Police-initiated protection orders (safety orders) and their potential impact on women: a discussion document.

• Author: Towns, Alison
• Position: Report

Abstract

Access to protection orders for women experiencing domestic violence has recently been identified as a problem in New Zealand, and ways of addressing this problem are now being developed. Police-initiated protection orders, called safety orders, have been proposed to provide immediate protection to women who experience domestic violence and to overcome some of the evidential difficulties that can arise through representation in the Family Court. This discussion paper was commissioned to provide a review of the literature relating to safety orders. The paper uses a conceptual framework to identify the implicit assumptions associated with safety orders initiated by the police, and then compares these assumptions with the relevant research findings relating to police interventions, the actions women take to protect themselves and the court's responses to breaches of protection orders. Finally, conclusions are drawn about the ongoing need for education of the police and court personnel, and the need for compassionate involvement of women and their advocates in new initiatives. Research is encouraged when new initiatives are under development in this area to detect unintended consequences.

INTRODUCTION

In light of increasing international concern about domestic violence against women by their male partners (Garcia-Moreno et al. 2005), attention is being paid to new interventions that might usefully bypass some of the current problem areas. One such area is access to protection orders. Australia has been experimenting with police-initiated protection orders as a means to provide urgent protection to women who have experienced domestic violence, thereby avoiding the delays associated with protection orders initiated by the women themselves. A similar process is being developed in New Zealand (Ministry of Justice 2008).

This paper was commissioned by the New Zealand National Collective of Independent Women's Refuges to provide an independent review and discussion document on the merits and potential disadvantages of police-initiated protection orders, which will here be called safety orders. The paper begins with a description of domestic violence in the New Zealand context and follows this with a conceptual framework for the review. The paper then discusses some of the implicit assumptions of safety orders and compares these assumptions with the research findings. On the basis of this international and local research, some conclusions are drawn about ways to proceed with such innovations.

THE NEW ZEALAND CONTEXT

Te Rito, the New Zealand Family Violence Prevention Strategy, defines family violence as:

... a broad range of controlling behaviours, commonly of a physical, sexual and/or psychological nature which typically involve fear, intimidation and emotional deprivation. Such violence occurs within a variety of close interpersonal relationships, such as between partners, parents and children. (Ministry of Social Development 2002:8)

Under the Domestic Violence Act 1995 (DVA), domestic violence is defined as violence against a person "by any other person with whom that person is, or has been, in a domestic relationship" (DVA s. 3[1]), where a domestic relationship is defined broadly, and includes having "a close personal relationship" (DVA s. 4). Violence is defined as physical abuse, sexual abuse and psychological abuse, "including but not limited to ... intimidation ... harassment,... damage to property ... threats of physical abuse ... sexual abuse or psychological abuse" (DVA s. 3[2]). Also, see DVA s. 3(5), which covers the situation where a child is caused to witness such violence, or where that child is put at risk of seeing or hearing such violence (DVA s. 3[3]). Note that the clause relating to children exempts victims of domestic violence from causing or allowing children to see such violence (DVA s. 313]).

Typically, domestic violence requiring protection orders in New Zealand is perpetrated against women by a male partner or ex-partner, and violence towards women partners appears to be relatively common in New Zealand, although severe physical or sexual violence is less common. In a large population-based survey, Fanslow and Robinson (2004) found that of 2,674 ever-partnered New Zealand women, 33-39% had experienced physical and/or sexual violence from a male partner at some point in their lifetime, compared to Australian figures of around 20% (Grande et al. 2003, VHS 2004). Severe violence lifetime prevalence in New Zealand was 18.9-23.4% (Fanslow and Robinson 2004). Around a third of New Zealand men admitted to using physical violence against their female partner at some point in their lifetime (Leibrich et al. 1995).

In 2005 the New Zealand Police recorded 62,470 offence and non-offence family violence incidents; 62,615 children and young people aged under 17 years were involved (TAVF 2006). Between 2000 and 2004 54 women were murdered by men through family violence, and three men were murdered by women (TAVF 2006). Although the overall murder rate is declining, murders that are domestically related are not (TAVF 2006); in fact the number of deaths of women due to domestic violence has increased from an average of nine per year in the 10 years to 1987 (Fanslow et al. 1991) to an average of 15 in the years 2000 to 2004, suggesting a real increase (see TAVF 2006). In 2007, 25 of 53 murders were recorded as family violence-related (TAVF 2007). In 2005 Women's Refuge supported 17,212 women and 9,904 children (TAVF 2006). Between 90 and 95% of all applicants for protection orders in New Zealand are women, and most respondents are men (Bartlett 2006, Law Commission 2003).

Protection orders are available in New Zealand under the Domestic Violence Act 1995 (DVA) and are provided through the Family Court, whereas breaches of the Act are enforced through the Criminal Courts. Protection orders offer protection to both the applicant and the children from physical, emotional and/or sexual violence (DVA s. 16 and s.19). An application can be sought without notice if there is a risk of harm or undue hardship (DVA s. 13[1]). Without-notice applications provide urgent temporary protection orders, but these orders do not come into effect until served and the orders can be varied prior to coming into effect (DVA s. 46). Courts must take into account the applicant's and children's perceptions of the nature and seriousness of the respondent's behaviour (DVA s. 14[5]). Once served, temporary protection orders may be challenged by the respondent (DVA s. 76). With-notice applications are served if there is no immediate hardship or harm and to allow the respondent to challenge the application. Temporary protection orders are made final after three months if there is no challenge filed after they have been served, or following a defended hearing that finds in favour of the applicant (DVA ss. 77 & 78). The DVA allows for an associate of an abused person to seek a protection order on their behalf (DVA ss. 11 &12).

There are proposals underway to amend the DVA so that it will accommodate police-initiated protection orders more robustly through 72-hour safety orders (Ministry of Justice 2008). The intention is that these orders will provide short-term safety in crisis situations through police removal of the alleged offender where there is no evidence of a criminal offence. The orders will have a no-contact provision and will be available immediately as a "civil law remedy" (Ministry of Justice 2008:3), in contrast to protection orders issued under the DVA, which take some time to be processed through the Family Court. Before a safety order could be issued, the attending officer(s) would be required to conduct a risk assessment and contact an authorising senior officer, who would determine whether "the grounds for the order have been met" (Ministry of Justice 2008:3). The following discussion focuses on the issues that should be considered as part of this development. First, the principles that guide the discussion will be explained.

CONCEPTUAL FRAMEWORK

The whole area of domestic violence against women is complex and filled with traps for those unfamiliar with the territory. A conceptual framework for this discussion will help to provide a structure that will allow at least some Of these traps to be avoided. This paper makes use of Hudson's (2006) suggested principles of justice in guiding the discussion: discursiveness, relationalism and reflectiveness. These principles are consistent with social science knowledge in this area, which acknowledges the importance of language and power to an understanding of the dynamics of domestic violence (Adams et al. 2003, Heise 1998, Pence and Paymar 1993, Ptacek 1988, Towns and Adams 2000, Towns et al. 2003, Towns and Scott 2006).

* The principle of discursiveness refers to the importance of language and the meanings that are given, not only to the ways in which laws are constructed, but also to the ways in which actions taken to enforce those laws may be interpreted. In this review, attention will therefore be paid to the ways battered women are able to speak and be heard when police initiate safety orders, and the messages that actions relating to these orders might convey to women and others.

* The principle of relationalism refers to the importance of relationships, and how comfortable people are to express themselves in those relationships, for understanding the actions people take. In particular, this principle acknowledges that people's reactions will depend on the context they are in: for example, a woman may react differently when with a certain man from the way she may react with others, and people from a population group may react differently when their ethnic group is the minority in a community rather than the majority. This principle "recognizes individuals as embodied in a network of relationships, which include relationships with the community and with...