Submission to the South Australian Government
'Review of South Australian Domestic Violence Laws'

Contents

Recommendations

WWDA therefore makes the following recommendations:

1. About Women With Disabilities Australia (WWDA)

NB: More information about WWDA can be found at the organisation's extensive website: www.wwda.org.au

2. Gender and Disability

Women with disabilities are, from the government record, one of the most marginalised, neglected and isolated groups in society. They suffer manifold discrimination - female, poor and disabled - compounded further by intersections of race and culture. Women with disabilities remain largely invisible and voiceless, ignored by national policies and laws, even though they face multiple forms of discrimination, structural poverty and social exclusion (UNFPA 2005). Their issues and needs are neglected within services and programs across all sectors. They are excluded from social movements designed to advance the position of women, and the position of people with disabilities. They are subject to oppression and exploitation in all areas of their lives. Women and girls with disabilities are the most vulnerable and least protected (WWDA 2002, UN ESCAP Workshop on Women and Disability 2003). Despite the fact that the Universal Declaration of Human Rights affirms that 'all human beings are born free and equal in dignity and rights', there is no doubt that there are widespread and serious violations of the human rights of women with disabilities, as well as failures to promote and fulfil their rights (Byrnes 2003).

The issues which affect women with disabilities are manifold and include issues related to citizenship, education, employment, housing, violence, health, poverty, telecommunications, sexuality, reproductive rights and human rights. Negative stereotypes from both a gender and disability perspective compound the exclusion of women with disabilities from support services, social and economic opportunities and participation in community life (Meekosha 2000; Frohmader 2002).

3. Violence Against Women With Disabilities

Although the actual prevalence of violence against women with disabilities is unknown, the research that has been conducted indicates that violence against women with disabilities is a problem of epidemic proportions, and that compared to non-disabled women, women with disabilities:

• experience violence at higher rates and more frequently;
• are at a significantly higher risk of violence;
• have considerably fewer pathways to safety;
• tend to be subjected to violence for significantly longer periods of time;
• experience violence that is more diverse in nature; and,
• experience violence at the hands of a greater number of perpetrators.

(Barile 2002, Abramson et al 2000, Jans & Stoddard 1999, Frantz et al 2006, Gilson et al 2001, Myers 1999, Curry et al 2002, Nosek et al 2003, Powers et al 2002, Hoog 2003, Nosek 1996, Curry 2002).

Yet, despite these facts, legislation, policy and services for women with disabilities experiencing, or at risk of experiencing violence, are limited at best and non-existent at worst.

The nature of violence against women and girls with disabilities encompasses an almost endless list of injustices and maltreatment. Women with disabilities are at greater risk of physical, sexual, and emotional abuse as well as to other forms of violence, such as institutional violence, chemical restraint, drug use, unwanted sterilisation, medical exploitation, humiliation, and harassment. There are a wide range of factors that increase the 'vulnerability' of women with disabilities to violence, including:

Women with disabilities are also greatly at risk of violence and abuse due to structural, cultural and contextual issues such as: discrimination, poverty, exclusion from the labour market, isolation, lack of services and support, lack of autonomy and so on.

The forms of violence for disabled women are similar to those for non-disabled women, however women with disabilities can often experience different dimensions to physical, psychological, and sexual violence - such as those which are derived from their sexuality, including for example, control of reproduction and menstruation. For women with disabilities, issues of abuse, neglect, discrimination and omission often provide the conditions and contexts that deny human rights and also lead to violence.

4. Australian Legislative Responses to Violence Against Women With Disabilities

The importance of legislation in combating violence against women has been well documented. Without appropriate legislation and policies, there are no legal means to fight violence against women. Legislation sends out a strong message that violence against women is a public issue not a private concern. It should also provide clear definitions of the various forms of violence and which actions are defined as criminal. Legislation is the necessary precondition for action.

In Australia, the legal definition of domestic/family violence for example, varies across jurisdictions because of differences in legislation. Some Australian States and Territories have legislation which deals with domestic situations and non-domestic situations in separate pieces of legislation; others have continued to include domestic violence within the Criminal Code and other Acts (Tasmanian Government 2003). Most of the legislation defines what constitutes a 'domestic relationship' and some of these definitions are more inclusive than others. Despite the many and varied definitions within the various Australian laws of what constitutes domestic violence, family violence, domestic relationships, significant persons, relevant persons and so on, most of the current laws do not contain definitions which encompass the range of domestic/family settings in which women with disabilities may live, nor do they contain definitions which capture and encompass the various forms of violence as experienced by women with disabilities. Because these experiences may not fit either traditional or contemporary definitions, violence against women with disabilities often goes unidentified (WWDA 2004, Gilson et al 2001).

5. The SA 'Options for Reform' Discussion Paper

5.1. The Definition of 'Relationship'

• a spouse or former spouse of the defendant;
• a child of whom the defendant or a spouse or former spouse of the defendant has custody as a parent or guardian;
• a child who normally or regularly resides with the defendant or a spouse or former spouse.

The term 'spouse' is traditionally defined, as: 'a person of the opposite sex who is cohabiting with the defendant as the husband or wife de-facto of the defendant'.

The types of relationship covered by the current Act are narrow and outdated and need to be broadened to cover both traditional and contemporary understandings of what constitutes 'family' and 'domestic relationships'.

The Act should incorporate a definition of 'family' which is sufficiently broad to cover:

• spousal relationships (past and present);
• intimate personal relationships (past and present, including dating relationships, same sex relationships, and non-sexual intimate personal relationships);
• family relationships (with a broad definition of relative which also reflects the extent of kinship and family relationships within indigenous and CALD communities);
• formal and informal care relationships (between a person and a carer which takes place for fee or reward, or for no fee or reward); and,
• persons who are ordinarily members of a household.

WWDA maintains that any definition of 'family' or 'domestic relationship' must reflect the diverse types of domestic relationships women with disabilities may be in. It is clear that there is a need to amend and expand the Domestic Violence Act 1994 in order to protect women with disabilities from domestic violence as they experience it. Research undertaken in Australia has identified that domestic violence experienced by many women with disabilities is not reflected in the legislation or service charters. This gap in access to protective legislation for women with disabilities has been acknowledged in a number of reports (Swift 1998, Qld Dept of Families, Youth & Community Care 1998, Qld Women's Consultative Council 1996).

For some women with disabilities, their place of residence (ie: domestic setting, living arrangement) may be a community based group home or residential facility, a boarding house, shelter, hospital, foster care, day support program, prison, or nursing home. Within these varied settings violence may be perpetrated by a number of people who come into contact with the woman, in the course of her domestic life. These may include other residents, co-patients, relatives and/or carers (whether family members, informal carers or paid service providers) (Frohmader 1998, KPMG 2000, WWDA 2007).

Extensive and documented research of more than 30 years points to the fact that institutions and institutionalised living in themselves, are causal factors in the presence and perpetration of frequent and sustained forms of violence against persons who are devalued and vulnerable, and create a climate in which violence goes unreported (Wolfensberger 1975; Hayes 1984; Rothman and Rothman 1984; Potts and Fido 1991, Sobsey 1994, Roeher Institute 1994, White 2003, QAI 1998, Stewart 1998). It is widely acknowledged and recognised that women with disabilities who live in institutions and residential care settings are more likely to experience violence and are at particular risk of violence (Abramson et al 2000, Crossmaker 1991, Sobsey 1994, Nosek 1996). For example, the study by Sobsey and Doe (1991), which explored 166 reports of sexual abuse, found that in 44% of instances, the location of the abuse was disability-related, that is, a hospital, group home or institution.

In this context, it is clear that the definition of 'family' or 'domestic relationship' would need to include and encompass both formal and informal care relationships. Some existing State/Territory domestic violence legislation cover only 'informal' care relationships, which are defined as those that apply to domestic support and personal care relationships provided without fee or reward (see for example Tasmania Family Violence Bill 2004).

WWDA is concerned that by restricting the definition to encompass informal care relationships only, many women with disabilities would not be covered by the definition. For example, women with disabilities who live in group homes or other residential care facilities would not be covered by a definition that was restricted to 'informal care' relationships.

Despite the many initiatives being taken against child abuse and family violence over the past 40 years, progress against violence in institutions has not moved forward and continues to be ignored by governments and society alike. As Sobsey (1994) points out: 'the established agencies and mechanisms for addressing family violence have neither a clear mandate nor the necessary tools for addressing violence in institutions. By the same token, child abuse agencies and prevention legislation are aimed specifically at children and do not address the issues of vulnerable adults. Thus, many institutional residents escape attention from the child and family protection movements in particular, and the rest of society in general.'

Deinstitutionalisation policies place strong emphasis on the rights of people with disabilities, which include the right to participate fully as members of the community. Such opportunities include having the fundamental rights enjoyed by all citizens: that they should be able to feel safe, to be free from exploitation and sexual abuse, to have access to public services and to be able to make their own life choices.

Formal and informal care arrangements can make women with disabilities particularly vulnerable to violence from carers, with the violence forming a dynamic identical or very similar to the more traditionally understood concept of 'family violence' (VLRC 2006). Research has found that women with disabilities who rely on personal care assistance (formal and informal) are subject to pervasive and frequent abuse (Saxton et al 2001, Powers et al 2002, Oktay & Tompkins 2004, Strand 2004), both in domestic and institutionalised settings. Violence perpetrated by carers takes many forms including for example: physical and sexual violence, psychological and emotional abuse, verbal abuse, financial abuse, neglect and acts of omission. Violence perpetrated by carers has been found to pose significant obstacles to women's capacities to live independently, care for their own health, undertake work and participate in community life. The disability and care arrangements often make it almost impossible for women with disabilities to leave the care situation. This fact alone has been identified as making it 'particularly important' for domestic violence legislation to cover women with disabilities (VLRC 2006).

There are many women with disabilities, particularly women with intellectual disabilities, who live in community based group homes (their domestic setting) and share these homes with other residents and carers. Research has shown that violence against women with disabilities in institutions can be perpetrated by co-residents. Yet, under most existing domestic violence legislation, 'co-residents' do not fall within the definitions of those who may make up a 'family' or 'domestic relationship'. Women with disabilities who live in group homes and similar 'domestic' settings, have a right to be protected from violence and abuse. Therefore, any definition of 'family' or 'domestic relationship' must include people who are 'ordinarily members of the household'.

The definition of 'family' and/or 'domestic relationship' sets the scope of the proposed South Australian Domestic Violence legislation. Women with disabilities have the right to the same protection by domestic/family violence laws against violence in their domestic situations as the rest of the community. Accordingly, the definitions should reflect this.

WWDA believes that the definition of 'domestic relationship' as defined in the NSW Crimes Amendment (Apprehended Violence) Bill 2006 provides a useful framework for the development of such a definition for the South Australian Domestic Violence legislation. The current definition within the NSW Act is:

Recommendations:

1. The SA Domestic Violence Act should incorporate a definition and description of 'family' and/or 'domestic relationship' which is sufficiently broad to cover:

• spousal relationships (past and present);
• intimate personal relationships (past and present, including dating relationships, same sex relationships, and non-sexual intimate personal relationships);
• family relationships (with a broad definition of relative which also reflects the extent of kinship and family relationships within indigenous and CALD communities);
• formal and informal care relationships (between a person and a carer which takes place for fee or reward, or for no fee or reward); and,
• persons who are ordinarily members of a household.

2. The South Australian Government recognise that women with disabilities have the right to the same protection by domestic/family violence laws against violence in their domestic situations as the rest of the community, and therefore amend and expand the SA Domestic Violence Act to protect women with disabilities from domestic violence as they experience it.

5.2. The Definition of 'Domestic/Family Violence'

WWDA believes that the South Australian Domestic Violence Act should contain a broad definition of domestic/family violence and one that is inclusive of the forms of violence perpetrated against women with disabilities. Without appropriate and inclusive legislation, there are no legal means to fight violence against women with disabilities. Legislation must send a strong message that violence against ALL women is a public issue, not a private concern. Governments are responsible for failures to implement laws, and for gaps in the laws so that certain types of violence are not prohibited, or certain categories of victims are not afforded proper protection. Governments must therefore, ensure protection against the full range of family/domestic violence, including the multiple forms of violence perpetrated against women with disabilities (UNIFEM 2003).

Violence against women with disabilities is legitimised and fostered by assumptions prevalent in social attitudes. Women with disabilities are perceived as less than fully human, inferior beings, genderless, objectified, with minimal rights and values (Meekosha 1998, 2002, White 2003). They are considered to be asexual and therefore unlikely to be targets of domestic/family violence. Consequently, legislation, policy and services developed by society to combat domestic/family violence demonstrate denial and indifference to the reality of violence against women with disabilities (Calderbank 2000).

Women with disabilities can experience a number of forms of domestic/family violence. This violence can be perpetrated not just by an intimate partner or spouse but by relatives, caregivers (paid and unpaid, male and female), co-patients, other residents, residential and institutional staff, and service providers. The forms of domestic/family violence for disabled women are similar to those for non-disabled women, however women with disabilities can often experience different dimensions to physical, psychological, and sexual violence. For example, along with the many types of assaults and tortures, physical violence for women with disabilities can include:

• administration of poisonous substances or inappropriate drugs;
• depriving of food, water or heat;
• inappropriate handling, personal or medical care;
• use of restraints;
• withholding of equipment, medications, or transportation;
• refusal to provide assistance with essential needs;
• inappropriate behaviour modification;
• experimental treatment;
• chemical restraint;
• confinement;
• control of/use of/alteration of equipment.

There are a range of acts which constitute sexual violence, such as unwanted or forced sexual contact, but for women with disabilities sexual violence may also include:

• sexual activity being demanded or expected in return for help;
• taking advantage of physical weakness and inaccessible environment to force sexual activity;
• being rough with intimate body parts;
• sexual abuse under the pretence of 'sex education';
• being left naked or exposed;
• denial of sexuality;
• denial of sex education and information;
• denial of appropriate reproductive health care;
• forced/involuntary sterilisation;
• female genital mutilation;
• forced/coerced abortion;
• menstrual suppression.

There are a wide range of verbal or non-verbal acts and/or behaviour which constitute emotional or psychological violence, such as intimidation, threats of violence, physical or social isolation. For women with disabilities, emotional or psychological violence may also include:

• denial of disability;
• withholding/altering aids/equipment;
• threats to withdraw care and/or services;
• ignoring requests for assistance;
• threats of punishment or abandonment;
• threats to institutionalise;
• threats to remove children;
• denial of rights;
• violations of privacy;
• restricting access to others (including services).

Issues of abuse, neglect, discrimination and omission can provide the conditions and contexts that deny human rights and also lead to violence. Examples include: failure to provide adequate support, food, shelter, clothing or hygienic living conditions; failure to provide required medical care; denial of access to services or information; denial of control over finances; illegal, improper use and/or mismanagement of a person's money, property, assets or resources (SafePlace 2005, Penno et al 2000).

Recommendations:

3. Any definition of 'domestic/family violence' must be inclusive of the forms of violence as experienced by women with disabilities.

4. The wording of the SA Domestic Violence Act must be specific enough to encompass the circumstances and contexts within which women with disabilities experience domestic/family violence.

References

Appendix 1: The Position of Women With Disabilities in Australia - A Snapshot

There are 3.6 million people in Australia with a disability, making up 19% of the total population. The proportion of males and females with a disability is similar (around 9.5% each) although it varies across age groups.

There are 1.8 million women with disabilities in Australia. There are more women with disabilities in the older age groups, most notably those 79 years onwards.

Of the 1.1 million people with a profound or severe core activity restriction, 616,000 are women with disabilities (56%). Among older people with disabilities, the rates of severe and profound disability are markedly greater for females.

Over 57% of women with disabilities living in households need assistance to move around or go out, shower or dress, prepare meals, do housework, undertake property maintenance or paperwork, or communicate.

Women with disabilities are less likely to be in paid work than other women, men with disabilities or the population as a whole. Men with disabilities are almost twice as likely to have jobs than women with disabilities. In 1997-98 Commonwealth Government funded open employment services assisted over 31,000 people with disabilities in their efforts to find and maintain jobs on the open labour market. 66.6% of those assisted were men with disabilities. Annual Census of Commonwealth Government funded open employment services show that the percentage of women with disabilities being assisted by these services has continued to decline.

Women with disabilities' participation rates in the labour market are lower than men with disabilities' participation rates across all disability levels and types. Women with disabilities are less likely than men with disabilities to receive vocational rehabilitation or entry to labour market programs. Commonwealth Rehabilitation Services statistics for 1994/5 indicate only 35% of referred clients were female with women more likely to be rehabilitated to independent living (45%) than vocational goals (36%).

Women with disabilities earn less than their male counterparts. 51% of women with a disability earn less than $200 per week compared to 36% of men with a disability. Only 16% of women with a disability earn over $400 per week, compared to 33% of men with a disability.

There is a higher incidence of incapacity (10.2%) for unemployed females in Australia compared to unemployed males (7.6%). This applies consistently across all age groups. Unemployed females have a one-third greater incidence of incapacity than unemployed males. The higher incidence of incapacity for unemployed females is more pronounced for those under 50 years age, and especially for 30-39 and under 21 year olds.

Women with disabilities are less likely than their male counterparts to receive a senior secondary and/or tertiary education. Only 16% of all women with disabilities are likely to have any secondary education compared to 28% of men with disabilities.

Women with disabilities are substantially over-represented in public housing, comprising over 40% of all persons in Australia aged 15-64 in this form of tenure. Women with disabilities are less likely to own their own houses than their male counterparts.

Women with disabilities pay the highest level of their gross income on housing, yet are in the lowest income earning bracket. Some women with disabilities pay almost 50 per cent of their gross income on housing and housing related costs. Over 20% of women with disabilities living in public housing are dissatisfied with the service they receive from their State or Territory housing authority.

Women with disabilities spend more of their income on medical care and health related expenses than men with disabilities.

Women with disabilities have a consistently higher level of unmet need than their male counterparts across all disability levels and types. Women with disabilities are less likely to receive appropriate services than men with equivalent needs or other women. 60% of recipients of disability support services funded under the Commonwealth/State Disability Agreement are men with disabilities.

Women with disabilities are less likely than women without disabilities to receive appropriate health services, particularly breast and cervical cancer screening programs, bone density testing, menopause and incontinence management. In Australia, 41% of women with disabilities with core activity restriction aged 70-75 have never had a mammogram. Almost 30% of women with disabilities aged 70-75 with core activity restriction have never had a pap smear. Of those women with disabilities aged 70-75 core activity restriction who have had a pap smear, 39% have not had regular pap smears (every 2 years). These figures are likely to be much higher for women with disabilities with different disability types (eg: intellectual, cognitive, psychiatric, deaf/hearing impaired, blind/visually impaired) across all age groups.

Girls and women with disabilities are more likely to be unlawfully sterilised than their male counterparts. Between 1992-1997 at least 1045 girls with disabilities in Australia have been unlawfully sterilised. Comparisons with other data sources suggest that the true number is much greater, perhaps by a factor of several times.

Regardless of age, race, ethnicity, sexual orientation or class, women with disabilities are assaulted, raped and abused at a rate of at least two times greater than non-disabled women. Statistics indicate that 90% of women with intellectual disabilities have been sexually abused. 68% of women with an intellectual disability will be subjected to sexual abuse before they reach 18.

Women with disabilities are more likely to be institutionalised than their male counterparts.

Women with disabilities are often forced to live in situations in which they are vulnerable to violence. They are more likely to experience violence at work than other women, men with disabilities or the population as a whole.

Access to telecommunications is a major area of inequity for women with disabilities in Australia. A national survey in 1999 found that 84% of women with disabilities are restricted in their access to telecommunications. 49% of women with disabilities are restricted by issues of affordability; 76% by poor design of telecommunications equipment; 20% by lack of training; 20% by lack of information; and 18% by discrimination.

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