Our investigation found that despite the Royal Commission’s only recommendation regarding misidentification having been implemented, misidentification continues to occur, and rectification is extremely challenging. As the Chair of the Victim Survivors’ Advisory Council neatly concluded, ‘it’s too easy for it to happen and too hard for it to be fixed’. Indeed:
This serves as a reminder that reform should go beyond ‘ticking a box’ and moving on – it requires constant re-evaluation and education to best serve victim–survivors of [family violence] and their individual safety needs.3
We found some good foundations in policy and guidance, but this has not yet translated into consistent practice. Inconsistency in being able to identify the predominant aggressor, and to recognise and respond to misidentification, was raised frequently about Victoria Police, Child Protection and magistrates. This illustrates that despite substantial efforts across a range of workforces to date, there continues to be inconsistency in understanding family violence and coercive control and how these intersect with a range of cohorts. It also illustrates that, in some cases, the available guidance is not clear enough.
There was also a lack of clarity about both local and systems approaches to reducing misidentification and rectifying it when it does occur. While it was possible to change the record in some cases, such as in The Orange Door and specialist services databases, many victim survivors or their advocates were left to fight to be acknowledged as a person in need of protection and to stop being treated as a perpetrator in other systems.
Our detailed analysis can be found in the remainder of this report. Throughout the report, findings that directly relate to a proposed action are highlighted.
This review has identified an urgent need to address misidentification. Currently, some systems that have been set up to protect victim survivors are unintentionally resulting in further harm. To effectively reduce and respond to misidentification, as intended by the Royal Commission, a genuine whole-of-system effort is required. This will require partners from across different sectors to work together to develop workable solutions for each stage of the process and at a minimum will need to involve government representatives from justice system agencies, the legal sector, the specialist family violence sector, child and family services, and Child Protection. Engagement with groups that can represent the unique needs of priority cohorts will also be essential. Close collaboration with Koori Caucus and Aboriginal organisations will be required to ensure that these solutions adequately address the high rates of misidentification among Aboriginal women.
We suggest the following suite of actions is required to adequately address misidentification in a systemic way.
Sixteen proposed actions to address systemic misidentification4
- Initiate a whole-of-system response to directly address the problems identified in this report.
- Implement an agreed approach to monitoring key indicators of misidentification over time.
- Document agreed whole-of-system misidentification reduction and rectification processes and update local manuals and guidelines accordingly (e.g. Victoria Police Manual Family Violence, The Orange Door model and the Child Protection Manual).
- Re-examine and potentially redesign the Family Violence Report and associated processes and guidance to:
- support officers to identify the predominant aggressor before beginning the risk assessment, particularly in ambiguous situations
- clearly differentiate between the risk assessment (and referral) function for civil protection purposes, and any criminal incidents (particularly in cases where a victim has used force)
- ensure alignment with Victoria Police policies and the Family Violence Multi-Agency Risk Assessment and Management (MARAM) Framework.
- Trial a review process, involving the specialist family violence sector, for any Family Violence Report where a woman is identified as a respondent (and possibly for other targeted cohorts) before it is committed to Victoria Police’s LEAP database.
- Urgently review how family violence records are captured in LEAP to ensure that where misidentification is found, the record can be amended so a person doesn’t continue to be incorrectly listed as a respondent.
- Establish and communicate clear processes to guide police responses where there is new information that suggests misidentification has occurred, including:
- a contact point at Victoria Police that other agencies can use to raise misidentification
- an agreed process to make a determination that misidentification has occurred
- specific guidance for police on the actions they need to take once this determination has been made.
- Develop clear guidance for withdrawing family violence intervention order applications or criminal charges in cases of misidentification and give police prosecutors the authority to quickly facilitate this.
COURTS AND LEGAL SERVICES
- Develop a clear process for an urgent return to court in matters where misidentification has been found.
- Integrate legal services in the family violence response model to ensure timely legal advice in misidentification cases, and provide these services with appropriate training to ensure they are familiar with and work consistently with MARAM.
- Give urgent attention to exploring legislative options to provide courts with the power to find that misidentification has occurred and to issue a court order for all records to be corrected.
- Further investigate what action, guidance and training might be required to provide greater clarity in how family violence and other protective concerns are balanced and to ensure that, in addressing protective concerns, perpetrators are held to account.
CONTINUING AND STRENGTHENING EXISTING EFFORTS IN THE FOLLOWING AREAS IS ALSO ESSENTIAL
- Through Koori Caucus and the Dhelk Dja Partnership Forum, work with the ACCO Family Violence Forum members to ensure that the solutions developed adequately respond to Aboriginal victim survivors.
- Build – and report on – capability across the system (police, Child Protection, courts and elsewhere, as needed) to reduce inconsistency and increase understanding of family violence and coercive control, and to target known practice issues.
- Roll out the core features of the specialist family violence court model across the state to ensure more magistrates and court workers can engage effectively with respondents and affected family members and recognise misidentification.
- Carefully consider the risk of misidentification of children as respondents when developing a system response to adolescent violence in the home.
3 Reeves E (2021): ‘I’m not at all protected and I think other women should know that, that they’re not protected either’: Victim–survivors’ experiences of ‘misidentification’ in Victoria’s family violence system. International Journal for Crime, Justice and Social Democracy, p.11. Available at: doi.org/10.5204/ijcjsd.1992 (accessed 20 September 2021).
4 The Law Enforcement Assistance Program (commonly known as LEAP) is the police database that stores details of ‘all crimes bought to the notice of police as well as family incidents and missing persons. It also includes details on locations, vehicles and persons involved. The database is online and updated constantly, 24 hours a day’ (refer to police.vic.gov.au/crime-statistics).