Disability and domestic violence: protecting survivors' human rights

Abstract

Survivors with disabilities experience domestic violence both more often and differently to those who do not have a disability. The presence of impairment substantially transforms the medical, psychological, environmental, economic, legal and political factors which contribute to the occurrence of violence. Survivors of domestic violence are often highly dependent on their abuser, fear disclosing abuse and lack economic independence, and these issues may be heightened for a person who also has a disability. Domestic violence is amplified by the existence of impairment when law enforcement and medical bodies construct the survivor and their relationship with the perpetrator through an oppressive disability model. Advances in theory and international disability human rights laws may provide new and powerful avenues to critique how law and practice in Australia responds to disability domestic violence. The United Nations Convention on the Rights of Persons with Disabilities (CRPD) is the first human rights convention to specifically protect survivors with disabilities from domestic violence. In this article, we use critical disability studies and the CRPD to identify limitations with Australia's responses to disability domestic violence.

Acknowledgement

The authors wish to thank Molly Thomas for her research assistance.

Notes

¹ Seddon (1993), Ch 1; Lemon (2001), Ch 1.

² Larcombe and Heath (2012), p 786.

³ Australian Law Reform Commission (2010), see especially Ch 5.

⁴ See, for example, Douglas (2008).

⁵ Brownridge (2009); Healey et al (2013), p 52.

⁶ We thank the anonymous reviewer for pointing out that this separation in itself may be problematic and it underlines the impact of the medical model of disability on the legal responses to domestic violence; see also Attorney General’s Department (SA) (2007), p 52; Pyke (2007).

⁷ Campbell (2009), p 19.

⁸ Obvious examples include getting to court, giving evidence, completing forms and leaving the family home; see Australian Law Reform Commission (2010), pp 312, 845.

⁹ McDermott (2012), pp 211–212.

¹⁰ Australian Law Reform Commission (2010), p 306.

¹¹ WWDA (2007).

¹² WWDA (2007).

¹³ This is discussed further in Part I of this article.

¹⁴ Thiara et al (2001); PWDA (2013).

¹⁵ See Healey et al (2013), p 63. In this article our focus in on those survivors who already have a disability and are abused, another issue of concern is that domestic violence can create disability, see for example the discussion of long term injury and disability perpetrated by the abuser in R v Major [2011] QCA 210.

¹⁶ See, for example, Graycar and Morgan (2000), pp 303–308; Stark (2004); Hunter (2006).

¹⁷ See, for example, Sokoloff and Dupont (2005).

¹⁸ Preamble (q). The CRPD was adopted by General Assembly resolution A/RES/61/611 in 2006; entered into force generally 3 May 2008; ratified by Australia 17 July 2008; and entered into force for Australia 16 August 2008.

¹⁹ See, for example, Intervention Orders (Prevention of Abuse) Act 2009 (SA), s 8(4).

²⁰ See, for example, Domestic and Family Violence Protection Act 2012 (Qld), s 11; Family Violence Protection Act 2008 (Vic), s 7, Restraining Orders Act 1997 (WA) s 6; Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13.

²¹ See, for example, Domestic and Family Violence Protection Act 2012 (Qld), s 11; Family Violence Protection Act 2008 (Vic), s 7.

²² Thiara et al (2012), p 160.

²³ Sobsey (1994); Lin et al (2010), pp 1264–1268. It is also recognised that women are likely to have other overlapping identities, for example, because of their race or ethnicity, or their identity as mothers etc: Garland-Thomson (2006), p 257.

²⁴ PWDA (2013).

²⁵ It is notable that research reports that persons with mental illnesses (such as schizophrenia and schizoaffective disorders, bipolar disorder, major depression or alcohol-induced disorders) experience the highest levels of sexual and physical domestic violence, see Hughes et al (2012), pp 1621–1629. See also Salthouse and Frohmader (2004).

²⁶ Sokoloff and Dupont (2005).

²⁷ Healey et al (2013), p 52.

²⁸ See Hunter (2006), p 40; Douglas and Stark (2010).

²⁹ Domestic and Family Violence Protection Act 2012 (Qld), s 11.

³⁰ Stark (2007), p 96; Douglas (2012).

³¹ Australian Law Reform Commission (2010), p 88.

³² Radford et al (2006), pp 233–246; Nixon (2009), pp 77–89.

³³ Thiara et al (2001).

³⁴ Tan et al (2012).

³⁵ Dowse et al (2013). Threats of institutionalisation are especially concerning to persons with disabilities given the history of abuse in such settings: Broderick (2012).

³⁶ Morris (1991), p 10.

³⁷ Blatt (1970), p 16; D’Antonio (2004), p 45.

³⁸ Bryan (2010); Turda (2010), pp 84–85; Lemke (2013), pp 71–72. Some in the disability studies movement continue to draw connections between eugenics and genetic developments, aborting disabled foetuses and other medical practices: Wilson (2006), p 67.

³⁹ In Russell v Royals [2013] SAIRC 34 a patient with a disability was badly burned and attempts were made to cover up the neglect. For a general discussion of problems in reporting work health and safety breaches in the health sector, see Harpur (2014); Mack (2014).

⁴⁰ There is considerable evidence indicating that persons with disabilities continue to confront the risk from involuntary sterilisations, see O’Neill and Peisah (2011), Ch 15.

⁴¹ Lewis (2006), pp 339–341.

⁴² Humphreys and Thiara (2003).

⁴³ The perpetrator has the capacity under the Mental Health Act 2000 (Qld) to make an application that the survivor be subjected to an involuntary mental health assessment, where they reasonably believe that the survivor has a ‘mental illness of a nature, or to an extent, that involuntary assessment is necessary’ (s 17).

⁴⁴ Thiara et al (2012), pp 48–49.

⁴⁵ Crenshaw (1991); Grabham et al (2009).

⁴⁶ Thiara et al (2001).

⁴⁷ Hague et al (2011).

⁴⁸ Thiara et al (2012), p 37.

⁴⁹ Dillon (2010).

⁵⁰ Thiara et al (2001).

⁵¹ Ascione et al (2007). This issue has become so prevalent that a key service in Queensland has established the Pets in Crisis foster care program and assists up to 20 pets to safety each month, see DVConnect http://www.dvconnect.org/?page_id=11.

⁵² Harpur (2010).

⁵³ See Wells et al (2008). This study surveyed 212 people with type 1 diabetes and dogs as pets. The dogs in this research were pets rather than trained assistance dogs. The survey found that 138 (65.1 per cent) of respondents reported that that their dog had shown a behavioural reaction to at least one of their hypoglycaemic episodes. Based upon this result, and other similar results, this research found that dogs generally were able to detect hypoglycaemic incidents; see also Wells (2009).

⁵⁴ Lefkowitz et al (2005); Yount et al (2012).

⁵⁵ Tedeschi et al (2010).

⁵⁶ Harpur (2010); for example, see the Disability Discrimination Act 1992 (Cth), ss 8 and 9.

⁵⁷ Adopted by the UN General Assembly in New York on 18 December 1979 ([1983] ATS 9).

⁵⁸ Douglas (2012); see also Attard and Price-Kelly (2010), p 30.

⁵⁹ Merry (2003), p 952; Meyersfeld (2010), p 6. See also Lacey (2004), pp 13–56, for a critical examination of the approach of CEDAW.

⁶⁰ UNGA Res 48/104 (20 December 1993) UN Doc A/RES/48/104.

⁶¹ UN Doc A/47/38.

⁶² Harne and Radford (2008), pp 21–22.

⁶³ Dowse et al (2009).

⁶⁴ Rees et al (2014), [para 6.3.2.1]

⁶⁵ Heymann et al (2014).

⁶⁶ Bryan (2010), pp 71–72; Turda (2010), pp 84–85.

⁶⁷ Some medical interventions are defined as ‘soul-destroying’: Oliver (1993, pp 16–17) cited in Campbell (2009), Ch 9.

⁶⁸ Roosen (2009), pp 1–3.

⁶⁹ Siebers (2008), pp 162–166.

⁷⁰ Rees et al (2014), [para 6.3.2.1].

⁷¹ Oliver (1996), p 37.

⁷² Bagenstos (2009), pp 7–13 describes ‘the endorsement of a social rather than a medical model of disability’ as ‘the one position that approaches consensus within the movement’.

⁷³ Oliver (1990), p 11.

⁷⁴ Harpur (2013), pp 335, 529.

⁷⁵ Finkelstein (1980); Oliver (1994).

⁷⁶ Harpur (2012a), pp 1–14; see also Harpur (2012b).

⁷⁷ Fredman (2011), pp 171–173.

⁷⁸ Hacking (1999), p 14; Shakespeare (2014), p 60.

⁷⁹ Goodley et al (2012), p 1.

⁸⁰ Titchkosky and Michalko (2012), p 127.

⁸¹ Shakespeare (2014), pp 49–55.

⁸² Goodley (2001), pp 109, 207–231.

⁸³ Goodley (2014), Ch 9.

⁸⁴ Shildrick (2012), pp 30–41.

⁸⁵ Campbell (2009), p 5.

⁸⁶ Shakespeare (2014, p 153) refers to this approach as the ‘critical realist school’.

⁸⁷ Clarke et al (2008).

⁸⁸ Shakespeare and Watson (2002), p 28; also quoted in Dowse et al (2009), p 37.

⁸⁹ Shakespeare (2014), pp 74–75.

⁹⁰ Shakespeare (2014), p 83.

⁹¹ Harpur (2012a).

⁹² The World Health Organization and World Bank (2011, p 3) adopt a biopsychosocial model of disability which acknowledges ‘the negative aspects of the interaction between an individual (with a health condition) and that individual’s contextual factors (environmental and personal factors).

⁹³ Preamble (m).

⁹⁴ Preamble (p).

⁹⁵ Harpur (2011), p 1206; Harpur (2012a), pp 1–14.

⁹⁶ McQuigg (2011).

⁹⁷ Art 10.

⁹⁸ Art 14 and, in particular, Art 14(1) which explains that the ‘existence of a disability shall in no case justify a deprivation of liberty’.

⁹⁹ Art 15.

¹⁰⁰ Art 17.

¹⁰¹ Art 1 and, in particular, Art 19(a): ‘Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement’.

¹⁰² Art 22.

¹⁰³ Art 28.

¹⁰⁴ Art 16.

¹⁰⁵ Art 16(1).

¹⁰⁶ Art 16(2).

¹⁰⁷ Art 16(5).

¹⁰⁸ Nixon (2009), pp 77–89; Douglas (2012).

¹⁰⁹ R v Andrew [2008] VSC 138.

¹¹⁰ R v Andrew [2008] VSC 138, at 14.

¹¹¹ NSW LRC (1994), para 7.42.

¹¹² Curry et al (2001), p 61.

¹¹³ Curry et al (2001), p 61; Martin et al (2006), p 824.

¹¹⁴ Dowse et al (2009); Robinson (2013), p 14.

¹¹⁵ Brownridge (2006), p 806; Martin et al (2006); NCRVWC (2009), p 9.

¹¹⁶ Keilty and Connelly (2001), p 273; Bartlett and Mears (2011), p 10; Murray and Heenan (2012), p 352.

¹¹⁷ Bartlett and Mears (2011), pp 64–65.

¹¹⁸ See Baldry et al (2013) for a consideration of cognitive disability and vulnerability to harm.

¹¹⁹ How the impairment is described differs across jurisdictions: Criminal Code Act 1995 (Cth), Schedule s 272.10 uses the term ‘mental impairment’; Crimes Act 1900 (NSW), s 66F uses the term ‘cognitive impairment’; Criminal Code Act 1983 (NT), Schedule 1 s 130 uses the term ‘mentally ill or handicapped person’; Criminal Code 1899 (Qld), s 216 uses the term ‘persons with an impairment of the mind’; Criminal Law Consolidation Act 1935 (SA), s 5AA uses the term ‘persons with an impairment of the mind’; Criminal Code Act 1924 (Tas), Schedule 1 s 126 uses the term ‘mental impairment’; Crimes Act 1958 (Vic), ss 51 and 52 uses the term ‘persons with a cognitive impairment’; Criminal Code Act Compilation Act 1913 (WA), Appendix B, s 330 uses the term ‘person who is … mentally impaired’.

¹²⁰ Criminal Code Act 1995 (Cth), Schedule s 272.10.

¹²¹ Crimes Act 1958 (Vic), ss 51 and 52.

¹²² For examples of where these provisions have been used to convict people for exploiting persons with mental disabilities, see Bennell v The State of Western Australia [2011] WASCA 174; R v Raphael [2009] QCA 145.

¹²³ Crimes Act 1900 (NSW), s 66f(7)(ii).

¹²⁴ Criminal Code Act 1924 (Tas), s 126(2)(b).

¹²⁵ Crimes Act 1958 (Vic), ss 51, 52.

¹²⁶ Criminal Code Act Compilation Act 1913 (WA), Appendix B, s 330(9); Domestic Violence and Protection Orders Act 2008 (ACT), ss 13, 14.

¹²⁷ Criminal Code 1899 (Qld), s 216(4)(d).

¹²⁸ See, for example, Attorney General’s Department (SA) (2014).

¹²⁹ See, generally, Wilcox (2010).

¹³⁰ Domestic Violence and Protection Orders Act 2008 (ACT), ss 13, 14; Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 4, 7, 19; Domestic and Family Violence Act 2007 (NT), ss 5–,7; Domestic and Family Violence Protection Act 2012 (Qld), ss 8, 11, 12; Intervention Orders (Prevention of Abuse) Act 2009 (SA), s 8; Family Violence Act 2004 (Tas), ss 7, 8; Family Violence Protection Act 2008 (Vic), ss 5–7; Restraining Orders Act 1997 (WA), s 6.

¹³¹ Australian Law Reform Commission (2010), pp 234–235.

¹³² Intervention Orders (Prevention of Abuse) Act 2009 (SA), s 8(4)(n).

¹³³ Pyke (2007), p 9.

¹³⁴ See, for example, Domestic and Family Violence Protection Act 2012 (Qld), s 8(2)(g).

¹³⁵ WWDA (2007), pp 198, 239.

¹³⁶ See, for example, Domestic and Family Violence Protection Act 2012 (Qld), s 11; Intervention Orders (Prevention of Abuse) Act 2009 (SA), s8(4)(m); Family Violence Protection Act 2008 (Vic), s7.

¹³⁷ UN DESA/DAW (2009), para 3.4.2.1.

¹³⁸ Australian Law Reform Commission (2010), p 234.

¹³⁹ Australian Law Reform Commission (2010), p 234. This is now the approach in Victoria and Queensland: Family Violence Protection Act 2008 (Vic), s5(1); Domestic and Family Violence Protection Act 2012 (Qld), s8(1).

¹⁴⁰ Domestic and Family Violence Protection Act 2012 (Qld), s 8(1); Family Violence Protection Act 2008 (Vic), s5(1).

¹⁴¹ WWDA (2007).

¹⁴² WWDA (2007).

¹⁴³ Plummer and Findley (2012); Healey et al (2013), pp 50–68.

¹⁴⁴ Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 3 and 72 (Local Court or Childrens Court); Domestic and Family Violence Act 2007 (NT), ss 4 and 30 (Court of Summary Jurisdiction); Domestic and Family Violence Protection Act 2012 (Qld), s 32 (Magistrates Court); Domestic Violence and Protection Orders Act 2008 (ACT), s 18 (Magistrates Court); Family Violence Act 2004 (Tas), s 30 (Magistrates Court); Family Violence Protection Act 2008 (Vic), s 42 (Magistrates Court or Childrens Court); Intervention Orders (Prevention of Abuse) Act 2009 (SA), ss 3 and 20 (Magistrates Court); Restraining Orders Act 1997 (WA), ss 5 and 25 (Magistrates Court or Childrens Court).

¹⁴⁵ See, for example, Family Violence Protection Act 2008 (Vic), s 166.

¹⁴⁶ Chenoweth and Cook (2001), p 4; Mays (2006).

¹⁴⁷ PWDA, ‘Stop the Abuse’, http://www.pwd.org.au/pwda-publications/stop-the-abuse.html. 17 January 2015.

¹⁴⁸ Crime and Misconduct Commission (2005); Douglas and Fitzgerald (2013).

¹⁴⁹ See Websdale and Johnson (1997), p 297; Douglas and Stark (2010), pp 44–53.

¹⁵⁰ See, for example, Police Powers and Responsibilities Act 2000 (Qld), s 422.

¹⁵¹ PWDA, ‘Stop the Abuse’, http://www.pwd.org.au/pwda-publications/stop-the-abuse.html. 17 January 2015.

¹⁵² Art 4(1)(b).

¹⁵³ Sherry (2010); this book provides the example of the sexual exploitation and video taping of a disabled girl in Melbourne, Australia in 2006. The perpetrators all avoided jail (Smith 2011).

¹⁵⁴ Sin (2013); Shakespeare (2014), p 233.

¹⁵⁵ Oliver and Barnes (2012), p 14.

¹⁵⁶ Waddington and Diller (2002), pp 241–244.

¹⁵⁷ Stein and Stein (2007), p 1206; see also Stein et al (2012) .

¹⁵⁸ Rees et al (2008), p 249.

¹⁵⁹ Carer Recognition Act 2010 (Cth); Carers (Recognition) Act 2010 (NSW); Carers Recognition Act 2009 (NT); Carers (Recognition) Act 2008 (Qld); Carers Recognition Act 2005 (SA); Carers Recognition Act 2012 (Vic); Carers Recognition Act 2004 (WA).

¹⁶⁰ Carers (Recognition) Act 2008 (Qld), Schedule: The Queensland Carers Charter.

¹⁶¹ Thiara et al (2012), pp 16, 17, 56–60.

¹⁶² This also occurs when elderly people who are disabled are abused by carers and family: Nerenberg (2008), Ch 1.

¹⁶³ Nixon (2009). For a discussion of how the creation of oppressed groups often results in the creation of privileged groups, see Pease (2010), p 5.

¹⁶⁴ Gordon (1997), p 202.

¹⁶⁵ Hague et al (2011).

¹⁶⁶ Curry et al (2001).

¹⁶⁷ Brownridge (2006), p 809.

¹⁶⁸ Brownridge (2006), p 809.

¹⁶⁹ For a discussion of how men use the discourse of natural entitlement to reinforce their dominance over women and to legitimise gender violence, see Adams et al (1995).

¹⁷⁰ For a discussion of how support services frequently overlook or respond inappropriately to survivors with disabilities, see Hague et al (2011).

¹⁷¹ Lund (2012).

¹⁷² Hunter (2006).

¹⁷³ Pyke (2007).

¹⁷⁴ Victorian Law Reform Commission (2006), para 3.53.

¹⁷⁵ Attorney-General’s Department (SA) (2014), p 6, stating: ‘Promoting awareness and understanding among service providers and the broader community has been shown to enhance the rights of people with disability’.

¹⁷⁶ Walter-Brice et al (2012).