Saturday, 29 May 2010

Top 10 guide for lesbian partners being named on children's birth certificates in Queensland

1. Get legal advice before the child is conceived!

Once the child is conceived, too late! Same sex parenting can be a legal minefield about legal rights and responsibilities. Don't create a mess and then wonder what went wrong.

2. At the time of conception, you must live in a de facto relationship.

If you don't live together in a de facto relationship, the laws don't apply to you. The mother will be    presumed to be single. Overseas same sex marriages are not recognised in Australia. Being in a de facto relationship at any time during the pregnancy, or at the time of birth; but not conception, is too late.

3. The form of conception must be artificial.

If your partner had sex with the man, resulting in conception, the laws do not apply to you. The man is the father, both by genetics and law. IVF is not required. A turkey baster or syringe is sufficient.

4. Your partner should not be married.

There seem to be conflicting, or potentially conflicting rules if the mother of the child is married. It is quite possible that the mother might be married and in a de facto relationship with another woman eg the mother separated from her husband some years before, but never bothered to get divorced.

5. The father must not be shown on the birth certificate.

If he is, then you cannot have him removed from the birth certificate without a court order. Good luck!

6. The birth must have been in Queensland.

7. The birth can have been at anytime.

The change is retrospective: it can be anytime before, on or after 1 June, 2010.

8. You're shown as "parent" and your partner is shown as "mother" on the birth certificate.

9. Two's company, three's a crowd.

There is only allowance for up to two people to be recognised on the birth certificate: the mother; the mother and father, or mother and partner.

10. Both you and your partner fill out the form.

Lesbian co-parents will be recognised for the first time in Queensland law on their children's birth certificates, starting this Tuesday 1 June.

The changes are contained in the Surrogacy Act 2010 which was passed earlier this year, but does not take effect until Tuesday. That Act made changes to both the Status of Children Act 1978 (which governs presumptions about parentage of children) and the Births, Deaths and Marriages Registration Act 2003, which (obviously) deals with the registration of births, deaths and marriages.

Qld Surrogacy laws start Tuesday

Queensland's Surrogacy Act 2010 starts Tuesday. The latest of the states to legalise altruistic surrogacy, the Queensland scheme has a number of unique features:

  • the starting point is that altruistic surrogacy from Tuesday will be legalised. Until Tuesday, to have engaged in altruistic surrogacy in Queensland has been an offence. Whilst there has been some doubt about the Tasmanian laws, Queensland seemed alone in criminalising all forms of surrogacy.
  • the odd position of State boundaries remains. Only Queenslanders will be able to access the Queensland scheme. This is because the ability to obtain orders for intended parents can only be accessed by Queenslanders. This in turn will probably limit the use by IVF clinics of to whom they offer their services. Conversely, there is no limit in NSW, but there is no ability in NSW to have intended parent orders, as adoption is the only option (and adoption is not available to all).
  • Queensland continues to ban commercial surrogacy. It is an offence to engage in commercial surrogacy in Queensland. This criminalisation not only affects the doctors and nurses, but the intended surrogate and the intended parents, too.
  • Queensland couples who have gone to an overseas commercial surrogacy clinic and returned with a baby will (with some  exceptions) still need to obtain a Re Mark order from the Family Court recognising that both parents can make parental decisions. These are not hard to get, if done properly. There are some tricks of the trade to ensure that they are obtained in as straightforward and cheap manner as possible. Adoption for these couples is unlikely to be possible under Queensland's scheme.
  • Queensland has adopted the ACT scheme for intended parent orders - which involves a heavy level of counselling and legal advice. This is a good thing. To have a child through surrogacy takes a huge emotional (and financial) commitment. It is not a decision for the faint hearted. As to legal advice, a word of warning. One might think that family lawyers know something about surrogacy. From talking to my colleagues, most family lawyers wouldn't know about surrogacy matters if they fell over them. This is no criticism of fellow family lawyers, it's just that their focus is on family law disputes. Surrogacy matters are quite different to the usual family law matters. First of all, they are not under the (Commonwealth) Family Law Act, which deals with the breakup of relationships. The legislative scheme is quite different. Secondly, they involve happy events - a child is to be born, and not the  adversarial war and peace litigation too often seen in family law fights about children. In short, it's a different mindset, with different regulations, and most family lawyers have no expertise to handle these cases. By contrast, I have had the privilege in acting in a number of adoption cases over the years, and have advised clients in Queensland, interstate and overseas about surrogacy, including surrogacy laws in Queensland, WA, NSW, ACT, NT and Victoria.
  • Queensland, along with the ACT, criminalises its residents accessing overseas commercial surrogacy clinics. Queenslanders should therefore never engage in overseas commercial surrogacy. It is a reality that Queenslanders continue to engage in commercial surrogacy overseas, and as a result risk being charged, fined and possibly risking their job or profession. Every other state does not criminalise accessing overseas clinics. It therefore can matter whether you live north or south of the Tweed.
  • Queensland's Surrogacy Act (unlike say WA) does not discriminate about who can access altruistic surrogacy: sexual orientation is irrelevant, marital status is irrelevant. Therefore: married, straight, single, gay, lesbian, bi, trans, intersex, de facto- all are eligible.
  • Queensland's Surrogacy Act amended the Birth Deaths and Marriages Registration Act to enable both lesbian parents to be registered on the birth certificate. That will be my next article.

Friday, 28 May 2010

From Tuesday lesbian couples are able to be recognised on birth certificates in Qld as parents.

Wednesday, 26 May 2010

Queensland Surrogacy Act changes to take effect on 1 June 2010:altruistic surrogacy to be decriminalised.

Tuesday, 25 May 2010

Fed Govt still intending to get rid of Federal Magistrates Court- Fed Mags to sit as new lower tier of Family Court.

Tuesday, 18 May 2010

Same sex domestic violence

Last week I presented a paper for Australia's CEO Challenge about same sex domestic violence. Here it is without the footnotes  and following an email from OII Australia, some minor changes regarding intersex issues.







IT HAPPENS TO US, TOO



Same sex domestic violence



11 May, 2010



Stephen Page



Harrington Family Lawyers



http://www.harringtonfamilylawyers.com/



spage@harringtonfamilylawyers.com











Introduction







I want first to acknowledge the traditional owners, being the Turrbal people on this side of the Brisbane River, and the Jagera people on the other side of the river.







I note that there are LGBT Aboriginal and Torres Strait Islander people, and that regrettably same sex domestic violence has occurred within that community.







“The respondent and the aggrieved were and still are involved in an intimate relationship.



On 19 January 2009 a domestic violence protection order was granted in the Ipswich Magistrates Court and served on the respondent on 24 January 2009. That domestic violence protection order was to run for two years from 19 January 2009.



On 23 March 2009 at 1.40 am police were called to a disturbance at an address in Raceview. On arrival there the police saw the aggrieved in the front yard of the residence with a laceration to his head and blood on his head, face and chest. They also noticed a number of household items on the lawn and a vehicle in the driveway in a damaged condition.



Police spoke with the aggrieved who advised that he and the respondent were partners. They had attended a party in Yamanto earlier in the evening. The aggrieved had left the party early in the evening and went home. The respondent arrived later and an argument occurred.



During the course of the argument the respondent began to throw property around the house and out the window on to the front lawn. He retrieved a knife from the kitchen and presented it to the aggrieved and then began swearing and yelling and demanded that the aggrieved leave. The aggrieved exited the house after being struck in the face by the respondent. He went out into the front yard and the respondent threw a kettle at him and then struck him with a hat stand in the head causing the stand to break. Finally he retrieved a rock from the garden and threw it through the window of the aggrieved’s vehicle shattering the window.



The respondent then returned to the house while the aggrieved contacted the police. The respondent admitted to striking the aggrieved and throwing the kettle but declined to comment on how the property and the vehicle were damaged.”







This fact scenario demonstrates that same sex domestic violence is alive and well within our community. What is also telling about the facts of that case was that the gay couple in question were not living in New Farm or other well known suburbs where many gays live, but everyday suburban Ipswich. This reflects the reality that gays and lesbians live throughout Queensland, and that same sex domestic violence can occur anywhere.



Ms Sharon Stapel, the Executive Director of the New York City Gay and Lesbian Anti-Violence Project, has summarised issues concerning same sex domestic violence:



“Domestic violence in the lesbian, gay, bisexual, and transgender communities is an often ignored, sometimes confused, and rarely discussed problem. For the LGBT communities fighting for equality and the legitimization of their relationships, it can be difficult to admit that battering occurs. Many traditional models for addressing domestic violence assume intimate partners are heterosexual and omit reference to LGBT victims or craft solutions that fail to account for the impact of sexual orientation or gender identity. Some advocates and organizations may not know how to even begin to talk about the issue because of a lack of familiarity with the language or culture of the LGBT communities…




The lesbian, gay, bisexual, and transgender communities are not interchangeable. For practitioners new to the issues of the LGBT communities, some of the language used to describe LGBT people and their partners or their identities can be confusing. Gender identity is often confused with sexual orientation. Sexual orientation is commonly defined as our preference for sexual partners — either same or opposite-sex partners. Lesbians generally identify themselves as women who partner with other women. Gay men generally identify themselves as men who partner with other men. Bisexual people often identify themselves as people who partner with same and opposite-sex partners. Gender identity, on the other hand, is commonly defined as a sense of ourselves as masculine, feminine or at some other point along that spectrum. Transgender people may define themselves as male or female or in a differently defined gender (or lack of gender). While some trans people do identify as “queer” (either because they are involved in same-sex relationships or because their sexual orientation is not “straight”), others define their sexual orientation as straight or heterosexual.”







Legal Issues







It is now possible to obtain protection orders or their equivalent in each State and Territory of Australia for same sex couples. I say State and Territory, because all the legislation is State (or Territory) based and there is no uniform Commonwealth legislation.







In Queensland, 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 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….”







(b) 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).







(c) 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 then Queensland Aids Council (now Queensland Association for Healthy Communities) and from seniors groups. The activists of the Queensland Aids Council expressed a concern about carers of HIV people abusing those in their charge.



(d) A family relationship. If you are related to someone then you may be eligible to obtain a protection order against them. You need, ordinarily, to be related to them by blood or marriage, but family relationships can be wider than that, for example in Aboriginal and Torres Strait Islander communities.







Who is covered by the Queensland legislation?







What has been clear since 2003 is that the Queensland legislation does not discriminate. The people who are covered include:



• A married couple, including if one of the parties is trans



• A heterosexual de facto couple



• A homosexual de facto couple



• A de facto couple if one of the parties is trans



• A couple who have had an intimate personal relationship who are enmeshed



• A mother of a child and the father of the child (when they have never lived together)



• A mother of the child and the sperm donor father



• An HIV man and his informal carer



• A parent and their child (if the child is over 18)







Who is not covered?



• Anyone who does not fit within the definitions



• Neighbours would not normally be included



• A spouse of a person and the former spouse of that same person



• In-laws, when the reliance is on a de facto relationship (with some exceptions)







The joys of marriage



The only marriages recognised in Australia are those between “one man and one woman to the exclusion of all others, voluntarily entered into for life” . Foreign marriages are only recognised if they meet this definition. Therefore, same sex marriages solemnised overseas are not recognised in Australia, and are, for the purposes of Queensland law, de facto relationships.







The reason why this may be important in the context of domestic violence law is because of the definition of “family relationship” and “relative”.







Section 12B (2) to (4) provide:



“(2) A relative, of a person, is someone who is ordinarily understood to be or to have been connected to the person by blood or marriage.



Example of subsection (2)--



A person's spouse, child (including an individual 18 years or over), stepchild, parent, step-parent, sibling, grandparent, aunt, nephew, cousin, half-brother, mother-in-law or aunt-in-law is the person's relative.



(3) For deciding if someone is related by marriage, any 2 persons who are or were spouses of each other are considered to be or to have been married to each other.



(4) A relative of a person (the relevant person) is also either of the following persons if it is or was reasonable to regard the person as a relative especially considering that for some people the concept of a relative may be wider than is ordinarily understood--



(a) a person whom the relevant person regards or regarded as a relative;



(b) a person who regards or regarded himself or herself as a relative of the relevant person.







Examples of people who may have a wider concept of a relative--



1 Aboriginal people



2 Torres Strait Islanders



3 members of certain communities with non-English speaking backgrounds



4 people with particular religious beliefs.”



(emphasis added)







I have differentiated between marriage and de facto relationships in part because from talking to other lawyers, I have learnt that magistrates, in my view incorrectly, have excluded people as “relatives” when the relationship is through a de facto relationship (as opposed to a marriage).







Example 1



Moira and Mildred lived in a lesbian relationship for several years. They have since separated. Moira’s mother Mabel has been stalking Mildred.







Can Mildred obtain a protection order against Mabel (assuming that Mabel’s behaviour is domestic violence)?







Yes, she can.







Mabel is Moira’s mother. Moira and Mildred lived in a de facto relationship. Therefore, by virtue of section 12, Moira and Mildred were spouses. By virtue of section 12B(3), Mabel is deemed to have been related to Mildred.







Example 2



Sean and Cody had a long term relationship. Theirs was an open relationship. They would spend each weekend together, mostly at Sean’s place (as it had air conditioning and a pool). Assuming that there has been domestic violence by Sean to Cody, Cody comes to you asking if he can obtain a protection order against Sean.







Yes, he can.







Sean and Cody were either in a de facto relationship, or more likely in an intimate personal relationship.







Example 3



Not only was Cody trying to stop Sean’s violence and abuse, but Cody describes how Sean’s mother, Brunhilde “a real battleaxe” in Cody’s words, also engaged in domestic violence towards Cody.











Brunhilde



Can Cody obtain a protection order against Brunhilde?







No, he probably couldn’t. The court would need to determine first whether the relationship between Sean and Cody was a de facto relationship or an intimate personal relationship. If the former, Cody could obtain an order, as Cody and Brunhilde would be relatives, due to the spousal relationship between Sean and Cody. If the relationship between Sean and Cody were an intimate personal relationship, and not a spousal relationship, then Cody and Brunhilde would not normally be considered relatives, unless they were in the broader category of relatives.







Example 4



For the last 5 years, Brunhilde has told all and sundry that she is the “luckiest woman alive” as “I now have two sons”, and that “Cody is my favourite son-in-law”. Cody would come to Brunhilde’s house with flowers, call her “mum” and tell her that he loved her.







Could Cody obtain a protection order against Brunhilde?







Yes, he can.







Even if the court found the relationship between Sean and Cody to have been an intimate personal relationship and not a spousal relationship, Cody would be able to obtain a protection order, because in the wider category of relatives, both Cody and Brunhilde clearly considered that they were related to the other.







Example 5



Jan and Marcia decided to have a baby. They live in a de facto relationship. They approach their friend Greg, who agrees to be the sperm donor. Marcia gives birth to a bouncing boy Bobby.







Greg wants to see Bobby. Jan tells him very bluntly to stay away: “Well, all day long at work I hear how great Greg is at this or how wonderful Greg did that! Greg, Greg, Greg! Leave us and our baby alone. You were just the sperm donor. No more, No less.”







Greg does not like this and starts harassing and intimidating Jan.







Can Jan obtain a protection order against Greg?







Not certain.







Marcia and Greg were in a spousal relationship as they are the biological parents of a child. Jan and Marcia were in a de facto relationship with each other. The Act does not appear to allow for Marcia to have two spousal relationships i.e. one with Greg as parents of a child, and one with Jan. If the court considered that it did, then Jan could obtain an order against Greg. If not, then she cannot.







Example 6



John has AIDS and is bed ridden. He has a friend, George who cares for him, including doing his shopping, some nursing of him, and accompanying John to the doctor’s. George believes that John is having an affair with Paul, and starts abusing John all the time.







Assuming that it is domestic violence, can John obtain a protection order against George?







Yes, he can. George and John are in an informal care relationship.







Example 7



Assume that the reason George tends to John is that George is a volunteer organised by the Queensland Association for Healthy Communities. No fee is paid for the service by John. Can John obtain an order against George?







Doubtful. If John had an arrangement with QAHC for George to tend to him: no, he can’t.



If John had no such arrangement, then probably: yes, he can.







Example 8



Kevin and Julia live in a de facto relationship. One day, Julia comes home from work early, to find Kevin playing dressups in her lingerie. Kevin announces that he is trapped in his body, and is really a woman. Shortly after that, Kevin announces that he wants to be called Anna.



Julia is in shock. However, her first preference was also with another woman, and commences a relationship with Nicola.







Julia starts abusing and hitting Anna, telling her that she, Anna, is not a “real woman”, unlike herself, Julia and unlike Nicola.







Can Anna obtain a protection order against Julia?







Yes, she can.







Anna and Julia live in a de facto relationship. Their gender and sexuality is irrelevant.







How is same sex domestic violence the same as 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 the unlawful 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



• Or as you have seen where one of the parties is trans, or indeed intersex



• 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 finances.



• 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



“Domestic violence is a major health concern for gay, lesbian, bisexual, and transgender communities in Australia and overseas. It has been argued that domestic violence is the third most severe health problem for gay men, following HIV/AIDS and substance abuse. A recent large scale Australian study - Private Lives: A report on the health and wellbeing of GLBTI Australians, investigated the level of intimate partner abuse in same sex relationships and found that 32.7% of respondents had experienced violence or abuse in a relationship. ”







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 as amongst heterosexual couples. There are some who argue that the rates are higher and others that the rates are lower. US research suggests that domestic violence occurs in about 30% of same sex relationships.







Sharon Stapel in her article states:







“Domestic, or intimate partner, violence occurs within the lesbian, gay and bisexual communities with the same statistical frequency as in the heterosexual community. Although few studies have been done, preliminary data suggests that domestic violence may occur at a higher rate in transgender relationships.”







ACON Report: Fair’s Fair







Groundbreaking research was undertaken by the Aids Council of NSW (ACON) in 2006. It must be treated with caution, as the numbers are small, only 308 respondents in total. These people were asked to fill out a 2 page questionnaire at the 2006 Sydney Pride’s Fair. The key findings were:







• Similar patterns of violence and abuse occurred across all genders in the sample.



• Overall, including responses from participants of all genders and for both previous and current relationships, the types of abuse indicated ranged from: controlling-jealous behaviour (47.7%); humiliation (45.1%); physical abuse (34.4%); social isolation (30.8%); financial control (17.8%); sexual abuse (16.8%) and outing (16.8%).



• Young people aged 15-25 recorded high levels of some forms of abuse, particularly humiliation, outing and controlling or jealous behaviour.



• A majority of respondents who reported any abuse in a current or previous relationship (57.7%) did not seek any support in relation to the abuse.



• 67.1% of male respondents who reported one or more forms of abuse in a current or previous relationship did not seek any support.



• The most common type of assistance accessed by participants who had experienced abuse was informal support from family or friends (32.8%). The most common type of formal support sought was provided by a counsellor, psychologist or social worker (19.0%).



• 13.8% of respondents who reported abuse in their current relationship have children under the age of 16 in their care. It was more common for women (26.6%) than men (5.2%).



• 16.3% of respondents who reported one or more forms of abuse in a previous relationship indicated that they had children in their care during the relationship.



• Respondents who reported abuse in a previous relationship were more likely to have entered into subsequent abusive relationships.











Rank Types of abuse



Number of respondents % of respondents







1. Acted over-protective and become jealous for no reason



133 43.2



2. Humiliated you, called you names or made fun of you to make you feel worthless



130 42.2



3. Hit, kicked, pushed or thrown things at you



100 32.5



4. Made it difficult for you to attend social events or to see friends or family



87 28.2



5. Controlled your money against your will



52 16.9



6. Forced you to engage in sexual acts that you weren’t comfortable with



48 15.6



7. Threatened to ‘out’ you to your family, friends or work



44 14.3



Total number of respondents



308







Types of abuse- current female relationships







Rank Types of abuse Numbers of respondents % of respondents



1. Humiliated you, called you names or made fun of you to make you feel worthless



9 4.7



2. Acted over-protective and become jealous for no reason



9 4.7



3.



Made it difficult for you to attend social events or to see friends or family



5



5 2.6







4.



Threatened to ‘out’ you to your family, friends or work



2



1.1







5.



Forced you to engage in sexual acts that you weren’t comfortable with



2



1.1







6.



Hit, kicked, pushed or thrown things at you



2



1.1







7.



Controlled your money against your will



1



0.5







Total number of respondents 189







The report identified these key issues:



• The cumulative impact of abuse and re-victimisation. Respondents who reported abuse in a relationship were more likely to have entered into subsequent abusive relationships and endured several violent partners; therefore the cumulative impact of abuse needs to be considered.



• There were high levels of threatened ‘outing’ and social isolation; these specific aspects of abuse have a unique impact upon people experiencing DV in same sex relationships.



• Young people aged 18-25 reported high levels of humiliation, threatened ‘outing’ and controlling or jealous behaviour. Young people entering into first relationships are particularly vulnerable to experiencing abuse.



• Sexual health risks associated with sexual assault and forced sexual acts have potential repercussions of HIV and or other sexually transmitted infections.



• The effects on children of witnessing or experiencing violence or abuse is pertinent for same sex relationships, with 13.2% of respondents who had indicated violence or abuse in a current/previous relationship reporting that children were present in the relationship.



• Generally low levels of assistance were sought by respondents who previously or currently experienced abuse. Only 42.3% of respondents who reported abusive behaviour accessed any kind of support service. There was a significant gender based difference with only 32.9% of male respondents accessing some type of assistance compared to 46.5% of females.



• Friends and family provided the most common form of support reinforcing the need to maintain community awareness of domestic violence in same sex relationships. 32.8% of respondents who reported one or more forms of abusive behaviour accessed support from friends and family.



• Although the majority of the respondents were from the metropolitan Sydney area, a number of respondents who reported abusive relationships were from regional NSW.







What is intersex?



"Intersex is physical difference in anatomical sex. That is, physical differences in reproductive parts like the testicles, penis, vulva, clitoris, ovaries and so on. Intersex is also physical differences in secondary sexual characteristics such as muscle mass, hair distribution, breast development and stature.




Intersex can include things that are invisible to the eye such as chromosomal and hormonal differences. Those kinds of differences usually have a manifestation in primary or secondary sexual anatomy that is visible either externally or internally.



We are intersex because it is thought the kinds of differences in our anatomy seem to be either male and female at the same time or not quite male or female or neither male or female.



So we have physical differences that confuse medicine’s anatomical ideal of male and female.



Intersex is not always immediately apparent because in our society we do not commonly look at each other’s genitals or internal organs."








Myths and Realities about Same Sex Domestic Violence



Myth



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



• Only heterosexual women are subject to domestic violence.







Reality



• Studies indicate that domestic violence occurs in LGBT communities with similar frequency and severity as in the heterosexual community and affects as many as one in three relationships. The general view is that domestic violence in heterosexual relationships occurs in a range of between 1 in 4 and 1 in 3 relationships. Similar rates appear to be occurring in same sex relationships. There is a view that there is a higher rate of domestic violence involving trans people. There is also a view that the rate amongst same sex relationships may be higher due to the higher use of drugs and alcohol (which act as disinhibitors).



• Men as well as women are perpetrators or survivors of domestic violence.







Example



Some years ago I visited a colleague who ran the same sex domestic violence clinic in Los Angeles. Difficulties were caused for her by others on the area’s domestic violence taskforce, as others did not consider that males could be survivors of domestic violence and that only women could be. As an out lesbian lawyer, who was representing both gay and lesbian survivors of same sex domestic violence, she found these views particularly challenging. She said to me: “My gay clients are just as much subject to domestic violence as women.”







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.







Example



Peter and Paul were in a long term relationship. Peter was older than Paul. Paul had a major drinking problem. He would drink on average one bottle of vodka or two bottles of wine daily. Paul was often abusive towards Peter. One night Peter had had enough and hit Paul with the phone handset three times.







Paul obtained an emergency protection order, including an ouster order. Police removed Peter from the home.







Subsequently it was discovered, through the court process, that Paul was the primary aggressor, not Peter.







Myth



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



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



• Women do not assault/men cannot be assaulted.







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 perpetrator to be larger or physically stronger. LGBT partner abuse is not confined to “gender roles”. However, magistrates have informed me that the typical same sex cases coming through Brisbane Magistrates Court are the stereotypical cases. Those I have seen have not fit the stereotypes.







Example



Kevin and Tony live together in New Farm. One night, after they have had too much to drink, they argue violently, because Kevin will no longer put up with Tony’s control and dominance of him. The neighbours call police. Tony tells police that Kevin smashed a wine glass and threatened him. Kevin tells police that Tony is always telling him what to do, whom he can see, controlling his finances, and doesn’t allow him air to breathe. Kevin admits that they had an argument and that this was the final straw. Kevin is told by police: “You’re a big boy now. Look after yourself.” Kevin breaks down crying and screaming. Kevin admits he smashed the wine glass. Police take Kevin away, and obtain a temporary protection order against him.







Example from a heterosexual relationship



Bob and Mary had been in a relationship. One day Mary came to Bob’s workplace. There was an argument. Both were hurt. Mary was very short. Bob was 2 metres tall and heavily built. His nickname was “Stretch”. Who was the perpetrator?



Police believed that Bob was. When convincing independent evidence was put before the police showing Mary as the perpetrator, despite their size differences, police withdrew their involvement.







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. Abuse happens more frequently in those relationships where people are poorer and less educated, and less frequently in those relationships where the people are richer and better educated.



• Although substance use is a co-factor to domestic violence, it does not cause abuse. Substance abuse acts as a disinhibitor. Therefore the use of drugs and alcohol is frequently associated with domestic violence. With the possible exception of speed and ice, it is not seen as a cause of domestic violence.



• As seen in the case example at the beginning of the paper, domestic violence can occur in any relationship in which dominance and control exist.







Myth



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







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 violence is dangerous.



• As seen in Robert McEwan’s case, same sex domestic violence can be just as brutal as other domestic violence.



• Women who have come out of violent heterosexual relationships into the utopia of lesbian life, may discover that domestic violence is alive and well in lesbian relationships too.







Myth



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







Reality



• Drinking and drugs are disinhibitors: they lower control over inhibitions which sometimes prevent people from being violent. However, just as in heterosexual partner abuse, many abusers do not abuse substances and/or do not necessarily commit acts of domestic violence while using substances. Ultimately, relationship violence is about the choice one partner makes to exert control over the other. Regrettably there can be a strong connection between the use of certain drugs and domestic violence, such as alcohol, marijuana, speed and ice, but alcohol and drug use in and of itself is not a cause of domestic violence.







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;



• LGBT women and men survivors of domestic violence are as likely to identify themselves as survivors 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. According to Fair’s Fair, 13.2% of respondents who had indicated violence or abuse in a current/previous relationship reported that children were present in the relationship. Typically, there are higher rates of children in lesbian households than in gay households.







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. There are no LGBT refuge services for any men. There is a general lack of recognition in the funding of services for men who are the survivors of domestic violence. LGBT individuals may fear that they will be treated with prejudice, judged, not believed 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, children, 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 issues for both lesbian survivors being housed with their abusers and accommodation for trans survivors.



• There are issues for lesbian survivors and their perpetrators being helped in the same domestic violence or court support programs.







Sharon Stapel again:







“Some forms of battering are unique to the LGBT communities. Batterers have an additional weapon in the threat of “outing” their partner’s sexual orientation or gender identity to family, friends, employers, landlords or other community members. Same-sex survivors of domestic violence faced with custody battles may worry that their sexual orientation will negatively impact their case and decide to stay with an abuser rather than risk losing custody or visitation rights. Batterers who abuse their transgender partners often tell their partners that no one will understand or love them because of their gender identity or transition process, or they may threaten to evict their transgender partner, leaving the survivor homeless and facing dangers in the streets, the homeless shelters and the job market. Survivors may face further isolation because they are reluctant to access services that are not perceived as LGBT-friendly. For some LGBT survivors, their batterer may be the first person to accept their sexual orientation or gender identity and batterers may use this knowledge to keep a survivor isolated.







It can be difficult for an LGBT survivor to access services. Models based on heterosexual relationships can be alienating and seemingly irrelevant to same sex survivors. Survivors who must out themselves to service providers may be afraid that they will be treated disrespectfully or be denied services. LGBT survivors may not have the energy to educate advocates unfamiliar with LGBT communities about their experiences and cultural norms. LGBT survivors also may understand the restricted access they have to civil legal remedies and may not seek services because it is unclear that the law will afford protection.”







Myth



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







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, lesbophobia, 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.



• Many LGBT people may be struggling with their own internalised homophobia, lesbophobia, 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 perpetrator and survivor. ACON stated:



“Domestic violence isn’t well understood in the community



There hasn’t been much information or discussion in the gay and lesbian



communities about domestic violence in our relationships. Most information on



domestic violence relates to heterosexual relationships with the man abusing



the woman. This lack of understanding means that some people may not:



• Believe it happens in same sex relationships;



• Recognise abuse as domestic violence if it does happen to them; and/or



• Know how to respond if they see domestic violence in their friend’s or family members’ relationships ...



“Services may not be well developed



Although lesbians can access most general domestic violence services, like



refuges, court assistance schemes, and counselling services, these services



may have little experience in working with same sex domestic violence and



therefore, may not offer the most appropriate service. For gay men there are



currently few specific services that offer assistance or support …”



Myth



• I won’t be able to meet any other gay or lesbian people.







Reality



• One form of abuse is social isolation. Some people worry that if they leave



their abusive partner they will end up isolated and alone. This is especially true



for people in their first same sex relationship. There are many community groups that can help people make connections with other gay men or lesbians.







Myth



• Bondage and Discipline or Sadomasochism (BDSM) is about power and control. That means the submissive partner is being abused.



Reality



• BDSM is a negotiated sexual activity that may involve hitting, slapping, pain,



coercion, or dominance. Some people may adopt long term roles of dominance or



submission. These are conscious and consensual activities where all parties agree



to their roles as well as the time and place for a particular scene. In a domestic



violence situation the abused partner does not consent to the abusive activities.







Chronic Illnesses



ACON states:



In some cases of domestic violence the abusive partner is the one with the illness while in others it is the one without the illness that is abusive. Within an abusive relationship where either or both of the partners has a chronic illness many of the forms of abuse and control discussed earlier may exist. However there are a number of forms of domestic violence that are specific to relationships where either or both partners have a chronic illness.



If the abusive partner does not have a chronic illness (eg is HIV negative) they may:



• Threaten to, or actually, disclose their partner’s health status to friends,



family or colleagues.



• Withhold medication, treatments or access to other medical services.



• Threaten to cut off support or to leave.



• Verbally abuse their partner by saying they are ‘diseased, sick, unclean’ or other inappropriate comments about their illness, or otherwise undermine their partner’s confidence.



If the abusive partner does have a chronic illness (eg is HIV positive) they may:



• Use guilt or other psychological abuse to manipulate their partner.



• Refuse to take medication or seek medical services.



• Use their illness to manipulate services, eg saying ‘I’m weak and sick, how could I control him/her?’



• Where relevant, threaten to, or actually, infect their partner to prevent them leaving.



As sexual assault is a common form of domestic violence, sexually transmissible infections (eg HIV, Hepatitis B) pose a special risk to the uninfected partner. There are a range of support services that someone with a chronic illness may be able to contact, in addition to the Queensland Association for Healthy Communities. These include:



• A trusted doctor, nurse or other health care worker or a hospital social worker or counsellor.



• Centrelink (13 10 21).



• Illness specific support groups for information on treatments, legal rights, support services, and so on. These groups may not have experience providing support to gay men or lesbians escaping domestic violence but may be able to provide support around the specific requirements of the illness. Look in the White Pages for contact details for specific groups.







Action by service providers



Sharon Stapel again:



Consider the following suggestions for law offices and lawyers:







• Use gender-neutral terms until the client identifies the abuser’s gender (e.g. “So what is your partner’s name?” instead of “What is his name?”).



• Ask respectfully how they identify and what pronouns they prefer. Questions about a transgender client’s sexual organs, sexual-reassignment surgery status (many transgender people never have sexual reassignment surgery), hormone status or any other clearly private matter as a way to establish a client’s identity are inappropriate in all circumstances. As in any other situation, these questions are intrusive and embarrassing. If a definition of the transition process is necessary for a legal theory or remedy, practitioners should explain to the client why they are asking an admittedly personal and invasive question.



• Create intake forms that are neutral in tone. For example, instead of “Gender: F or M,” use “Gender: ________,” which allows transgender clients to self-identify. Also consider using language like “partner” instead of “boyfriend” or “husband” on written materials.



• Instead of using the phrase “battered women” — which may alienate battered gay men and transmen — use gender-neutral language like “victim” or “survivor.”







Language do’s and don’t’s



 DO call people by the name they prefer.



 DO call people by the pronoun they currently use.



 DO refer to people in they way that they prefer.







 DON’T assume what anyone’s sexual orientation or gender is.



 DON’T assume anyone’s sexual orientation or gender means they want to talk about it.







Identifying the predominant perpetrator



As those of us who have practised a long time in domestic violence matters, it can often be hard to identify who is and who is not the predominant perpetrator of the violence. In heterosexual relationships, given the propensity of violence by men to women, too often the lazy or ideological assumption is made that the man is the violent of the two: remember the example of Bob “Stretch” and Mary.







The usual way of properly identifying who is and who is not the predominant perpetrator of the violence is to use the method that has been used since time immemorial - test your client. Knowing what the general features are of domestic violence, see how the client sitting on the other side of the desk from you stacks up. You may have to carry out a careful investigation of what has happened to determine in your own mind as to who is the predominant perpetrator and who is the survivor.







Keys to identify a survivor of domestic violence



• self-blaming



• expressions of shame, embarrassment and fear



• minimisation of the conduct towards them, including excusing the behaviour of the abuser “ she told me that it was my fault”; “if only I had listened to her, I wouldn’t have got hurt”; “he told me that no one else loved me”



• reluctant to take action



• telling a story similar to other survivors of domestic violence



• if they have not come out, a fear of being outed







Keys to identifying a predominant perpetrator of domestic violence



• more likely to be engaged in blaming the victim: “it was all her fault”



• more likely to be minimising their conduct “I didn’t mean to hit her. It was an accident, but it was after she took a swing at me first”



• more likely to use aggressive and hostile language when talking about incidents



• may demonstrate a sense of entitlement in punishing their partner











Further helpful resources



Lee Vickers, The Second Closet: Domestic Violence in Lesbian and Gay Relationships: A Western Australian perspective (1996) – www.murdoch.edu.au/elaw/issues/v3n4/vickers.html







The New York State Lesbian, Gay, Bisexual, Transgender and Queer Domestic Violence Network – www.avp.org/dvnetwork/main/htm







LA Gay and Lesbian Center Partner Abuse/Domestic Violence - http://www.lagaycenter.org/site/c.mvI4IhNZJwE/b.1032493/k.A113/Are_You_a_Victim.htm







American Bar Association Commission on Domestic Violence – www.abanet.org/domviol







Janice Ristock and Norma Timbang, Relationship Violence in Lesbian/Gay/Bisexual/Transgender/Queer [LGBTQ] Communities 2005 - http://www.mincava.umn.edu/documents/lgbtqviolence/lgbtqviolence.html







Brad Gray – “Community Awareness Campaign: Same Sex Domestic Violence” - http://www.austdvclearinghouse.unsw.edu.au/





ACON : Domestic Violence in Gay and Lesbian Relationships; Another Closet http://ssdv.acon.org.au/

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Monday, 3 May 2010

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