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Poor mental health, a cycle of abuse and evidence of a “hard life” are some of the submissions made on behalf of perpetrators of gendered violence – but whether they should be considered legitimate explanations or excuses for bad behaviour has divided lawyers.
In conversation with Lawyers Weekly, senior associate Jessica Koot from Watts McCray Lawyers and the Illawarra Women’s Health Centre said perpetrators of violence against women often have their behaviour excused in submissions made about their personal history.
In particular, Koot said there needed to be more care in the submissions made about a perpetrator’s “hard life” – including in the context of their childhoods and current living conditions – because there are people out there with similar experiences who have not committed a crime and “don’t choose to murder their partners”.
“I often hear these excuses – and even from other family lawyers when they’re acting for the perpetrator – [where] you know, they have had a hard life. Well, make change. Only you can make change in your own life. Lots of people have had a hard life,” Koot said.
Koot said a similar line should be drawn when comparing mental health with domestic, family and sexual violence “because there are a lot of people who struggle with their mental health but make that conscious decision not to be that person”.
“Sometimes, that’s an excuse,” Koot said.
Bill Doogue, criminal defence lawyer and director of Doogue + George, said it was important these submissions are made to differentiate between circumstances – for instance, someone who sent a text message in breach of a court order to someone they loved is different to someone who abused their partner out of anger.
“Explaining the circumstances of offending is what the whole principle of law is based on. You have to explain it. You have to say, look, this isn’t an excuse, it’s an explanation, and here’s what motivated the person, and here’s why they did what they did,” Doogue said.
Referring specifically to mental illness, Doogue explained the diagnosis has to be explained to the court to differentiate them from an offender who is “just angry and a jilted ex-partner”. For example, a person with schizophrenia may hallucinate voices and could “have no control over what they’re doing” during the offending.
“[The court] has to have those submissions to fully understand the person’s circumstances to sentence them. If a person were to stand up knowing their client had suffered horrific abuse themselves or had a mental illness and not tell that to the court, they would be incompetent in performing their professional duties,” Doogue said.
Koot said there needed to be a crackdown on the consequences for offenders of gendered violence, specifically for those who have breached apprehended violence orders and either avoid jail time or have that order not “stand up at the end of [their] day” in court.
“If men are seeing there are no consequences for their behaviours and their actions, we’re going to continue to have a domestic, family, sexual violence problem,” Koot said.
Doogue said courts have become “really conscious” of family violence and have made an effort to improve, but they “don’t have predictive powers to know that person’s escalation is going to be really terrible”.
“They can only do what is in front of them, and locking people up doesn’t make violence occur less in the community,” he said.
Both Koot and Doogue agreed more education was needed for perpetrators, with the latter explaining that it was the best method for ensuring violent offenders could break the cycle of abuse.
Koot said it is the government’s responsibility to ensure the programs are available or to properly fund money through not-for-profits, which are already “stretching our money as far as we can”.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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