Psychological harm an offence not being prosecuted: Deakin research

02 October 2017

A Deakin Law School researcher has raised concern that family violence perpetrators are not being held accountable for the mental trauma inflicted on their victims, and is investigating ways to improve understanding about prosecuting the offence.

Researcher Paul McGorrery, who is also a senior lawyer with the Victorian Sentencing Advisory Council, said causing someone psychological harm was already a crime in every Australian state, yet not a single person has ever been prosecuted for it.

Mr McGorrery is investigating how existing Australian laws can be best used to ensure justice is served for family violence victims who experience psychological abuse.

“Through my research I hope to promote a better understanding of the laws we already have, laws which already prohibit people from causing psychological harm to one another,” Mr McGorrery said.

“In this way, police and prosecutors might have a better understanding about how to enforce those laws and re-think their approach to prosecuting non-physical forms of family violence.”

Mr McGorrery’s study will form part of his PhD research with the Deakin Law School. Aside from his current roles, he is an admitted attorney in New York, has worked at the Office of Public Prosecutions in Melbourne and with the Constitutional Court of South Africa in Johannesburg.

Mr McGorrery said his career experiences sparked an awareness of the need to highlight the issue of psychological harm in the criminal law.

“I started in workers’ compensation law, where 33 per cent of all money paid to injured employees was for psychological injuries caused by their workplace, but then I found myself in criminal law, where psychological injuries caused by someone else were almost an afterthought,” he said.

“Then there was a case I worked on as a criminal prosecutor where a man was being prosecuted for a particularly horrific attack on his wife.

“The problem I faced in that case was that the criminal law was ready to punish him for the physical injuries he had inflicted, however, while they certainly were not trivial, they paled in comparison to the lasting psychological trauma she had suffered.

“And at the time, the criminal law wasn’t ready to punish him for that.”

He said he believed it was time now to give criminal law a nudge, with society and the legal system more than mature enough to see appropriate punishments applied for psychological harm.

“Psychological conditions such as post-traumatic stress disorder and depression are no longer ‘invisible’ conditions that can’t be proven in a court of law,” he said.

“We are also in the middle of a revolution in how we define and respond to family violence. No longer is family violence protected by the privacy of the home. No longer is family violence restricted to physical forms of abuse. And no longer are governments standing idly by while this travesty continues.”

Mr McGorrery is specifically exploring the boundaries that need to be put around what behaviours should be punished and what harms should raise the criminal law’s attention.

“How do you differentiate between a family violence offender who criminally causes psychological harm, and a heartless fiancé who breaks off an engagement and causes his partner to suffer anxiety and depression?” he said.

“I am also reviewing the legal and medical definitions of psychological harm. Is it only a crime if a medical expert can point to a specific diagnosis out of a medical textbook? Or should it be broader than that, so that there is a point at which the psychological harm is serious enough, regardless of any specific diagnosis?”

Deakin Law School will host a roundtable in November with key government and academic stakeholders, each of whom have substantial expertise in how the criminal law can be used to target non-physical forms of family violence. The aim of the meeting is to consider the possibility of a new criminal offence in Australian jurisdictions, and what that offence might look like. The roundtable will be chaired by Deakin Law School’s Associate Professor Marilyn McMahon and Mr McGorrery.

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