White Book

Chapter 13

Violence and the law

Key messages

  • Health practitioners are responsible for medical care, not legal advice, but they need to have an understanding of the legal issues around family violence and sexual assault 246
  • Assault occurring between family members is a criminal offence 246
  • Health practitioners should document any physical injuries and specific descriptions of violence, but should leave any interpretation of physical and other observations to a suitably qualified expert 246
Table 1

Table 1

Coding scheme used for levels of evidence and grades of recommendation 

Recommendation
Health practitioners can assist their patients experiencing abuse and violence by providing information on legal options and access to legal services

Recommendation
In cases of recent sexual assault, if you are not trained in the collection of forensic evidence, your patient needs to be referred to a sexual assault service

This chapter provides a general overview of the role of the law regarding family violence and issues to consider when a patient presents as the victim of sexual assault. The information in this section is not legal advice. This information may be useful as a resource to guide and to empower our patients in considering realistic options of legal protection for their own safety. If a patient expresses an interest, the contact references may be passed on to them. They need to take responsibility for their own legal issues.

When a patient discloses family violence, including sexual assault and sexual assault between intimate partners, it is valuable for the GP to have a basic understanding of the legal framework.246 This could include an understanding of family violence orders, the role of the police, and knowledge of referral options to community legal services.3,312,313 In cases of assault 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 potential criminal court proceedings.246

This chapter outlines responses to family violence and sexual assault involving legal intervention. However, Australian states and territories have differing legislation that may apply to one or all of these types of abuse. Legal responses to violence are not the domain of general practice.

GPs should encourage their patients to approach the police directly and report an assault. The police may be able to provide more information about the patient’s legal options. In many cases the patient, having reported to the police, will be able to activate or withdraw from criminal proceedings at a later stage. GPs should also offer to report the incident to the appropriate authorities, including the police, if the patient wants this.3 However, it is important to respect their wishes and not pressure them into making any decisions.312

In sexual assault, for adults there may be 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. Further to this, a number of counselling services can be made available to a victim of assault via victim of crime support agencies. These differ in each state and contact can be made via the police (refer to Table 18 ).

There may be a range of reasons that patients may not wish to involve the police, such as fear of retribution, the event having occurred sometime in the past, or embarrassment. In particular, barriers to disclosing sexual violence include women not having identified the act as sexual violence or a crime, thinking that they will not be believed, fearing how they will be treated by the criminal justice system, and considering that they may be able to handle it themselves.

Delay in reporting an offence to the police can be for a number of other reasons including:27

  • fear of reprisals from the partner
  • not wanting family and friends to know because of the humiliation and shame
  • fear of coping with police, the justice system and legal procedures
  • shame and prevalent social attitudes, which blame the victim
  • denial and disbelief
  • hope for change.

Thus, there are many reasons, outlined above, why disclosure is not immediate and is often sporadic or non linear. It has been called the ‘dance of disclosure’ – where women reveal only partially, become frightened after they disclose and disappear for some time, then disclose at another time and place. Sometimes they disclose major incidents – for example, rapes first then, with time, other incidents.

Most state and territory police forces have specially trained units that can still assist patients in referring them to appropriate services if they do not wish to seek a protection order or pursue charges against the perpetrator. Alternatively, local community services may liaise with the police on the patients’ behalf.

The NSW Department of Health recommends in its Domestic Violence Policy discussion paper that health workers notify the police where the survivor has serious injuries such as broken bones, stab wounds, lacerations or gunshot wounds. Wherever possible, the victim should be informed when a decision is made to inform the police.314

Police assault and family violence investigation teams/units in each state or territory
ACT
New South Wales
Northern Territory
Queensland adult assult
Queensland domestic violence
South Australia
Tasmania
Western Australia
Victoria

Generally the law can address family violence in two ways: family violence orders that are legislated under civil law, and criminal charges. The term ‘family violence order’ is used in this chapter as a generic term for those orders specifically for family violence, though some states may have different names for these. Some states may use one form of order to cover both instances of family violence and assault. These can be called ‘intervention orders’, ‘protection orders’ or ‘restraining orders’. See below for more detail on what such orders can do.

If your patient is a victim of 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 services assisting in family violence orders.

Specially trained police officers can assist victims 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 – patients may be helped by meeting with a trained police officer directly (refer to Resources).

Family violence and protection orders

These orders, which are made by the court and in some emergency cases the police, attempt to restrict or prohibit certain behaviours by the perpetrator. Orders may, for example, include prohibiting a person from harassing or threatening the survivor and/or approaching the victim’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 (Table 19). However, restraining orders may relate to:

  • recent assaults, threats and/or harassment by a partner, family member, friend or stranger where the person is fearful of it happening in the future – especially death threats
  • actual or threatened damage to property.

It is preferable that a person obtaining a restraining 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).

It is beyond the scope of this manual to advise GPs in relation to the law in each state and territory. At the same time a complaint about criminal conduct is made to the police, their assistance should be sought and, if necessary, further legal advice obtained.

Court support services can be very helpful for women who have experienced family violence. Availability of these services can vary, and are offered by local community agencies. They may also be accessed at the magistrates’ court and the police may be able to provide further information.

Please note that in the Northern Territory, mandatory reporting provisions in the Domestic and Family Violence Act 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.

Family violence and protection orders

Australian Capital Territory

In the ACT, it is necessary to apply for a domestic violence order or personal protection order through the Magistrates’ Court. For assistance, patients can go to the Legal Aid Domestic Violence and Personal Protection Orders Unit located at the Court.
Further information is available at:

New South Wales

The patient or the police on their behalf can apply for either an ADVO or an apprehended personal violence order (APVO), where the people involved are not related and do not have a domestic relationship, for example, they are neighbours or work together.
Further information is available under the topic ‘domestic violence’ at:

Northern Territory

The Domestic and Family Violence Act enforces mandatory reporting to police by all adults who reasonably believe someone has been, is at risk of or is experiencing serious physical harm through family or domestic violence. The patient, someone on their behalf with their consent, or the police, can apply to the court for a domestic violence order. If the violence is being committed by someone who is not in a family or domestic relationship with the patient, the patient can apply for a personal violence restraining order.
Further information is available at:

Queensland

The patient or the police or an authorised person such as a friend, relative or community work (on the patient’s behalf) can apply for a domestic violence order (protection order). This covers intimate personal relationships, family relationships and informal care relationship (where one person relies on another for daily living).
Further information is available at:

South Australia

Police, on behalf of the patient, can either issue an intervention order if grounds to do so and the perpetrator is present or in custody, or they can apply to the courts. A patient, or someone on their behalf, may also apply for an intervention order to the courts directly.

An interim intervention order may initially be issued, after which it may be confirmed by the magistrates’ court.

Further information is available at:

Tasmania

Patients can seek a family violence order (FVO) or restraining order with assistance from the police, legal aid commission or court support and liaison service.
More information is available at:

Western Australia

For cases of both domestic or family violence and assault, patients can apply for a restraining order at the Magistrates’ Court, or the police may be able to do this on the patient’s behalf. The police can also impose a police order, which is a temporary form of restraining order that can be put in place while the restraining order is applied for through the courts.
Further information is available at:

Victoria

There are two types of intervention order in Victoria. A patient may apply for a family violence intervention order or a personal safety intervention order where the perpetrator is not a family member. The Magistrates’ Court of Victoria provides useful information about taking out these intervention orders at:

Victoria Legal Aid has booklets available for download regarding the law and sexual assault or family violence on its website. There is also further information about both types of intervention orders, available at:

It is useful for GPs to become aware of other services and service providers in the 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.246

No matter how long ago the sexual assault happened, a victim can, and may wish to, contact the police. There is no ‘statute of limitations’ for sexual assault. In the event that they do, they can contact any police station, which will, in turn, arrange for a trained officer to contact the victim. Most Australian states 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 – for example, provision of emergency contraception
  • changes to the physical evidence – for example, healing of injuries
  • loss of forensic material – for example, evidence of contact with the assailant, including blood and semen.246

However, victims of sexual assault may not present for treatment for some considerable time after the assault.246 Chapter 9  provides greater detail of the management of patients who have experienced sexual assault and the WHO 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 Resources and Chapter 9 ). 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.246Sensitivity 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 from the crime scene, from clothing or sheets, or for example from CCTV, which would otherwise be lost. In most cases the victim will later be able to withdraw if she does not wish to continue with criminal proceedings. Many victims 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, even if they themselves choose not to proceed with the court process.

In many Australian states 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 Resources). 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, relevant local community or legal services to get 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 other states and territories, all 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 10, Chapter 6 ). 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.

There is no mandatory framework requiring GPs to report adult abuse, except in the Northern Territory. However, it may be the case that a patient is exposed to abuse or violence threatening his or her safety. If a patient has lost capacity, and is unable to make decisions in his or her own best interests, the assistance of a substitute decision maker may be required.

In the case of suspected abuse where the patient has lost capacity, the first step is to check the patient’s record to identify if a substitute decision maker has already been appointed. If there is no clear indication of the existence of a substitute decision maker, 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 – for example, if they are elderly – the more important it may be for the doctor to inform the police or seek medico-legal advice.

Table 20 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.

Advocacy groups in each state

Victoria
New South Wales
Western Australia
South Australia
Queensland
Australian Capital Territory
Northern Territory
Tasmania
National
 

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 in order 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, RACF and the public advocate or your state or territory equivalent (refer to Tables 18 and 20). Protection orders and sexual assault services may be considered, if appropriate.

The service most frequently identified as the first point of contact for victims of assault is a doctor or hospital. This initial contact is important in a patient’s decision to address the violence. It is important for GPs to understand the legal frameworks of abuse. Remember that GPs do not need to, and should not, provide advice to patients in these legal matters. That said, providing patients with information and links to appropriate services is important, as this provides them with the avenues they require to make an informed choice.

It is helpful to be able to provide patients with appropriate medical care, accurate information and referrals. But most importantly, to provide the message that their safety is paramount and that what is happening to them is:

  • not their fault
  • not okay
  • is a crime.

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 to seek legal action ( refer to Chapter 4 ).

Case study

This is a true story of a patient’s journey through the legal processes of dealing with intimate partner abuse. 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 6 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 2 to 3 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.

Resources

Please refer to Appendix 7 for resources nationally and in your area.

Further information

When she talks to you about the violence is a tool kit for GPs on domestic violence that was developed in NSW.

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