Abstract
This article takes up Smart’s suggestion to examine the way the law works in practice. It explores the context of current criminal prosecutions of domestic violence offences in Queensland, Australia. This article argues that legal method is applied outside the higher courts or “judge-oriented” practice and that the obstacles inherent to legal method can be identified in the practices of police, lower court staff, magistrates and lawyers. This article suggests that it may be difficult to deconstruct legal method, even by focussing on law in practice, and as a result it may be difficult to successfully challenge law’s truth claims in this way. The analysis of criminal prosecutions of domestic violence offences reported here supports Smart’s earlier findings that women and children who seek redress through the criminal justice process find the process at best ambivalent and at worst, destructive. However, the article also shows how, in the Queensland context, women sometimes find their way to feminism and personal empowerment by going to law.
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Notes
In England and Wales these advocates are known as Independent Domestic Violence Advisors.
For the full report see Douglas and Stark 2010.
JRB v Bird (2009) QDC 277.
References
ALRC, Australian Law Reform Commission. 2010. Family violence- a national response: Final report. Canberra: AGPS.
Ashworth, Andrew. 2002. Responsibilities, rights and restorative justice. The British Journal of Criminology 42: 78–595.
Coker, Donna. 2001. Crime control and feminist law reform in domestic violence law: A critical review Buffalo. Criminal Law Review 4: 801–860.
DeKeseredy, Walter, and Martin Schwartz. 2009. Dangerous exits: Escaping abusive relationships in rural America. New Brunswick: Rutgers University Press.
Dempsey, Michelle Madden. 2007. Toward a feminist state: What does ‘effective’ prosecution of domestic violence mean? The Modern Law Review 70: 908–935.
Dobash, Rebecca Emerson, Russel P. Dobash and Kate Cavenagh. 2001. Law’s progressive potential: The value of engagement with the law for domestic violence. 10 Social Legal Studies 105.
Dobash, Russell P., and Rebecca Emerson Dobash. 2005. Abuser programmes and violence against women. In Family violence and police response: Learning from research, policy and practice in European countries, ed. Wilma Smeenk, and Marijke Marlsch, 191–222. Burlington: Ashgate.
Douglas, Heather and Tanja Stark. 2010. Stories from Survivors: Domestic violence and criminal justice interventions. Brisbane: The University of Queensland at: http://www.law.uq.edu.au/stories-from-survivors. Accessed 28 June 2012.
Douglas, Heather. 2008. The criminal law’s response to domestic violence: What’s going on? Sydney Law Review 30: 439–469.
DVCAN, Domestic Violence Court Assistance Network. 2010 .http://www.noviolence.com.au/aboutcdfvragdvcan.html Accessed 5 March 2011.
Fegan, Eileen. 1999. “Subjects” of regulation/resistance? Postmodern feminism and agency in abortion-decision-making. Feminist Legal Studies 7: 241–273.
Field, Rachel, and Jonathan Crowe. 2007. ‘The construction of rationality in Australian family dispute resolution: A feminist analysis’. Australian Feminist Law Journal 27: 97–122.
Gavey, Nicola. 2005. Just sex? The cultural scaffolding of rape. New York: Routledge.
Howe, Adrian. 1990. The problem of privatised injuries: Feminist strategies for litigation. In At the boundaries of law: Feminism and legal theory, ed. Martha Albertson Fineman, and Nancy Sweet Thomadsen, 148–167. New York: Routledge.
Howe, Adrian. 2008. Sex violence and crime: Foucault and the ‘Man’ question. New York: Routledge-Cavendish.
Hunter, Rosemary, and Kathy Mack. 1997. Exclusion and silence: Procedure and evidence. In Sexing the subject of law, ed. Ngaire Naffine, and Rosemary Owens, 171–192. North Ryde: LBC.
Kaganas, Felicity. 2006. Domestic violence, men’s groups and the equivalence argument. In Feminist perspectives on Family Law, ed. Alison Diduck, and Katherine O’Donovan, 139–164. Abingdon: Routledge.
Lewis, Ruth. 2004. Making justice work: Effective legal interventions for domestic violence. The British Journal of Criminology 44: 204–224.
MacKinnon, Catharine. 1985. Pornography, civil rights and speech. Harvard Civil Rights—Civil Liberties Law Review 20: 1–70.
McFarlane, Judith, Pam Willson, Dorothy Lemmey, and Ann Malecha. 2000. Women filing assault charges on an intimate partner. Violence Against Women 6: 396–408.
Mills, Linda. 1998. Mandatory arrest and prosecution policies for domestic violence. Criminal Justice and Behaviour 25: 306–318.
Mossman, Mary Jane. 1987. Feminism and legal method: The difference it makes. Wisconsin Women’s Law Journal 3: 147–168.
Naffine, Ngaire. 1995. Sexing the subject (of law). In Public and private: Feminist legal debates, ed. Thornton Margaret. Melbourne: Oxford University Press.
Mechanic, Mindy, Terri Weaver, and Patricia Resick. 2008. Mental health consequences of intimate partner abuse: A multidimensional assessment of four different forms of abuse. Violence Against Women 14: 634–654.
SAC, Sentencing Advisory Council. 2008. Breaching intervention orders: Report. Melbourne: Sentencing Advisory Council.
Scales, Ann. 2006. Legal feminism: Activism, lawyering and legal theory. New York: New York University Press.
Schneider, Elizabeth. 2002. Battered women and feminist lawmaking. New haven: Yale University Press.
Smart, Carol. 1989. Feminism and the power of law. London: Routledge.
Smart, Carol. 1990. Law’s truth/women’s experience. In Dissenting opinions: Feminist explorations in law and society, ed. Regina Graycar, 1–20. Sydney: Allen & Unwin.
Stark, Evan. 2009. Coercive control: How men entrap women in personal life. New York: Oxford University Press.
Stubbs, Julie. 2002. Domestic violence and women’s safety: Feminist challenges to restorative justice. In Restorative justice and family violence, ed. Heather Strang, and John Braithwaite, 42–61. Cambridge: Cambridge University Press.
Stubbs, Julie. 2007. Beyond apology? Domestic violence and critical questions for restorative justice. Criminology and Criminal Justice 7: 169–187.
Thornton, Margaret. 1995. The cartography of public and private. In Public and private: Feminist legal debates, ed. Margaret Thornton, 2–16. Melbourne: Oxford University Press.
Wells, Celia. 2004. The impact of feminist thinking on criminal law and justice: Contradiction, complexity, conviction and connection. Criminal Law Review 503-515.
Willis, John. 2001. The magistracy: The undervalued work-horse of the court system. Law in Context 18: 129–161.
Young, Alison. 1996. Imagining crime. London: Sage.
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Douglas, H. Battered Women’s Experiences of the Criminal Justice System: Decentring the Law. Fem Leg Stud 20, 121–134 (2012). https://doi.org/10.1007/s10691-012-9201-1
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DOI: https://doi.org/10.1007/s10691-012-9201-1