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- At court, 29.4 per cent of FVIO applications where the respondent is female are struck out or withdrawn compared with 13.3 per cent of applications where the respondent is male (noting there are numerous reasons that could lead to a matter being struck out or withdrawn).20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: Accessible Version
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.
The most effective strategy for a perpetrator is to get the victim named as the perpetrator.
- Professor Cathy Humphreys, The University of Melbourne, consultation with Family Violence Reform Implementation Monitor, July 2021
- 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
Caroline travelled to Australia from Europe in her early 20s, with no friends or immediate family in the country. She met Felix and the relationship became one of co-dependency very quickly. They were married and had two children. Felix drank heavily every day. He had a controlling and manipulative personality and kept her close, not encouraging her to have her own friends or outside activities. When their children came along, she became more focused on them and he received less attention, which he did not like. Due to the pressure and control she experienced during the marriage, her mental health suffered, and she received support from mental health services, including a stay in a mental health unit. At no point was she questioned about their relationship by these services. When she was released, Felix would tell her that he ‘saved’ her from the mental health unit. She believed him for a long time. In fact, Felix was in ongoing contact with the outpatient support Caroline was receiving, claiming that she was abusive and directly attempting to influence her diagnosis and medication.
During the coronavirus (COVID-19) pandemic, Felix’s abuse escalated. He was verbally, emotionally and physically abusive, and this abuse included an incident of attempted strangulation. Caroline decided she had to leave the relationship. But before she could leave, Felix took the children and left. He went to the local police station and applied for a family violence intervention order (FVIO) against her. The children were not included in this order. Felix also called Child Protection and the mental health outpatient service, claiming Caroline was having a psychotic episode. Caroline engaged closely with the mental health service to have Felix removed as her next of kin and to slowly disclose what had actually been happening at home. Her mental health improved considerably once she was out of the relationship, and the service removed her initial diagnosis, instead diagnosing her with chronic post-traumatic stress disorder.
Caroline has now applied for an FVIO of her own and included her children on the application. However, while the court proceedings are ongoing, Felix still has custody of the children and has made it very difficult for her to see or communicate with them. Caroline contacted Child Protection to discuss her concerns about the children being in Felix’s care, but she was advised that there was already a case open, as he had already called them, claiming she was the problem. Child Protection staff informed her that Felix claimed that she is making no effort to contact the children and that he had disclosed his version of Caroline’s mental health history. She knows that they have obtained outdated diagnosis information, which she feels affected their judgement of her. They have also never asked questions that indicated they were truly trying to understand the dynamics of the relationship, and Caroline has felt like they only ever heard his side of events. Child Protection have refused to speak to her lawyer and Caroline is unsure who to contact. She has not been advised of the steps moving forward and has felt very intimidated by the whole process.
Caroline has always felt disadvantaged due to Felix’s systems abuse. She is shocked that by simply removing her children from the home and ‘getting in first’ with the FVIO and Child Protection applications, Felix has been successful in getting these systems to work against her.
Source: Family Violence Reform Implementation Monitor, based on a direct victim survivor account
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.
In 2018 Amy’s then husband, Dan, assaulted her. He regularly abused alcohol and became particularly angry and difficult when drinking. Amy knew his behaviour was bad, but at the time she didn’t even realise she was experiencing family violence. On this occasion, she felt unsafe and wanted to get in her car and leave the area, but Dan blocked her car in.
As she had done many times before, Amy called police in the hopes that it would force Dan to calm down and the situation would de-escalate. However, on this occasion police issued a family violence safety notice against her, based on Dan’s claims that Amy had assaulted him. Amy hadn’t told police about the assault against her because she didn’t want to aggravate Dan.
Amy was then evicted from the property, leaving in the back of a police vehicle. Amy had to attend court seven days later due to the expiry of the safety notice. There, police applied for an interim FVIO against her. Amy still loved and wanted to protect Dan. She ultimately described what had actually happened at the incident while still hiding the full history of his behaviour. The court (a specialist family violence court) struck out the application, and Amy later applied for an order on her own, which was granted.
Amy’s psychologist has diagnosed her with extreme post-traumatic stress disorder due to the experience. She has difficulty sleeping and often wakes up distressed. Having returned to the home she shared with Dan, she lives in a state of stress and hypervigilance.
Because Amy works for herself, this experience has had a large impact on her work. She lost clients, which affected her financially. Amy feels strongly that there must be consequences for perpetrators who use systems abuse in this way. She describes police siding with Dan as emboldening and encouraging him to continue his narrative of being a victim loudly and persistently.
Source: Family Violence Reform Implementation Monitor, based on a direct victim survivor account
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: Accessible Version
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).