In 2017 and 2018, the Victorian Government made amendments to the Bail Act in order to tighten the state's bail system.

The impetus for change was sparked by the revelation that Dimitrious Gargasoulas was released on bail only a few days prior to him driving a car through Burke Street mall killing six people and injuring another 30.

However, it comes as no surprise to see that those caught in the net of new legislation are not necessarily violent men, but rather a group of highly vulnerable women.

We have seen this before.

The 2005 Victorian legislation on defensive homicide was designed to provide a halfway option between murder and complete acquittal, to juries and women living with intimate partner violence who killed their partners in self-defence.

The legislation was introduced as a way to counter injustice for women who were terrified for their lives following often chronic abuse, who were being convicted of murder.

In fact, a review of the legislation after five years showed that 25 men were sentenced under the defensive homicide legislation, primarily for attacks on other men. Men also used the legislation to attain lower-level convictions after killing their intimate partners.

The use of the legislation by Luke Middendorp for fatally stabbing his partner, Jade Bownds, in the back, was seen by many in this context as a travesty and a distortion of the law.

Under the legislation, only three women were convicted of killing their violent partners. The legislation was repealed as it was clearly not meeting its original aims.

The Sunday Age reported there has been a dramatic rise in the number of women held in prison, greater even than the rise in male inmates. The tougher laws mean that the most disadvantaged women in our community are being refused access to bail and parole.

The Victorian Human Rights Law Centre is drawing attention to the inequity of the consequences. Two-thirds of women were released from prison when their remand ended. They were not being held for long-term serious offending (the rationale for the legislation).

Seventy per cent of these women had children and their convictions now meant they were separated.

Sixty-five per cent of the women had been victims of domestic violence. The most vulnerable, Aboriginal and Torres Strait Islander women, are seeing the greatest increase in imprisonment with a 240 per cent rise in Aboriginal women imprisoned in the past five years.

It is unclear how many women are in remand due to their misidentification as the perpetrator of violence.

A small snapshot survey through our own research showed that two-thirds of the women identified as respondents (perpetrators of violence) had previously been reported as victims of domestic violence.

Some of these had been victimised up to six times.

This aligns with Women's Legal Service data that indicates that in 60 per cent of cases when women were named as respondents to intervention orders, they were actually misidentified.

Also relevant to women entering prison are the numbers with an acquired brain injury (ABI) – a significant disability.

A Victorian study commissioned by the Corrections Department found that of 86 female prisoners, 73 per cent had at least one ABI risk factor. The report is relatively silent on the issue of domestic violence, though it recognises that it is a female-specific risk factor.

By contrast, a report by Monash University and peak bodies indicates that 40 per cent of women victims of domestic violence attending Victorian hospitals in a 10-year period sustained a brain injury.

This data aligns more closely with a UK study of women in prison, which found 65 per cent of 173 women in prison screened for ABI may have suffered traumatic brain injuries.

The symptoms of 96 per cent of these women suggested that they arose from physical trauma, and of these 62 per cent said that their brain injury was caused by domestic violence.

Injuries included strangulation (cutting the blood supply to the brain) and punches to the head. It is salutary to consider the viciousness of these attacks on women by their partners or ex-partners causing brain damage.

Unsurprisingly, ABI significantly affects cognitive ability to manage behaviour and understand "in the moment" consequences of one's behaviour. It is not an excuse, but it does recognise that rehabilitative processes are complex.

Yet our prison system seems to be doing very little to address women's experiences of domestic violence, some specific to ABI, but other basic interventions were highlighted by Andrew Day and colleagues when they researched women, domestic violence and the prison system.

The researchers were particularly concerned about women's safety post-release and steps taken to ensure a comprehensive approach to their rehabilitation. They found the system sadly lacking, though many women used prison as an opportunity to reflect on and name the abuse they had suffered.

There is an interesting paradox in Victoria.

Corrections Victoria is running a pilot program to address ABI issues for the prison population (men and women). It is a positive step.

At the same time, tightened bail laws have seen a significant number of women who are victims of domestic violence (many of whom will have an ABI) cascading into prison and remand.

The paradox suggests that the legislation isn't having its intended consequence. It isn't a large group of violent men who are a risk to the community if released on bail, but rather highly vulnerable women, many of whom are the victims of domestic violence, who are being ensnared by the new legislation.

The question has to be raised as to whether this legislation requires immediate review.

A version of this article first appeared in The Age.

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