COVID-19 and the impact on Domestic Violence

July 22 2020 0 Comments

Australia and other countries around the world have recently had, and in some states appear to be returning to. various stages of lockdown due to the coronavirus, which according to the John Hopkins University of Medicine website, has claimed over 577,954 lives worldwide at the time of writing. With folks experiencing long periods of time confined to their homes under threat of hefty fines if they leave it, as one young driver having a driving lesson with her mother discovered the hard way (coping a $1,600 fine), people have felt the pressure of confinement. The border lockdown between Victoria and NSW does not assist this pressure. This is in addition to the tens of thousands who have lost their jobs. Regrettably, there are increased reports of family violence.

There has been a rise of domestic violence over a 2-year period, according to NSW Bureau of Crime Statistics and Research. Domestic Violence NSW interim chief executive Delia Donovan recently stated “The difference for Covid-19 is the social isolation and stay-at-home measures that were in place have significantly reduced victims’ options and ability to seek help, which in turn could lead to an under-reporting in police figures”.

The Law

Domestic violence offence is defined in Section 11 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) as:

“an offence committed by a person against another person with whom the person who commits the offence has (or has had) a domestic relationship, being—

(a) a personal violence offence, or

(b) an offence (other than a personal violence offence) that arises from substantially the same circumstances as those from which a personal violence offence has arisen, or

(c) an offence (other than a personal violence offence) the commission of which is intended to coerce or control the person against whom it is committed or to cause that person to be intimidated or fearful (or both).”

Domestic relationship is defined in Section 5 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) as:

“a person has a domestic relationship with another person if the person—

(a) is or has been married to the other person, or

(b) is or has been a de facto partner of that other person, or

(c) has or has had an intimate personal relationship with the other person, whether or not the intimate relationship involves or has involved a relationship of a sexual nature, or

(d) is living or has lived in the same household as the other person, or

(e) is living or has lived as a long-term resident in the same residential facility as the other person and at the same time as the other person (not being a facility that is a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999 or a detention centre within the meaning of the Children (Detention Centres) Act 1987), or

(f) has or has had a relationship involving his or her dependence on the ongoing paid or unpaid care of the other person (subject to section 5A), or

(g) is or has been a relative of the other person, or

(h) in the case of an Aboriginal person or a Torres Strait Islander, is or has been part of the extended family or kin of the other person according to the Indigenous kinship system of the person’s culture.

Personal violence offence is defined in Section 4 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) in reference to multiple criminal offences listed under the Crimes Act 1900 (NSW). Such offences include common assault, sexual assault, aggravated sexual assault, manslaughter, attempted murder and murder.

What must the prosecution prove?

The Crown must establish the following elements beyond reasonable doubt:

That you have or had a domestic relationship with the victim and that you willingly committed:

a listed personal violence offence against the victim; or
an offence (other than a personal violence offence) in substantially similar circumstances as those from which a personal violence offence has arisen; or
an offence (other than a personal violence offence) the commission of which was intended to coerce or control the victim or cause the victim to be intimidated and/or fearful.

Defences:

An excuse to otherwise unlawful conduct is if your actions were in self-defence of yourself or another, eg a child in your care;
Many crimes require the mental intention to commit the offence. Pursuant to Section 428B of the Crimes Act, Assault with intent to have sexual intercourse is an offence of specific intent. Therefore, the lack of such intent, is a possible defence;
The defence of lawful correction. The law recognises the need for parents to discipline their children, and that sometimes this involves physical force. The requirements that must be satisfied for this defence to be available are stated in Section 61AA of the Crimes Act.

If you or someone you know has been charged with a domestic violence offence, please contact Rep-Revive Criminal Lawyers for your free consultation.