Recognising violence

The ASPCA confirms that the organisation has an active training programme for district attorneys and veterinarians so that District Attorneys will ‘be more aggressive in prosecuting animal cruelty cases and veterinarians…use the latest advances in forensics to provide expert testimony in these cases’. A feature focused on by the ASPCA is that those who are subjected to criminal assault at home and other forms of domestic violence may be more ready to speak to authorities about the abuse inflicted upon their pets than they are about the abuse inflicted upon themselves. Taking action in relation to animals may result in the incarceration of the perpetrator, removing him from the family home. Even if the prosecution results in a lesser penalty, the family circumstances are exposed with a possibility of support services – such as women’s refuges and shelters and legal advice – being able to provide the means by which family members may escape the violence, too.

These steps need to be taken in Australia.

Legislative reforms should always be accompanied by training programmes directed toward educating lawyers, magistrates and judges as to the intent and scope of new laws. As far back as 1977, this approach was advocated by the Women’s Electoral Lobby in the WEL Draft Bill on Rape and Other Sexual Offences. Seen as revolutionary at the time, now the merit of the proposal may be more likely to be recognised by those in authority, since judicial education and Continuing Legal Education (CLE) for barristers and solicitors – once rejected – are now a part of the Australian jurisprudential scene.

When the Family Law Act 1975 (Cth) came into effect in 1976, no one – judges, lawyers, child protection workers – had been trained in its provisions. Every judge who sat had been educated at law schools where family law was taught under the Matrimonial Causes Act1959 (Cth) or even under state laws preceding the federal Parliament’s entry into the field. So too with lawyers giving advice and appearing in the jurisdiction. This meant that the import and intention of the new law was not always recognised. Indeed, too often principles intended to be eliminated by the Family Law Act were reinstituted by courts continuing to apply what they had learned under the now (intended to be) superseded law. It took years for the Family Law Act provisions to be interpreted generally as intended, and even now it is possible to find elements of ‘old’ rather than ‘new’ principles reasserted – although these instances are conveyed as truly in accordance with Family Law Act provisions and principles.

Although some judges, upon retirement, have asserted the lack of any necessity for judicial education and training, even going so far as to espouse pride on rejecting education and training possibilities, such instances are becoming less frequent. The notion that training and education is essential for those sitting in judgment has long been a part of U.S. legal culture and, more recently, that in the United Kingdom. Although starting behind, Australia has taken important steps to ensure that judges are not left out in the cold where opportunities for retraining arise.

One such opportunity is the new provisions in the Family Law Act, with its incorporation of a definition of ‘family violence’ as meaning ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful’. The Act includes (but is not limited to) examples of such behaviour:

1. an assault; or
2. a sexual assault or other sexually abusive behaviour; or
3. stalking; or
4. repeated derogatory taunts; or
5. intentionally damaging or destroying property; or
6. intentionally causing death or injury to an animal; or
7. unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
8. unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
9. preventing the family member from making or keeping connections with his or her family, friends or culture; or
10. unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.

This recitation confirms it is not sufficient to hold ‘one off’ seminars or training sessions, although this appears to be the tendency even with lawyers’ CLE programmes. A lifetime of seeing criminal assault at home and other forms of domestic violence from one perspective, and of ignoring the connection between animal abuse, child abuse, parental abuse and residence and visitation issues, cannot be overturned in a single education ‘lesson’.

In the future, to ensure that education and training are accepted as fundamental to law reforms, new and amended laws must incorporate provisions making (re)education and training mandatory. Those who refuse to comply cannot be allowed to continue to work in the particular field. Ultimately, courts exist to ensure that clients are well-served. This will come about only when judges, magistrates and their cohort are enabled to participate in regular and ongoing education and training programmes that see education and training as fundamental to the services courts provide.