NSW will become the first Australian state or territory to create a stand-alone offence for coercive control with the Crimes Legislation Amendment (Coercive Control) Bill 2022 [NSW] being passed this week to amend the Crimes Act 1900; and amend the Crimes (Domestic and Personal Violence) Act 2007 to include a new definition of domestic abuse.
Coercive control is an insidious form of domestic violence characterised by a pattern of controlling and manipulative behaviors within a relationship designed to intimidate, isolate, and control a person. Research shows that coercive control is overwhelming perpetrated by men against women and was found to be a precursor in 99% of intimate partner homicides between 2008 and 2016 in NSW. The new law will make it a criminal offence to perpetrate repeated abusive behaviour to current or former intimate partners with the intent to coerce or control and will attract a maximum penalty of up to seven years imprisonment.
Attorney-General Mark Speakman has described the new legislation as life-saving, reporting that “domestic abuse victim-survivors tell us commonly that what is worse than bruises or broken bones is the pattern of psychological, sexual, spiritual, financial and other abuse that has them trapped in their own homes.”
Defining coercive control
In 2021, various specialist bodies and stakeholder groups made submissions to the Parliamentary Inquiry into Family, Domestic and Sexual Violence seeking to define the group of behaviours that can make up coercive control.
Women’s Safety NSW explained coercive control as:
… the use by one person of controlling and manipulative behaviours such as isolation, emotional manipulation, surveillance, psychological abuse and financial restriction against another person over a period of time for the purpose of establishing and maintaining control. In relationships characterised by coercive control, abusers use tactics of fear and intimidation to exert power over their victim, undermining their independence and self-worth
Similarly, the Australia Women Against Violence Alliance described coercive control as ‘an umbrella term that refers to an ongoing pattern of controlling and coercive behaviours that are not exclusively physical but can pervade an individual’s daily life with a devastating impact’. The NSW Department of Communities and Justice provided specific examples of behaviour that could constitute coercive control, including:
- deprivation of liberty and autonomy;
- isolating an individual from friends, family and wider society;
- withholding or controlling access to resources, including money;
- psychological control and manipulation;
- threats and creation of a climate of fear, including threats towards children; and
- controlling or withholding access to health care, education or employment opportunities
In considering how to define and respond to coercive control, Australia’s National Research Organisation for Women’s Safety Limited (ANROWS) explains that there is a strong tendency in legal and community settings to construct a hierarchy of violence: where overt forms of physical and sexual violence are at the top and considered the most harmful; and non-physical behaviours are consequently viewed as less harmful – if they are identified as violence at all. Research shows that victim-survivors can also be within this group of people who struggle to appropriately identify coercive control as a form of domestic violence.
What does the legislation say?
Section 54D of the Act provides that the offence of coercive control will have been committed if:
- the adult engages in a course of conduct against another person that consists of abusive behaviour, and
- the adult and other person are or were intimate partners, and
- adult intends the course of conduct to coerce or control the other person, and
- a reasonable person would consider the course of conduct would be likely, in all the circumstances, to cause any or all of the following, whether or not the fear or impact is in fact caused;
- fear that violence will be used against the other person or another person, or
- a serious adverse impact on the capacity of the other person to engage in some or all of the person’s ordinary day to day activities.
Abusive behaviour is defined as involving: violence or threats against, intimidation of, a person, or coercion or control of the person against whom the behaviour is directed.
Section 54F(2) goes further, providing that engaging in, threatening to engage in the following behaviour may also constitute abusive behaviour:
- behaviour that causes harm to a child if a person fails to comply with demands made of the person,
- behaviour that causes harm to the person against whom the behaviour is directed, or another adult, if the person fails to comply with demands made of the person,
- behaviour that is economically or financially abusive
- behaviour that shames, degrades and humiliates,
- behaviour that directly or indirectly harasses a person, or monitors a person’s activities, communications or movements whether by physically following person or using technology,
- behaviour that causes damage to or destruction of property,
- behaviour that isolates a person from connecting with family, culture,
- behaviour that causes injury or death to an animal or makes use of an animal to threaten a person,
- behaviour that deprives a person of their liberty
Importantly these behaviors must be engaged in either repeatedly or continuously; or both repeatedly and continuously.
Section 54I dictates that a Coercive Control Task Force must be implemented to evaluate and consult with stakeholder about the offence; and maintain oversight of the training, education, resourcing related to the offence.
The coercive control legislation has faced criticism regarding the operation and enforcement of the offence, as unlike other forms of abuse which may be isolated incidents e.g. physical assaults, sexual violence, stalking; coercive control requires that the perpetrator commits a pattern of behavior that is intended to coerce or control a current or former partner. By criminalising coercive control, the elements of the offence will have to be proved to the criminal standard i.e., beyond reasonable doubt. Proving the element of intention is a high threshold and may be difficult to prosecute.
This view was expressed by Domestic Violence NSW CEO Renata Field reporting to media outlets:
You have to show that someone intended to cause that harm but in intimate relationships, there can be misguided beliefs… someone may feel they have a right to control finances for example… but they don’t believe that intentionally causes harm…
If the bill were to pass in its current form, we are concerned at best it would be under-utilised and not really help the people it is set up to help. At its worst, it could create issues of misidentification and not provide support to those who really deserve it.
Stakeholders have also echoed the opportunity for systems abuse, whereby victim-survivors may be inflicted to more harm through the court and legal processes. When coercive control consists of tailored, often subtle behaviours, it is possible that perpetrators will be able to continue to exhibit them undetected through legal proceedings. Further, the nature of our criminal justice system and the processes to deal with domestic violence such as Apprehended Domestic Violence Orders, cross-applications, adjournments for evidence gathering and cross-examination may contribute to victim-survivors feeling disempowered by the legal system and therefore less likely to report future incidents.
Other reservations include policing practices, and the extent to which front-line police officers will be supported and appropriately trained to identify and enforce coercive control offences. Currently, Police primarily attend to primarily ‘incident-based’ domestic violence i.e. isolated incidents which are reported. The Police officer’s role here is often to make fast assessments as to who is the primary aggressor in a single incident, rather than considering the pattern of behaviours leading to an event and protecting victims from further harm.
Broader context – Domestic and Family Violence in Australian Legislation
Across Australia, domestic and family violence intersects between civil law proceedings and criminal law proceedings. Most Australian jurisdictions do not directly make domestic and family violence a criminal offence. Rather they rely on existing criminal offences such as assault, sexual assault, attempted murder or intent to inflict grievous bodily harm to capture domestic and family violence and appropriately punish offenders. The civil jurisdiction considers family violence for the purpose of protection orders for victim-survivors.
There are some key differences between the criminal and civil law responses to family violence, as summarised below:
|The purpose of criminal proceedings is to punish offenders; deter the offender (specific deterrence) and community (general deterrence) from committing further offences; denunciation (condemn behaviour); rehabilitation and protection of the community
|The purpose of civil proceedings is to protect the victim from future family violence
|Standard of proof
|Criminal proceedings must be proved beyond reasonable doubt
|Civil proceedings must be proved on the balance of probabilities (is it more likely than not that family violence occurred – easier to reach this threshold)
|In criminal proceedings, the Police charge and prosecute less serious offences
|In civil proceedings, generally the victim or Police on behalf of the victim make an Application for a protection order
|In criminal proceedings, if an offender is found guilty, they will be sentenced and receive their penalty (e.g. good behaviour bond, fine, imprisonment)
|In civil proceedings, if a protection order is made, conditions or restrictions will be placed on the person that order is made against (e.g. not to commit family violence, not to approach/communicate with victim)
Perfect cannot be the enemy of the good
While some stakeholders opposed the legislation, saying that more consultation was required, Attorney-General Mark Speakman recently told the Parliament lower house that “perfect cannot be the enemy of the good” and “[d]ifferences of drafting opinion are not justification for further delay”.
The criminal offence of coercive control will not be enforced until 2024, which will provide further time for consultations, engagement and continued training about this nuanced burgeoning area of law.