From Judge Wayne Gorman:

In Review of Sentencing for Murder and Manslaughter, 2019, the New South Wales Sentencing Council (http://www.sentencingcouncil.justice.nsw.gov.au/), undertook “to review sentencing for murder and manslaughter, including the penalties imposed for domestic and family violence homicides”.  In doing so, the Council called for submissions.

The Rape & Domestic Violence Services, Australia, filed a preliminary submission.

Interestingly, in its submission the Service indicated that it is “concerned that many judicial officers prescribe to outdated views about domestic and family violence that may impact their assessments of sentencing factors such as culpability, harm, risk and social costs”.  As examples, the Service referred to the sentencing remarks that it indicates are “commonly made”:

Minimised perpetrator accountability. For example, judges often characterised domestic violence as a “loss of control” or described perpetrators as motived by innocent intentions such as “jealousy.” This type of language masks the true dynamics of domestic violence as an attempt to maintain power and control, motivated by a perpetrators’ belief that he is entitled to possess or control his partner.

Used mutualising language. For example, judges regularly attributed violence “to a relationship” rather than to the perpetrator, by using terms such as “violent relationship”, “turbulent relationship”, or “rocky relationship”. Given that the vast majority of cases of intimate partner homicide involve a clear primary domestic violence victim and a primary domestic violence abuser, this mutualising language is inaccurate and places inappropriate blame on the victim.

Invoked stereotypes. For example, judges often reflected problematic stereotypes about how “proper victims” should behave. In one case, a judge indicated that the victim was too “young” or “inexperienced” to appreciate the danger posed by her abusive partner and suggested that if she “knew better” she would have ended the relationship prior to her death. This ignores the dynamics of power and control central to domestic violence as well as the risks associated with leaving a relationship.

Minimised non-physical domestic violence. For example, judges described perpetrators who primarily used non-physical forms of domestic violence as controlling and manipulative but not “violent”. This overlooks the relevance of non-physical forms of domestic violence as risk factors in the period prior to homicide.

The Rape & Domestic Violence Services suggested that as “Buxton-Namisnyk and Butler write, ‘judicial officers wield significant social power with respect to discussing, naming and representing domestic violence.’ In order to shift social understandings of domestic violence in the right direction, it is imperative that judges use their sentencing remarks to”:

• Reinforce that domestic violence is unacceptable;

• Hold perpetrators accountable and recognise the centrality of power and control in domestic violence related homicides;

• Reject justifications for domestic and family violence that minimise perpetrator accountability such as that violence is caused by a “loss of control” or drugs or alcohol;

• Reflect the value of the victim’s life and avoid victim-blaming judgments;

• Recognise that non-physical forms of violence can be equally, if not more, damaging than physical violence; and

• Recognise the significant impact that domestic and family violence has on society.