But I’m the victim! How Mental Health and Coercive Control Lead to Misidentification in Domestic Violence Cases
You’re charged with assaulting your partner or breaching an AVO. You know the relationship has been toxic. You’ve suffered emotional abuse, constant surveillance, gaslighting, or even physical intimidation. Maybe you acted out during a breakdown. Maybe you were simply trying to defend yourself. So why are you the one facing charges?
At National Criminal Lawyers®, we represent countless clients who are victims of domestic violence but have been misidentified by police and even the courts as the perpetrator. This misidentification can have devastating consequences—criminal convictions, loss of children, imprisonment, or deportation.
But the truth is, misidentification often stems from a failure to understand two things: mental health and coercive control.
What Is Misidentification in Domestic Violence Law?
Misidentification occurs when police or courts mistakenly treat the victim-survivor of domestic violence as the primary aggressor. This often leads to:
- Being served with a provisional or final Apprehended Domestic Violence Order (ADVO)
- Facing criminal charges such as common assault, damage to property, or AVO breaches
- Being refused bail and placed in custody
This error is more common than you might think—especially when the victim is experiencing mental illness or trauma.
The Grim Reality: How Common Is Misidentification in Australia?
Misidentification is not a rare mishap — it’s a widespread failure of Australia’s justice system. While exact figures are difficult to determine due to underreporting and systemic blind spots, several key data sources paint a sobering picture:
- An internal 2020 review by Victoria Police found that 12% of family violence cases involved victims wrongly identified as aggressors — a rate that has remained consistent over several years.
- In 2021, the Family Violence Reform Implementation Monitor identified misidentification in 10% to as high as 58.7% of all domestic violence incidents.
- A 2018 intake review by Women’s Legal Service Victoria found that 1 in 10 police applications for intervention orders were based on misidentification.
- For Aboriginal women, the injustice is far worse. Djirra, a legal service for Aboriginal women, estimated that 90% of their clients had been subject to intervention orders involving misidentification or unfair treatment.
The NSW Bureau of Crime Statistics and Research (BOCSAR) further revealed that 64% of women charged with domestic violence between July 2022 and June 2023 had already been recorded as victims of domestic assault. For Aboriginal women, this rate increased to 85%. As Dr Ellen Reeves argues, these figures suggest that “police may frequently be criminalising women they know to be victim-survivors.”
How Mental Illness Contributes to Misidentification
Mental health conditions like post-traumatic stress disorder (PTSD), borderline personality disorder (BPD), or schizophrenia can lead to:
- Emotional dysregulation or panic
- Confused or disoriented statements to police
- Hypervigilance or pre-emptive defensive behaviour
Courts and police, without proper training, may see these behaviours as aggression or irrationality. A woman having a panic attack might be labelled the instigator. A man experiencing a psychotic episode might be seen as threatening when in reality, he is terrified.
Key Issue: The system often criminalises mental illness instead of supporting it.
What Is Coercive Control, and Why Is It So Often Missed?
Coercive control refers to a pattern of behaviours used to dominate and intimidate a partner without physical violence. These include:
- Isolation from friends and family
- Surveillance and monitoring
- Financial control
- Gaslighting (making someone doubt their reality)
- Threats to harm children or pets
Because coercive control rarely leaves bruises, it is often overlooked. Police may respond to a single violent incident without considering the long-term abuse that provoked it.
From July 2024, coercive control will become a criminal offence in NSW under the Crimes Legislation Amendment (Coercive Control) Act 2022 (NSW). But courts are already starting to consider it in AVO hearings and bail applications.
Legal Pathways Where Misidentification Occurs
| Legal Process | How Misidentification Happens |
| Police response | Focus on visible injuries or who is calmer at the scene |
| AVO proceedings | Courts grant orders against the reactive, traumatised party |
| Bail hearings | Mental illness and past hospitalisations interpreted as risk |
| Prosecution decisions | Charges laid based on one-sided or superficial police narratives |
Realistic Example: Misidentified Due to Trauma
Case Study: Sarah has endured years of coercive control from her partner. One night, he threatens to take their child. In desperation, she strikes him with a wooden spoon. Police arrive. He is calm, bleeding slightly. She is sobbing, hyperventilating.
Sarah is arrested and charged with assault. AVO conditions force her out of her home. She loses access to her child. Her partner’s abuse is never mentioned in the police facts.
Only when her lawyer uncovers past texts, social media messages, and psychiatric evidence does the true story emerge. The charges are eventually dropped. But the damage to her life is done.
Relevant Laws in NSW
| Law | Relevance |
| Crimes (Domestic and Personal Violence) Act 2007 (NSW) | Governs ADVOs and definitions of domestic violence |
| Bail Act 2013 (NSW) | Courts may refuse bail based on perceived risk, often misjudging mental illness |
| Evidence Act 1995 (NSW) | Admissibility of psychological or trauma-informed expert evidence |
| Crimes Legislation Amendment (Coercive Control) Act 2022 (NSW) | Creates criminal offence of coercive control (from July 2024) |
Frequently Asked Questions (FAQs)
Can a victim be charged if they acted in self-defence?
Yes. Without proper evidence or legal representation, acts of self-defence may be wrongly interpreted as aggression.
How do I prove I was misidentified?
Through trauma-informed psychological reports, witness statements, and evidence of prior coercive conduct (texts, emails, social media).
Can I get an AVO revoked if I was the real victim?
Yes. Under s 73 of the Crimes (Domestic and Personal Violence) Act, an application can be made to vary or revoke an AVO.
Is mental illness a defence to domestic violence charges?
Depending on the circumstances, you may be eligible for a mental health diversion under s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).
In some circumstances, you might even be able to defend against specific intent offices (see our article on this topic: Can Mental Illness Be Used as a Legal Defence in NSW? Understanding the M’Naghten Rule).
What Should You Do If You’ve Been Misidentified?
- Seek legal advice immediately
- Gather evidence: texts, photos, records of past abuse
- Engage a forensic psychologist for a report
- Challenge AVOs or bail conditions where appropriate
At National Criminal Lawyers®, we specialise in trauma-informed advocacy. We understand how coercive control and mental illness can distort the legal picture. We’ve helped hundreds of clients overturn false allegations, revoke AVOs, and avoid criminal records.
Final Thoughts: Justice Can’t Be Blind to Mental Health
The criminal justice system was built for objective facts and isolated events. But domestic violence is rarely so clean-cut. When the law fails to account for mental illness and coercive control, it risks punishing the very people it was designed to protect.
Don’t let the system get your story wrong.
Contact National Criminal Lawyers® Today
Think you’ve been misidentified?
📞 Call 1800 CRIM LAW for a free consultation.
We offer:
- Fixed fees
- Psychological referrals
- Representation in AVO and DV cases
- Offices across Sydney, Parramatta, Blacktown and Greater NSW
We protect your rights — even when others don’t see them.
