On ‘survivor-centred’ solutions and mandatory sentencing proposals

Authored by Meghan Joy Fitzgerald, Lawyer, Fitzroy Legal Service
mfitzgerald@fitzroy-legal.org.au

Under the ‘emergency worker’ laws currently proposed, the Andrews government with bipartisan support will mandate imprisonment should a person injure a police officer, protective service worker or emergency health worker acting in performance of their duty. Under the laws ‘injury’ includes temporary pain or psychological suffering.

In case there was any doubt, we are not all equal before the law. A woman or child seriously injured by a man in their home is not equal to a police member injured in the course of duty under the proposed laws. A child or teenager, a person with a mental illness or an acquired brain injury, an elderly person with a disability, a homeless person vulnerable 24 hours a day to ‘the elements’, who is seriously injured by assault is not equal to a police member or protective services officers under the proposed laws. For these victims, ordinary laws apply, though we would hope and expect that their vulnerability or ‘exposure’ to harm will be a factor in sentencing.

Why are we in this position? Snap shot reporting of judge’s deliberations deliberately gloss over complex circumstances such as childhood rape, institutional abuse, family violence, intensive rehabilitation, recovery, hope. A Royal Commission into Family Violence, and a Royal Commission into Institutional Abuse in Care, and here we stand, having evolved in our understanding, at least politically, exactly nowhere. The line between victims and offenders is sometimes clear, sometimes extremely grey, and we know that the kinds of violence that disproportionately affect women and children are rarely prosecuted, even when reported, or able to ‘stand up’ in Court. Weighing deterrence, community safety, punishment, rehabilitation, as well as applying the law – these are weighty duties, and games of political football show deep ignorance of the burden of accountability carried by judges on behalf of us all.

Public debate on whether politicians instead of judges should be in charge of sentencing has been strategically dominated by the risks to emergency health workers. As a community sector worker, we stand with them in demanding better workplace supports, and commend government investment in safety training for Victorian ambulance workers, which for them has resulted in a 38% reduction in assaults over the 2016/2017 reporting period.

The concerns of emergency health workers are felt keenly by thousands of frontline workers in the community sector that also work day in day out with people in residential care, family violence shelters, homelessness services, community health services, and community legal centres. Our patients/ clients often have complex health concerns and have experienced extreme trauma and violence.  Navigating community safety, workplace safety and crisis incidents is a complex process and one we know too well.

We rely on emergency health workers and police to de-escalate emergencies, to facilitate appropriate care and support to individuals, and to meet our responsibilities to keep our workplaces and the community more broadly safe. We will now face the impossible decision whether to call on emergency workers and risk for our clients a six month jail sentence, or struggle along and continue to under-report incidents of risk and harm in the workplace, in much the same way emergency health workers have been prone to under report because of compassion for their patients.  

The ‘decisive’ consultation process for these new laws involved two male union leaders and the Premier. Peak bodies of a sector vastly dominated by women, that just may have had a vital contribution to make in developing a plan for a safer community for all – for example, services working with family violence victims, Aboriginal communities, young people (‘the future’), people diagnosed with mental illnesses and acquired brain injuries, drug and alcohol dependence, homeless communities, survivors of childhood incest and sexual abuse – were excluded completely and remain unheard. 

Through our experience, we already know these laws will impact calls to OOO. Families caring for a loved one with mental illness are already changing their behaviours and managing dangerous medical emergencies alone. Already women routinely express fear that their partner or ex may be ‘locked up’ and exact retribution if they call on police. We know women are conditioned to take responsibility for male violence, and face economic insecurity, homelessness, removal of children, community exclusion, and more violence, when they can’t ‘manage’ violence in the home the ‘right’ way. Decades of work to help peers, families, and support staff collaborate with emergency workers to reduce deaths by overdose, and no consideration whatsoever it seems on why OOO needs to be seen by the public as a safe option for a loved one, or indeed a stranger.

The same communities we serve are those that are most likely to have more interactions with ‘emergency workers’. They already dominate our prisons, and are known to be the most likely to be further impacted by ‘mandatory sentencing’, along with first time offenders of course. 42 per cent of male prisoners and 33 per cent of female prisoners have been assessed as having an acquired brain injury.[1]  Prisoners are 10 to 15 times more likely to have a psychotic disorder.[2] Waiting times to make assessments of such conditions, which may be relevant to narrow exemptions under the new laws, sit between 6 and 8 weeks and are likely to be spent in remand. And that is before a flooded justice system is even able to set a hearing date. Some pretty key stakeholders missed the memo on this one it appears.

So where are we heading, and where does the government want to drop our money? Most recent government crime statistics show almost 3,000 assaults on emergency workers (including police and protected services officers). This must be compared to almost 22,000 family violence assault and related offences, almost 13,000 reports of sexual offences, and to the 75,000 police attendances for ‘family incidents’ where a police risk assessment and risk management report has been made.[3] According to government data, domestic violence is the leading contributor to death, disability and illness in Victorian women aged between 15 and 44 years; 34% of women have experienced physical violence since the age of 15, and 19% of women have experienced sexual violence; 89% of reported rape victims are women and girls; most incidents of homicide are domestic homicides involving the death of a family member; intimate partner homicides represent 60% of the134 domestic homicides in Australia; 78% of the victims are women.[4]

Does it seem strange then, that I do not accept that, as a woman, I am less ‘exposed’ to violence than a trained and armed police member. As a mother, does it seem irrational that I especially do not accept that my daughter is less ‘exposed’ to assault and injury than a trained and armed police member or protective services officer. As a community lawyer working in the criminal justice system, is it surprising that I think all people deserve to be protected from violence, and that the specific vulnerability of women and children to physical and sexual violence should have been at the forefront of consultation and decision making. We may not seek to prosecute it. We may not even seek to report it. But when we are specifically told by government that we are not equal, when women’s vast experience of violence is not even considered, and when we as community workers, in a highly gendered sector, trying to make our communities kinder, safer, more just, equal, fair, are ignored or silenced in our deep knowledge of violence, we hear the message loud and clear. Now we ask that you listen to us. Invest in community, prevention, housing, mental health, education, change, healing, opportunities, safety. Invest in us, invest in women.

 

Case study of Mandatory Sentencing in Action

TM was the mother of a 10 month old child and was assaulted by the child’s father, MB, on a public street. During the assault TM suffered serious injuries and was left naked and wrapped in a sheet. After arrival, officers attempted to prevent TM from departing the scene with her father at which point TM spat at the officer’s direction. It is reported that officers at the scene assumed that TM’s behaviour was a result of illicit substance use and not as a result of being the victim of a serious assault. Officers then attempted to arrest TM for the spitting at which point the interactions are reported to have become violent. Additional officers were then called to the scene and TM was taken to the local hospital for assessment. She was taken to hospital for a mental health assessment and medical assistance. In translation between members, the matter was not treated as a domestic violence incident. TM was breath tested at the hospital and it remained the case that attending officers did not suspect it was a domestic violence incident. It seems there was a failure also in the Emergency Department communicating to police that TM had reported she had been assaulted. The Western Australia Corruption and Crime Commission found that little effort was made to find the perpetrator MB and that police ‘failed to deal with TM as the victim of an assault’. TM was charged with assault police. During the time between the initial assault upon TM and subsequent hospitalisation, MB took the child. MB had made threats to kill the child and drove with the child over 900km away. These threats were reported on multiple occasions during the period whilst TM was in hospital. The following day MB sexually assaulted and killed the child. The report states that the day following the initial assault police followed proper procedure. However, had proper procedure been implemented on the night in question, and had the charge of assault police not been the focal point for attending officers, rather than to the TM’s response to injury and assault by MB, the abduction of the child may have been prevented and his life ultimately saved. TM spent some months in hospital recovering from injuries, which included a broken collarbone, broken ribs and a badly damaged spleen and kidney. She was found guilty of assaulting and obstructing police members. She had kicked one police officer and spat at another. TM received a one year suspended sentence and $900 fine. If she had caused ‘bodily harm’ to a police member, she would have had to serve a mandatory sentence of six months imprisonment. In sentencing, Western Australian Magistrate Stephen Sharrat stated: “I just can’t jail her with what she’s gone though. What happened to her made a great deal of difference to the way she reacted to their [the police] presence. Those wounds would have killed her without medical intervention.”[5]

 

One woman’s experience of family violence

Reporting family violence is difficult. My greatest fear was retribution. I didn’t want to be in Court. I didn’t want to have to talk about the violence and multiple daily threats on my life and the life of my child. I didn’t want my ex-partner at the time to get hurt. He was already threatening suicide regularly, had tried one time in  my back alley, and threatened to paint my house with his blood so I would know it was my fault. Apparently that is a form of abuse – threatening self-harm. He was threatening to kill my dog also. Apparently that happens a lot too. People told me to go into hiding, but I tried to pretend it wasn’t happening and keep up a positive face in front of my kid. I didn’t want to be beaten into submission, and I didn’t her to feel the danger. Now I know it damaged her. But I did my best at the time.  

He was a weak and broken person. He himself had been subjected to terrible violence as a child, and was experiencing extreme psychosis brought on first by severe trauma and then by drug abuse. I wanted the violence to stop but I didn’t trust the police to help me. My car was rammed three times by his four wheel drive in front of me and my child. I didn’t call the police. I did call two friends at two in the morning. The next day he was enraged because I had told people about what had happened before he knew what had happened.

I didn’t want to go to court and I didn’t want to be judged myself. I felt like it was my fault, even though now I can see it obviously wasn’t. I also knew he could kill us and might not even know he had done it until after the fact. That’s how unwell he was. When I did finally go to court, they read out loud a selection of the abusive text messages I had been sent calling me a slut, a whore. The magistrate asked me why I had waited so long. When I said it was because I was afraid, he granted me an interim order. It was never served. The police called him once, but because he had no fixed address that was the end of it. I never got my order and the police never served him.

If he had been served and had lashed out at the police officer and then been put in prison I would have felt like it was my fault, and I would have been ostracised by his family and by the community. I don’t think I could have coped. It took me a very long time before I didn’t care what happened to him, but even then I don’t think I could have worn a prison sentence for him. 

I don’t know why this happens to women, I believe we are conditioned to take responsibility for male violence, and to believe it is our own fault. It does get reinforced all the time. Why did you choose him? Why did you put up with it? Sadly nothing in the way I was treated by people and the courts changed the way I felt and still feel today.

I believe the government needs to consider all the different ways women struggle to deal with family violence, especially when we have kids. When the government passes laws that affect the safety of women and children – they should talk to us and learn how those laws will affect us. The government should listen to us about the challenges we already have to report violence we are experiencing from someone we know well and have or have had an intimate relationship with.

When the government doesn’t consider what it means to a woman to threaten mandatory imprisonment if something goes wrong when we call you, it reinforces what we already feel and know, that men call the shots, that male power is the decider, and that when a man suffers harm, a woman must suffer worse harm. And when you tell us through your actions to take on more blame and shame than we already do, or that violence against and our kids is not important or ‘real’ violence, you know what, I’ve heard it before and I’m not listening to you anymore. I hope others will stand with me with the pride that we have survived.

 

 

[1] Martin Jackson, Glen Hardy, Peter Persson and Shasta Holland ‘Acquired Brain Injury in the Victorian Prison System’ (Corrections Research Paper Series Paper No 04, Department of Justice, Government of Victoria, April 2011) 22.

[2] Victoria, Victorian Ombudsman Investigation into the Rehabilitation and Reintegration of Prisoners in Victoria, Parl Paper No 94 (2015) 181.

[3] https://www.crimestatistics.vic.gov.au/

[4] http://whv.org.au/publications-resources/health-data/women-s-health-data-violence-against-women/

[5] Calla Wahlquist, ‘Court 'shows mercy' to injured mother of murdered baby who assaulted police’, The Guardian (online), 23 October 2015; Corruption and Crime Commission, Report on the Response of WA Police to a Particular Incident of Domestic Violence on 19-20 March 2013 (21 April 2016)