In Australia, the latest twist in the Brittany Higgins case is a painful reminder of how justice and protection systems (here and abroad) continue to fail women and children.

It started with an alleged rape in Australia’s Parliament House.

In early 2021, Brittany Higgins, a Liberal Party media adviser and junior staff member, alleged that she was raped in a Minister’s office in Australia’s Parliament House. Higgins accused fellow Liberal Party staffer Bruce Lehrmann of raping her after a night out drinking with colleagues. The case went to court but the trial was aborted after misconduct by a juror. A retrial was planned for February next year, but it was abandoned in early December amid fears the trial would have adversely affected Ms Higgins’s mental health. At the time, it was revealed Higgins was in hospital. The charge against Lehrmann has now been dropped and he maintains his innocence.

Meanwhile, the decision not to proceed with Lehrmann’s retrial has triggered a public fight between the public prosecutor and the police union, with both sides criticising the profession conduct of the other and calling for inquiries into how the case has been handled. Specifically, the chief prosecutor in the trial has complained that police officers engaged in: “… a very clear campaign to pressure him not to prosecute the alleged rape saying he felt investigators clearly aligned with the successful defence of this matter during the trial.”

As recently as Monday, political leaders were warning that unanswered questions about the allegations of interference in the case could have: “a devastating and irreversible erosion of public confidence in our legal system.”

Brittany Higgins became a lightning rod for those angry about the treatment of women in Australia, about the epidemic of sexual violence and about the failure of the justice system to do anything about it. The case is a painful reminder of how justice and protection systems around the world continue to fail women and children. In international development, the lessons we can share with developing countries is not about what works but rather what has not worked in our efforts to ensure that women and children can claim and enjoy their rights as enshrined in international law.

Violence against women and children is a global pandemic.

According to the UN, violence against women and girls is one of the most widespread, persistent and devastating human rights violations in our world today. “It is a major obstacle to the fulfilment of women’s and girls’ human rights and to the achievement of the 2030 Agenda for Sustainable Development. It occurs worldwide, cutting across all generations, nationalities, communities and spheres of our societies, irrespective of age, ethnicity, disability or other background.”

UN Women reports that approximately 137 women globally are murdered each day by a member of their own family. In 2020, 81,000 women and girls were killed and around 47,000 of them (58 per cent) died at the hands of an intimate partner or a family member. This occured against a backdrop of an estimated 35 per cent of women worldwide having experienced either physical and/or sexual intimate partner violence or sexual violence.

Despite the enormous scale of the problem, less than 40 per cent of women who experience violence seek help of any sort with less than 10 per cent seeking help from the police. What this means is that cases of violence against women rarely make it to court. In other words, justice systems across the world offer women little if any justice.

Girls, and some boys, fare no better. The Global Partnership to End Violence Against Children, reports that 1 in 2 children experience violence every year, a child dies of violence every 7 minutes, and 10 million children worldwide are subjected to modern slavery.

Global and national prevention and response frameworks.

Human rights law is codified in international agreements or treaties, such as conventions and covenants, between governments. International human rights treaties provide an agreed set of human rights standards and establish mechanisms to monitor the way that a treaty is implemented. In ratifying a treaty, a country voluntarily accepts legal obligations under international law. International law requiring states to prevent and respond to violence against women and children.

The 1993 UN Declaration of the Elimination of Violence against Women requires Member States and the UN system to undertake strategies to end violence against women, building on the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Other calls for action include CEDAW General Recommendation 35, which acknowledged that gender-based violence affects girls as well as women. Further, in 2015, UN Member States signed off on the Sustainable Development Goals (SDGs) and targets, many of which address violence against women and children, including targets and indicators in Goals 5 and 16.10.

Some of the major UN programme responses to ending violence against women include UN Women; the UNITE to End Violence against Women Campaign; the UN Trust Fund to End Violence Against Women, and the UN Joint Global Programme on Essential Services for Women and Girls subject to violence.

Similarly, Article 19 of the Convention on the Rights of the Child (CRC) requires that: “State Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.” UNICEF is the main UN agency responsible for ending violence against children.

While these human rights treaties are incredibly important, there is little evidence that they are systematically protecting women and children from violence, or in ensuring that justice is delivered or in ensuring that child protection systems deliver the protection they promise.

In Australia, the National Plan to End Violence against Women and Children 2022–2032, aims to end gender-based violence in one generation. It seeks to do this by “building the workforce, growing the evidence base and strengthening data collection systems, while delivering holistic, coordinated and integrated person-centred responses. To achieve this, we must listen to and be guided by victim-survivors and people with lived experience.”

While the inclusion of violence against children in the National Plan is welcome, its scope is limited and overlooks a range of other child protection violations such as online forms of harassment and abuse, child labour, sexual exploitation and child abuse. For an example of a comprehensive plan to prevent violence against children see the UNICEF Preventing and Responding to Violence Against Children and Adolescents: Theory of Change.

Women are being killed and maimed in the communities in which we live.

Almost 2 million Australian adults have experienced at least 1 sexual assault since the age of 15. Around 639,000 Australian women experienced their most recent incident of sexual assault perpetrated by a male in the last 10 years.

On average one women a week is murdered across Australia. The Australian Bureau of Statistics reports that in 2019 the number of victims of sexual assault recorded in New South Wales, Australia’s largest state, alone, was just over 11,000, of which 80 per cent were women.

A 2020 study on sexual assault in Australia, revealed that 2 in 5 people hold the view that ‘it was common for sexual assault accusations to be used as a way of getting back at men’. So why do so many people hold this view? Part of the answer is found in the data. The same study reported that less that 40 per cent of sexual assault cases held in a Magistrates court (lower-level courts) resulted in a conviction. Further, in one in three cases, the case is withdrawn by the prosecution or the defendant is found not guilty. Yet, there is a vast underreporting of sexual assault with few false reports of sexual assault.

What this data tells us is that most sexual assaults go unreported and of the small percentage of cases that make it to a court, most do not result in a conviction. This is in one of wealthiest countries in the world, with one of the lowest levels of income equality, and where women comprise almost half of the Ministers in the Federal Parliament.

There is a chronic crisis in child protection and justice systems.

The Australian Institute of Health and Welfare reported that in 2020-2021, approximately 178,800 children received child protection services, with 8 per 1,000 children in out-of-home care. These services included investigations (which may or may not lead to substantiated cases of child abuse or neglect), care and protection orders and/or out-of-home care placements. Aboriginal and Torres Strait Islander children are over-represented in child protection and out-of-home care services compared to non-Indigenous children at 42 per 1,000 for Indigenous children and 6.5 for non-Indigenous children.

Child protection workers report that: “… some of Australia’s most vulnerable children are left in unsafe situations because understaffed departments don’t have the capacity to get to them.” By the time a child ends up in state care, they have likely already experienced some form of abuse, and often for an extended period of time. This is because it can take years for statutory agencies to act.

The National Children’s Commissioner, Anne Hollonds recently noted: “A key human rights challenge affecting children in Australia is the fragmentation and failure of our basic systems that are meant to support children and their families, especially those living with poverty and disadvantage. Urgent cross-portfolio reform is needed across health, education, and social services including housing and income security, to ensure that these basic systems are fit-for-purpose and can help families to keep their children safe and well.” She also noted that: “What we do have is a chronic crisis in our child protection and youth justice systems.”

Far from being safe, some of these children are then preyed upon by the very people the government has vetted to look after them. One woman described her experience in out-of-home care as ‘embittered women and perverted men.’

The liberal state and its justice and protection systems are in urgent need of reform.

Systemic gender-based violence, like systematic racism, systemic homophobia and systematic transphobia, is about much, much more, than bad or flawed people doing terrible things. It is about how societies are structured to privilege some and disenfranchise others.

International development is often concerned with the transfer of western liberal democratic models of social control and social order to developing countries. This is problematic from a gender and child protection perspective.

In a liberal nation state such as Australia, women do not enjoy the same rights and the same levels of safety and security that men do for the simple reason that the state was never designed to empower women in the way it empowers men.

Liberal and social contract theories tell us that the liberal state was founded to enable men, and not just the rich and mostly white boffins of the day, to participate in public life. This included running for public office. The governance of women was left to men and not the state. In the 1980s Carole Pateman coined the term ‘government of women by men’.

Rather than being a source of protection and healing, the liberal state has been identified as a major contributor to violence against women and children. The argument goes like this: The liberal state fails to protect women and children from violence, even though the protection of its male citizens is one of the ‘uncontested objectives of the political order of liberal regimes.’ Violence against women cannot end until the relations between men and women are transformed and when such a transformation in relations becomes a central objective of the liberal state. This means that the state must recognise the right to bodily integrity and security and treat all forms of violence against women and children, including intimidation and coercion, as major crimes.

While Australia and several of its jurisdictions are moving in the right direction, questions remain about the pace of change the pace of change.

On 17 October 2022,, the federal government launched the National Plan to End Violence against Women and Children 2022–2032. It is a roadmap to end gender-based violence within one generation. The government has committed to investing AUD$ 1.7 billion over six years to end violence against women and children, which includes AUD$ 1.3 billion over six years for the National Plan.

While this investment is significant, what can you buy with AUD$ 1.3 billion? The Australian Navy is buying 12 military helicopters for AUD$ 1.3 billion. The Queensland State government has announced AUD$ 9.78 billion in additional investments in new hospitals and new beds while the South Australian government has bought a new hospital for AUD$ 2.1 billion.

In June 2002 in NSW, new consent laws came into effect. The Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 clarifies consent provisions in the Crimes Act 1900, including that consent is a free and voluntary agreement that should not be presumed. More recently, NSW became the first Australian state to create a stand-alone offence of coercive control after parliament passed legislation in November 2022.

Lawyer Angela Lynch, a leading advocate against sexual violence says the justice system destroys you: “Because that’s what it was built to do. We ask people to come forward and to share their stories to make it better and then we punish them for it. Is it changing? Of course it’s changing but at a pace so glacial we continue to hurt survivors.” Higgins said her experience: “… is the reality of how complainants in sexual assault cases are treated…Their lives are torn apart, their families and friends called to the witness stand and the accused has the legal right to say absolutely nothing,”

Ending the intergenerational transmission of violence.

Violence against women and children has occurred throughout human history. It not an original event with a defined point of emergence but rather is part of the mainstream of human history, based on structural inequalities between men and women and adults and children. Florence Rush, a second wave feminist, social worker, thinker, and author of the Best Kept Secret: Sexual Abuse of Children, wrote that:

“Traditionally women and children (male and female) have been cast together. They shared the same minority status, have been exploited as domestic and wage slaves and for the greater part of history even wore the same clothing to distinguish them from adult males. Together they have been idealized, romanticized, infantilized, trivialized, and desexualized. Since both women and children have been lumped together as helpless, dependent, and powerless, they even share the same “feminine” gender and consequently both have been sexually used and abused by men.”

For most women, in most places in the world, violence begins in childhood and continues for much of their lives. In childhood, girls who see violence perpetrated against the women in their families and communities can come to believe this violence is normal. Boys who see violence perpetrated by the men in their families and communities against women and girls and against each other, can also come to believe this is what boys and men do.

A recent national study of the prevalence, use of and exposure to violence, and support needs for young people, found that almost 9 in 10 young Australians who use family violence experienced child abuse.

Breaking the intergenerational transmission of violence against women and children starts by helping children to understand that violence is not a given and something to accept, or to aspire to, or to inflict upon others. The best way to do this is to have mechanisms in place so that each case of child abuse, of sexual assault and of domestic violence generates a response whereby justice agencies such as the police (competent, well trained and bias free!), and welfare/protection agencies, whether they be government or civil society, take appropriate action. When children see that violence is not the norm but an unhealthy aberration, intergenerational change becomes possible.

Prevention is possible.

Change is possible when there is consensus for action with predictable and sustainable financial investments in that action. Eliminating violence against women and children is achievable. Violence is a human action, which means that an alternative human action to violence is possible, which in turn means that prevention is a smart investment.

But prevention will not be possible unless we see transformative change in how justice and protection are delivered.

In international development, we need to continue to remind ourselves that industrial countries, with few exceptions, have failed women and children victims and survivors of violence. Our justice systems are unsuccessful in prosecuting offenders and delivering justice to those harmed. For centuries, child protection systems have damaged rather than protected children.

The lessons we have to share with developing countries are not about what works but rather what has not worked in our efforts to ensure that women and children can claim and enjoy their rights as enshrined in international human rights law.

As Jenna Price said in the Sydney Morning Herald: “No reasonable human being would want their daughters or their sons to go through what Brittany Higgins and Bruce Lehrmann have gone through. Not in a million years. Diabolical for both of them.”