Legal Responses to Intimate Partner Violence: Gendered Aspirations and Racialised Realities

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In response to feminist activism inside and outside government, all Australian states and territories enacted civil law responses to domestic and family violence in the early to mid-1980s. These laws were part of a broader feminist agenda to interrupt and, ultimately, dismantle gender inequality. There are legislative differences and similarities amongst the Australian states and territories, but all provide a swift legal restraint on domestic violence perpetrators through a civil court order. There are, however, unintended negative consequences of these laws for women. My thesis is that the lack of an intersectional policy analysis, specifically the failure to consider race and class as well gender in the development of the legislation has amplified the unintended negative consequences for Indigenous women. I demonstrate this through a mixed methods research design, drawing on four bodies of theoretical thought to examine: 1) gender and race differences in the application of legislative provisions that reflect specific gendered aspirations; and 2) the kind of violence perpetrated, and the context in which it occurs. Using passage of the Domestic Violence (Family Protection) Act 1989 (Qld) as a case study, I first conduct a thematic analysis of parliamentary debates on relevant legislative Bills to explicate the gendered aspirations in the civil domestic violence law. I find that despite the Act’s gender-neutral language, its intent is to address a particular kind of violence (an ongoing pattern of coercive control), with a particular kind of victim in mind (a subjugated, powerless woman). Gendered aspirations, expressed through specific legislative provisions, have not been fully realised in practice; worse, and as others have observed, a number of unintended consequences have emerged, including that women who are victims of violence are themselves subject to court-imposed domestic violence orders. I argue that this unintended consequence results from the failure of the law, and law enforcers, to distinguish between coercive controlling violence and fights and the evolution of a formulaic, incident-based approach to making domestic violence orders (DVOs).