Is Clare’s Law the best way to tackle domestic violence?
A COMPELLING argument can be made for a person’s right to know that their partner has a proven history of domestic violence. However, the risk of information being used maliciously and unfairly cannot be ignored.
TWO domestic violence-related matters of a different nature complemented each other last week. The first concerned the sentence imposed on the male Fremantle supporter for assaulting a woman at an AFL match.
On the same day, the chief of the Navy publicly apologised for giving a sailor, who is said to have murdered his ex-girlfriend, a funeral with full military honours.
The court sentenced the Fremantle supporter to imprisonment for eight months. The court agreed with the prosecutor’s submission that a jail term was necessary to send a message to the community that violence against women would not be tolerated.
Implicit in this is that the community needed to receive the message because it hasn’t been getting through to enough people.
This was evident when the Navy took the decision to honour the dead sailor. That is not to say that any who were involved in the decision condone domestic violence. The legitimate concern though is the existence of attitudes in the community that tolerate domestic violence, if only unconsciously.
Courts seek to address this concern by sending messages through the sentencing process. The messages are designed to reach everyone, not just those who might commit domestic violence offences.
The problem is that heavy sentences do not deter enough people. That much is obvious from the staggeringly high incidence of domestic violence. More is needed. Clearly, prevention is better than cure. To that end, the Law Society supports an ongoing review of the law, policing and education.
Recent debate has focused on an innovative, but controversial, legislative scheme in the UK known as Clare’s Law. Clare Wood was murdered in 2009 by her ex-boyfriend. He had a history of domestic violence Clare was unaware of.
Clare’s law allows women to find out about the current or prospective partner’s past so that they can make an informed decision whether to embark upon or continue a relationship.
Queensland and NSW are taking steps to introduce a disclosure scheme modelled on Clare’s law. However, not all in the UK are in favour, including some major domestic violence organisations. They argue that the substantial resources going into the scheme are diverted from more effective existing response mechanisms.
There are other concerns. One is balancing the right to know against the right to privacy, and the right for information collected by authorities not to be misused and abused. There will need to be safeguards from collateral reputational damage.
Another is ensuring the integrity of the information to be released. Confining it to relevant previous court convictions may be the answer. Also, should police have the authority to release the information? If so, there is a strong case for the decision to release to be independently reviewable.
Protection against abuse is the top priority. A compelling argument can be made for a person’s right to know that their partner has a proven history of domestic violence. However, the risk of information being used maliciously and unfairly cannot be ignored.
Rocco Perrotta is SA Law Society president.