnsfather-Scott’s body was found in Perth by her family, who broke into her house scared for her safety.
In Geraldton, police fatally shot Joyce Clarke, who had been suffering from mental illness and was only recently released from prison.
And even though Mr Quigley last month introduced a new law to stop the incarceration of Aboriginal women for unpaid fines, Keenan Dickie — who was seriously injured in a violent assault — was still arrested and locked up after going to police for help.
Keenan said she was terrified she would die like Ms Dhu, who died in custody from injuries sustained in a family violence incident.
Some Aboriginal women survive this horrific violence and some do not.
Jody’s victory and the issues her case has highlighted will improve Aboriginal women’s access to justice, but more action and attention is urgently needed.
A myriad of reports, including from the United Nations, have now recommended Australia needs a specific national action plan to address violence against Indigenous women, but they have all but been ignored.
We will not stay silent. Our lives matter. Black women’s lives matter. Stop this genocide of Indigenous women in our own lands and country.
Hannah McGlade is the Senior Indigenous Research Fellow at Curtin University. She has also established legal services for Aboriginal victims and engaged in many United Nations expert mechanisms to promote Aboriginal women’s and children’s human rights.
First posted about 6 hours ago
Ladies who stab: Are we failing abused women who kill?
Jody Gore lived through years of violence at the hands of her ex-partner before she killed him. Her case spotlights how the justice system is failing abused women who fight back.
Updated 1 Oct 2019, 10:10am
Lawyers call them “ladies who stab”: women who, sometimes after decades of abuse, snap and kill a violent spouse.
They’re not, at first glance, an entirely sympathetic group. Sticking knives multiple times in their husbands’ backs, necks and chests after drugging them. Smashing their current or former partners’ skulls in with mallets or pickaxes while they sleep. Burying corpses in backyard graves. Often drugs or alcohol are involved: ice, cannabis, sedatives. Some are aggressive toward police or partners, some obscene.
WARNING: Aboriginal and Torres Strait Islander readers are advised that the following article contains names and descriptions of people who have died.
A year-long ABC News investigation into the high number of women in prison who are domestic violence victims has found the majority of women who kill abusive partners in Australia end up in jail. But most female homicide offenders are also victims of serious violence themselves, and many claim they fought back to save their own lives.
So if you believe your partner is going to kill you, what is a proportionate response? Who should be acquitted on the grounds of self-defence and who should be charged with manslaughter, or murder?
Courts have been grappling with those questions, and now experts are calling for urgent reform of a system they say too often assumes that the only innocent women are dead women.
This urgency is why the story of Jody Gore, an Aboriginal woman from Kununurra in Western Australia who in 2016 was convicted of murdering her former partner, has become a national rallying point.
In an extraordinary move, the Western Australian Government on Thursday announced Gore would be released from prison just four years into her 12-year minimum sentence, with the Attorney-General John Quigley citing her history of domestic violence as a key factor behind the decision to apply “mercy laws”. Quigley also signalled the criminal code would be changed to better recognise the experiences of domestic violence victims who act in self-defence.
Family and domestic violence support services:
- 1800 Respect national helpline: 1800 737 732
- Women’s Crisis Line: 1800 811 811
- Men’s Referral Service: 1300 766 491
- Lifeline (24 hour crisis line): 131 114
- Relationships Australia: 1300 364 277
This intervention — made after concerted reporting by the West Australian — is not a legal acquittal; it does not overturn her murder conviction.
But experts say Gore’s is just the latest of dozens of cases across the country in which the impacts of family violence on women have been ignored, overlooked or misunderstood by the criminal justice system. It’s often not the laws that are the problem, they say, but attitudes towards domestic violence, particularly women who fight back against it.
“This is a remarkable outcome for Jody Gore,” said Stella Tarrant, an associate professor at the University of Western Australia’s Law School who has been working closely with Gore’s lawyers.
“But we cannot get distracted by thinking that the issues at stake pertain to Jody’s case alone.”
‘I’ve got scars to show’
Jody Gore’s body is covered in scars — permanent reminders, etched into her skin, of the violence inflicted on her over 14 years by her ex-partner. From the beginning of their relationship, he regularly physically and verbally assaulted Gore.
The blemish to the right of her lips, near her chin, she said, is from a time in the late ’90s when he punched her hard in the face, in one of his drunken rages.
There’s another scar, just above her right breast, where she said she was stabbed her with a pair of scissors in 2006. On her left forearm is a faint line, about four centimetres long: that time, she said, he sliced her with a knife.
Gore treated most of her injuries herself and didn’t report his abuse to police because she didn’t want him to get into trouble: “I just felt sorry for him,” she told the Supreme Court of Western Australia. “I didn’t want him to go to jail.”
When she killed him, on a hot Saturday afternoon in June 2015, they hadn’t been a couple for years: Gore had left her partner in 2008, when his abuse became too much to bear.
They argued just about every day, she said, often because she refused to give him money: he frequently swore at, intimidated and punched her.
He dragged her across the floor by her hair, pelted rocks at her head, hit her in the face with a belt buckle, threatened her with a metal rod; Gore testified she’d jumped over fences and out of windows to escape him.
Her face, she later told police, had been “bashed up too many times from him”.
Still, they remained friends, and Gore supported her ex, who’d been diagnosed with paranoid schizophrenia in 2003, with food, money and a place to stay when he needed. “There were good sides to him,” Gore’s cousin told ABC News earlier this year. “He wasn’t always violent.”
That Saturday in 2015, Gore, then aged 43, attended a birthday party, where she drank lots of rum and whisky during a card game with friends. Her former partner, who was also “very drunk”, arrived later that afternoon, and persuaded Gore to give him some money so he could join in.
When that was spent, and Gore refused to give him more cash, he stole some, and an argument broke out between them. He began punching her; she punched him back.
Gore testified that she fell over and, when she glanced up, saw her ex looking at the ground — she believed he was going to pick up a rock and hit her.
So she went to her bag and pulled out a kitchen knife, which she carried around with her to cut up food. After a brief altercation, she stabbed him once in the chest and he collapsed in the front yard.
According to one of the ambulance officers who arrived at the scene, Gore shouted: “You don’t know what he has done to me. He’s given me scars. I’ve got scars to show.”
Yet no experts on domestic abuse were called to give evidence during the trial. In addition, as recently revealed by the West Australian, crucial documentation regarding Gore’s fear of the deceased was not presented to the court. Gore had previously fled to a women’s refuge where a worker documented that: “Ex-partner running amok, been to police but they won’t help as he has a mental health problem”.
After a jury found Gore guilty of murder, rejecting her claim she’d stabbed him in self-defence, Justice Lindy Jenkins sentenced her to life behind bars, ordering she should serve at least 12 years before becoming eligible for parole.
A “reasonable sober person” in Gore’s circumstances, Justice Jenkins said, would have seen there were “other ways” in which she could have defended herself against him. What’s more, she said, his violence toward her “had, in effect, ceased”.
Gore had been “grossly intoxicated” and had “used a dangerous weapon to stab the deceased in the chest, intending to hurt him,” she said. “He was not at that time assaulting you or posing an immediate threat.”
Looking beyond an immediate attack
Now, as Jody Gore walks free just two years after an appeal against the length of her sentence was dismissed, the government’s intervention in her case is raising serious questions about the way domestic abuse survivors are treated in the criminal justice system — particularly Indigenous women, who are massively over-represented in homicide statistics.
Between July 1, 2010 and June 30, 2014, 28 women killed current or former male partners — representing 18.4 per cent of all intimate partner homicides. Of those female offenders, though, almost half identified as Aboriginal.
Hannah McGlade, a senior Indigenous research fellow at Curtin University who has been working on Gore’s case, said her story is “highly significant” because it highlights the “shocking interpersonal violence” and “discrimination” within the justice system many Aboriginal women experience.
“The decision of the government to release her shows this issue is gaining traction and that is a good thing,” McGlade told ABC News. “The women who fight back — and many Aboriginal women do — are being excessively punished and driving an increasing women’s prison population.”
Though rare, cases of women who kill abusive partners are typically complex, and often involve drugs or alcohol and mutual violence. No matter how violent the men, very few women successfully raise self-defence and instead go on to serve lengthy prison sentences.
“It appears that the law of self-defence — which was amended in Western Australia in 2008 in an effort to recognise the situation of women who respond to abusive partners with defensive force — is not operating as it was intended to operate,” said Stella Tarrant.
For instance, the law allows that a person can defend themselves against the threat of serious harm, including non-imminent harm.
But in many cases like Gore’s, Tarrant said, the law of self-defence is not properly being applied because the focus is often on the moment of the killing — whether the woman was responding to an immediate physical attack — as opposed to the threat of ongoing harm, as she perceives it, within the relationship.
“We need to see that women in these circumstances are responding to very serious behaviour … that is not limited to the seconds in which an attack is taking place. We need to see the whole picture.”
This is largely why John Quigley has stepped in, pledging to make further amendments which he said would make it easier to introduce expert evidence of domestic violence in criminal trials to “address stereotypes, myths and misconceptions about family and domestic violence”.
The reforms, Tarrant said, would assist courts hearing intimate partner homicides to understand the full nature and extent of the violence a defendant had experienced — and its impacts. Only with all those facts, she added, could a claim of self-defence be decided.
“It is sometimes assumed that women who are subjected to violence from a current or former partner are seeking some form of special consideration or a special defence, but the opposite is true. Everyone is entitled to rely on self-defence, including those who are subjected to … ongoing, very serious violence.”
Defending ‘battered women’
Over the past year, high-profile cases in the US and UK have sparked debate about legal outcomes for women who kill abusive partners.
In the UK, women’s advocates rejoiced in June as Sally Challen, who was jailed in 2011 for bludgeoning her husband to death with a hammer, walked free. Challen said her husband had psychologically tortured, controlled and humiliated her for years, creating what her son David described as “a culture of fear and dependency”.
Challen appealed her murder conviction following the introduction of new laws recognising coercive control as domestic abuse. “I met many women in prison who shouldn’t be there,” she said on release. “The justice system needs to listen.”
In the US, the state of New York in May passed the Domestic Survivors Justice Act, which gives judges more options when sentencing survivors who have been convicted of violence against a partner or of committing a crime under coercion, to address the fact that, too often women “wind up in prison in the first place because they’re protecting themselves from an abuser,” Governor Andrew Cuomo said. Similar laws are currently being debated in Oklahoma.
Now momentum is building in Australia, with experts warning a persistent ignorance of the impacts of intimate partner abuse are preventing women charged with homicide receiving fair treatment before the law.
Self-defence laws differ between states and territories: most have been revised in recent decades, including to acknowledge that a person can defend themselves against non-imminent harm.
Reforms in some jurisdictions have also made it possible for women charged with homicide to submit evidence of intimate partner violence as part of their defence, or in mitigation of sentence.
But they’ve had questionable impact on legal outcomes: while most women who have killed their partner in Australia are victims of sustained abuse, very few successfully argue self-defence, and most end up in jail for manslaughter.
Battered Woman Syndrome
In the past, expert evidence of “battered woman syndrome” has been introduced in trials of women who have killed abusive partners in an attempt to explain domestic violence and its impacts on victims, usually with a view to raising the defence of self-defence. The use of such evidence, typically presented by psychologists and psychiatrists, has since been widely criticised for suggesting women’s responses to intimate partner abuse are irrational: the result of a psychological condition or disorder rather than a reasonable response to the threat they were facing.
Of course not all cases of homicide by an abused woman should result in an acquittal. After all, sometimes the murdered person is found to be the abused.
Broome’s Mary Anne Churchill, for example, is currently in jail for murdering her “weak and vulnerable” younger de-facto partner. A day after he told Churchill he was leaving her, she belted him with an electric frying pan and stabbed him with two knives. Her original sentence of 17 years was increased to 21 on appeal.
But the fact that lawyers continue to find it so difficult to reach the threshold of self-defence — which holds a person can use force reasonably required to remove themselves from danger — is raising alarm.
Importantly, a significant number, having initially been charged with murder, pleaded guilty to the lesser charge of manslaughter, wiping out their opportunity to have a self-defence claim considered. (They may have accepted these pleas perhaps because the risk of arguing self-defence was too great, given the more severe penalties of murder convictions.)
In fact, in many of these cases the sentencing judge has alluded to the “realistic chance” that, had the woman’s case proceeded to trial, they’d have been acquitted on the basis of self-defence.
That so many women who kill violent male partners are convicted of manslaughter, not murder, Tarrant says, suggests courts have “sympathised” with them; they’ve grappled with the pain and misery these women have been subjected to. Ultimately, though, they’ve stopped short of seeing their killing response as defensive.
So what is going on? Lawyers say there are three pivotal issues. First, a lack of understanding of the dynamics of domestic violence, especially the sense of entrapment it can foster. Second, a shortage of family violence experts who are qualified to give evidence in court.
And third, some argue difficult to shake stereotypes about violent women may lead to them being punished more harshly than violent men.
Why don’t they just leave?
It’s a steady, persistent drumbeat in almost all of these cases: she could have left.
Associate Professor Carolyn Quadrio, a psychiatrist who specialises in child sexual abuse and family violence, estimates she has provided evidence in a dozen cases where a female has killed a violent male partner arguably in self defence. The most important barrier at every trial, she says, is: “The jury says, ‘Why the hell didn’t she just get up and leave?’”
Quadrio then has to explain the shame and embarrassment preventing many women from reporting the abuse, the financial implications of leaving and becoming a single parent, and the children.
Then there are the psychological barriers, where some women are intensely ambivalent about their relationships. Some have grown up with abuse, and consider it normal.
These cases are best understood, Quadrio says, as less about “battered women” and more as a post-traumatic response. “The reality is,” she said, “women are driven by fear in many situations rather than a disordered psychology”.
Women who stayed in relationships used to be described as masochistic, but “I have never once met a woman who enjoyed being beaten up, so I think we can scratch that one off, it’s straight out of the ’60s.”
The case of Geraldton doctor Chamari Liyanage provides a clear example of how hard it is for women charged with killing an intimate partner to raise self-defence.
Liyanage’s husband bashed her with a rolling pin and a metal chair, threw dinner plates at her, forced her to watch child pornography and ordered her to perform sexual acts for random strangers online.
A couple of times she fought back but was swiftly punished. On one occasion, after disobeying his instructions to come straight home after work, she said, “He hit me so hard I couldn’t get up. I never call for help again.” She felt trapped.
One night in June 2014, Liyanage killed her husband with a heavy metal mallet as he slept in their bed. Afterwards she said she had no recollection of having done so.
She was charged with murder and, after a trial by judge and jury rejected her claims she’d killed him in self-defence, was convicted of manslaughter.
In sentencing her to four years’ imprisonment, Justice Stephen Hall said he accepted the deceased was a “manipulative and merciless abuser”, but that Liyanage’s response to his violence was unreasonable.
“This was not a justified killing,” he said. “You went too far. This was an act which you believed was necessary but it was not a reasonable response to the circumstances or the threat that you faced at that time.”
Following the verdict, her lawyer, George Giudice, was scathing, telling reporters that this area of the law required urgent rethinking. On announcing an appeal to the High Court (later withdrawn), Giudice said: “When women defend themselves against partners in self-defence, prosecutors ask juries to consider questions such as ‘Why did she stay?’, ‘Why did she leave and come back to him?’, ‘Why didn’t she seek help?’, ‘Why does she still say she still loves him?’, ‘Why didn’t she just simply walk out the door?’”
The appeal, he stressed, was about “the need for the jury to be assisted in understanding that women all around the world find themselves in these types of relationships and do not leave.”
Yet the idea that domestic abuse is typically much more complex than single instances of physical violence can be difficult for legal professionals to wrap their heads around, says Danielle Tyson, a senior lecturer in criminology at Deakin University.
Behind a man’s assaults on his female partner often sits a pattern of behaviour, an arsenal of coercive tactics he deploys to intimidate, dominate, isolate and control her. “When that violence spans a long period of time it has a cumulative impact on how women respond in the world,” Tyson told ABC News. “And so that really impacts on their experience of the relationship and [contributes to their] sense of entrapment in it.”
And many abused women know from trying that leaving can trigger a fierce and sometimes deadly reaction in men. In 1991, Martha Mahoney, a professor at the University of Miami School of Law, coined the term “separation assault” to describe the potentially lethal response from abusive men whose violence escalates when their female partner leaves or attempts to leave.
Australian research, too, has consistently found a strong correlation between separation and homicide.
In its latest national analysis of intimate partner homicides, the Australian Domestic and Family Violence Death Review Network found actual or intended separation was a factor in more than half the cases in which a male killed a female partner. In NSW, the Domestic Violence Death Review Team found that in two-thirds of homicides in which a woman was killed, the couple had recently split up or were in the process of separating.
Bringing the dead women into the room
Those statistics — and the dead women they represent — are rarely brought into the courtrooms in which these cases are fought. Instead, many judges’ and juries’ decisions seem to turn on the belief that the woman could have run away or picked up the phone to police.
But Indigenous women in particular can be very reluctant to report and seek help for abuse, often because they don’t trust police to respond in their best interests.
Other women who’ve killed abusive partners had called police — in some cases dozens of times — to little effect.
“She could have been one of the women who have died at the hands of their partner or former partner,” Stella Tarrant said. “And so that group of women need to be a source of knowledge for legal decision-makers … if we bring those dead women into the room, we’ll
what the circumstances are for women who are at the point of needing to rely on self-defence.”
So what are those circumstances?
For many of these women, Tyson says, killing is “a desperate attempt at survival”, because “she knows that if it’s not today, he might kill her tomorrow”.
“Often there isn’t an immediate threat — it may be a little gesture he made the day before or that morning that [only] she knows really well means violence is coming.”
But in case after case, women’s behaviour is framed or perceived as excessive. Often, Tarrant says, this is because so much of the abuse women have experienced is “invisible” — particularly sexual violence and coercive control, which can cause victims to feel as if they’re being “smothered alive”.
But, she says, it may also be because domestic violence is so common and, to an extent, normalised. “We’re still not seeing the extremity, the seriousness, of violence against women,” Tarrant said. “We do not have the capacity to recognise when intimate partner violence is really “serious enough” for us to label it lethal force in self-defence.”
Another reason people may view women’s violence as excessive, experts say, is that while men are able to use physical force to fight and overwhelm — with many killing by strangling or beating — women often resort to using weapons: door closers, roasting forks, mallets and knives.
Most women who kill abusive male partners in Australia — 82 per cent, according to a recent analysis — do so using sharp weapons, primarily knives.
Jody Gore’s offending, Justice Jenkins said, was aggravated because although her former partner provoked her by stealing her money, he was unarmed, and Gore, who was “angry” with him, deliberately” armed herself with “a very dangerous weapon”.
When victims reach a ‘point of explosive violence’
A similar issue emerged in the case of Angela Williams, who drove a pickaxe into the skull of her partner Doug 16 times after an argument escalated one night. She then wrapped his body in a tarpaulin and buried it in the backyard of their home at Indented Head, on Victoria’s Bellarine Peninsula, telling friends he had moved interstate.
More than four years later, she confessed, telling police that during their fight that evening, Doug had been “yelling and screaming abuse”, accusing her of cheating on him, punching her in the chest, pulling her hair and knocking her down multiple times. It was just one of many brutal assaults she had endured during their 23-year relationship.
When he would not stop, she said she grabbed the pick axe, and he goaded her, saying: “Go on. Do it. Do it. Like that, you f***ing fat slut.”
Williams was acquitted of murder but found guilty of the since-abolished offence of defensive homicide, for which she was sentenced to eight years in prison, with five years non-parole.
In sentencing Williams, Justice Elizabeth Hollingworth acknowledged the cumulative impacts of family violence, noting it was not uncommon for victims to use weapons which may seem out of proportion to the threat they were facing.
The final act or acts of the deceased, Justice Hollingworth said, “may well be relatively minor, if looked at in isolation; but what happens in such cases is that the victim of family violence finally reaches a point of explosive violence, in response to yet another episode of being attacked. In such a case, it is not uncommon for the accused to inflict violence that is completely disproportionate to the immediate harm or threatened harm from the deceased.”
Crucial to this assessment was the defence’s calling of an expert witness in Professor Patricia Easteal, who testified about women’s use of weapons in homicide cases, the nature and dynamics of family violence in general, and the reasons, as Justice Hollingworth recounted, “why women often do not leave their violent partners”.
This is why Stella Tarrant and other legal academics are now arguing that instead of a “battered woman” framework, which focuses a case on the psychology of the abused woman, lawyers should be thinking in terms of the abuser, and how his violence — particularly coercive controlling behaviours — drastically limits the victim’s ability to resist it and seek help.
Proponents of this “social entrapment model” also stress the importance of documenting how the victim’s community responded to the violence, or didn’t. Many face homelessness if they leave.
In cases of genuine self-defence, this may shift the legal narrative from an irrational overreaction by a woman with a psychological disorder, to a reasonable response given the danger she was facing.
If lawyers don’t take that approach, Tarrant said, if they don’t paint a detailed picture of the violence a woman who kills was up against, “then it is impossible to apply the law of self-defence”.
A dearth of family violence experts
One massively underreported hurdle for women defending homicide charges is a confounding shortage of family violence experts who can provide evidence to courts.
“There’s an absolute dearth of them,” said Jill Prior, principal legal officer at the Law and Advocacy Centre for Women, who is regularly called by colleagues at the Victorian Bar, private practitioners and solicitors at Legal Aid who are desperate for recommendations.
This, she said, is an “extraordinary” situation to be in less than three years after the state’s royal commission into family violence drew such an “overwhelming public response”.
There are “plenty” of experienced professionals who are arguably qualified to provide evidence in these cases, said Prior, who recently spent several months trying to find one for a case. “But for some reason their expertise is just not translating to the court’s experience.”
Despite significant homicide law reforms allowing expert evidence of family violence to be introduced in trials, Danielle Tyson has found legal counsel tend not to call on a “broad range of experts with specific family violence training”.
Instead, she said, this role is being filled primarily by forensic psychologists and psychiatrists, who are capably assessing accused women but don’t necessarily provide “broader social context” evidence. “There just isn’t a huge pool of experts who can testify specifically on these issues of family violence,” Tyson said, “and so that is an ongoing challenge.”
Forensic psychiatric reports do explore family violence, she said, but they mainly talk about it from the perspective of a woman’s mental health.
The question is, she said, “Do they link women’s mental health to that prior history of family violence? That’s the sort of linking we need to see that we’re not seeing yet.”
And it’s having a significant impact on cases.
In Chamari Liyanage’s trial, the judge ruled defence could not introduce evidence from an experienced social worker about the nature and dynamics of domestic abuse because the jury, he reasoned, did not require such evidence to determine whether the relationship was coercive and violent. (The judge’s exclusion of that evidence later formed part of the basis for Liyanage’s unsuccessful appeal of her conviction and sentence.)
For Stella Tarrant, the problem is not just that there is a lack of qualified experts, but a “lack of preparedness, that comes across as resistance” by courts to accept social context evidence. “I do think there is work to be done in assisting those with that expertise to shape that knowledge for a forensic context … and present it in a way that assists the court,” she said.
Another problem is the fact that many women don’t have documented evidence of the violence they’ve experienced. Many of Prior’s Aboriginal clients, for instance, have never reported their abuse. Others have not sought medical attention.
Working in a firm where she can count on two hands the number of female clients out of more than 500 who have not reported experiencing sexual or family violence, it is an endlessly frustrating challenge.
“I actually think there are very few women who commit what would be considered ‘random’ acts of violence,” Prior said. “We don’t read in the newspapers another man was killed on the street by a woman stranger — it doesn’t happen. There is a clear trajectory to violence that I think is explicable in women,” she added. “It’s not necessarily acceptable, but it’s explicable.”
‘Every time you escaped this man, he tracked you down’
Part of her work is establishing that trajectory. When she was working at the Victorian Aboriginal Legal Service, Prior represented Melissa Kulla Kulla, who stabbed her partner Hussein Mumin in the chest one morning in 2008.
As she was preparing food after a night of drinking, Kulla Kulla said Mumin threw an oven tray at her and threatened to kill her. When he picked up a knife, she said, she tried to disarm him but the blade plunged into his chest as they struggled. She pleaded guilty to manslaughter and in 2010 was sentenced to six years in prison with a non-parole period of three years.
It is always difficult to know precisely how much a defendant’s history of abuse has been considered at sentencing, but this was the lowest penalty for a woman sentenced for killing an abusive partner in Victoria between 2005 and 2013.
To build a case, Prior had subpoenaed all of the hospitals in Queensland Kulla Kulla had had contact with since she was a child, as well as her child protection and police files, all of which ran to thousands of pages. “It was heinous,” Prior said of the evidence tendered to the court. “Just horrific, eye watering.”
As Justice Betty King recounted, Kulla Kulla had suffered very serious abuse “virtually from the time [she was] born”.
She was removed from her mother as a result of “severe neglect” and went on to be sexually and physically assaulted by men she was in relationships with as a teenager.
When she was 15, and again at 16, she tried to kill herself. At 18, she was hit by a car, and at 19, she was whacked on both sides of her head with a frying pan — the result of domestic violence.
Laying out the cumulative harm of the abuse she had endured, Justice King said Kulla Kulla’s life had been “nothing less than a tragedy”.
“In relation to various men in your life, you seem to have been a consistent victim of domestic abuse. You have been stabbed in the chest. You have been stabbed elsewhere, with a screwdriver. You have been assaulted with a hammer. You have been abducted and beaten with a stock whip, on a very regular basis, by the man who abducted you. You had a star picket crashed into your hand, and every time you escaped from this man, he tracked you down, and took you back.”
The evidence of the abuse, like that of Jody Gore’s, was written on Kulla Kulla’s body, Justice King said. “You have scars all over your body from the various injuries inflicted upon you, by men, over these years.”
In her final remarks, Justice King went on to assert it was a failing of society that Kulla Kulla was allowed to suffer such unthinkable treatment.
“As a community, we should hang our heads in shame. This is not about your Aboriginality, this is about your childhood, which was taken from you, while we, as a society, did not make any of the difficult decisions that may have prevented this terrible harm, that was done to you.”
For Prior, Justice King’s suggestion that Kulla Kulla’s Aboriginality wasn’t a factor was her “only error” in what was otherwise a “high watermark” decision, rarely replicated since. The courts, she says, have still not been able to embrace a nuanced conversation about the impacts of domestic abuse.
Stabbing: ‘Very unladylike behaviour’?
But then arguably neither has the broader community. While there has been a widespread and compelling public debate about family violence over the past few years, surveys show many myths are stubbornly held.
This year’s National Community Attitudes Towards Violence Against Women Survey youth report, for instance, found almost a third of men aged 16-24 agreed many women tend to “exaggerate the problem of male violence”, while 45 per cent felt it was common for women to use sexual assault allegations as a way of “getting back at men”.
Prior believes there is a tenacious, if sometimes unconscious, prejudice against women who use violence. People see it as unpalatable, she said, as “very unladylike behaviour to stab [someone]“.
“At every level of the court system,” she said, you can see flashes of that belief and she wonders, why is it “acceptable behaviour” for a bloke but “outrageous behaviour” when it’s by a woman”?
Carolyn Quadrio agrees. The tell-tale language, she says, is that a woman “gave as good as she got”. She has heard this refrain from medical experts in a trial, as well as from a lawyer in a recent case involving domestic violence where “he was a huge, steroid taking drug addict and she was a tiny woman.”
Patricia Easteal puts it most bluntly: “We have had legislative change but not attitudinal change,” she told ABC News. “We have not seen change in the underlying view that a woman who acts violently … is more evil than a man who does.”
In the meantime, Danielle Tyson believes there are “glimpses of hope”.
There are signs that expert evidence is being used more often in recent cases, while some judges have drawn on a nuanced understanding of family violence in their sentencing remarks. Justice King in particular, Tyson said, “made particularly empathetic comments about the women’s histories of family violence”.
Stella Tarrant, too, agrees there are signs of change, and points to a couple of recent — if rare — acquittals of women charged with murdering their abusive intimates.
One is Sydney woman Jessica Silva, whose manslaughter conviction was quashed in 2016 after the NSW Court of Criminal Appeal found she had stabbed her violent partner to death in self-defence.
Silva’s acquittal, Tarrant said, was evidence of “progress” in the sense that women in previous cases, who may have killed in similar circumstances, will have served time as a result of their homicide convictions, and potentially lost years of their lives.
“That’s what is at stake,” Tarrant said — that’s how “urgent” this problem is for the few women it affects: “It’s the difference between the construction of her defending herself and her being a murderer.”
But what if that’s also what’s at stake for the broader community? It takes a “really confident society”, Tarrant says, to look carefully at the facts in these cases and accept that a woman may have been defending herself against non-imminent harm. A society that is not doing that, she said, is not seeing the extent of the violence that’s happening.
“Until that step is taken, we are actually acting in our criminal justice system as though intimate partner violence is somehow never lethal. We’re not seeing how violent violence against women is: how violent is this violence when it’s against a wife?”
Bri Lee contributed additional research.