Family violence – Criminal justice experts united in desire for change

Recently, Law News was invited to attend a Criminal Justice Forum hosted by the Auckland Women Lawyers’ Association (AWLA).

Family Violence

Prompted by the Government’s release of public discussion document “Strengthening New Zealand’s legislative response to family violence” last year, AWLA assembled leaders from different areas of the criminal justice sector to share their opinions and experiences on how to address this multi-dimensional problem.

The impressive panel of speakers at the forum comprised Manukau Crown Solicitor Natalie Walker, Chief District Court Judge Jan-Marie Doogue, newly-appointed Solicitor-General Una Jagose, Police Superintendent Tusha Penny, Labour MP Jacinda Ardern and entrepreneur and founder of “Reclaim Another Woman” (or “RAW”) Annah Stretton, with barrister Anita Killeen acting as Chair.

Panellists spoke to the topic from various perspectives – be it prosecutorial, judicial, policy, police, or social justice – and touched on proposed legislative changes, the approach of the courts, and new initiatives targeting domestic violence.

“The ambulance at the bottom of the cliff”

The first speaker of the evening was Natalie Walker, Crown Solicitor for Manukau. Speaking from the point of view of someone whose office has around 500 prosecutions on the go at any given time, with about half of those involving family violence, she stressed that she is “not so naive as to think that prosecution is the solution to this problem”, and considers we need a “wider focus”.

“Prosecutors are the ambulance at the bottom of the cliff. Convictions don’t solve the underlying problem of family violence. Family violence offenders frequently reoffend when they come out … and these are just the cases where the prosecution has succeeded.”

Ms Walker commented on some of the legislative reforms recently proposed by the Law Commission, including generic family violence, coercive control and non-fatal strangulation offences. While conscious that she was being a bit “nit-picky”, she considers that such newly- created offences could be “uneasy bedfellows” with successful prosecutions. For example, she is “unconvinced” that a generic family violence offence would be better than charging offenders with the offences we already have. Similarly, while she agrees that there may be a gap in our law which an offence of coercive control or psychological abuse might address, this will be a “difficult offence to prove”. It may be better in such cases to continue with the basic “male assaults female” offence but to improve evidence collection, she suggests.

While she thinks that there is “a lot to commend” in the proposed offence non-fatal strangulation, and agrees that it is a “big red flag”, she again cautions this offence could be extremely difficult to prove if the physical evidence is lacking. Prosecutors would have a make a call about whether to bring a vulnerable witness to court and make them go through a “he said, she said” situation. “I’m not saying it’s not worth enacting, just that it is not without problems,” she said.

Ms Walker is also in favour of case files with a specific family violence-coding system. So, where family violence was an underlying factor in another offence (for example, a property offence which included smashing up an ex-partner’s belongings, or a burglary which involved sneaking into an ex-partner’s house at night), an annotation such as “FV” could be made to the file. This would be very helpful in creating a bigger picture around a history of family violence.

“So many of these cases suffer due to lack of resourcing – a statement on the night (signed if you’re lucky) might be all the evidence you’ve got. Often, it is not until we meet the complainant a week before the trial that we really understand what has gone on in the background.”

Ultimately, rather than simply trying to “legislate our way out of” domestic violence problems, Ms Walker thinks a more profitable avenue for change may be to increase resourcing for education and protection strategies, for young people and adults, victims and offenders. She commended the positive work being done by the “Gandhi Nivas” domestic violence safe house in Otahuhu, which was set up in response to disturbing family violence statistics amongst South Asian communities there. Instead of forcing women and children to seek refuge elsewhere following a domestic violence call-out, the scheme sees the offending man removed to a safe house by police, thereby avoiding the stigma of admitting to problems and enabling him to receive free counselling at the same time. Reports indicate lowered re-offending amongst participants, leading to hopes the programme could be rolled out elsewhere.

Courts are hearing the message “loud and clear”

Next to share her perspective was the Chief District Court Judge Jan-Marie Doogue. Her Honour spoke about the impact of family violence on the work of District and Family Courts, which deal with the bulk of family violence prosecutions in this country.

“No one is more cognisant of the problem than the judges of the District Court; you don’t need to convince them that things must change,” her Honour said. “The level of violence has marred our international reputation – it’s a blight on our people, on our nation, and on our children. The challenge in this area is translating that wealth of knowledge into effective policy and proactive measures.”

Given that the principle of “do no harm” has been “utterly absent” in the lives of many of those coming before the courts, the justice system should aim to not inflict any further harm on those passing through it. However, it seems that the District Court judges have heard “loud and clear” the message that this has not always been the case for some victims, and the Chief Judge drew attention to some of the new approaches judges are trialling to better deal with these types of cases.

One example is the “judge’s information pack”, which includes relevant flags on family violence records, protection orders, breaches of orders, etc. These are being piloted amongst judges and police in Christchurch and Porirua under the leadership of his Honour Judge John Walker and Police Superintendent Tusha Penny.

Another initiative led by his Honour Judge Duncan Harvey in Whangarei has focussed on reducing the stressful impact of giving evidence on young children. Rooms where child witnesses testify via video-link have been made more child-friendly (with beanbags and toys, etc.), and children are not being made to wait around at court all day but are only brought in shortly before they have to testify. Children are also now getting the chance to meet the judge and counsel in advance. Feedback has been very positive, with both the confidence of the children and the quality of their evidence improving.

There is also an increased emphasis on judicial education. Every District Court judge in the country recently attended a three-day conference led by Superintendent Penny and new judges are being put through intensive education on family violence, with ongoing regular updates.

The challenge in addressing this “seemingly intractable problem” is that it has “multidimensional causes”, said her Honour. “Like Medusa’s hair, it can look like it is near impossible to untangle. However, this is not an excuse to be defeatist – we are committed to better understanding the complex dynamics of these cases, and we can make a critical difference.”

“Giving new initiatives a go”

“Our statistics on family violence are appalling,” said recently-appointed Solicitor-General Una Jagose. With oversight responsibility for the conduct of public prosecutions, Ms Jagose appeared keenly aware of her role in innovating, educating and assisting in fighting this “scourge”.

While holding offenders to account through high quality prosecutions is key, Ms Jagose agreed with the Chief Judge that the court system needs to make things “not worse” for victims of family violence, and said the changes being made by judges are “very much part of that”. She paid tribute to those victims who go through the criminal justice process and “help us identify levers for change in this challenge”.

“The justice sector has a key part to play in promoting a safer society, reducing harm and violence, and improving the provision of justice system services,” she said. “We need to be able to trust our courts and court processes, and this means that you can’t rush or risk botching these kinds of proceedings.”

Ms Jagose touched on the removal of the partial defence of provocation in 2007, noting the concerns this had caused for women who have offended in the context of abusive relationships. She wondered whether some kind of new partial defence might be appropriate in the context of ongoing family violence, but noted difficulties around questions of “reasonable force”, the woman’s perception of the circumstances and concepts of imminence, proportionality and lack of alternatives.

“Imminence is hard to reconcile with what we now know of the ongoing dynamics of an abusive relationship. The concept wrongly assumes that a delayed threat is avoidable, which is not always the case in family violence situations.”

Her concluding remarks echoed the sentiments of other speakers – that a multi-faceted approach is necessary to make any kind of dent in the problems being tackled:

“Change is not only about legislative change and prosecutions – we need to educate and innovate, and look at policies and programmes so that we can grow the justice system into something more user-friendly. Obviously, any initiatives need to be based in evidence, but we need to give some of them a go.”

Understanding “the why”

Superintendent Tusha Penny was an inspirational example of someone at the sharp end of the fight against domestic violence. Currently the National Manager, Prevention, for the New Zealand Police, she has dedicated much of her 24-year career to tackling the worst kinds of cases most of us can imagine, and her energy and passion for change were apparent in every word.

“Police walk into people’s nightmares every hour, on the hour, attending calls for help around family harm,” she said. “On the whole, we are a very safe country – just don’t accept an invitation into someone’s home.”

She shared a story from her earliest days on the job, when she held a young mother in her arms as she died after attending a call-out to her house. Children were regrettably present to witness their mother’s injuries and death and, even more tragically, the police “had been through the door of that house multiple times before”.

Superintendent Penny’s mantra is that we need to go behind the problem and ask why it is happening in the first place: “If we’re going to make a dent in this social issue, we have to peel it back and get to the ‘why’. When we ask the ‘why’, and we still get a ‘why’, then we have a real problem. If we don’t get the ‘why’, we will never change the landscape.”

“I’ve stood by the hospital beds of women and heard them say, ‘I just wish he’d done it this time, I wish it was over.’ When I compare this to watching several of my best friends fighting terminal illness and trying to stay alive for the sake of their families, I have to ask, ‘What sort of violence do these mothers experience at home that makes them just want to die?’”

Superintendent Penny also reminded the audience that it is not just about the victims of domestic violence – many perpetrators were probably victims of family violence themselves. We need more of a focus on the perpetrators to break the cycle, she says. “When I talk to all the new recruits at Police College about these issues, I get big guys crying and telling me that this is the entire reason they joined the police – it’s all they ever knew growing up.”

She considers that the police dealing with these problems “are now the best we have ever been” – they are innovating, educating, taking risks and trying new things. For example, in Palmerston North, officers are trialling using mobile devices to conduct and record 10-15 minute interviews in the house of a family violence call-out – then and there before the next-day regrets kick in. The results have been “staggeringly positive”, with better evidence being collected and more offenders pleading guilty as a result.

“We want to change the attitude that you should just give up hope of ever making a difference – instead, every contact should be your best contact. If what we are doing is not good enough if it were one of our own family members who was the victim, then it is not good enough. The very least we can do should be to do the very best we can do.”

The underestimated impact on children

Encouragingly, parties across the political spectrum are working together in the battle against domestic violence in this country, and for MP Jacinda Ardern, Labour’s spokesperson for children and justice, these issues are a top priority.

Her comments at the forum focussed on the often-underestimated impact of family violence on children. “More than 60% of family violence incidents involve children – we tend to focus on women, but they are not just partners, they are also mothers. If you place this kind of stress on a young child too young to talk about it, it does not mean that they are too young to be affected.”

She drew attention to staggeringly high numbers of CYFS notifications where children have been present during a family violence call-out. Her own research of files obtained under the Official Information Act has shown an unnerving correlation between child suicide and family backgrounds of domestic violence. Research also indicates that the single best prediction of a child becoming a perpetrator/victim of domestic violence later in life is whether or not they grew up in a family beset by domestic violence. “We have these massive red flags but I worry that we are doing very little with the information we’re receiving,” she said.

Ms Ardern touched on the need to better support mothers who might be suffering in abusive relationships, rather than placing the onus on them to keep themselves and their children safe. She considers that more use could be made of resources such as Plunket/Tamariki Ora, and that the enforcement and interaction of protection and parenting orders may need to be re-visited.

She also reminded the audience of the importance of looking at perpetrators of domestic violence, not just at their victims: “Long-term change can come if we go back to the very beginning and focus on changing the behaviour of those using violence. We currently exist in a system where it is incredibly difficult to access free support programmes for perpetrators – we need to make these more accessible.”

Making a difference

Rounding out the evening was businesswoman and entrepreneur, Annah Stretton, whose charity “RAW” (which stands for “Reclaim Another Woman”) is making a huge change in the lives of the “invisible demographic” of recidivist female offenders. Inspired by RAW’s maxim “If you can’t help 100 people, then just help one”, a part of the forum’s attendance fees were donated by AWLA to RAW.

If it seems somewhat unusual for a fashion designer to end up working at the coalface of crime and domestic violence – with women from gang backgrounds for whom violence was normal – you only have to hear her speak to realise her passion for helping a sector of society that many have forgotten. “While women’s refuges are ‘working in crisis’, I wondered, ‘Who’s working in change?’” Ms Stretton said. “So I started to think about women’s prisons.”

The RAW pilot involves an “incubation model” whereby women exiting Waikato Women’s Prison on parole come out into a RAW home, where they stay for a year. During that time, they go through a re-education process, with no connections with their past life. “They need to make a break with what has been their ‘normal’,” says Ms Stretton. RAW found that it was crucial to have this kind of fixed time period and structure in order to get women to buy-in and commit to change – otherwise it is too easy for them simply to go back to their old lives.

After a year, the women move on to a second-tier home, before eventually transitioning out to more independence. As part of the programme, the women run a hospice-type charity store which raises funds for RAW, and many are also studying towards university degrees. “I’ve uncovered some delightful surprises, and have been able to break down a lot of the stereotypes and stigmas,” says Ms Stretton.

 So successful has RAW been at breaking the cycle for these women that it is now in talks with corrections and probation staff at Waikato Prison about having its own wing there, where it would work with women on the inside before they come out into one of the incubation houses.

“This is a demographic we’d forgotten about. It’s about looking to change their lives, all about the total outcome. We are bringing the mums back into the family – when the mums start to become functional again, the family does also. I want to get this change for the women, the mums and the children.”

Ms Stretton encouraged everyone to think about what they could do – to find something they are passionate about and do something towards making a change – and her own example is certainly proof that, with enough will, this can be done.

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