From a ‘man’s home is his castle to criminal assault in the home: A brief

history of family violence law & justice

Professor Jude McCullochSchool of Social Sciences

Monash University

Key phases in law

1. Women as male property (common law 16th century). Family violence condoned.

2. Family violence a crime but not recognized as real crime (late 1950s-80s). Family violence accepted.

3. Family violence recognized as crime but not treated as serious crime (late 1980s onwards). Family violence tolerated.

4. Exclusion of family violence from the national security agenda challenged (the present). Family violence politicized.

Phase 1. ‘A man’s home is his castle’

Sir Edward Coke 1604

Husband ‘lawful ruler’.

Women as male property

Until the late 19th century upon marriage a woman lost any right to own property, which belong solely to her husband. Women and children classified as possessions of the husband and father.

Wives do not exist

by marriage husband & wife are one person . . the very being or legal existence of the wife is suspended during marriage, or at least it is incorporated or consolidated into that of her husband . . . ’

(Blackstone’s Commentaries on the Laws of England 1897).

Husband entitled to use force

Husband has ‘by law power and dominion over his wife’ entitling him to keep her by force ‘within the bounds’ of duty. Could beat ‘but not in a cruel or violent manner’.

(Coleridge, J, 1840)

Women punished for being ‘scolds’

Husband punished for not controlling wife

Phase 2. ‘Just a domestic’

Family violence theoretically a crime but not recognized as real crime

Assault a crime regardless of intimate relationship

Police training

‘the primary object of the 'service' is the prevention of crime, the detection, arrest and bringing to justice of offenders. Due to the increased complexity of today's society, more demands are being made on the police officers outside their primary function. Police are invariably requested to involve themselves in 'domestic disturbances'.

Police culture

Phase 3. Criminal Assault in the home

Family violence recognized as a crime but not treated as a crime.

Second wave feminism

Women in policing

Women in the law

Women in politics

Intervention orders

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Phase 4. Women’s security

Terrorism

Comparing risk

more than twice as many women are killed each year in Australia in intimate partner homicides than people killed in Australia as a result of terrorism in the fourteen years since 2001.

What if? What is?

‘we are ignoring known threats to investigate potential ones’.

(Vic Pol detective)

Family violence politicized

Opportunities and challenges

• Increased focus creates new opportunities

• Be aware of expedient but superficial ‘solutions’

• Balance prevention and structural change with crisis intervention

• Improved criminal justice responses necessary but not sufficient to support women and achieve long-term change