Criminalising coercive control

The annual 16 days of Activism against Gender-Based Violence campaign saw NSW introduce new legislation criminalising coercive control. The 16 days of activism commences each year on 25 November, the International Day for the Elimination of Violence against Women, and runs through until International Human Rights Day on 10 December.

On 16 November 2022, the New South Wales government bill to criminalise coercive control was passed in State Parliament. With this new legislation, a stand-alone criminal offence established to hold to account perpetrators of coercion and control directed towards a current or former intimate partner. The newly-established offence carries a jail sentence of up to seven years.

The passing of the Crimes Legislation Amendment (Coercive Control) Bill 2022 aims to identify behaviours which are a precursor to physical acts of domestic violence including coercion and control. The intention of the bill is to better support victims by criminalising this conduct as a separate punishable offence, where previously the legal response to this behaviour was for a victim to obtain an Apprehended Domestic Violence Order (also known as a Family Violence Order). Those orders do not attract a criminal consequence unless breached and a conviction is established for the breach. The newly established criminal offence is also intended to prevent domestic violence-related deaths, through early intervention and deterrence.

Activists for the reduction of domestic violence in Australia – where currently one woman dies every week from family violence by a partner or former partner – have welcomed the move, having made calls for many years for serious impact of non-physical forms of family violence to be recognised.

In passing this law, NSW became the first Australian state to criminalise coercive control. It is anticipated that other states will quickly follow, including the ACT, which has considered establishing a similar offence in the Territory.

What is coercive control and why is this reform so significant?

Coercive control is a form of domestic abuse that involves patterns of behaviour that have the cumulative effect of denying victim-survivors their autonomy and independence.

Coercive control involves abusive patterns of behaviour in an intimate relationship by one partner to the other that can include dictating what a partner wears, limiting access to money, controlling who they see, persistent texting, endlessly phoning, or tracking their movements, sexual abuse, preventing one from participating in cultural and/or spiritual events and ceremonies, intimidation and eliciting control by making threats to third parties, like children and family pets.

Coercive control has been recognised as a precursor to intimate partner domestic violence homicide. A NSW coroner’s court review into domestic violence deaths found the practice was present in 99 per cent of relationships preceding domestic homicides and last year, NSW’s domestic violence review team found that 99 per cent — 111 out of 112 — intimate partner homicides between 2008 and 2016 in NSW were preceded by coercive control.

The tragic death of Hannah Clarke and her three children sent shock waves across the nation and brought to public consciousness the significance and dangers associated with coercive control and its prevalence in Australia. An inquiry into the death of Ms Clarke and her children found that her estranged husband, Rowan Baxter, had no apparent history of physical violence, however, Ms Clarke had been subject to escalating forms of controlling and possessive behaviour, mainly sexual and emotional, for many years leading up to her murder.

Sometimes it’s hard to see …

Coercive control does not leave physical traces, but the emotional and psychological damage can be long lasting.

As depicted in the Netflix series, The Maid, victims experience confusion, hopelessness, isolation and distress through this often subtle (and sometimes not so subtle) treatment, the cumulative effect of which leaves them trapped in the cycle of abuse.

The insidiousness nature of coercive and controlling conduct has made defining the behaviours as a crime a controversial aspect of the new legislation in New South Wales. Despite the prevalence of coercive control, it is considered a complex area of law and is not criminalised in many countries around the world. England and Wales were the first to do so in 2015.

How is the offence proven and what are the limitations of the legislation?

The new law in NSW covers behaviour within intimate partner relationships (i.e. those in romantic, de facto relationships or who are married). This means that controlling or coercive behaviours occurring between other family relationships are not captured as an offence.

The stand-alone offence applies to current or former partner relationships and doesn’t come into effect until 2024. It does not apply retrospectively – meaning acts occurring before this time cannot be prosecuted. Despite this, critics have complained that the introduction of the new laws have been rushed, with limited resources applied to upskilling those working within the community, including police, to receive adequate training for it to have any notable positive effect.

To convict someone accused of the offence, the evidence must be proven beyond reasonable doubt that the perpetrator had the intention to control the victim. It is arguable that this threshold is too high, and this has drawn criticism from domestic violence activists, as according to Domestic Violence NSW CEO Renata Field, the threshold may be too high in many cases and give women a false sense of confidence their perpetrator could be prosecuted.

“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,” Ms Field told the ABC last month.

How domestic violence intersects with family law

As domestic violence permeates our society at high rates of incidence, sadly we all too frequently assist clients who are exiting abusive relationships or experiencing ongoing family violence behaviours from their former partner.

Coercive control is present in many of these cases, in the following ways:

  1. Monitoring and stalking the victim’s whereabouts including via mobile phone apps, spyware and other surveillance devices hidden in residences and cars;
  2. Delaying or avoiding financial matters to try to retain control of the victim and cause financial stress or hardship to them. This can also pressure the victim to return to the relationship in order to have their financial needs met;
  3. Inappropriately using the children to communicate disparaging messages to the victim;
  4. Utilising authorities to make baseless complaints or allegations about the victim. For example, suggesting the victim may suffer from mental health issues or substance abuse problems which are a risk to the children;
  5. Withholding access for the victim to children, animals, and property;
  6. Damaging, or threatening to damage, the victim’s belongings and relationships with other persons – including the children – unless the perpetrator’s demands are met;
  7. Gaslighting the victim and the children to cause them to believe their views are not reasonable and that any view oppositional to the perpetrator’s views is irrational;
  8. Sending, or threatening to send, intimate photographs or messages sent during the relationship to third parties to cause humiliation and embarrassment for the victim.

Sounding a little too close to home?

If coercive control is happening to you or someone you know, get some advice and support from domestic violence organisations such as 1800 Respect, Domestic Violence Crisis Service or a lawyer. You may like to read our blog on what to do if you think your friend is at risk of domestic violence (including coercive control).

For victim survivors, trauma, self-doubt, and very low self-confidence can present new challenges when trying to re-establish yourself after an abusive relationship ends. Specialised support is necessary to help you to flourish and begin anew.

At Parker Coles Curtis, our lawyers are highly trained and experienced in working with people involved with or affected by family violence – whether you are the victim or you’ve been accused of perpetrating family violence. Both scenarios can have devastating effects for a family unit.

Our team offers free 15-minute initial consultations, and we have convenient lunch time and afterhours advice services to connect you with ease to a specialised and empathetic advisor. You can book here online or contact our caring team on (02) 5114 2660.

Parker Coles Curtis is a trusted award-winning boutique family law firm.

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