Misidentification is a significant issue that has enormous consequences for the victim survivor

While relevant government policy documents and other resources quite consistently describe what a predominant or primary aggressor is, and provide guidance on how to identify one, misidentification continues to occur, with enormously harmful consequences for victim survivors.

The exact prevalence of misidentification is unknown, but stakeholders we met with consistently told us that they see it happen too often. There are also some quantitative indicators, as outlined below and depicted in Figure 2:

• Victoria Police estimate that of female respondents on Family Violence Reports relating to intimate partner violence, misidentification occurs approximately 12 per cent of the time.¹⁸
• Crime Statistics Agency data showed that of family violence incidents in 2020 where police identified a female respondent, 58.7 per cent of the women had been identified as a victim of family violence in the past five years (31.3 per cent by the person they are alleged to have perpetrated against) compared with 26.7 per cent of male respondents.
• Based on a 2018 review of client intake forms, Women’s Legal Service Victoria found that 10 per cent of their clients had been misidentified as respondents on police applications for family violence intervention orders (FVIOs).¹⁹
• At court, 29.4 per cent of FVIO applications where the respondent is female are struck out or withdrawn compared with 13.3 per cent of applications where the respondent is male (noting there are numerous reasons that could lead to a matter being struck out or withdrawn).²⁰

With the number of incidents where police identify a female respondent increasing substantially over recent years (to 22,787 in 2020), misidentification is affecting a significant number of women. There is no single source of truth for the number of women misidentified. However, applying prevalence estimates to the number of incidents where a woman is listed as the respondent equates to misidentification potentially occurring in at least 2,279 incidents in 2020, based on a prevalence of 10 per cent, and possibly many more.

Figure 2: Key statistics relating to women as respondents, and indicators of their misidentification

Figure 2: Key statistics relating to women as respondents, and indicators of their misidentification

PDF 86.37 KB

(opens in a new window)

Further, certain cohorts are at greater risk of being misidentified as a perpetrator: in particular, Aboriginal women, migrant and refugee women, women with disabilities, criminalised women and LGBTIQ+ people.²¹ For example, InTouch told us that of a group of victim survivors they had worked with who had been labelled perpetrators, half of them had been misidentified and others reported not being believed or being treated as though they were being manipulative or lying. Youthlaw noted that in a case review they conducted of children and adolescents who were listed as respondents on FVIO applications, 75 per cent were current or past victim survivors.²² Djirra estimated that on FVIOs where their female client is listed as the respondent, there has been misidentification or some degree of unfairness in the response 90 per cent of the time. Crime Statistics Agency data presented in Figure 2 shows that nearly 80 per cent of Aboriginal women who were identified by police as the respondent in family violence incidents had been recorded as a victim in the past five years (compared with nearly 60 per cent for all female respondents) [relates to Action 13]. Some of the high-level reasons for these discrepancies are explored below.

Aside from workload or process related factors, there are several reasons for victim survivors being misidentified as perpetrators, and vice versa. We have classed these reasons into three overlapping categories, depicted in Figure 3 and described below.

• Perpetrator’s manipulation of the system: Some perpetrators actively manipulate police and the justice, health and Child Protection systems for their own advantage and as a continuing form of family violence (for example, refer to Caroline’s story). This is known as systems abuse, and some stakeholders explained that once a perpetrator has achieved success in manipulating systems against a victim survivor, they will continue to use this approach. A particular concern raised was the system manipulation used by non-Aboriginal men in relationships with Aboriginal women; knowing their victim survivor’s fear of involvement of police and Child Protection, the perpetrator makes threatened and actual use of these systems as a further form of coercive control. Stakeholders expressed that while it is a positive step that online tools and family violence information are now readily available, making it easier for victim survivors to seek help, these resources also provide perpetrators with a script and tools that enable them to abuse the very systems that are designed to protect people. This, of course, doesn’t mean that access should be reduced but that relevant workforces need to be skilled in identifying when systems abuse is happening.

• Misinterpretation of victim survivor’s presentation and characteristics: Misidentification can also occur when judgements are made about a person’s appearance, behaviour and characteristics. Many of the stakeholders we met with said there are some ingrained assumptions – which ‘can be highly racialised, gendered and classed’²³ – about how a ‘real’ victim survivor should look and behave. Victim survivors who appear agitated and/or uncooperative are less likely to be seen as being in need of protection, even though they may be exhibiting a very normal response to the, often extended, trauma they have endured. Stakeholders told us that some cohorts of women are more likely to be subject to bias and discrimination and less likely to be taken seriously as a victim survivor (such as women experiencing mental illness, women using alcohol or other drugs, and criminalised women). These issues are particularly salient for Aboriginal women, many of whom have experiences of intergenerational trauma, racism and criminalisation. For other women, such as women with disabilities and migrant and refugee women, communication barriers may make it more challenging for them to convey their side of the story. For women with multiple, intersecting forms of disadvantage, the issues are compounded. In too many of the examples we heard, perpetrators used the ‘vulnerabilities’ of victim survivors – including mental illness, alcohol and other drug use, language barriers, visa status, finances, housing and fear of Child Protection – against them, including by ‘weaponising’ associated systems to manipulate the situation. In some cases, the mental illness or substance misuse was a result of the abuse, and yet was able to be used by the perpetrator to undermine the victim survivor and contribute to their misidentification.
• Victim survivor’s use of self-defence or violent resistance: It is our understanding that a victim survivor who, through an act of self-defence or violent resistance, commits a crime is likely to be labelled a family violence perpetrator, at least at the time of the incident. Being able to separate such an act from a pattern of abuse requires a nuanced understanding of the dynamics of family violence and the difference between men’s and women’s use of violence. The MARAM Framework is clear that women ‘tend to use force to gain short-term control over threatening situations, rather than using already held power to dominate or control their partner’. This motivation is ‘distinctly different from men’s use of violence, which is characterised by a pattern of coercive, controlling and violent behaviour’.²⁴

Tragically, the dynamics of family violence and coercive control will sometimes mean that women are conditioned to believe they are in the wrong and deserve what is happening to them. They may not be aware that they are experiencing misidentification, and this will affect their engagement with police, courts and other services, and often act as a barrier to challenging the misidentification early, if at all.

Yet the consequences of being misidentified as the predominant aggressor can be crushing for a victim survivor. These consequences have been widely documented²⁵ and have been shared with us directly through our consultations. First and foremost, misidentification means that the actual perpetrator is not being held to account for their violence and may continue to inflict family violence on the actual victim and others, uninhibited. It means that the person most in need of protection is not being protected and may instead have court processes initiated against them. The flow-on effects of this are far-reaching, including the following (see also Amy’s story):

• Further criminalisation – for example, if the victim is subject to an FVIO and inadvertently breaches it, they may be subject to criminal charges. A record as a perpetrator may also influence the police response to future incidents.
• Information sharing – a misidentified person can have information that mistakenly lists them as a perpetrator shared across agencies under information sharing provisions.
• Impact on children – for example, if Child Protection assesses that a child is in need of protection and progresses a protective application, then the Children’s Court may decide to remove the child from the care of the parent who has been labelled the perpetrator (but who is actually a victim survivor), and in some cases place them with the actual perpetrator.
• Financial implications – for example, misidentified victim survivors may lose access to government payments and may have to take time off work for court proceedings.
• Housing implications – the misidentified victim survivor may be excluded from the home and forced into crisis accommodation or homelessness and not be considered a priority for housing assistance because they are not recognised as a victim survivor.
• Access to services – the victim survivor may experience a delay or additional barriers in accessing specialist family violence services.
• Health impacts - the victim survivor may receive a misdiagnosis resulting from misinformation, trauma and post-traumatic stress disorder related to the abuse, removal of maternal care (e.g. breastfeeding if separated), unidentified or unattended injuries, exacerbation of family violence drivers of ill-health and coping behaviours (e.g. alcohol).
• Future employment – employment prospects may be limited with a record of family violence perpetration or related criminal convictions.
• Future help-seeking behaviour – the victim survivor is less likely to seek help from police or services in future due to a lack of trust.

As captured in the 2020 ANROWS report, these consequences:

… contributed to a profound sense of injustice and distrust of the police and legal system, meaning victims/survivors came to view the legal system as an extension of violence rather than a protective resource. For many women this trauma manifested in a range of poor mental health outcomes and substance use issues … At a personal level, this also translated to deeply felt impacts of misidentification on their self-worth, with many women expressing shame, humiliation and social isolation.²⁶

The issues contributing to misidentification and the challenges to its rectification at various points in the system are captured in Figure 4.

There are also significant flow-on implications for children of the person who has been misidentified. They are exposed to the resultant stress and loss of stability, and they may ultimately be removed from the parent who has been doing their best to be protective within an abusive relationship. For children who, themselves, have been misidentified, there is often a history of family violence, particularly from a parent or carer, yet there are limited options to respond. Youthlaw explained that as the young person is often heavily reliant on their parents (including emotional dependency and ability to remain engaged with their family including siblings, financially for accommodation, access to education and services and ability to attend court), they may be reluctant to challenge them legally, and there is a very real risk of criminalising the child.

Further, aside from the profound personal consequences for a victim survivor who is misidentified, misidentification leads to wasted system resources across police, courts, specialist services and other government-funded areas that are already under ongoing demand pressure. It is encouraging that we observed widespread awareness of misidentification and its impacts, and a commitment to doing something about it, particularly from Victoria Police. We hope the issues highlighted in this paper can inform future whole-of-government action to address misidentification.

Figure 4: Stakeholder perceptions of key barriers contributing to the ongoing issue of misidentification

Figure 4: Stakeholder perceptions of key barriers contributing to the ongoing issue of misidentification

PDF 69.16 KB

(opens in a new window)

Endnotes

¹⁸ Victoria Police (2021): External agency briefing: Misidentification of the Primary Aggressor – A 2021 Update (not published).

¹⁹ Women’s Legal Service Victoria (2018): ‘Officer she’s psychotic and I need protection’: Police misidentification of the ‘primary aggressor’
in family violence incidents in Victoria, p. 1. Available at: womenslegal.org.au/~womensle/wp-content/uploads/2021/04/MisID-Policy-
Paper.pdf (accessed 1 July 2021).

²⁰ Crime Statistics Agency (2020): Magistrates’ Court Data Tables 2019–20, Table 4. Outcome of FVIO applications by gender of respondent,
July 2015 to June 2020.

²¹ No to Violence (2019): Discussion paper: predominant aggressor identification and victim misidentification. Available at: ntv.org.au/
advocacy-media/policy-positions-and-submissions/ (accessed 6 July 2021).

²² Analysis of de-identified Youthlaw data, Centre for Innovative Justice, RMIT University, 2021.

²³ Family Safety Victoria (2021): MARAM Practice Guides, Foundation Knowledge Guide: Guidance for professionals working with child or
adult victim survivors, and adults using family violence, p. 112. Available at: vic.gov.au/maram-practice-guides-and-resources.

²⁴ Ibid, p. 97.

²⁵ Women’s Legal Service Victoria (2018): ‘Officer she’s psychotic and I need protection’: Police misidentification of the ‘primary aggressor’
in family violence incidents in Victoria; No to Violence (2019): Discussion paper: predominant aggressor identification and victim
misidentification; Family Safety Victoria (2021): MARAM Practice Guides Foundation Knowledge Guide.

²⁶ ANROWS (2020): Accurately identifying the ‘person most in need of protection’ in domestic and family violence, research report, p.
86. Available at: anrows.org.au/publication/accurately-identifying-the-person-most-in-need-of-protection-in-domestic-and-family-violence-
law (accessed 6 July 2021).