UK experience of domestic violence disclosure schemes is a cautionary tale for Australia

The 2009 murder of Clare Wood by her ex-partner led to the introduction of a national domestic violence disclosure scheme (known as “Clare’s Law”) in England and Wales. The scheme aims to prevent the perpetration and escalation of violence between intimate partners through the sharing of information about prior histories of violence.

Scotland has since introduced a similar scheme. It is also being piloted and considered in at least two Australian state jurisdictions. Most recently, the South Australian government consulted on its introduction.

However, our new research casts doubt over the merits of these schemes. It provides a warning to Australian jurisdictions to take caution before following the UK’s lead.

What is a domestic violence disclosure scheme?

In England and Wales, Clare’s Law has two elements – the right to ask and the right to know.

Right-to-ask applications can be made by any person who applies to the police for information about whether another person has a history of domestic violence. In these cases, Home Office Guidance provides that three steps are followed:

1. details about the applicant and request are taken by the police and checked within 24 hours of the initial request;

2. a meeting with a police officer (within ten days), followed by a full risk assessment; and

3. the police meet with multiple agencies to discuss and determine whether disclosure is “necessary, lawful and proportionate to help protect the potential victim from abuse”.

The right-to-know request follows a similar process and occurs where police proactively disclose information in order to protect a potential “high-risk” victim. Decisions to disclose are made by multiple agencies.

In each case, a request takes an estimated four weeks to process.

Data questions for the Australian context

Clare’s Law applies nationally across England and Wales. But Australia is not proposing a national scheme; only one state (New South Wales) has begun a pilot program. There is no national register of domestic violence-related offences and intervention order histories.

This may be tackled as the National Domestic Violence Order Scheme is rolled out nationally. But systems do not yet have the capacity to support national information-sharing on domestic violence histories.

This raises important challenges. For example, will it be possible for histories of domestic violence committed and resolved by law in another jurisdiction to be disclosed under the scheme? If not, how will accurate disclosures be made? And how will the potential risks of providing women with inaccurate information be mitigated?

Research from Queensland details the frequency with which both partners seek protection orders against each other. A right-to-ask request would return data on part of both parties involved, arguably masking who and what the problem might be.

Equally, people who use violence in self-defence against an abusive partner and who were cautioned, arrested or charged for such behaviour would also return a record under right to ask. Hence, this scheme may inadvertently disadvantage the very victims it is designed to protect.

Shifting the responsibility?

Clare’s Law was heralded as empowering potential victims to make informed relationship choices. However, requiring a person to request access to information and then act on it shifts responsibility onto the person to ensure their own safety. It asks them to vet their partners while also detracting responsibility from the potential perpetrator.

Built into this is an assumption that, armed with information about their partner’s history of violence, a person will want and be able to extricate themselves from that relationship.

Research has shown that people experiencing abuse in a relationship often do not want to leave that relationship, or may believe it is too dangerous to do so. Multiple risks arise from this:

• that police will be less likely to intervene and assist post-disclosure where the applicant has remained in the relationship and police perceive they have not engaged in the risk-management strategies advised; and

• that people who remain in the relationship and experience subsequent abuse may experience victim-blaming at various levels of the system.

These risks are likely to have particular consequences for people requiring support and protection at the time of relationship separation: a moment of high risk of abuse and lethal violence.

If Australian jurisdictions do move to implement this scheme, clear post-disclosure support protocols and responsibilities for frontline police and specialist services must be established. Without this, there is a real risk that women, armed with information about their partner’s history, may be placed at even greater risk of harm.

A question of resources

In England and Wales, a Home Office pilot assessment undertaken in 2013 found the average cost of processing a right-to-ask or right-to-know application was £690 and £810 respectively (approximately A$1,130 and A$1,325).

The introduction of a domestic violence disclosure scheme in Australia would require additional funding to support frontline policing and allow for the management of the administrative workload.

Funding would need to be recurrent to ensure other aspects of frontline policing (involving opportunity costs) are not diminished following the scheme’s introduction.

At a time when reporting of family violence across Australia has significantly increased and services are experiencing increase demand, it is questionable whether allocating resources to a disclosure scheme that arguably does not enhance safety, improve frontline responses or achieve prevention is a worthwhile investment.

The need for evidence

A domestic violence disclosure scheme does not in itself protect people from an abusive partnership. Nor does it provide a timely and risk-sensitive frontline response to persons who fear violence from an intimate partner.

By diverting police resources away from frontline case management and increasing the administrative burden, it instead runs the risk of further straining police responses to domestic violence.

The recent spread of schemes similar to Clare’s Law across Australia is concerning. At present there is a lack of evidence demonstrating its effectiveness in practice.

Australian state and territories governments should take caution and focus attention on evidence-informed practice and policy. At present a domestic violence disclosure scheme is neither.

The National Sexual Assault, Family & Domestic Violence Counselling Line – 1800 RESPECT (1800 737 732) – is available 24 hours a day, seven days a week for any Australian who has experienced, or is at risk of, family and domestic violence and/or sexual assault.