Violence and the law

The service most frequently identified as the first point of contact for victims/survivors of family violence or sexual assault is a doctor or hospital. This initial contact is important in a patient’s decision to address the violence. (Refer also to the chapter on the initial response to intimate partner abuse.)

Therefore, when a patient discloses abuse or violence to a health practitioner, including sexual assault and sexual assault between intimate partners, it is valuable for the health practitioner to have a basic understanding of the legal framework.¹ This could include an understanding of protection orders, the role of the police, and knowledge of referral options to community legal services.^3–5

In cases of intimate partner abuse/violence (IPAV) and sexual violence, it is important for the doctor to document clearly and accurately what the patient has said about the assault and a description of any injuries. The medical notes may become evidence in future court proceedings.¹

This chapter outlines legal interventions that may be relevant for the patient where there is disclosure or evidence of family violence or sexual violence. Australian states and territories have differing legislation that may apply to one or all of these types of abuse.

It is important to remember that health professionals do not need to, and should not, provide advice to patients in these legal matters. Providing patients with information and links to appropriate services is important to provide them with avenues to make an informed choice.

Most importantly, GPs should provide the message that the patient’s safety is paramount, and what is happening to them is:

• not their fault
• not acceptable

Patients may make very different choices to those of their GP. It is very important to respect their choices, stay involved, and consider their readiness and needs in relation to legal action.

Facilitating patient reporting of incidents

GPs should encourage their patients to approach the police directly and report an incident of family violence or sexual violence. The police may be able to provide more information about the patient’s legal options. Once the patient has reported the matter to the police, the decision to charge an alleged perpetrator with a criminal offence is a matter for the police. However, once the alleged perpetrator is charged, in most cases the patient’s views will be very important in relation to the police or public prosecutor’s decision to continue or discontinue the criminal proceedings.

GPs should also offer to report the incident to the appropriate authorities, including the police, if the patient wants this.⁴ However, it is important to respect patients’ wishes and not pressure them into making any decisions.³

In sexual assault matters, adults may have an option of reporting an incident but not proceeding with charges. This is important, as they can reinstate the complaint in the future when they feel more confident and able to cope with the situation. It can remain simply as a ‘statement’. This can help to re-empower patients by giving them back some sense of control. A range of services can be made available to a victim/survivor of assault via victim of crime support agencies. These differ in each state and contact can be made via the police (Table 20.2).

Barriers to reporting

Disclosure and formal reporting may not be immediate or may be sporadic or non-linear. Reasons a person will decide to not report or delay reporting family violence or sexual assault to police, services or others include:^6,7

• prevalent social attitudes that blame the victim/survivor and fear of not being believed
• fear of reprisals from the partner and escalation of the violence
• shame or denial
• not wanting family and friends to know because of the humiliation and shame
• fear of coping with police, the justice system and legal procedures
• economic dependence on the perpetrator
• fear of exposing their own illegal activities (eg visa overstay, social security fraud)
• fear of negatively impacting on the family (eg removal of children, dissolution of the relationship, perceived dangerous family law outcomes)
• not having identified the act as sexual violence or a crime or believing it is not serious
• wanting to protect the offender, or hoping for change
• believing they will handle it by themselves.

Sometimes people only partially disclose, then become frightened after they disclose and disclose again later, at another time and place. Sometimes they disclose major incidents – for example, rapes first, and then, with time, other incidents. Sometimes they disclose less serious incidents first and then, with time, more serious incidents.

Referral

Most state and territory police forces have specially trained units that can assist patients by referring them to appropriate services if they do not wish to seek legal interventions or pursue charges against the perpetrator. Sometimes community services may be available to liaise with the police on the patients’ behalf.

The Northern Territory is the only Australian jurisdiction that has mandatory reporting requirements regarding family violence. The provisions are located in the Domestic and Family Violence Act 2007 (Northern Territory). These provisions require that any adult must contact the police where they reasonably believe another person has been, is at risk of or is experiencing serious physical harm through domestic or family violence. This requirement overrides issues of confidentiality.

While reporting is not mandatory in New South Wales, the NSW Department of Health recommends in its Domestic Violence Policy discussion paper that health workers notify the police where the victim/survivor has serious injuries such as broken bones, stab wounds, lacerations or gunshot wounds.

Wherever possible, the patient should be informed when a decision is made to inform the police (refer to Table 20.2).

The most common legal response to family violence is a protection order. These orders are legislated under civil law in each state and territory and have different names (refer to Table 20.3). In some cases, the patient may wish to pursue criminal charges. If someone shares property or has children with the person using IPAV, they may seek family law orders. Patients who have insecure visa status may have certain options under migration legislation.

If your patient has experienced family violence, recommend, if appropriate, that they go to the police or relevant local community services, obtain legal advice or approach the local magistrates’ court for information and referral.

Specially trained police officers can assist victims/survivors to access appropriate services and emergency orders to provide immediate safety. Doctors or patients can seek advice and information from the police on behalf of a patient without disclosing the patient’s name. You can also encourage patients to talk to the police themselves, even if they don’t identify themselves.

Protection orders

The term ‘protection order’ is used in this chapter as a generic term for orders specifically designed to provide protection from future family violence. States and territories have different names for these orders. They are variously called ‘intervention orders’, ‘domestic violence orders’, ‘apprehended domestic violence orders’, or ‘restraining orders’ (refer to Table 20.3). Protection orders may be made by the court and in some emergency cases by the police. Protection orders attempt to restrict or prohibit certain behaviours by the perpetrator. Protection orders may, for example, include prohibiting a person from contacting, harassing or threatening the victim/survivor and/or approaching the victim/survivor’s home or place of employment. The court may also have the power to order that the perpetrator be excluded from the family home.

Details of these orders are different for each state and territory (refer to Table 20.3). However, protection orders may be made to protect a person from future acts of family violence, such as assaults, including sexual assaults; threats and/or harassment by a partner or family member; and actual or threatened damage to property.

It is preferable that a person obtaining a protection order asks for advice about the legislation in their state or territory – what orders are available, and what will afford them the most adequate protection (refer to Resources for links to appropriate sources for such advice).

If the patient decides to report the family violence to the police, the police will be able to provide assistance with and information about protection orders.

Patients do not have to report the family violence to the police to obtain a protection order. Court support services can be very helpful for women who have experienced family violence. These services are offered by local community agencies, and their availability can vary. Often community support services have offices at the local or magistrates’ court.

If necessary, further legal advice should be obtained (refer to Table 20.3). 

Do protection orders make a difference?

Study results vary in relation to the effectiveness of protection orders. Most studies have been conducted in the United States, where protection orders have been associated with:

• reduced police incidents and emergency department visits by the victim/survivors, both during and after an order has expired
• victims/survivors’ being more likely to call the police for family violence incidents that did not involve physical assault
• improved police response to incidents of family violence.⁸

Criminal law responses

When patients decide to report family violence to the police, criminal charges may be laid against the perpetrator of family violence. The police will initially decide whether to charge a perpetrator with a criminal offence, and in making that decision the police will take the patient’s views into account. Where the perpetrator is charged with a criminal offence, the patient will be required to provide a statement to the police and may be required to later give evidence in court.

Family law responses

Patients may have children or share property with the perpetrator. In these circumstances the safety of the patient and children may be strengthened if court orders are made about child contact and property arrangements. Where these issues are relevant, patients should be referred to the Family Court or Family Relationships Online, and encouraged to seek legal advice and information from a lawyer (refer to Table 20.1) or community service.

Immigration law responses

Some patients may have an insecure visa and be concerned that formal reporting of family violence may place them at risk of being deported or not having their visa renewed. Patients who hold partner visas can apply for consideration under the special provisions relating to family violence under the Migration Regulations 1994 (Cth). Under these provisions, the patient may be eligible for a visa.

Where visa issues are relevant, patients should be referred to the Australian Government Department of Home Affairs and encouraged to seek legal advice and information from a lawyer (refer to Table 20.1) or a community service.

Refer also to the chapter on working with migrant and refugee communities.

Legal systems abuse

Perpetrators of family violence might use a range of litigation tactics to gain an advantage over or to harass, intimidate, discredit or otherwise control the other party.⁹ This may involve, for example, making false reports to police or other services, commencing litigation simply to harass or intimidate the other person or extending litigation unnecessarily. Increasingly, the misuse of the legal systems in this way is recognised as an extension of family violence.

If a patient reports this experience, they should be encouraged to seek legal advice and information from a lawyer or a community service (refer to Table 20.1).

Further information is available on the National Domestic and Family Violence Bench Book.

It is useful for GPs to be aware of other services and service providers in the local area for both themselves and their patients. These may include counselling services, the police, sexual assault services dealing with the collection of forensic evidence, local hospitals and local courts.¹

No matter how long ago the sexual assault happened, a victim/survivor can, and may wish to, contact the police. There is no ‘statute of limitations’ for sexual assault. In the event that a victim/survivor does want to contact police, they can contact any police station, and arrangements will be made for a trained police officer to contact the victim/survivor. Most Australian states and territories have specialised crime units that deal with sexual assault issues.

A physical examination is best performed as soon as possible after the patient presents. Delay may result in:

• lost therapeutic opportunities (eg provision of emergency contraception)
• changes to the physical evidence (eg healing of injuries)
• loss of forensic material (eg evidence of contact with the assailant, including blood and semen).

However, victims of sexual assault may not present for treatment for some considerable time after the assault.¹ The chapter on adult sexual assault provides greater detail of the management of patients who have experienced sexual assault, and the World Health Organization has produced guidelines for health workers managing cases of sexual assault.

If the event occurred recently, forensic evidence is best collected as soon as possible and, in particular, in the first 72 hours after the assault. Forensic evidence will be important if the patient decides to go to court about this matter. If you are not trained in the collection of forensic evidence, your patient needs to be referred to a sexual assault service (refer to the Resources section of this chapter and the sexual assault chapter). The implications of, and consent to, the collection of this evidence will need to be discussed with the patient by a professional qualified to do so.¹

Sensitivity in both the discussion and collection of evidence is required in order not to re-victimise the patient. Forensic and medical sexual assault clinicians are qualified to deal with these issues.

There are other advantages to early reporting to the police. Police may be able to collect evidence – for example, from the crime scene, from clothing or sheets, or from CCTV – which would otherwise be lost. In most cases the victim/survivor will later be able to withdraw if they do not wish to continue with criminal proceedings. Many victims/survivors of sexual assault find some satisfaction or meaning in assisting the police gather evidence that may assist in solving other crimes, or in the protection of other potential victims/survivors, even if they themselves choose not to proceed with the court process.

In many Australian states and territories there are specific sexual assault services, often situated at a hospital. A nationwide list can be found at Forensic and Medical Sexual Assault Clinicians Australia (refer to the Resources section of this chapter). Patients can be referred for forensic examination and for counselling services whether they choose to report, or not to report, the assault to police.

If there is the potential for further sexual assault to occur and the perpetrator is not considered to be related to, or in a domestic relationship with, your patient, they may be able to apply for a form of protection order (the name of these orders vary between states and territories). As in cases of family violence, you may direct your patient to go to the police (refer to Table 20.2), relevant local community or legal services (refer to Table 20.1) for assistance or advice.

The Northern Territory requires any adult to report to police if they believe on reasonable grounds that a child has been, is, or is likely to be at risk of a sexual offence or to experience harm or exploitation. In all states and territories, medical practitioners are required to report any assault perpetrated against people under the age of 18 years (16 years in New South Wales and 17 in Victoria).

Each Australian state and territory has different legislation regarding what must be reported by whom (refer to Table 9.5, Chapter 9: Child abuse and neglect). When in doubt, it is always best to check with your medical defence organisation or with the reporting agency, initially without mentioning the child’s name.

The Northern Territory is the only Australian jurisdiction that has mandatory reporting requirements regarding family violence. The provisions are located in the Domestic and Family Violence Act 2007 (Northern Territory). These provisions require that any adult must contact the police where they reasonably believe another person has been, is at risk of or is experiencing, serious physical harm through domestic or family violence. This requirement overrides issues of confidentiality.

While there is no mandatory framework requiring GPs to report adult abuse, except in the Northern Territory, it may be the case that a patient is exposed to abuse or violence threatening their safety.

In the case of suspected abuse where the patient has lost capacity to make decisions in their own best interests, the first step is to check the patient’s record to identify if a substitute decision maker has been appointed. If not, or if that person is the suspected abuser, you need to contact the public guardian, public advocate or appropriate body in your own state or territory – if it is considered necessary or desirable to safeguard the patient’s wellbeing.

If a patient has capacity, patient consent may be sought to enlist the support of the public guardian, public advocate or similar person to protect them or to remove them from threatened risk.

In circumstances where you reasonably believe there is an imminent threat of harm to the patient, you can call the police without contravening any privacy principles. The more vulnerable the patient (eg if they are elderly), the more important it may be for the doctor to inform the police or seek medico-legal advice.

Table 20.4 lists government websites that are useful reference points for GPs, or family members of the patient who is incapacitated and qualifies for assistance of the public guardian, public advocate or similar person. The RACGP has more information about guardians and advance care directives.

If you consider it professionally appropriate to take steps to assist a patient through the appointment of a public advocate or public guardian, it may be desirable first to seek professional advice, without identifying the patient, to ensure that their situation falls within the jurisdiction of the relevant public advocate or public guardian.

If deemed appropriate, you can report abuse to a number of different agencies, including the police (refer to Table 20.1), residential aged care facility, and the public advocate or your state or territory equivalent (refer to Table 20.4). Protection orders and sexual assault services may be considered, if appropriate.

This is a true story of a patient’s journey through the legal processes of dealing with IPAV. It helps us to understand the stress that can be experienced as women negotiate such a journey.

This story started in the mid-1980s as I was preparing to study an arts degree. My husband at first encouraged this, but after marriage he decided it was unnecessary for me to study. The first physical violence occurred within six months of the marriage, around the issue of my studying. I was shocked and confused when he first hit me. I didn’t tell anyone. I went to the doctor because I was tired and unwell and he prescribed antidepressants.

My husband was very critical of my using antidepressants and insisted that I cancel my driver’s licence and stopped me spending time with family and friends.

We moved away from Sydney and bought an old house, which I was primarily responsible for renovating. My health became worse. I became more isolated. I had arranged a visit to Europe, which my husband did everything in his power to prevent. It was a time when I could reflect on my life, my health improved and I met a family who were very supportive. They recognised that things were not right and encouraged me to talk. Meanwhile, my husband was demanding my return and achieved this by reporting my Visa card stolen. It was cancelled and I had no access to funds.

I arrived home with not a friend anywhere. My husband had turned my family and friends against me. He insisted I write to my friends overseas and cut off contact. They were alerted by this and wrote to my family. My husband continued to abuse me, ranting that I was selfish and ungrateful. He accused me of being lazy and careless and criticised everything I did. He also accused me of having affairs. He kept knives in his bedside table and I was totally intimidated. I couldn’t sleep at night – I only slept two to three hours a day when he was out of the house. I lost weight and started smoking.

The letter to my family alerted them and I was able to explain things to my parents and break my husband’s hold on them. I began to see a counsellor, Karen, who would prove to be very helpful to me.

Why didn’t I leave earlier?

The only way for women to leave domestic violence is to leave the house. When people say: ‘Why don’t you leave?’ I ask them how would they feel if tomorrow morning they were to walk out of their home, leaving everything behind and in the evening they would not come back or the next night or ever again. Just leave everything behind and try to find a new life.

To walk out into the unknown is very hard for someone who has lost all confidence and belief in themselves. It’s hard to believe you can manage alone. Also, there is the terrible fear of the husband and what may happen if he catches up with you. Some women not only have to leave, but also have to go far away to be safe. I had to go to Darwin. The logistics can be very daunting.

I was slowly helped, so that I was able to go to a solicitor for advice, make a plan to leave, go to a distant place for safety and arrange for an apprehended domestic violence order (ADVO).

This is only a very small part of the story as it has involved divorce, trying through the Family Court to get a settlement and slowly, very slowly, rebuilding my life. The most difficult times were going to court for the ADVO (I could not have done this without a court support worker), and the meetings at the Family Court where they tried to force me to be in the same room with my husband. The lawyer insisted that we be kept separate as there was an ADVO and it was not possible for any negotiations with my husband. It is as if my husband has been able to continue his abuse through the court system.

Why have I told my story?

I do it in the hope that it will enable you to understand what may be going on behind closed doors; why it is so hard to leave; how intimidated and exhausted one can become; how leaving needs to be planned and carefully done; and how leaving is only the beginning of much more that needs to be organised.

I appreciate the support I have had from my counsellor, family and doctors. I hope to prevent this happening to other women.

• When she talks to you about the violence – a toolkit for GPs on domestic violence, Women’s Legal Service NSW, 2019.
• National Domestic and Family Violence Bench Book – a website that includes information about the law and family violence, Australasian Institute of Judicial Administration, 2021.