The continuing problem of misidentification for family violence victim-survivors

The misidentification of family violence victim-survivors as perpetrators – or “predominant aggressors” – has been a topical issue over the past two years.

As various Australian states – New South Wales, South Australia and, most recently, Queensland – have shown support for the criminalisation of coercive control, some advocates have raised concerns about the potential for new laws to be used against victim-survivors by perpetrators.

However, with or without a new coercive control offence, misidentification is something already happening to women across Australia – particularly those who experience disadvantage and marginalisation, such as First Nations women, migrant and refugee women, and women living with disability.

Read more: The urgent need to address coercive control of women with disability

Misidentification can occur in a range of contexts, but is primarily discussed in a legal context, where victim-survivors are misidentified on civil protection orders (called “family violence interventions orders” in Victoria), or face criminal charges, such as assault or property damage.

Police play a key role in misidentification, as it often occurs when responding officers make an incorrect decision as to who needs protection.

This decision may be influenced by:

• a misinterpretation of a victim-survivor’s use of self-defence

• discriminatory views about the victim-survivor (for reasons such as race, disability, gender, mental health, etc)

• police not obtaining necessary interpreters, and/or the perpetrator’s successful efforts to manipulate the police into believing that they are the person who needs protection.

Misidentification can have significant impacts on a victim-survivor’s access to safety, and can negatively impact other areas of the law that they may be engaged in, such as child protection and family law.

Royal commission’s recommendations to address misidentification

In 2016, the Victorian Royal Commission into Family Violence handed down 227 recommendations. These called for system-wide reforms to better prevent and respond to family violence.

In its report, the commission acknowledged misidentification as an issue in the family violence legal system, and recommended Victoria Police introduce guidelines to the Victoria Police Code of Practice for the Investigation of Family Violence for correctly identifying predominant aggressors (Recommendation 41).

This recommendation has been marked as implemented by the state government. However, research has found misidentification continues in Victoria.

What is the Family Violence Reform Implementation Monitor?

In response to Recommendation 199 of the RCFV, the (independent) Family Violence Reform Implementation Monitor was established to monitor system progress in implementing the 227 RCFV recommendations.

The Implementation Monitor’s job is to track the progress of various systems responsible for implementing recommendations, and report its findings to the Victorian parliament.

The current Implementation Monitor is Jan Shuard PSM, who earlier this year outlined a number of key priority areas, including “accurate identification of the predominant aggressor”.

Yesterday, the Implementation Monitor released its findings of a months-long investigation into relevant workforces’ progress in accurately identifying family violence predominant aggressors, and systems’ ability to “remedy misidentification at the earliest opportunity”.

The Implementation Monitor’s findings

To inform its report, the Implementation Monitor consulted a range of key stakeholders, including family violence victim-survivors, Victoria Police, key system and service professionals, academics, and other relevant stakeholders.

It found that “misidentification continues to occur, and rectification is extremely challenging”.

While the Implementation Monitor acknowledged there’s been improved guidance and policy on how to best accurately identify predominant aggressors, it’s yet to translate into practice.

Those consulted for the report presented varying estimates of misidentification prevalence, ranging from 6.7% to 90% of women respondents/accused parties.

Nevertheless, there was a consensus that misidentification is an extremely significant issue – one that’s occurring far too often.

The report highlighted a number of issues that contribute to misidentification, including a failure of responding officers to adopt trauma-informed, culturally-sensitive and context-driven responses to family violence, which may intersect with individual and structural biases against women and minority cohorts.

Read more: A very personal call to action for non-violent men to denounce men’s violence

Beyond the circumstances in which victim-survivors are misidentified as predominant aggressors, the report also highlighted that there’s limited explicit guidance for police, lawyers, child protection workers and specialist services on how to respond when they believe misidentification has occurred.

Further, these systems also have significant gaps and variances in how they record misidentification. Information-sharing systems were heralded as a key barrier to providing redress.

For example, when a person is listed as a respondent on a Family Violence Intervention Order application, but is later realised to have been misidentified, their status as a “perpetrator” can’t be removed from Victoria Police’s crime database (Law Enforcement Assistance Program). This may negatively influence future interactions with the police, and the data can also be subpoenaed in family law proceedings.

The report made evident that current systems lack direction in this space, and the result of this is victim-survivors either not having the mistake appropriately rectified, or having to jump through complex, costly and time-consuming hoops to do so.

Key recommendations and implications

The Implementation Monitor report outlined 12 proposed actions to improve system responses to misidentification.

These include a revision of police policy and risk assessment processes, a trial of a sector-involved review process where a woman has been determined a predominant aggressor, improved guidance for all relevant actors when misidentification has occurred, and increased legislative power for the court to find that misidentification has occurred.

The Implementation Monitor has called for a whole-of-system response that sees women who are misidentified as predominant aggressors having their own safety needs acknowledged and responded to.

The fact this report was informed by so many key sector stakeholders, including Victoria Police, shows there’s a growing awareness of misidentification in Victoria. It also highlights that the system is ready to respond to it – it now needs the tools to do it.

Read more: ‘If you call 000 ... I will send you back to your country’: How COVID-19 has trapped temporary visa holders

The Implementation Monitor has executed its role well, reminding us that ticking recommendations off a list isn’t enough – we need to monitor the success of these recommendations, and identify areas of further improvement.

The report suggests practical – and, I anticipate, extremely beneficial potential – reforms.

However, it’s important to remember that this sort of systemic change – one that involves a cultural rewiring of our systems, and some of the key actors within them – takes time.

Misidentification, at its core, occurs because women, particularly those from disadvantaged and marginalised backgrounds, are often viewed as less credible and trustworthy than their male counterparts.

While we can improve system responses to misidentification once it’s occurred, it won’t stop happening until society values, respects and acknowledges women’s right to live lives free from violence.

Read the full report here.