Monday, 9 July 2007

Same sex domestic violence

I recently presented a paper on same sex domestic violence at the 5th Health in Difference Conference 07 in Brisbane. Here it is:

Legal Issues
As we understand it, it is now possible to obtain protection orders or their equivalent in each State and Territory of Australia for same sex couples. We say State and Territory, because all the legislation is State (or Territory) based and there is no uniform Commonwealth legislation.

We will touch briefly on the legislation in Queensland only, because we are familiar with it.

Protection Orders can be obtained under the Domestic and Family Violence Protection Act 1989 which, since 2003, has extended to same sex couples. Three things need to be shown:
(1) That there is a domestic relationship between the parties: s.11, s.20(1)(a);
(2) That the respondent has committed an act of domestic violence against the aggrieved: s.20(1)(a); and
(3) The respondent is likely to commit an act of domestic violence again or if the act of domestic violence was a threat – is likely to carry out the threat: s.20(1)(b).
Domestic relationships are:

(a) A spousal relationship. A spouse includes – (a) a former spouse; and (b) either on of the biological parents of a child. Of necessity it includes those parties who are married or living in a de facto relationship. By virtue of Section 32DA of the Acts Interpretation Act 1954 :-

(i) “In an Act, a reference to a de facto partner is a reference to either one of two persons who are living together as a couple on a genuine domestic basis who are not married to each other or related by family;
(v) For sub-section (1) – (a) the gender of the persons is not relevant….”

An intimate personal relationship exists between two people if they are or were engaged to be married to each other, including a betrothal under cultural or religious tradition – s.12A(2) also, an intimate personal relationship exists between two persons, whether or not the relationship involves or involved a relationship of a sexual nature if – (a) the persons date or dated each other; and (b) their lives are or were enmeshed to the extent that the actions of one of them affect or affected the actions or life of the other: s.12A(2).

An intimate personal relationship may exist whether the two persons are the same or the opposite sex: s.12A(4).

An informal care relationship is to cover those situations where someone is abused by their carer. This in the family relationship category was brought into existence following lobbying from activists within the Queensland Aids Council and from Seniors Groups. The activists of the Queensland Aids Council expressed a concern about carers of HIV people abusing those in their charge.

How is Same Sex Domestic Violence the same or different from Heterosexual Domestic Violence?

Domestic violence has some common themes: :-

• It’s been with us forever.
Susan Holt identified in 2002 :-

“The first court transcript documenting violence in a lesbian relationship appeared in Germany in 1721”

and on January 2001, Wanda Jean Allen was executed in Oklahoma for the 1988 murder of her partner, Gloria Leathers.

In 1994, Robert McEwan was arrested in Perth and charged with lawful murder of his same sex partner of 14 years. McEwan’s partner died from multiple stab wounds. McEwan pleaded not guilty basing his defence on the battered wife syndrome and provocation and gave a litany of evidence of how he had been abused by his partner, physically, sexually and emotionally for many years. The jury was unable to reach a verdict. The matter was referred back to the Director of Public Prosecutions who then decided not to proceed with the wilful murder charge. A plea to the lesser charge of manslaughter was recorded.
• It typically crosses all socio-economic and racial barriers
• It can be committed by men to women in heterosexual relationships
• Or for that matter women to men
• Or men to men
• Or women to women
• It involves notions of one party controlling or attempting to control the other by a variety of tools, including physical, emotional, sexual, social isolation, use of children, and financial.
• Victims are ashamed, afraid and embarrassed to complain.
• People do not like talking about it, with the result that it is often hidden by that silence.

There are a myriad of definitions of domestic violence. As useful as any other is that contained in section 11 of the Domestic and Family Violence Protection Act 1989:

(1) Domestic Violence is any of the following acts that a person commits against another person if a domestic relationship exists between the two persons –
(a) wilful injury,
(b) wilful damage to the other person’s property.
Example: wilfully injuring a de facto’s pet.
(c) intimidation or harassment of the other person.
Examples–
(1) following an estranged spouse when the spouse is out in public, either by car or on foot
(2) positioning oneself outside a relative’s residence or place of work
(3) repeatedly telephoning an ex boyfriend at home or work without consent (whether during the day or night).
(4) regularly threatening an aged parent with the withdrawal of informal care if the parent does not sign over the parent’s fortnightly pension cheque.
(d) indecent behaviour to the other person without consent.
(e) a threat to commit an act mentioned in paragraphs (a) – (d).
(2) The person committing the domestic violence need not personally commit the act or threaten to commit it.

Frequency of Same Sex Domestic Violence

No doubt Brad Gray will be able to advise you better than we can, but there is a general paucity of research about prevalence rates. The best that can be ascertained is that same sex domestic violence is at least as frequent per capita than amongst heterosexual couples. There are some who argue that the rates are higher and others that the rates are lower.



Myths and Realities about Same Sex Domestic Violence

In 2002, Susan Holt and Delena Couchman, through the LA Gay and Lesbian Center’s Stop Partner Abuse Domestic Violence Program set out a list of myths and realities about same sex domestic violence which we consider probably the most useful list that has yet been published:

Myth

• Domestic violence is more/less common in heterosexual relationships than it is in LGBT communities;

• Only heterosexual women are battered.

Reality

• Studies indicate that domestic violence occurs in LGBT communities with the same amount of frequency and severity as in the heterosexual community and affects as many as one in three relationships. Men as well as women are battered or abuse their partners.

Myth

• Violence in LGBT partnerships is “mutual combat” or a “lover’s quarrel”. It really isn’t violence when a same sex couple fights. It’s a fair fight between equals. It isn’t violence when gay men fight. Its just “boys being boys”;

• LGBT persons are more likely to equally participate in the violence than are heterosexuals.

Reality

• Partner abuse/domestic violence involves one partner who is exerting power and control over another. It can include coercion, intimidation, physical and sexual violence. Labelling violence as “mutual” or as a “lover’s quarrel” minimises and denies the severity of the abuse;

• While LGBT survivors may be more likely to fight back in self defence due to perceived equality and/or lack of LGBT specific and sensitive resources, abuse in relationships is not “mutual” and “lover’s quarrels” are typically not lethal.

Myth

• LGBT partner abuse is primarily found in relationships when partners are in “roles”;

• The batterer is usually more masculine, stronger and larger, while the victim is usually more feminine, weaker and smaller;

• Women do not batter/men cannot be battered.

Reality

• Partner abuse is about one person exerting power, dominance and control over another. The abuse can be physical, sexual, verbal, emotional, psychological and/or financial in nature and may involve the use of weapons and threats as well as homophobic/biphobic/transphobic control. Exerting power does not require the batterer to be larger or physically stronger. LGBT partner abuse is not confined to “gender roles”.

Myth

• LGBT partner abuse occurs primarily among women and men who are poor, people of colour and those who frequent bars;

Reality

• Chronic abuse occurs in approximately one in three relationships regardless of sexual orientation, ethnicity, socio-economic status, education, religious affiliation, political ideology, physical ability etc. Domestic violence crosses all boundaries and does not discriminate. Although substance use is a co-factor to domestic violence, it does not cause abuse.

Myth

• As same sex couples are more likely to be equal in size, the damage inflicted by the lesbian or gay batterer is typically less than that inflicted by the male heterosexual batterer. The acts of violence perpetrated by gay men are more severe than acts of violence perpetrated by female batterers.

Reality

• Both men and women are capable of committing acts of severe violence. Some female abusers have stabbed, shot, brutally beaten and/or killed their partners. Dismissing the potential severity of same sex battering is dangerous.

Myth

• Violence occurs in the LGBT communities because of the high rates of alcohol and drug use.

Reality

• Drinking lowers control over inhibitions which sometimes prevent people from being violent. However, just as in heterosexual partner abuse, many batterers do not abuse substances and/or do not necessary batter while using substances. Ultimately, relationship violence is about the choice one partner makes to exert control over the other. Substances do not cause violence but are a significant co-factor to it.

Myth

• The law does not/will not protect LGBT victims of partner abuse;

Reality

• In Australia, legislation specifically includes LGBT victims, such as the Domestic and Family Violence Protection Act 1989;
• Battered LGBT women and men are as likely to identify themselves as victims as are heterosexual women;

• Same sex domestic violence often remains unseen and invisible. Many individuals are overlooked and do not receive needed help. There is a lack of recognition and legal legitimacy for LGBT families and, because domestic violence is thought to occur most commonly in heterosexual relationships, those in LGBT communities may not even realise that they are experiencing it or may be apt to believe that they are to blame.

Myth

• Children are not an issue for battered lesbians and gay men.

Reality

• Many LGBT families have children through prior relationships, adoption, artificial insemination etc. Unfortunately, as with all families, children often witness violence exerted by one parent over the other.

Myth

• It is generally easier for LGBT victims of domestic violence to leave an abusive partner or seek help than it is for battered heterosexual women.

Reality

• It is generally more difficult for LGBT survivors to seek help than it generally is for heterosexual women. There are few LGBT specific resources available and many service providers are not trained to provide culturally competent services to LGBT individuals. LGBT individuals may fear that they will be treated with prejudice, judged, not believe or taken seriously. Additionally, seeking services for partner abuse forces LGBT people to reveal their sexual orientation which is always a major life decision that may result in the loss of family and friends, employment, child custody etc.

• Many LGBT people have no support from their families because of the refusal of the family to accept the LGBT person’s sexual orientation or gender identity;

• There are no domestic violence shelters that I’m aware of in Australia that accommodation male survivors and there are no shelters that I’m aware of that are specifically for LGBT domestic violence survivors. There are issues for both lesbian survivors being house with their abusers and accommodation for trans-gender survivors.

Myth

• There is absolutely no difference between domestic violence in same sex relationships and in heterosexual relationship.

Reality

• Many of the dynamics of partner abuse are the same in same sex and heterosexual relationships. LGBT domestic violence has unique factors, however, that relate to homophobia, biphobia, transphobia, and heterosexism within society. LGBT people are not afforded many basic civil rights that heterosexual people receive. As a result, there are often inadequate and insensitive supports or resources. LGBT people may fear being “outed” after disclosing partner abuse; afraid of unfair treatment by courts, police and service providers;

• Concerned about the impact on arrangements for the children etc. In addition, many LGBT people may be struggling with their own internalised homophobia, biphobia or transphobia which increase feelings of shame and low self esteem;

• Many service providers are not adequately trained to address the special needs of LGBT clients. Domestic violence service providers who generally work with heterosexual survivors may have more difficulty in differentiating between the LGBT batterer and survivor.



Further helpful resources


Lee Vickers, The Second Closet: Domestic Violence in Lesbian and Gay Relationships: A Western Australian perspective (1996)
The New York State Lesbian, Gay, Bisexual, Transgender and Queer Domestic Violence Network
LA Gay and Lesbian Center Partner Abuse/Domestic Violence
American Bar Association Commission on Domestic Violence
Janice Ristock and Norma Timbang, Relationship Violence in Lesbian/Gay/Bisexual/Transgender/Queer [LGBTQ] Communities 2005
Brad Gray – “Community Awareness Campaign: Same Sex Domestic Violence”

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