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Evaluating The Consequences Of Criminalising Coercive Control In The Australian Capital Territory
Heidi Andriunas*
This article examines whether the Australian Capital Territory should consider the introduction of a standalone offence of coercive control. Recently, jurisdictions within Australia and overseas have criminalised, or considered criminalising, coercive and controlling behaviours. Tasmania, Scotland, England and Wales have all implemented coercive control offences. New South Wales and Queensland are currently conducting inquiries into the creation of an offence. As these jurisdictions begin to recognise family violence as a course of action in the criminal law, it is pertinent to consider whether the ACT should follow. This article evaluates this question through discussion of the potential consequences of criminalising coercive control and mitigation strategies for these. Additionally, it evaluates how an offence might be constructed in the ACT. The article ultimately concludes that a coercive control offence is necessary for the protection of victims of family violence in the ACT. However, it cannot operate in isolation, and must only be implemented if accompanied by extensive non-legislative activities.
The issue of family violence is serious. Its prevalence within Australia is appalling, with the Australian Bureau of Statistics documenting 17% of women and 6% of men as having experienced intimate partner violence from the age of fifteen.[1] Alarmingly, every nine days in Australia a woman is killed by her intimate partner.[2] The NSW Domestic Violence Death Review Team (NSW DVDRT) recently found that ‘a number of its cases were not preceded by an evident history of physical abuse – instead homicides were preceded by histories of other forms of coercive and controlling behaviour.’[3] This troubling revelation suggests that more needs to be done to combat coercive control.
Current civil and criminal laws in the ACT do not provide adequate protection to victims of coercive control. Instead, this complex and concerning aspect of domestic and family violence has been historically overlooked by the law. Coercive control is characterised by violence, intimidation, isolation, subordination, and control.[4] It is encompassed by a broad range of behaviours such as control of financial resources, isolation from friends and family, deprivation of personal autonomy, and psychological manipulation.[5] In this way, coercive control entraps a person, causing significant loss of liberty, deprivation of substantive equality,[6] and consequences for health and wellbeing. Additionally, the concept of coercive control rejects the incident-based model of family violence, instead suggesting it is a persistent pattern of abuse – one that lies beyond the reach of criminal laws. Behaviours of coercive control appear innocuous to outsiders, particularly when viewed beyond the context of the relationship.[7] Consequently, the very nature of coercive control is pervasive, ongoing, and potentially deadly.[8]
Over the past two years, awareness of coercive control in Australia has been driven by the extensive public interest in the murder of Hannah Clarke by her former partner in early 2020.[9] The lack of a criminal law response to coercive control, combined with its serious impacts, has brought about support for its criminalisation within Australia.[10] To this end, both NSW and Queensland have begun considering whether coercive control should be criminalised, each conducting respective inquiries into the issue. As jurisdictions internationally and within Australia begin to recognise the serious harms and impacts of coercive control, it is pertinent to evaluate whether the Australian Capital Territory (ACT) should follow.
Despite this, criminalising coercive control comes with numerous challenges. There are concerns that a coercive control offence might ‘open the floodgates’ for prosecutions.[11] Some academics argue that the legal system does not have the capacity to respond to coercive control, and that if it is criminalised, the offence will not achieve its desired outcomes.[12] Moreover, there is potential for a coercive control offence to cause serious negative implications for female victims of family violence, namely through misidentification of victims and abuse of court processes.[13] Aboriginal and Torres Strait Islander people may also face disproportionate adverse impacts, furthering their existing overrepresentation in the Australian criminal justice system.[14] As such, implementation of a coercive control offence requires careful consideration of risks and possible mitigation strategies, in both legal and social contexts.
This article analyses the key consequences of criminalising coercive control, evaluating whether an offence should be implemented in the ACT. Although coercive control has significant impacts for all Australian jurisdictions, this article will solely examine the implementation of an offence in the ACT. This is because significant inquiries have already been conducted, or are in process, in other Australian jurisdictions. As the ACT is yet to consider this issue, this article offers a novel analysis of criminalisation in this area.
Furthermore, whilst family violence impacts people of all genders, it has been shown that family violence is perpetrated predominantly by men against women.[15] Hence, this article focuses primarily on impacts for women, both in experiences of coercive control and in the implementation of an offence.
This article primarily concentrates on research for law reform purposes, combining doctrinal, comparative, and qualitative interdisciplinary methods, contributing to the ‘new legal research environment.’[16] Undertaking qualitative research methods from both sociological and legal contexts assists in gaining a broader understanding of the law and its impacts through consideration of the wider issues of family violence. This allows for analysis of the content of the law, and how it contributes to resolving social issues of coercive control.
Doctrinal research was undertaken into existing coercive control laws in England and Wales, Scotland, and Tasmania. Reported cases relating to Tasmania’s coercive control offences were located by utilising the Australasian Legal Information Institute (AustLII) databases’ ‘note up’ function. Unreported cases were found through the Tasmanian Law Library database, by entering the relevant offence (either “emotional abuse or intimidation”, “economic abuse”, or “persistent family violence”).
A comparative research methodology was employed to evaluate the effectiveness of coercive control legislation across jurisdictions. This was completed by engaging with interdisciplinary secondary source materials, which provided insight into benefits and consequences of criminalising coercive control. To find relevant secondary sources, legal databases such as Lexis Advance, Westlaw AU, Attorney-General’s Information Service (Informit), HeinOnline, Proquest Central, and AustLII were searched using a combination of the following phrases: “coercive control”, “criminalisation”, “intimate partner violence”, “criminal law”, “domestic violence” and “domestic abuse”.
This article is divided into five parts. The first part provided an overview of the aims and purposes. The second part offers a broad context and background to coercive control, examining the negative impacts of coercive control and presenting a brief overview of current reforms in NSW and QLD. The third part provides a detailed outline of existing legislative frameworks in Tasmania, England and Wales, and Scotland, and evaluates the implementation of the offences in each jurisdiction. The fourth part analyses outcomes of coercive control offences. This section evaluates potential consequences of coercive control legislation that have been previously identified by researchers, referencing the implementation of coercive control legislation in different jurisdictions. The fifth part evaluates the potential for a coercive control offence to be implemented in the ACT. Here, the article outlines reasons why an offence is needed in the ACT through evaluating the adequacy of current ACT family violence laws. The article then examines how an offence might be constructed in the ACT by assessing each element of a coercive control offence. Following this, the article considers non-legislative activities that would be required to support a coercive control offence.
COERCIVE CONTROL: CONTEXT AND BACKGROUND
Victims of coercive control face numerous significant impacts as a result of a partner’s abusive behaviours. Experiences of emotional and psychological abuse can lead to numerous adverse outcomes, including post-traumatic stress disorder,[17] depression and anxiety,[18] suicide,[19] homelessness,[20] and increased risk of substance abuse.[21] Victims may not even recognise that they are experiencing family violence, with some believing their experiences are ‘part of ordinary relationship dynamics.’[22] For female victims with children, coercive control can have negative implications on the victim’s relationship with her child, alongside the child themselves. Perpetrators of coercive control may attempt to prevent mothers from spending time with their children, leading to emotional and behavioural problems in children,[23] disempowerment, and loss of confidence and agency.[24]
Furthermore, coercive control causes ‘entrapment’, which has been described as ‘the most devastating outcome of partner abuse.’[25] This can be exacerbated by the lack of self-trust a victim has after being subjected to emotional abuse by an intimate partner.[26] A victim’s autonomy to ‘say and do things and to meet their own needs without worry or fear’ is also impacted.[27] As a result of entrapment, alongside loss of autonomy and self-identity,[28] victims are disempowered to leave abusive relationships.[29] These impacts arise both immediately after the abuse, and well into the victim’s future following the end of the relationship.[30]
II Coercive control reforms in Australia
The legal system has been a key component of Australia’s response to family violence over the last thirty years,[31] with domestic violence protection orders at the forefront.[32] However, recently various Australian states have begun to consider whether coercive control offences would be a desirable element of our family violence response. To this end, both NSW and QLD have begun the process of considering whether to incorporate an offence of coercive control into criminal law.
In late 2020, Anna Watson MP headed a NSW Bill to include an offence of coercive control in the Crimes (Domestic and Personal Violence) Act.[33] This bill, termed Preethi’s Law, is named after Preethi Reddy, a Sydney dentist who was tragically murdered by her former partner. Anna Watson brought forth this bill to ‘change the way we respond to domestic abuse and to better define what constitutes domestic abuse to enable greater protection for victims and their children.’[34] Following the bill, NSW formed a Joint Select Committee for Coercive Control, which undertook an inquiry into whether coercive control should be criminalised. In June 2021, the committee released a report outlining the findings from the various submissions made to the inquiry, unanimously recommending the criminalisation of coercive control in NSW.[35] The government response to this report is due in December 2021.
Similarly, Queensland formed a taskforce in early 2021 for the purpose of determining whether coercive control should be made an offence.[36] This followed the murder of Hannah Clarke and her three children by her former husband, who had engaged in coercive and controlling behaviours prior to the homicide. Since Hannah’s death, her parents have campaigned for greater awareness of coercive control, calling for Queensland to criminalise it.[37] Recently, the Queensland Taskforce has recommended the creation of a coercive control offence in Queensland in its first report reviewing the submissions to its inquiry.[38]
COERCIVE CONTROL LEGISLATION ACROSS NATIONAL AND INTERNATIONAL JURISDICTIONS
I The offences of economic abuse and emotional abuse or intimidation: Tasmania’s novel non-physical family violence offences
Tasmania is presently the only Australian jurisdiction to have criminalised coercive and controlling behaviour in the context of family violence. In 2004, Tasmania enacted the Family Violence Act,[39] which established two novel family violence offences, reflecting an unprecedented attempt to criminalise non-physical family violence. These offences formed part of numerous reforms aimed to better address family violence, and were developed in reaction to criticisms of Tasmania’s family violence response.[40] With these reforms, Tasmania proposed to ‘introduce a pro-arrest, integrated criminal justice response to family violence.’[41]
The offence of economic abuse states:
8. Economic abuse
A person must not, with intent to unreasonably control or intimidate his or her spouse or partner or cause his or her spouse or partner mental harm, apprehension or fear, pursue a course of conduct made up of one or more of the following actions:
(a) coercing his or her spouse or partner to relinquish control over assets or income;
(b) disposing of property owned –
(i) jointly by the person and his or her spouse or partner; or
(ii) by his or her spouse or partner; or
(iii) by an affected child –
without the consent of the spouse or partner or affected child;
(c) preventing his or her spouse or partner from participating in decisions over household expenditure or the disposition of joint property;
(d) preventing his or her spouse or partner from accessing joint financial assets for the purposes of meeting normal household expenses;
(e) withholding, or threatening to withhold, the financial support reasonably necessary for the maintenance of his or her spouse or partner or an affected child.[42]
The offence of emotional abuse or intimidation states:
9. Emotional abuse or intimidation
(1) A person must not pursue a course of conduct that he or she knows, or ought to know, is likely to have the effect of unreasonably controlling or intimidating, or causing mental harm, apprehension or fear in, his or her spouse or partner.
a course of conduct includes limiting the freedom of movement of a person's spouse or partner by means of threats or intimidation.[43]
Since enactment of the legislation, only three reported cases have mentioned either of these offences. These cases were all heard in the Tasmanian Magistrates Court, and mentioned the s 9 emotional abuse or intimidation offence. They include K v K,[44] Howe v S,[45] and Police v Benjamin James Nunn.[46] K v K only mentioned s 9 in passing, and did not discuss it, as the case focused on an application to revoke a family violence order. The other two cases discussed the requirements of the s 9 offence in greater detail.
In Howe v S, the defendant was charged under s 9, alongside two other charges relating to violations of a police family violence order.[47] In this case, the defendant allegedly threatened to take the victim’s child to Melbourne, if she did not comply with his request to stay the night with him. This single conversation was relied upon by the prosecution to constitute a course of action for the purpose of the act. The court did not accept this conversation as meeting the requirements for the course of conduct,[48] and stated that the prosecution failed to submit that the intimidation by the perpetrator was unreasonable.[49]
In Police v Benjamin James Nunn, the defendant was charged with emotional abuse or intimidation for pouring petrol over a vehicle that the victim’s child was in, and threatening to set the car on fire whilst the victim was watching.[50] Whilst the court accepted that the defendant’s behaviour was aimed at the victim and caused her fear and apprehension,[51] the charge was dismissed due to the lack of a course of conduct.[52]
As demonstrated, both cases did not meet the requirements of the legislation as they lacked a course of conduct. Yet, family violence rarely occurs in single incidents.[53] It is likely that in both cases, the perpetrators were exerting other coercive and controlling behaviours that were not identified by the police and prosecutors. As a result, the criminal justice system failed to adequately respond to these incidents of family violence and provided limited protection to the victims.
C Effectiveness of Tasmania’s offences
As demonstrated by the limited case law, the uptake of Tasmania’s family violence offences has been slow if not virtually non-existent. During 2013-14 there were 2376 incidents of family violence recorded in Tasmania, with 1634 police family violence orders and 380 court issued family violence orders.[54] In that same year, only one charge of emotional abuse or intimidation was laid.[55] Moreover, from the time of enactment to 2015, only seven charges of emotional abuse or intimidation were made,[56] with only the two above mentioned cases making it to the Magistrate’s court. The lack of success of these offences suggests there are deficiencies in either the construction or implementation of the offences.
1 Construction of the offences
(a) Short limitation periods
Flaws in the construction of the offences may contribute to the scarcity in prosecutions. Both offences initially had a limitation period of six months from the most recent incident, but this has now been extended to twelve months.[57] A short limitation period may reduce prosecutions,[58] especially where victims do not immediately report a perpetrator’s behaviour. Notably, in the years since the amendment of the limitation period, higher numbers of charges have been reported.[59] Although, this could be attributed to increases in community and professional awareness. Despite this, these figures are still comparatively low when regarding the yearly number of family violence incidents.
(b) Broad vs narrow construction of the offences
The offence of economic abuse is narrowly construed, making it difficult to prove.[60] In contrast, the offence of emotional abuse or intimidation is broad but lacks specificity. This is illustrated by the course of conduct requirement in s 9, which is not specifically defined in the act. By not explicitly defining a course of conduct, courts are required to turn to existing case law to determine a definition, such as through stalking cases.[61] Interestingly, existing case law has determined that stalking could constitute a course of conduct (or even a threat or act of intimidation) in circumstances where the victim’s freedom of movement is limited.[62]
With the narrow construction of s 8 and broad construction of s 9, the s 8 offence is rendered unnecessary, as any conduct that could be charged under s 8 would also qualify for s 9.[63] Marilyn McMahon and Paul McGorrery argue that the economic abuse offence is over-criminalisation, identifying merely three differences between both offences, being the section headings, the mens rea, and the proscribed behaviours.[64] Section headings have no relevance to the offences other than being a description of the section.[65] The mens rea of s 9 is easier to prove than s 8, as it includes the requirement that ‘knows or ought to know’ as opposed to strict intent.[66] The proscribed behaviours in s 9 include any behaviour that is likely to be unreasonably controlling or intimidating, or cause apprehension, mental harm or fear, whilst s 8 lists only five separate behaviours.[67] Moreover, in the five cases where economic abuse have been prosecuted to date, emotional abuse or intimidation was also charged.[68] This demonstrates that behaviour charged under the s 8 economic abuse offence may be better charged under the s 9 emotional abuse offence, effectively rendering s 8 unnecessary.
(c) The unreasonableness requirement
The s 9 offence requires that the perpetrator knows, or ought to know, that their behaviour would likely have the effect of unreasonably controlling, intimidating, causing mental harm to, or apprehension or fear in the victim.[69] Whilst this means that there is no requirement that the victim is actually controlled or intimidated, the language suggests there is some level of controlling or intimidating behaviour that would be considered reasonable.[70] Therefore, determining reasonableness requires an understanding of the relationship’s context. As Paul McGorrery and Marilyn McMahon state, ‘should a man who migrated from a patriarchal culture be subjected to a different standard when determining whether his conduct towards his wife was controlling or intimidating?’[71] As such, this requirement creates difficulties for courts in objectively determining what standards of reasonableness should be applied.
2 Implementation of the offences
In addition to flaws in their construction, further issues exist in the implementation of the offences, which contribute to a lack of prosecutions. These include the absence of specialised professional training and limited community education regarding non-physical family violence.
Upon the introduction of the new Act, police officers in Tasmania received training on their new powers, but not on the specific offences of economic and emotional abuse.[72] This meant that officers lacked the necessary skills to identify non-physical family violence and investigate it. Investigation and obtaining evidence for a course of conduct offence is complex and time intensive.[73] Without the requisite knowledge and skills, it is likely near impossible for police officers to conduct an adequate investigation. Alongside this, identifying subtle behaviours and patterns of abuse is difficult, especially when police are only called in when an incident of physical violence has occurred. In these cases, it is probable that the physical violence will be charged whilst any non-physical family violence is overlooked. Consequently, it is easy to see how these offences are rarely charged.
Inadequate community awareness of non-physical family violence further exacerbates this. If victims or witnesses are not aware that something constitutes a criminal act, then it is unlikely they will make reports to police. Likewise, victims may only call police when an incident of physical violence or a threat has occurred, and then that behaviour will be solely focused on. A Tasmanian prosecutor has stated that in twenty cases involving the offences of economic or emotional abuse, all were preceded by physical assault.[74] Without adequate community awareness regarding the behaviours that constitute family violence, prosecutions are likely to remain low.
II England and Wales: The Offence of Controlling or Coercive Behaviour
England and Wales introduced a new offence of controlling or coercive behaviour in December 2015 following consultation processes initiated by the Home Office in 2014, which found that the majority (85%) of respondents were in support of strengthened laws against domestic abuse.[75] This offence was further motivated by a report that found police had an inadequate understanding of domestic violence,[76] alongside concerns by the Law Commission regarding policing of domestic violence.[77] Reasons for the implementation of this offence include to close the gap that existed in law regarding coercive control, to send a message to abusers that their behaviour constitutes a serious offence, and to provide greater protection to victims.[78]
The introduction of s 76 of the Serious Crime Act[79] criminalises ‘coercive or controlling behaviour in an intimate or family relationship.’[80] This offence states:
(1) A person (A) commits an offence if—
(a) A repeatedly or continuously engages in behaviour towards another person (B) that is controlling or coercive,
(b) at the time of the behaviour, A and B are personally connected,
(c) the behaviour has a serious effect on B, and
(d) A knows or ought to know that the behaviour will have a serious effect on B.[81]
For A and B to be personally connected, they must either be in a personal relationship, live together and be members of the same family, or live together and have previously been in an intimate personal relationship.[82] Therefore, previous intimate partners who do not live together are excluded from this offence. For A’s behaviour to have a serious effect, it must either cause B to fear that violence will be used against them on at least two occasions, or cause B serious alarm or distress that leads to a substantial adverse effect on their usual day-to-day activities.[83]
The Home Office has published statutory guidance surrounding investigation of this offence per s 77(1) of the Act. In this publication, coercive and controlling behaviour is defined, alongside numerous examples of relevant behaviours. Controlling behaviour is defined as being ‘acts designed to make a person subordinate and/or dependant by isolating them from sources of support, expositing their resources ... depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.’[84] Coercive behaviour is defined as ‘a continuing act or a patterns of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim.’[85]
Alongside this, the College of Policing authorised professional practice on domestic abuse has produced principles regarding the new offence for police officers and the public in response to a recommendation by the HMIC.[86] This guide provides an explanation for identifying controlling and coercive behaviour, particularly in relation to distinguishing normal relationships from abusive ones. It states that normal relationships may sometimes involve one partner making a decision for the other or taking control of a situation, however, in abusive relationships when decisions are made by the abuser, if the victim does not follow those decisions, consequences occur.[87]
In years prior to the introduction of the offence in England and Wales and since, significant legal discourse has occurred regarding the criminalisation of coercive control. Many academics have argued that there must be caution in implementing these offences, particularly as they may cause negative implications for victims. With the introduction of a coercive control offence in England and Wales, it is crucial to understand its strengths and weaknesses to evaluate its effectiveness.
1 Uptake of the offence
A coercive control offence may be redundant if it is not utilised. This has been seen in Tasmania’s offences, which are rarely used, contributing no significant positive impacts to the protection of coercive control victims. Likewise, the uptake of the offence in England and Wales was initially slow. From April 2015 to March 2018, 314 offences had reached a first hearing at a Magistrates court.[88] However since, uptake has increased considerably, with 1177 offences reaching a first hearing at a magistrates’ court from April 2018 to March 2019,[89] and 9,053 coercive control offences recorded by police in that same period.[90] Early research has indicated that the offence has a prosecution rate of 91%, however it is noted that this may be due to ‘extreme diligence and/or caution by investigators and prosecutors during the early years of the offence being in operation.’[91] Still, these early results of the offence are impressive, and suggest it is an effective measure against coercive and controlling behaviours.
2 Limitations of the offence
Despite the positive uptake of the offence, it has numerous limitations. Firstly, the offence does not cover former intimate partners who do not live together. This is likely due to how the offence is operationalised. The home office definition of coercive control naturally excludes former intimate partners, as it focuses on abuse that occurs within the context of a current relationship. This is achieved by using phrases such as ‘make a person ... dependent’ and ‘depriving them of the means needed for independence, resistance, and escape’[92] in the definition of controlling behaviour. However, whilst former partners might not be controlled in that manner, they can still be subject to controlling and coercive behaviours. This can take the form of threats of violence towards the victim or their children or pets, or even through technologically assisted abuse. The home office considers behaviours such as threats to hurt or kill, threats to a child, threats to publish private information, assault, and criminal damage as being parts of a course of conduct that may amount to coercive control.[93] Additionally, they state that behaviours do not only occur at home, and that phones and social media may be utilised to cause a victim to fear violence.[94] Furthermore, serious issues may arise where a child is involved and contact is required between two former partners to exchange care of the child. This contact can present additional opportunities for exertion of coercive and controlling behaviours. Therefore, excluding former intimate partners from the offence is a significant limitation, and could cause victims of coercive control to be disallowed access to justice through the criminal justice system.
A further limitation is the victim focused nature of the offence, as it requires for the behaviour to have a ‘serious effect’ on the victim.[95] This means victims may be required to become heavily involved in court processes as witnesses for successful prosecution and sentencing of offenders. This is an unacceptable burden for victims, and may allow for further opportunities for a victim to be abused by the perpetrator.[96] Moreover, the adversarial nature of the court could exacerbate these issues, as victims may have to describe the abuse in detail, the impacts it has had on them, and be cross-examined about it. Being cross-examined about private aspects of a relationship and the abuse can be highly challenging. As such, the requirement that there be serious harm evidenced is a limitation of this offence, as is causes significant negative implications for victims.
Lastly, the drafting of the offence lacks specificity. This is particularly evident in the definition of a course of conduct. As seen in Tasmania, poor drafting of the meaning of a course of conduct can be a factor in potential under-utilisation. Furthermore, it may cause courts to apply the law inconsistently. This offence requires that there is ‘repeated or continuous’ behaviour,[97] however this phrase is not specifically defined by legislation. The statutory guidance framework provides some detail on what is meant by repeated or continuous behaviour, stating that ‘continuously means on an ongoing basis.’[98] It further states that one or two isolated incidents would not satisfy the requirement.[99] This clarification by the home office is still quite vague and could be refined to aid courts in interpreting and applying the offence.
In summary, the limitations of England and Wales’s offence casts significant doubts on its capacity to provide adequate protection and recourse to victims of coercive control.
III Scotland’s Offence of Domestic Abuse
In March 2017, Scotland introduced the Domestic Abuse (Scotland) Bill,[100] that proposed to criminalise coercive control. This bill was passed through Parliament unanimously in February 2018 and came into force in April 2019. When the bill passed, all members of Parliament gave a standing ovation to the survivors of domestic violence and advocates for the offence who were seated in the public gallery.[101] The bill was introduced in response to consultation undertaken by the Scottish government in 2015, which asked whether a specific offence of domestic abuse would improve responses to domestic violence within the criminal justice system.[102] From the responses to the consultation, 96% agreed that an offence of domestic violence would be beneficial.[103] The bill was drafted in consultation with policy experts from Scottish Women’s Aid, alongside survivors of domestic violence, who had input into the language used.[104] The Scottish offence has recently been referred to as the new ‘gold standard’ of coercive control offences.[105]
The Domestic Abuse (Scotland) Act[106] criminalises ‘abusive behaviour towards partner or ex-partner.’[107] The offence states:
(1) A person commits an offence if–
(a) the person (“A”) engages in a course of behaviour which is abusive of A’s partner or ex-partner (“B”), and
(b) both of the further conditions are met.
(2) The further conditions are–
(a) that a reasonable person would consider the course of behaviour to be likely to cause B to suffer physical or psychological harm,
(b) that either—
(i) A intends by the course of behaviour to cause B to suffer physical or psychological harm, or
(ii) A is reckless as to whether the course of behaviour causes B to suffer physical or psychological harm.
The Act contains detailed explanations as to what constitutes abusive behaviour.[108] Behaviour that is directed at B that is violent, threatening or intimidating is abusive behaviour.[109] Additionally, behaviour directed at either B, B’s child or another person that either has a purpose of causing one of the relevant effects or would be considered by a reasonable person to be likely to have one or more of the relevant effects is abusive behaviour.[110] The relevant effects include causing dependence, subordination or isolation, controlling day-to-day activities, depriving freedom of action, and frightening, humiliating, degrading or punishing B.[111] Violent behaviour includes both sexual and physical violence.[112] This offence is aggravated when a child is involved in any manner, such as by seeing, hearing, or being present during the behaviour, or if the behaviour is directed at them.[113] It is required that a reasonable person would consider the behaviour to be likely to adversely affect the child, who must be usually residing with either A or B or both.[114]
B Evaluation of the domestic abuse offence
Evaluation of the effectiveness of the Scottish offence may be limited due to its recent enactment. However, preliminary research suggests its uptake has been high, particularly in comparison to the English and Welsh offence.[115] The Scottish offence has been described by academics Evan Stark and Marianne Hester as being ‘one of the most radical attempts yet to align the criminal justice response with a contemporary feminist conceptual understanding of domestic abuse as a form of coercive control.’[116]
The offence has numerous strengths. Firstly, formulation of the legislation reduces impacts on victims. By utilising the reasonable person test, the offence focuses on the perpetrator’s actions instead of any effects on a victim. Additionally, the offence explicitly states that there is no requirement that the victim suffers harm,[117] or that the perpetrators behaviour actually has any of the relevant effects.[118] As a result, the victim is less involved with the court process and the potential for re-traumatisation is reduced.
Alongside this, the legislation acknowledges the harms endured by children who are present during domestic abuse. As Marsha Scott states, it ‘re-frames the experience of children and young people involved in domestic violence, constructing them as experiencing the abuse rather than merely witnessing it.’[119] The offence is aggravated not only when a child has behaviour directed at them by a perpetrator, but also when they see, hear, or are present during a perpetrator’s behaviour.[120] There is no requirement that the child has to be aware of the behaviour or have an understanding of the nature of the behaviour, nor do they have to be adversely affected.[121] Theoretically, an offence may be aggravated if even a baby or toddler is in the same room, or if a perpetrator makes threats of violence towards a young child but does not follow through with them. It has been shown that children are negatively impacted by non-violent coercive control perpetrated against their mothers.[122] Therefore, the inclusion of children as victims of coercive control is a major strength of the Scottish offence.
In summary, the Scottish offence has the potential to greatly improve outcomes for victims of coercive control, advocating for the rights of children and women in the country. Despite this, there is still room for improvement. The domestic abuse offence only accounted for 4% of offences recorded by police as part of incidents of domestic abuse in 2019-2020.[123] Other offences such as the offence of breach of the peace, which includes crimes of threatening and abusive behaviour, and stalking, accounted for 26% of offences recorded.[124] However, the offence was enacted very recently, and it may be many years before the true effectiveness is known. Still, the offence’s capacity to promote greater protection for victims is a positive impact that cannot be ignored, particularly given its comparative high uptake in its first year.
THE POTENTIAL POSITIVE AND NEGATIVE IMPLICATIONS OF COERCIVE CONTROL OFFENCES
I Benefits of a coercive control offence
An offence that encompasses physical and non-physical aspects of family violence would allow for the criminal justice system to better respond to complex issues of coercive control. It would acknowledge the serious impacts coercive control has on victims, and send a message to perpetrators that their behaviour is not acceptable. Likewise, criminalisation would ‘provide women with better opportunities for recourse of the suffering they have endured.’[125]
By criminalising coercive control, the justice system will have the capacity to intervene in cases where physical violence is not present. Because coercive control is a precursor to physical violence, this may result in possible prevention of future violence and intimate partner homicide. Alongside this, criminalisation will provide a greater opportunity for community and professional education on coercive control. This may increase the general public’s capacity to recognise situations of family violence. For victims, it may mean understanding that they are experiencing abuse and seeking help earlier.
II Overview of the negative implications
Despite these benefits, it is essential to recognise that an offence of coercive control will come with difficulties, both in its construction and implementation. As coercive control is a concept that describes the nature of family violence and its many impacts, it is not as dichotomous as existing criminal laws. Moreover, the criminal law predominately focuses on incidents.[126] Perpetrators of family violence may face charges of assault for incidents of physical violence, and these incidents can be reasonably easy to prove due to actual, physical evidence. On the contrary, the broad and contextual nature of coercive control makes it difficult to define, and hence there may be issues with translating this into law.[127] As coercive control encompasses both physical and emotional behaviour, and takes place as a course of conduct, it is difficult to construct legislation that encompasses its nature. This section will discuss the limitations in the construction and implementation of a coercive control offence, offering counter arguments and potential mitigation strategies for these issues.
The risk of overcriminalisation is a major challenge in creating a coercive control offence. There are concerns that if a coercive control offence is framed too broadly, behaviours that exist in ordinary relationships will become criminal. Indeed, it is not the role of the legal system to intervene in these relationships. However, it is necessary that the law intervenes in behaviour that causes significant impacts to victims, breaches human rights, and is a factor in intimate partner homicide.[128]
To prevent over-criminalisation, a coercive control offence will need to distinguish between behaviours that are normal in intimate relationships, and behaviours that would collectively form a course of abusive conduct.[129] However, distinguishing between these behaviours is fraught with problems, because considering whether behaviours are coercive or controlling depends on individual relationship dynamics.[130] To aid in distinguishing these, the offence should include provisions that relate to the intended impacts of the behaviour and their frequency. Additionally, it should include a non-exhaustive list of behaviours that exist in coercive and controlling relationships, akin to the list of family violence related behaviours in the ACT Family Violence Act 2016,[131] and the Commonwealth Family Law Act 1975.[132]
IV A course of conduct within incident based legal systems
Current criminal laws focus almost exclusively on singular incidents.[133] In contrast, an offence of coercive control would criminalise a course of conduct. For the concept of coercive control to translate into law, the legal system needs to be ready to evaluate courses of conduct instead of singular incidents. There are concerns that the legal system is not ready for nor capable of doing this.[134]
The current focus on single incidents of violence means that ‘there is often insufficient regard for the context in which the violence and injury occurred’.[135] As a result, perpetrators can more easily present themselves as a victim,[136] particularly where there has been a retaliatory act of violence by a victim. In determining if a behaviour forms a part of a course of conduct, police need to be able to recognise the subtle processes that occur in relationships. Currently, no Australian jurisdiction possesses the police capability to identify and evaluate patterns of coercive control.[137] However, with adequate police training there is a chance this issue may be overcome.[138] Alongside this, current laws of stalking have been successfully prosecuted in the ACT,[139] suggesting that the legal system is capable of understanding courses of conduct. Therefore, this concern may not be relevant, particularly as courts move towards deeper understandings of family violence.
V Misidentification of victims as perpetrators
A particularly troubling issue regarding criminalisation of coercive control is that female victims may be misidentified by police as perpetrators. Given the gendered nature of coercive control, it is a concern that a potential offence will be used against the people it aims to protect.[140] This issue is evident in domestic violence protection orders, where female victims have been subject to orders from abusive partners.[141] This section discusses the significant impacts faced by victims who have been misidentified, the factors that contribute to misidentification, and potential options for mitigation.
Female victims who are incorrectly identified as perpetrators face serious impacts. If arrested, victims could experience a loss of protection from abuse, as they may no longer feel they have safe access to the criminal justice system.[142] Victims can become hesitant in contacting police for help due to fears of being arrested again, and because of this, they may experience an escalation in violence from perpetrators.[143] Furthermore, arrests can increase the likelihood of victims being subject to domestic and family violence protection orders, which could have impacts on a victims safety.[144] If a perpetrator was to attempt to utilise the criminal justice system as a further means for abuse, a victim may become more likely to face further charges on the basis of a history of offending.[145] In addition, misidentification and criminalisation can have repercussions for employment, child custody arrangements, and housing.[146]
Numerous factors contribute to misidentification. These include cases where violence occurs by both parties, a lack of evidence relating to the family violence, or a misrepresentation by the perpetrator as being a victim.[147] Misidentification of victims is a particular challenge in cases that appear ambiguous due to violence on both sides. This is because of police difficulty in identifying the primary victim where a female victim has reacted violently towards an abuser.[148] However, violent or aggressive responses by victims are often a result of a partner’s coercive and controlling behaviours.[149] As such, increased police awareness of these behaviours and understanding of the gendered nature of family violence may contribute to reduced misidentification of female victims.
This is demonstrated in England and Wales, which has been found to have a remarkably low number of women sentenced for their offence of controlling or coercive behaviour.[150] Of 107 offenders sentenced, 106 were male (99%).[151] Victims of these offences were also overwhelmingly female (106 of 107).[152] Despite the gender-neutral nature of the offence, the police response has been highly gendered, with police being capable of correctly identifying the primary perpetrator. This can be attributed to training of police, who developed an understanding of the gendered nature of family violence.[153] As such, if an offence of coercive control is enacted alongside extensive training of police regarding coercive control,[154] then misidentification can be prevented.
The criminalisation of coercive control may require victims to become involved in court processes, particularly as witnesses. Engaging victims in court processes as witnesses could cause re-traumatisation, due to emotional costs and the need to extensively prepare for court.[155] Furthermore, reluctant victims may be urged by police officers to provide large amounts of evidence, and may even experience further control by the legal system itself.[156] On the other hand, when police do not believe victim’s claims of abuse, they may be re-traumatised and disempowered to take further action.[157]
To mitigate these burdens, the employment of a perpetrator focused approach may be useful. The Scottish offence demonstrates this, and has been hailed by academics for its approach.[158] England and Wales, who do not adopt a perpetrator focused approach, have a high rate of guilty pleas (73%) for their offence of controlling or coercive behaviour.[159] Guilty pleas require less involvement by victims, and therefore burdens on victims may be significantly reduced.
A highly concerning risk of a coercive control offence is that it might be utilised by perpetrators as an additional method for abuse of their current or former partners.[160] This behaviour has been described by Professor Heather Douglas, who refers to it as ‘legal systems abuse.’[161] Perpetrators may engage in legal systems abuse to place pressure on victims to withdraw their own legal applications, to escape repercussions for their actions, or even to cause financial and emotional harm to victims.[162] This behaviour is often utilised to continue to control partners after separation, particularly due to the loss of opportunity to exert control that comes with the end of a relationship.[163] Responding to false or vexatious claims made by perpetrators can come at a significant personal cost for victims, who are required to dedicate time and money in defending themselves.[164] However, it must be considered whether an offence of coercive control would contribute to this, or whether it would work against legal systems abuse by changing perceptions of family violence.
Legislative actions that seek to criminalise coercive and controlling behaviours understand it as a pattern of abuse. If enacted alongside educational campaigns, a coercive control offence could effectively contribute to a change in professional and community understandings of family violence.[165] Therefore, by understanding both the context of family violence and its associated behaviours, instead of viewing it as single and discrete incidents, legal systems abuse may be reduced.[166] Whilst there is no guarantee that legislative reforms would lead to significant cultural change,[167] evidence from other jurisdictions is promising. As previously mentioned, offenders in England are overwhelmingly male, which recognises the gendered nature of family violence.[168] This was achieved through educating police to develop a thorough understanding of the patterns of abuse that take place in coercive control.[169] Therefore, there is tentative evidence that an offence of coercive control, if developed and implemented effectively, could contribute to cultural change.
Changes in understandings of coercive control would positively impact members of the legal profession. Lawyers who are more knowledgeable in behaviours and tactics exerted by perpetrators may be more capable of recognising clients engaging in legal systems abuse. Therefore, they may be more hesitant to represent them or assist them with their claims. This means perpetrators will have reduced options for legal representation, and their actions might be less successful. Furthermore, judges who have a greater capacity to recognise legal systems abuse will respond to perpetrators in a more appropriate manner, particularly in cross-applications for family violence orders.[170] Applications to declare a perpetrator as a vexatious litigant may be more likely to succeed, particularly where a judge has a greater understanding of coercive control and there is evidence that legal systems abuse has occurred. Alongside this, attempts at legal systems abuse could be used as evidence of coercive and controlling behaviour. This may assist victims in gaining recourse through the criminal law or in applications for family violence orders. Finally, victims who adequately understand coercive control may be more likely to recognise legal systems abuse as coercive control. This could cause them to report abuse to the police earlier than they otherwise would.
A coercive control offence may bring about more awareness to legal systems abuse by contributing to a greater understanding that using the legal system to exert control over a current or former partner is a family violence associated behaviour. Therefore, a coercive control offence may be useful in advocating for the recognition of legal systems abuse, and reducing its occurrence.
VIII Implications for Aboriginal and Torres Strait Islander Australians
Criminalising coercive control is likely to disproportionately impact Aboriginal and Torres Strait Islander people. Aboriginal and Torres Strait Islander people are already overrepresented in the criminal justice system,[171] representing more than 27% of the total adult prison population in Australia.[172] This is evident in existing domestic and family violence laws, in particular protection orders, which operate as entry points into the criminal justice system for these people.[173] Recent studies have indicated that domestic violence laws are a strong contributor to overrepresentation, with tougher penalties being imposed by courts on Aboriginal and Torres Strait Islander people.[174] They are more likely to receive prison or probation sentences as opposed to fines, and less likely to receive good behaviour orders.[175] Additionally, punishments relating to criminal offences have been shown to impact marginalised groups to a greater extent.[176] The harsher sentences placed on Aboriginal and Torres Strait Islander people has significant negative outcomes, with isolation from community and greater potential for re-entry into the system after release.[177]
An offence of coercive control is unlikely to escape the issues that existing domestic violence laws face regarding criminalisation of Aboriginal and Torres Strait Islander people. It may, in fact, exacerbate these issues and act as a further measure for marginalised groups to enter the criminal justice system. This includes Aboriginal and Torres Strait Islander women, who may be wrongly identified as perpetrators of violence.[178] Aboriginal and Torres Strait Islander people may also be resistant to intervention from police, particularly due to past experiences of systemic racism alongside a lack of cultural awareness by police officers.[179] They may experience difficulties in reporting violence to the police, due to distrust of police and the criminal justice system.[180] Alongside this, these women may be fearful of repercussions from the perpetrator and their family, be reluctant to engage in colonial justice systems that have been historically utilised as a means for oppression, be fearful about removal of children, and may have had previous negative experiences with police.[181]
An offence of coercive control needs to accept the differences that exist in Aboriginal and Torres Strait Islander communities, and should be implemented alongside policy reform to address these differences in needs. Negative implications for these minority groups can only be mitigated through extensive consultation with members of the community. Preventative measures targeted towards these communities must be considered when determining if a coercive control offence is necessary. Alongside this, before criminalising coercive control there must be specialised training for police regarding family violence in Aboriginal and Torres Strait Islander communities, so that police can change their responses to victims of family violence and engage in strategies to support them in a culturally appropriate way.[182]
IX Can the negative implications be overcome?
Through comprehensive engagement in mitigation strategies, alongside consultation with vulnerable communities, there is a strong potential for negative implications of coercive control offence to be overcome. As such, it can be argued that the benefits of a coercive control offence outweigh the consequences. The next section will further discuss this, paying particular attention to current laws in the ACT.
IMPLEMENTING A COERCIVE CONTROL OFFENCE IN THE ACT: ENSURING AN OFFENCE IS EFFECTIVE
I Why does the ACT need a coercive control offence?
There are numerous reasons why an offence of coercive control is needed in the ACT. These reasons are as follows:
1. The serious negative impacts of family violence are not being adequately addressed by existing civil and criminal laws, namely family violence orders (‘FVO’).
2. Coercive control has been found to be a precursor to intimate partner homicide,[183] and emotional abuse is correlated with escalating future violence.[184]
3. The patterns of abuse that take place in coercive and controlling relationships are out of reach of the criminal law, leaving victims unprotected and preventing perpetrators from being adequately punished for their behaviour.
Without adequate data on family violence and coercive control in the ACT, it is difficult to determine the impact of existing laws, and indeed, if a coercive control offence would positively impact those experiencing family violence in the ACT. However, evidence from across Australia demonstrates that coercive control poses a serious issue, being present in the vast majority of cases of intimate partner homicide. The NSW DVDRT found that in 111 of 112 cases of intimate partner homicides, the perpetrator had engaged in coercive and controlling behaviours.[185] Additionally, behaviours of stalking in a coercive and controlling relationship have been described as a precursor to non-fatal strangulation,[186] and emotional abuse in relationships is associated with a higher risk of escalating violence in the future.[187] Furthermore, 70% of domestic partner assaults reported to police occur alongside coercive control.[188] Therefore, implementing a coercive control offence may allow for the legal system to intervene in cases where there is a lack of physical violence earlier, potentially preventing future violence and intimate partner homicides.
Many women across Australia have experienced emotional abuse from intimate partners. This is apparent from the most recent Australian Bureau of Statistics Personal Safety Survey.[189] This survey found that 23% of women had experienced emotional abuse by a current or former partner since the age of 15.[190] Of those women who had experienced emotional abuse by a former partner, the types of behaviours most commonly reported included being verbally abused (63.4%) and being constantly insulted (59.4%).[191] Women also reported that their partners utilised controlling behaviours on them, including controlling or attempting to control their contact with family, friends, or community (50%), their movement or who they saw (46%), decisions about household money (38%), and controlling or attempting to control them from working (22%).[192] These behaviours would be captured and prohibited by an offence of coercive control. Therefore, criminalising coercive control may put a stop to these behaviours earlier, intervening prior to escalation of violence or homicide.
Moreover, criminalising coercive control in the ACT would take a further step in acknowledging the serious wrongs of coercive and controlling behaviours within intimate relationships. Criminalising these behaviours ‘provides the opportunity to promote a clear understanding of the lived experience of domestic violence and/or the abuse that many victims suffer.’[193] If current criminal laws do not capture the reality of family violence, then there is no real prohibition of the patterns of abuse that are ordinarily seen in family violence. Given the serious negative impacts of coercive control as discussed in earlier sections, criminalisation of behaviour causing such negative outcomes for victims is surely justified. This is particularly important because victims of coercive control have described their experiences of these behaviours as being more harmful than any physical abuse they have endured.[194] Perhaps, if victims know that these behaviours are illegal, they will be more likely to report them or seek assistance. Acknowledging these wrongs not only assists victims with validating their experiences but sends a clear message to perpetrators that their behaviour is not acceptable and will not be tolerated in the ACT.
II Do existing laws sufficiently address the issues of family violence and coercive control?
Present criminal offences in the ACT such as assault and stalking may be charged in cases of family violence. However, these do not adequately cover the scope of behaviours and patterns of abuse that exist in coercive control. An offence of coercive control in the ACT, if drafted appropriately, would capture and criminalise these behaviours.
The offence of stalking in the ACT prohibits stalking someone with the intent to cause apprehension of harm, fear of harm, cause harm or harass.[195] The proscribed behaviours must be engaged in on at least two occasions.[196]
This offence has been used against perpetrators of family violence, most notably in the case of R v NO.[197] In this case, the defendant was found guilty of stalking after tracking the victims location without consent through activation of location services on her phone, sending her numerous messages and phone calls regardless of her requests to stop, and accessing her emails without consent.[198] The victim stated that the defendant was ‘controlling and that she was fearful of him.’[199] This same defendant was found guilty of charges of sexual assault in the second degree, sexual intercourse without consent, and an act of indecency.[200] Throughout the relationship, the perpetrator made comments such as ‘your responsibility lies between these four walls’ and attempted to reduce ‘the victim’s contact with her extended family.’[201] The defendant was charged with six months’ imprisonment for the stalking charge.[202] This case illustrates a perpetrator who engages in patterns of abusive behaviour, with a victim who is unable to gain sufficient recourse due to a lack of criminal laws prohibiting coercive and controlling behaviours.
Stalking laws play an important role in the criminal justice system, particularly for people who are stalked by someone who is not a current or former partner. Although these laws are associated with family violence,[203] and have been prosecuted in the ACT in this regard,[204] they are not effective against preventing family violence. They do not provide victims with adequate recourse against harms done by perpetrators of coercive control. This is because stalking forms a larger part of the pattern of abuse.[205] As such, the ACT stalking offence is not adequate in addressing coercive control as a whole.
In 2016, the ACT enacted the new Family Violence Act 2016,[206] which was implemented as a part of broad reforms to address the significant issues of family violence. The Act aims to prevent and reduce family violence, protect victims and children, and encourage accountability for perpetrator’s actions.[207] The legislation was enacted following the homicide of Tara Costigan, who was killed by her former partner just a day after taking a domestic violence order out against him. This homicide sparked multiple inquiries into the effectiveness of the ACT’s response to family violence, all of which recommended that the previous Act, the Domestic Violence and Protection Orders Act 2008, be reformed.[208] A predominant concern of these inquiries was that non-physical violence was not being adequately recognised by legislation.[209]
The current Family Violence Act defines family violence as including behaviours of physical violence, sexual violence, emotional or psychological abuse, economic abuse, threatening behaviour, coercion, or any other behaviour that controls or dominates and causes the victim to feel fear for their own or another’s safety or wellbeing.[210] The Act provides examples of these behaviours.[211] To ensure their safety from family violence, an affected person can apply for a family violence order (FVO).[212] In making an order, the court may consider a range of matters,[213] and must give paramount consideration to the safety of the victim and any involved children.[214] However, this is balanced with the requirement that the court must ensure conditions on a FVO’s are ‘the least restrictive on the personal rights and liberties of the respondent.’[215]
FVO’s have become the most common response to family violence throughout Australia,[216] and there have been many claims that the focus on civil orders has practically decriminalised domestic violence.[217] These claims are supported by arguments that offences for breaches of orders are prosecuted more regularly than criminal offences that could be applicable, such as assault or stalking.[218]
Many of the behaviours listed in the ACT Family Violence Act as family violence related behaviours fall under the definition of coercive control. Therefore, if a victim is able to obtain an FVO, the perpetrator will be prohibited from engaging in these behaviours. However, FVO’s do not in themselves prohibit behaviour. Criminal liability arises when a breach of an order has been made. Furthermore, family violence orders do not provide victims with resource for the actions of a perpetrator prior to the commencement of the order, unless those actions are already covered by criminal laws. Likewise, breaches generally carry an inappropriately low penalty,[219] meaning that abuse goes without punishment.
Additionally, FVO’s carry risks of legal systems abuse, particularly in cross-applications by perpetrators.[220] The low standard of proof in FVO applications, being only on the balance of probabilities, exacerbates this.[221] If a coercive control offence was created, the standard of proof would be beyond a reasonable doubt, which would minimise risks of legal systems abuse. Whilst FVO’s are a crucial domestic and family violence response, they are not a complete or effective measure against coercive control.
II How should the ACT construct a coercive control offence?
This section considers different aspects of an offence of coercive control, drawing from various constructions of coercive control offences internationally and within Australia. It evaluates the benefits of different elements of a potential offence, determining which components would be the most effective in an offence in the ACT.
A Legislative definition of coercive control
Any legislative definition of coercive control needs to adequately capture the complexities of coercive control. In particular, it needs to acknowledge that whilst some patterns of behaviour may appear innocuous, in the context of a relationship these behaviours are an exertion of coercion and control by a perpetrator.[222]
Alongside this, a coercive control offence would criminalise a course of behaviour as opposed to a singular event. As such, careful consideration needs to be made to ensuring the course of conduct is adequately defined. Scotland’s offence states that behaviours must occur on two or more occasions.[223] Conversely, England and Wales’s offence requires ‘repeated or continuous’[224] behaviour, which leaves the interpretation of this meaning up to judges.[225] The clarity in Scotland’s offence lends to easier interpretation by legal professionals and judicial officers and may prevent confusion. Moreover, defining a specific number of occurrences of behaviour aligns with the ACT’s current stalking law, which requires behaviour on two or more occasions.[226] Therefore, a specific approach like Scotland’s would be preferred.
B Scope of relationships covered
Most jurisdictions that have criminalised coercive control prohibit behaviour against partners or ex-partners. This aligns with academic understandings of coercive control, which define it as occurring in intimate relationships.[227] The offence in England and Wales covers members of the same family who live together, but excludes ex-partners who do not live together.[228] The Scottish offence focuses on abuse between partners or ex-partners, and is aggravated when children are involved in the behaviour.[229]
Excluding ex-partners that do not live together fails to recognise the ongoing attempts at coercion and control by perpetrators after the end of a relationship. Research has shown that victims are ‘most at need of protection’ when leaving a relationship,[230] so drawing this arbitrary line doesn’t make sense.[231] On the other hand, including members of the same family that are not intimate partners is not necessary, because coercive control is perpetrated almost exclusively by men against their female partners.[232] Therefore, it would be most effective for the ACT to implement an offence that covers both partners and ex-partners, but does not cover other relationships.
Alongside this, it would be worthwhile for the ACT to consider whether the involvement of children should be an aggravating factor in sentencing a coercive control offence, as it is in Scotland.[233] Because of the serious negative impacts children face when exposed to coercive control,[234] acknowledging this in a coercive control offence is important.
Behaviours that occur in coercive and controlling relationships may not appear to be obviously coercive or controlling to outsiders.[235] As mentioned previously, this is because these behaviours may only have the impact of coercion or control in the context of the relationship.[236] To this regard, some jurisdictions have provided non-exhaustive lists of behaviours that might be considered relevant,[237] whilst others have framed the behaviour requirement widely.[238]
It is important that behaviours included are not solely emotional or psychological. Stark and Hester have stated that ‘the mistaken association of coercive control with “psychological abuse” ... risks leaving “real” partner violence outside the crime’s spectrum, not merely isolated assaults.’[239] As such, an offence of coercive control needs to include behaviours that are both physical and non-physical. Scotland’s offence aligns most closely with academic conceptions of behaviours in coercive control,[240] encompassing a range of physical, sexual, and psychological behaviours alongside their effects.[241] This offence has tentatively been found to be effective, with a high uptake in comparison to other jurisdictions,[242] and was received positively by academics for its comprehensive construction.[243] As such, a non-exhaustive list of behaviours in all these categories would be the most effective method for defining relevant behaviours.
D Impacts of relevant behaviours
The actual impacts of the prohibited behaviour on a victim might form part of the requirements of a coercive control offence. In England and Wales, actual harm must be caused by the perpetrator’s behaviour,[244] whilst in Tasmania and Scotland, there is no need to prove that actual harm has occurred.[245] In Scotland, a reasonable person must consider the behaviour to be likely to cause one of the relevant effects of dependence, subordination, or isolation, among other things.[246]
The reasonable person approach reduces the need for a victim’s involvement in court processes and may prevent re-victimisation as victims are less likely to be required to provide extensive evidence about impacts.[247] In contrast, the requirement that harm be done to a victim may cause significant barriers to justice. In England and Wales where harm is required, initial prosecutions were largely extreme cases involving physical violence,[248] meaning milder cases were likely missed. Therefore, requiring actual harm be done to a victim sets too high a threshold, and could cause significant negative impacts for victims. As such, an offence of coercive control should adopt a reasonable person test similar to Scotland’s. Objective reasonable and ordinary person tests already exist in current ACT criminal laws, and because of this should not require significant judicial interpretation to prove.[249]
E Gendered nature of coercive control
Coercive control is a gendered issue, being predominantly perpetrated by men against women.[250] Despite this, a coercive control offence should be framed in a gender-neutral manner. Whilst this means there is the chance that female victims are misidentified by police officers, it is necessary to ensure that people from all situations are protected. Framing the offence in this way will recognise that coercive control can occur beyond heterosexual relationships and may very occasionally be perpetrated by women.
A gender-neutral offence has been shown to be effective in ensuring male perpetrators of coercive control are charged, and from preventing female victims from being misidentified. This is evident in England and Wales, with 99% of offenders being male despite their gender-neutral offence.[251] This has been attributed to police education regarding the gendered nature of coercive control,[252] and demonstrates that a gender-neutral offence would still be effective in protecting women.
Therefore, a coercive control offence in the ACT should be framed in a gender-neutral manner, so that it is not exclusionary to male victims and those in same sex relationships. However, extensive training should be undertaken to ensure that police are knowledgeable about gendered aspects of coercive control and can correctly identify manipulative tactics employed by perpetrators.
The Tasmanian offences of emotional abuse and intimidation and economic abuse initially had a limitation period of six months, but these have now increased this to twelve months.[253] Coercive control offences in England and Wales, and Scotland, currently have no limitation period. As previously noted, the Tasmanian offence faced significant challenges that can be partly attributed to short limitation periods.[254]
A limitation period would prevent victims from accessing justice in failing to recognise the nature of coercive control as a pattern abuse occurring over a long period of time.[255] Courts will be prevented from considering the entire course of conduct, and ‘the full extent of the victims’ experience will be obscured in the courtroom’.[256] Therefore, to implement the most effective offence in the ACT, a limitation period should not be included.
The inclusion of a defence within the legislation would allow for a person to defend themselves where their behaviour might be considered reasonable,[257] or if their behaviour is not actually coercive or controlling despite appearing so.[258] There are limited circumstances where a person might need to engage in controlling behaviour, such as attempting to prevent their partner from self-destructive behaviour.[259]
England and Wales allow for an accused person to raise a defence when their behaviour is in all circumstances reasonable, and they are acting in the best interests of the victim.[260] Likewise, Scotland allows a defence if the accused shows that their behaviour was reasonable in the circumstances.[261] A similar defence of reasonableness would be useful if the ACT was the implement a coercive control offence. In NSW, various groups supported the inclusion of a defence of reasonableness in their submissions to the NSW inquiry into coercive control.[262] This defence would act as an important safeguard to ensure people are not sentenced when they have genuinely acted reasonably and in the best interests of the victim.
The determination of which penalty should apply to an offence of coercive control is complicated, particularly because behaviours and impacts differ significantly between relationships. Maximum penalties for coercive control offences vary substantially across jurisdictions. In England and Wales, the offence of controlling or coercive behaviour carries a maximum penalty of 5 years imprisonment,[263] whereas the Tasmanian offences only carry a maximum penalty on 2 years imprisonment.[264] At the higher end, the Scottish offence has a maximum penalty of 14 years imprisonment.[265] This higher penalty recognises the severity of coercive and controlling behaviours, and the serious harms caused to victims.[266]
The offence of stalking in the ACT carries a maximum imprisonment of two years, and is increased to five years if the offender was contravening a court order or was in possession of an offensive weapon.[267] The offence of a contravention of a family violence order has a maximum penalty of 5 years imprisonment.[268] Considering the pervasive nature of coercive control, and the serious negative impacts it has on victims, it would be wise for the ACT to inflict a greater maximum penalty than these two offences. This would allow for greater judicial discretion when applying sentences, giving judges the capacity to the range of severity and behaviours that occur.[269] However, it is also important to recognise that harsh punishments, particularly long imprisonment, are not necessarily an effective measure against violence.[270]
III What non-legislative activities would be required to support a coercive control offence?
A coercive control offence cannot operate effectively unless it is implemented alongside non-legislative policy reforms and activities. An offence that is purely symbolic would not have a meaningful impact on coercive control.[271] Relying on the criminal law as a single means of addressing family violence ignores the associated social and cultural health issues and can have negative impacts for victims of abuse.[272] Therefore, non-legislative activities would have the effect of mitigating risks and ensuring that an offence achieves its desired outcomes.
Police officers and members of the community alike can have difficulties in identifying coercive and controlling behaviour because behaviours may align with ordinary expectations of men’s behaviour.[273] Consequently, a crucial non-legislative action is to provide extensive funding and resources towards educating police officers on coercive control, alongside all other professionals who are involved in matters of family violence.
A A holistic approach to addressing family violence
In implementing their coercive control offence, Scotland undertook a multi-agency system-wide approach.[274] The Scottish legislation is supported by their four pillars approach to domestic violence prevention,[275] which involves legal protection, effective provision of services, prevention by stopping domestic abuse and reducing reoffending, and participation in systems by victims.[276]
Current ACT family violence response and management plans reflect this same approach. The ACT has prioritised primary prevention and improving support and service system responses in their fourth action plan to reduce violence against women and their children.[277] This involves educating ACT public service employees, with a focus on frontline staff such as teachers, nurses, and those who are regularly involved in family violence cases.[278] Additionally, the ACT is currently working on a new risk assessment and management framework for supporting an integrated domestic and family violence service system.[279] Furthermore, in undertaking reform processes that involve change on a systemic level, it is important that the government consults a varied range of women,[280] which the ACT has committed to do.[281]
Hence, the ACT already has measures in place to ensure continued improvement in family violence responses, demonstrating that structures already exist to support an offence of coercive control. Working towards an integrated approach between police, courts, and domestic violence support services would improve outcomes of a coercive control offence, as evidenced in Scotland. This ensures the criminal justice system is not solely relied upon, and the social and cultural issues associated with coercive control are acknowledged and addressed.
B Community education campaigns
Community education is essential for the success of a coercive control offence. Initiatives that aim to educate the community could cause a culture shift regarding public perceptions and understandings of coercive control.[282] Research has shown that female victims of coercive control are less likely to seek assistance if there has been no physical abuse.[283] As such, community education is essential so that victims and general members of the community alike can understand and identify coercive and controlling behaviours.
Tasmania’s coercive control offences were enacted without a campaign of community engagement.[284] As a result, these offences had historically low rates of charges and prosecutions, particularly when compared to rates of family violence incidents. These offences have seen more use in recent years[285], which could be partially attributed to current cultural changes in understandings of family violence.[286] However, community perceptions that family violence primarily involves physical violence remain,[287] alongside beliefs that physical violence is more severe than emotional abuse.[288] Yet, victims of family violence report that their experiences of coercive control are more severe than any physical abuse they have endured.[289] Addressing perceptions of family violence as a pattern of abuse as opposed to single incidents of violence may have impacts on earlier recognition of abusive behaviour, empowering victims to take action. As such, community education is essential to ensure effective implementation of a coercive control offence.
C Training legal professionals and police
There are numerous impactful benefits of engaging police in specialised coercive control training. Police training programs would result in police officers who are more responsive to coercive control, and who understand the complex relationship dynamics that occur in abusive relationships.[290] This could cause a reduction in missed cases of coercive control, as police officers focus on the greater context of incidents of family violence. In doing this, police may become more capable of capturing relevant evidence and bringing charges against perpetrators. With a thorough understanding of the behaviours associated with coercive control, police may develop the capacity to recognise subtle manipulative tactics employed by perpetrators. As a result, they may become more understanding of the difficulties victims face when discussing their abuse and engaging with police investigations.[291]
These benefits have been recently demonstrated in Scotland. In preparation for the enactment of Scotland’s domestic abuse offence, funding was allocated for widespread training of police and first responders.[292] As a result, Scotland police are better equipped to identify coercive and controlling behaviours. The uptake of Scotland’s offence has been substantial, and 96% of charges laid have been prosecuted,[293] suggesting that police are correctly identifying coercive control. A recent study found that training of police officers resulted in a 41% increase in coercive control offence arrests.[294] Therefore, the fast uptake of the Scottish offence can be attributed to the extensive education provided to police prior to the commencement of the legislation.
It is therefore necessary to provide adequate training for all professionals who are involved in matters of family violence. This includes police, judicial officers, lawyers, domestic violence crisis services, and women’s aid organisations.
A number of significant consequences exist in creating an offence of coercive control. The complex nature of coercive control creates challenges in both construction and implementation of an offence. Risks of misidentification of victims, substantial burdens on victims, and the use of legal systems as a method for further abuse create difficulties in determining whether an offence would be worthwhile. Additionally, criminalisation may well contribute to the serious disproportionate issues that Aboriginal and Torres Strait Islander people encounter in the Australian criminal justice system. Nevertheless, through comprehensive understanding of the potential risks, alongside engagement with mitigation strategies, these consequences can be overcome.
Therefore, the evaluation provided in this article supports the conclusion that it is time for the ACT to consider criminalising coercive control. Acknowledging the wrongs of coercive and controlling behaviours validates the experiences of victims, and sends a clear message to perpetrators that their behaviour is unacceptable and will not be tolerated in the ACT. Indeed, it is surely justified to criminalise behaviours that cause considerable adverse effects for victims. By taking a proactive approach, greater protection is afforded to victims of family violence. Alongside this, early intervention could prevent further deaths of women in the ACT, like Tara Costigan, a Canberra woman who was tragically murdered by her ex-partner following experiences of emotional abuse.
However, it is crucial for the ACT to recognise that a coercive control offence cannot operate in isolation. The Territory must make a commitment to investing in system-wide reforms through multi-agency support services, community education campaigns, and extensive specialised training of police officers. In this way, a coercive control offence will achieve the result of providing better protection to victims of family violence without causing harmful consequences.
* Heidi Andriunas undertook her LLB (Hons) at the University of Canberra.
1 Australian Bureau of Statistics, Personal Safety, Australia (Catalogue No 4906.0, 8 November 2017).
[2] Australian Institute of Health and Welfare, Family, Domestic and Sexual Violence in Australia: Continuing the National Story, Report (2019) 62.
[3] NSW Domestic Violence Death Review Team (NSW DVDRT), NSW Domestic Violence Death Review Team Report 2017-2019, Report (2020) 68.
[4] Evan Stark, Coercive Control: How Men Entrap Women in Personal Life (Oxford University Press, 2007) (‘Coercive Control’).
[5] Ibid.
[6] Ibid 15.
[7] Sandra Walklate and Kate Fitz-Gibbon, ‘The Criminalisation of Coercive Control: The Power of Law?’ (2019) 8(4) International Journal for Crime, Justice and Social Democracy 94, 100.
[8] Evan Stark, ‘Rethinking coercive control’ (2009) 15(12) Violence Against Women 1509, 1522.
[9] Hayley Boxall and Anthony Morgan, Experiences of coercive control among Australian women (Australian Institute of Criminology statistical bulletin 30, March 2021) 2.
[10] Marilyn McMahon and Paul McGorrery, ‘Criminalising Emotional Abuse, Intimidation and Economic Abuse in the Context of Family Violence: The Tasmanian Experience [2016] UTasLawRw 2; (2016) 35(2) The University of Tasmania Law Review 1, 3 (‘The Tasmanian Experience’).
[11] Ibid, citing John Stannard, ‘Sticks, Stones and Words: Emotional Harm and the English Criminal Law’ (2010) 74 Criminal Law Review 533, 555.
[12] Walklate and Fitz-Gibbon (n 7) 103-104; Walklate, Fitz-Gibbon and McCulloch, ‘Is more law the answer? Seeking justice for victims of intimate partner violence through the reform of legal categories’ (2018) 18(1) Criminology & Criminal Justice 115, 118.
[13] See, eg, Heather Nancarrow et al, Accurately Identifying the “person most in need of protection” in domestic and family violence law (Research Report, Issue 23, November 2020); Heather Douglas, ‘Legal systems abuse and coercive control’ (2018) 18(1) Criminology & Criminal Justice 84 (‘Legal systems abuse’).
[14] Australian Law Reform Commission, Pathways to Justice – An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (ARLC Report 133, December 2017) 93.
[15] Dale Bagshaw and Donna Chung, Women, Men and Domestic Violence (Report, 2000).
[16] As described by Terry Hutchinson, ‘Developing Legal Research Skills; Expanding the paradigm’ [2008] MelbULawRw 33; (2008) 32 Melbourne University Law Review 1065.
[17] Mindy Mechanic, Terri Weaver and Patricia Resick, ‘Mental health consequences of intimate partner abuse: A multidimensional assessment of four different forms of abuse’ (2008) 14(6) Violence Against Women 634.
[18] Theo Vos et al, ‘Measuring the impact of intimate partner violence on the health of women in Victoria, Australia’ (2006) 84(9) Bulletin of the World Health Organisation 739, 741.
[19] Ibid 741.
[20] Australian Institute of Health and Welfare, Specialist homelessness services annual report (Web report, December 2020) <https://www.aihw.gov.au/reports/homelessness-services/specialist-homelessness-services-annual-report/contents/clients-who-have-experienced-family-and-domestic-violence>.
[21] Erin Straight, Felicity Harper and Ileana Arias, ‘The impact of partner psychological abuse on health behaviours and health status in college women’ (2003) 18(9) Journal of Interpersonal Violence 1035, 1050.
[22] NSW Domestic Violence Death Review Team (n 3) 69.
[23] Emma Katz, ‘Beyond the Physical Incident Model: How Children Living with Domestic Violence are Harmed By and Resist Regimes of Coercive Control’ (2015) 25 Child Abuse Review 46, 56.
[24] Ibid 57.
[25] ANROWS, Defining and responding to coercive control (Policy brief, 2021) 2 (‘Defining and responding to coercive control’), citing Eve Buzawa, Carl Buzawa and Evan Stark, Responding to domestic violence: The integration of criminal justice and human services (SAGE Publishing, 5th ed, 2015) 106.
[26] Patricia Easteal, Submission No 2 to Parliament of NSW Joint Select Committee on Coercive Control, Coercive Control in Domestic Relationships (4 January 2021) 6.
[27] Emma Katz (n 23) 48, citing Nicole Westmarland and Liz Kelly, ‘Why extending measurements of ‘success’ in domestic violence perpetrator programmes matters for social work’ (2013) 43(6) The British Journal of Social Work 1092.
[28] Flora Matheson et al, ‘Where did she go? The transformation of self-esteem, self-identity, and mental well-being among women who have experienced intimate partner violence’ (2015) 25(5) Women’s Health Issues 561, 568.
[29] Easteal (n 26) 6.
[30] Women’s Aid Scotland, Coercive Control (Report, 2017) 2 <https://womensaid.scot/wp-content/uploads/2017/11/CoerciveControl.pdf>.
[31] Nancarrow et al (n 13) 14.
[32] Sally Goldfarb, ‘Reconceiving Civil Protection Orders for Domestic Violence: Can Law Help End the Abuse without Ending the Relationship?’ (2008) 29 Cardozo Law Review 1487.
[33] Crimes (Domestic and Personal Violence) Amendment (Coercive Control – Preethi’s Law) Bill 2020.
[34] New South Wales, Parliamentary Debates, Legislative Assembly, 24 September 2020 (Anna Watson, Member for Shellharbour).
[35] Parliament of NSW Joint Select Committee on Coercive Control, Coercive control in domestic relationships (Report 1/57, June 2021) v.
[36] Women’s Safety and Justice Taskforce, Options for legislating against coercive control and the creation of a standalone domestic violence offence (Discussion Paper 1, 27 May 2021).
[37] See, eg, Sarah Malik, ‘Coercive control legislation could have saved Hannah’s life: Sue and Lloyd Clarke’, SBS (online at 1 July 2021) <https://www.sbs.com.au/topics/voices/relationships/article/2021/04/27/coercive-control-legislation-could-have-saved-hannahs-life-sue-and-lloyd-clarke>; Amanda Gearing, ‘Queensland moves to criminalise coercive control after murder of Hannah Clarke and her children’, The Guardian (online at 17 February 2021) < https://www.theguardian.com/society/2021/feb/17/queensland-moves-to-criminalise-coercive-control-after-of-hannah-clarke-and-her-children>; Rachel Riga, ‘Hannah Clarke’s parents push for coercive control to be made a crime one year on from horrific murders’, ABC News (online at 19 February 201) < https://www.abc.net.au/news/2021-02-14/qld-hannah-clarke-domestic-violence-murder-anniversary-brisbane/13137484>.
[38] Women’s Safety and Justice Taskforce, Hear her voice: Addressing coercive control and domestic and family violence in Queensland, (Report one, 2 December 2021) xlii.
[39] Family Violence Act 2004 (Tas).
[40] Department of Justice and Industrial Relations (Tasmania), Safe at home: a criminal justice framework for responding to family violence in Tasmania, (Options paper, August 2003) 24 <https://www.safeathome.tas.gov.au/__data/assets/pdf_file/0008/567440/Options_Paper.pdf>.
[41] Ibid p 7, 2.1.
[42] Family Violence Act 2004 (Tas) s 8.
[44] K v K [2012] TASMC 3.
[45] Howe v S [2013] TASMC 33.
[46] Police v Benjamin James Nunn [2021] TASMC 3.
[47] Howe v S (n 45).
[48] Ibid 21.
[49] Ibid 23.
[50] Police v Benjamin James Nunn (n 46) 1.
[51] Ibid 45.
[52] Ibid 27.
[53] Walklate and Fitz-Gibbon (n 7) 101.
[54] Sentencing Advisory Council (Tas), Sentencing of Adult Family Violence Offenders, (Final Report No 5, October 2015) 9.
[55] Ibid 14.
[56] Ibid 14.
[57] Family Violence Act 2004 (Tas) s 9A; Family Violence Amendment Act 2015 (Tas) s 5 brought this new limitation period into effect on 6 October 2015.
[58] Heather Douglas, ‘Do we need a specific domestic violence offence?’ [2015] MelbULawRw 26; (2015) 39 Melbourne University Law Review 434, 457.
[59] Women’s Legal Service Tasmania, Submission: Inquiry into Family, Domestic and Sexual Violence (Submission, July 2020) 2.2 <https://womenslegaltas.org.au/wordy/wp-content/uploads/2020/08/Submission-240720-Inquiry-into-Family-Domestic-and-Sexual-Violence-Coercion-and-Control.pdf>.
[60] Karen Wilcox, ‘Island Innovation, Mainland Inspiration: Comments on the Tasmanian Family Violence Act’ (2006) 32 Alternative Law Journal 213, 214.
[61] See, eg, Thomas v Stewart [2017] TASMC (unreported, 4 September 2017); McLean v Rundle [2011] TASMC (unreported, 4 November 2011).
[62] Thomas v Stewart [2017] (n 58), citing Gunes v Pearson (1996) 89 A Crim R 297, 306; Howe v S [2013] TASMC 33.
[63] McMahon and McGorrery, ‘The Tasmanian Experience’ (n 10) 18.
[64] Ibid 19.
[65] Ibid 19, citing Acts Interpretation Act 1931 (Tas) s 6(4)(a).
[66] Ibid 19.
[67] Ibid 19.
[68] Kerryne Barwick, Paul McGorrery and Marilyn McMahon, ‘Ahead of Their Time? The Offences of Economic and Emotional Abuse in Tasmania, Australia’, in Marilyn McMahon and Paul McGorrery (eds) Criminalising Coercive Control: Family Violence and the Criminal Law (Springer, 2020) 145.
[69] Family Violence Act 2004 (Tas) s 9.
[70] McMahon and McGorrery, ‘The Tasmanian Experience’ (n 10) 8, 14.
[71] Ibid 15.
[72] Barwick, McGorrery and McMahon (n 68) 151.
[73] Ibid 152.
[74] Ibid 150.
[75] Home Office, Strengthening the law on domestic abuse – Summary of Responses (Report, December 2014) 5 <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/389002/StrengtheningLawDomesticAbuseResponses.pdf>.
[76] Vanessa Bettinson and Charlotte Bishop, ‘Is the creation of a discrete offence of coercive control necessary to combat domestic violence?’ (2015) 66(2) Northern Ireland Legal Quarterly 179, 179 citing Her Majesty’s Inspectorate of Constabulary, Everyone’s Business: Improving the Police Response to Domestic Abuse (Report, 2014).
[77] Ibid, citing Law Commission, Reform of Offences Against the Person: A Scoping Consultation Paper (Consultation Paper No 217, November 2014).
[78] Home Office, Controlling or Coercive Behaviour in an Intimate or Family Relationship, (Statutory Guidance Framework, December 2015) 3 (‘Statutory guidance framework’).
[79] Serious Crime Act 2015 (UK).
[80] Ibid s 76.
[81] Ibid s 76(1).
[82] Ibid s 76(2).
[83] Ibid s 76(4).
[84] Home Office, ‘Statutory guidance framework’ (n 78) 3.
[85] Ibid 3.
[86] College of Policing Authorised Professional Practice, Major investigation and public protection, ‘Authorised professional practice on domestic abuse’ (Web Page, 25 October 2021); HMIC, Everyone’s Business: Improving the Police Response to Domestic Abuse (Report, 2014) 21.
[87] Ibid.
[88] NSW Government, Coercive Control (Discussion Paper, October 2020) 15 (‘Coercive control discussion paper’).
[89] Ibid, citing Office of National Statistics, Domestic abuse and the criminal justice system – Appendix tables (2019) Table 15 <https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/datasets/domesticabuseandthecriminaljusticesystemappendixtables>.
[90] Ibid, citing 6 Office for National Statistics. Domestic abuse in England and Wales: year ending March 2018 (2018) (accessed 21 September 2020) <https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/bulletins/domesticabuseinenglandandwales/yearendingmarch2018#domestic-abuse-related-offences-specific-crime-types>.
[91] Paul McGorrery and Marilyn McMahon, ‘Prosecuting controlling or coercive behaviour in England and Wales: Media reports of a novel offence’ (2021) 21(4) Criminology and Criminal Justice 566, 578 (‘Prosecuting controlling or coercive behaviour in England and Wales’).
[92] Home Office, ‘Statutory guidance framework (n 78) 3.
[93] Ibid 4.
[94] Ibid 4.
[95] Serious Crime Act 2015 (UK) s 76 (1)(c).
[96] Douglas, ‘Legal Systems Abuse’ (n 13).
[97] Serious Crime Act 2015 (UK) s 76 (1)(a).
[98] Home Office, ‘Statutory guidance framework (n 78) 5.
[99] Ibid 5.
[100] Domestic Abuse (Scotland) Bill 2017.
[101] Marsha Scott in ‘The Making of the New ‘Gold Standard’: The Domestic Abuse (Scotland) Act 2018’ in Marilyn McMahon and Paul McGorrery (eds) Criminalising Coercive Control: Family Violence and the Criminal Law (Springer, 2020) 177, citing Louise Wilson and Craig Hutchinson, ‘MSPs pass Domestic Abuse Bill’, BBC News (online at 1 February 2018) <https://www.bbc.com/news/live/uk-scotland-scotland-politics-42858902>.
[102] NSW Government, Coercive Control Discussion Paper (n 88) 14; Scottish Government, Equally Safe: Reforming the Criminal Law to Address Domestic Abuse and Sexual Offences (Consultation Paper, March 2015) <https://spf.org.uk/wp/wp-content/uploads/2017/03/15-14.pdf>.
[103] Ibid 14.
[104] Scott (n 101) 183.
[105] Ibid 179.
[106] Domestic Abuse (Scotland) Act 2018.
[107] Ibid s 1.
[108] Ibid s 2.
[109] Ibid s 2(2)(a).
[110] Ibid s 2(2)(b).
[111] Ibid s 2(3).
[112] Ibid s 2(4)(a).
[113] Ibid s 5.
[114] Ibid s 5(3).
[115] NSW Government, Coercive Control Discussion Paper (n 88) 15.
[116] Evan Stark and Marianne Hester, ‘Coercive control: Update and review’ (2019) 25(1) Violence Against Women 81.
[117] Domestic Abuse (Scotland) Act 2018 s 4(1).
[118] Ibid s 4(2).
[119] Scott (n 101) 187.
[120] Domestic Abuse (Scotland) Act 2018 s 5(2),(3).
[121] Ibid s 5(5).
[122] Katz (n 23) 56.
[123] Scottish Government, Domestic abuse recorded by the police in Scotland, 2019-20 (Official statistics publication, June 2021) <https://www.gov.scot/publications/domestic-abuse-statistics-recorded-police-scotland-2019-20/pages/9/>.
[124] Ibid.
[125] InTouch Multicultural Centre Against Family Violence, Criminalisation of Coercive Control: Should coercive control be a criminal offence in Victoria? (Position paper, January 2021) 1.
[126] Walklate and Fitz-Gibbon (n 7) 100-101.
[127] Ibid 94.
[128] Parliament of NSW Joint Select Committee on Coercive Control, Coercive control in domestic relationships (Report 1/57, June 2021) 1.
[129] Marilyn McMahon and Paul McGorrery, ‘Criminalising Coercive Control: An Introduction’ in Marilyn McMahon and Paul McGorrery (eds) Criminalising Coercive Control: Family Violence and the Criminal Law (Springer, 2020) 4 (‘Criminalising Coercive Control: An Introduction’).
[130] Walklate, Fitz-Gibbon and McCulloch (n 12) 121.
[131] Family Violence Act 2016 (ACT) s 8. This will be discussed in more detailed in later sections of the thesis.
[132] Family Law Act 1975 (Cth) s 4AB.
[133] Walklate and Fitz-Gibbon (n 7) 100.
[134] Walklate, Fitz-Gibbon and McCulloch (n 12) 118.
[135] Nancarrow et al (n 13) 104.
[136] Ibid.
[137] Ibid 26.
[138] Part 5 of this article contains further discussion of the importance of police training in mitigating implications of coercive control offences.
[139] See R v NO [2018] ACTSC 30.
[140] Walklate and Fitz-Gibbon (n 7) 95.
[141] Alicia Jillard and Julia Mansour, ‘Women victims of violence defending intervention orders’ (2014) 39(4) Alternative Law Journal 235.
[142] Melissa Dichter, ‘“They Arrested Me – And I was the Victim”: Women’s Experiences with Getting Arresting in the Context of Domestic Violence’ (2013) 23(2) Women & Criminal Justice 81, 84.
[143] Ibid 84.
[144] Heather Douglas and Robin Fitzgerald, ‘Legal Processes and Gendered Violence: Cross-Applications for Domestic Violence Protection Orders’ [2013] UNSWLawJl 3; (2013) 36(1) UNSW Law Journal 56, 86.
[145] Julie Poon, Myrna Dawson, and Mavis Morton, ‘Factors Increasing the Likelihood of Sole and Dual Charging of Women for Intimate Partner Violence’ (2014) 20(12) Violence Against Women 1447, 1450.
[146] Lisa Young Larance and Susan Miller, ‘In Her Own Words: Women Describe Their Use of Force Resulting in Court-Ordered Intervention’ (2017) 23(12) Violence Against Women 1536, 1538.
[147] Nancarrow et al (n 13) 26.
[148] Jane Wangmann, ‘Incidents v Context: How Does the NSW Protection Order System Understand Intimate Partner Violence?’ [2012] SydLawRw 32; (2012) 34 Sydney Law Review 695, 703.
[149] Nancarrow et al (n 13) 26-27; Hayley Boxall, Christopher Dowling and Anthony Morgan, ‘Female perpetrated domestic violence: prevalence of self-defensive and retaliatory violence’ (2020) 584 Trends and Issues in Crimes and Criminal Justice 1, 12.
[150] McGorrery and McMahon, ‘Prosecuting controlling or coercive behaviour in England and Wales’ (n 91) 579.
[151] Ibid 570.
[152] Ibid.
[153] Ibid 579.
[154] See also Ellen Reeves, ‘Family violence, protection orders and systems abuse: views of legal practitioners’ (2020) 32(1) Current Issues in Criminal Justice 91, 107.
[155] Heather Douglas, Submission No 21 to Parliament of NSW Joint Select Committee on Coercive Control, Coercive Control in Domestic Relationships (26 January 2021) 9-10, citing Heather Douglas, ‘Domestic and family violence, mental health and well-being and Legal Engagement’ (2018) 25(3) Psychiatry, Psychology and Law 341.
[156] Ibid 10.
[157] ANROWS, “A deep wound under my heart”: Constructions of complex trauma and implications for women’s wellbeing and safety from violence (Research report, Issue 11, May 2020) 107.
[158] Stark and Hester (n 113).
[159] McGorrery and McMahon, ‘Prosecuting controlling or coercive behaviour in England and Wales’ (n 91) 576.
[160] Douglas, ‘Legal systems abuse’ (n 13) 84.
[161] Ibid.
[162] Nancarrow et al (n 13) 30.
[163] Douglas, ‘Legal systems abuse’ (n 13) 85.
[164] Ibid 92.
[165] Ibid 94.
[166] Australian Law Reform Commission, Family violence: A national legal response (ALRC Report 114, October 2010) 291.
[167] Douglas, ‘Legal systems abuse’ (n 13) 85.
[168] McGorrery and McMahon, ‘Prosecuting controlling or coercive behaviour in England and Wales’ (n 91) 579.
[169] Ibid.
[170] Douglas, ‘Legal systems abuse’ (n 13) 94.
[171] Australian Law Reform Commission, Pathways to Justice – An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (n 14) 93.
[172] Australian Bureau of Statistics, Prisoners in Australia (Catalogue No 4517.0, 8 December 2017).
[173] Heather Douglas and Robin Fitzgerald, ‘The Domestic Violence Protection Order System as Entry to the Criminal Justice System for Aboriginal and Torres Strait Islander People’ (2018) 7(3) International Journal for Crime, Justice and Social Democracy 41, 50.
[174] Hamish Thorburn and Don Weatherburn, ‘Effect of Indigenous status of sentence outcomes for serious assault offences’ (2018) 51(3) Australian & New Zealand Journal of Criminology 434, 450; Neil Donnelly and Suzanne Poynton, Prison penalties for serious domestic and non-domestic assault (Crimes and Justice Statistics Bureau Brief Issue paper no 110, October 2015) 12.
[175] Robin Fitzgerald, Heather Douglas and Lachlan Heybroek, ‘Sentencing, Domestic Violence, and the Overrepresentation of Indigenous Australians: Does Court Location Matter?’ (2019) 36(21-22) 10588, 10604.
[176] Christy Visher, Sara Debus-Sherrill and Jennifer Yahner, ‘Employment After Prison: A Longitudinal Study of Former Prisoners’ (2011) 28 Justice Quarterly 696.
[177] Ibid 10605, citing Martin Flynn, ‘Fernando and the Sentencing of Indigenous Offenders’ (2004) 16(9) Judicial Officers’ Bulletin 67.
[178] Nancarrow et al (n 13) 23.
[179] Ibid 27.
[180] Bee Cook, Fiona David and Anna Grant, Sexual violence in Australia (Research and public policy series no. 36, 1 June 2001) 23.
[181] ANROWS, Innovative models in addressing violence against Indigenous women (State of knowledge paper issue 8, August 2015) 13.
[182] Nancarrow et al (n 13) 27.
[183] NSW Domestic Violence Death Review Team (n 3) 325.; Jane Monckton Smith, ‘Intimate Partner Femicide: Using Foucauldian Analysis to Track an Eight Stage Progression to Homicide’ (2020) 26(11) Violence Against Women 1267.
[184] Sara Rahman, ‘Assessing the risk of repeat intimate partner assault’ (2019) 220 BOSCAR NSW Crime and Justice Bulletins 11.
[185] NSW DVDRT (n 3) 325.
[186] Martyna Bendlin and Louise Sheridan, ‘Nonfatal Strangulation in a Sample of Domestically Violent Stalkers: The Importance of Recognizing Coercively Controlling Behaviour’ (2019) 46(11) Criminal Justice and Behaviour 1528, 1538; Richard Standsfield and Kirk Williams ‘Coercive Control Between Intimate Partners: An Application to Nonfatal Strangulation’ (2018) Journal of Interpersonal Violence 105, 117.
[187] Rahman (n 184) 11.
[188] Evan Stark and Cassandra Weiner, Submission No 12 to Parliament of NSW Joint Select Committee on Coercive Control, Coercive Control in Domestic Relationships (26 January 2021) 6, citing Paige Hall Smith et al, ‘A Population-Based Study of the Prevalence and Distinctiveness of Battering, Physical Assault, and Sexual Assault in Intimate Relationships’ (2002) 8(1) Violence Against Women 1208.
[189] Australian Bureau of Statistics, Personal Safety, Australia (n 1).
[190] Ibid.
[191] Ibid.
[192] Ibid.
[193] Bettinson and Bishop, (n 76) 180-181.
[194] McMahon and McGorrery, ‘Criminalising Coercive Control: An Introduction’ (n 129) 14.
[195] Crimes Act 1900 (ACT) s 35(1).
[197] R v NO [2018] ACTSC 30.
[198] Ibid 8.
[199] Ibid 14.
[200] R v NO (no 2) [2018] ACTSC 37, 1.
[201] Ibid 11.
[202] Ibid.
[203] Ann Burgess et al, ‘Stalking Behaviours within Domestic Violence’ (1997) 12 Journal of Family Violence 389.
[204] See, eg, R v NO [2018] ACTSC 30; R v NO (no 2) [2018] ACTSC 37, 77.
[205] Douglas, ‘Do we need a specific domestic violence offence?’ (n 58) 452; Stark and Hester (n 116) 89.
[206] Family Violence Act 2016 (ACT).
[208] Lorana Bartels, Patricia Easteal and Shannon Dodd, Review of the Implementation of the Family Violence Act 2016 (ACT) (Report, 14 December 2020) 5.
[209] ACT Domestic Violence Prevention Council, Findings and Recommendation from the Review of Domestic and Family Violence Deaths in the ACT – Public Report (2016) Recommendation 23; ACT Community Services Directorate, ACT Domestic Violence Service System: Final Gap Analysis Report (2016) 36; Laurie Glanfield, Report of the Inquiry: Review into the System Level Responses to Family Violence in the ACT (2016) 21.
[210] Family Violence Act 2016 (ACT) s 8(1).
[216] Douglas, ‘Do we need a specific domestic violence offence?’ (n 58) 437-438 citing Sally Goldfarb, ‘Reconceiving Civil Protection Orders for Domestic Violence: Can Law Help End the Abuse without Ending the Relationship?’ (2008) 29 Cardozo Law Review 1487.
[217] Ibid 438, citing Heather Douglas and Lee Godden, ‘The Decriminalisation of Domestic Violence: Examining the Interaction between the Criminal Law and Domestic Violence’ (2003) 27 Criminal Law Journal 32.
[218] Douglas and Godden (n 214) 38.
[219] Heather Douglas, ‘Not a Crime Like Any Other: Sentencing Breaches of Domestic Violence Protection Orders’ (2007) 31 Criminal Law Journal 220, 221.
[220] Douglas, ‘Legal systems abuse’ (n 13) 86.
[221] Family Violence Act 2016 (ACT) s 13.
[222] Charlotte Bishop and Vanessa Bettinson, ‘Evidencing domestic violence, including behaviour that falls under the new offence of “controlling or coercive behaviour”’ (2018) 22(1) International Journal of Evidence and Proof 3, 8.
[223] Domestic Abuse (Scotland) Act 2018 s 10(4).
[224] Serious Crime Act 2015 (UK) s 76.
[225] Vanessa Bettinson, ‘A Comparative Evaluation of Offences: Criminalising Abusive Behaviour in England, Wales, Scotland, Ireland and Tasmania’ in Marilyn McMahon and Paul McGorrery (eds) Criminalising Coercive Control: Family Violence and the Criminal Law (Springer, 2020) 200.
[226] Crimes Act 1900 (ACT) s 35(2).
[227] See, eg, Stark, Coercive Control (n 4).
[228] Serious Crime Act 2015 (UK) ss 76(2)(b), 76(6).
[229] Domestic Abuse (Scotland) Act 2018 s 5.
[230] Cassandra Weiner, ‘From Social Construct to Legal Innovation: The Offence of Controlling or Coercive Behaviour in England and Wales’ in Marilyn McMahon and Paul McGorrery (eds) Criminalising Coercive Control: Family Violence and the Criminal Law (Springer, 2020) 169 citing Deborah Tuerkheimer, ‘Breakups’ (2013) 25 Yale Journal of Law and Feminism 25, 82.
[231] Ibid 170.
[232] Stark, Coercive Control (n 4); Helen Reece, ‘The end of domestic violence’ (2006) 69(5) Modern Law Review 770, 791.
[233] Domestic Abuse (Scotland) Act 2018 s 5.
[234] Katz (n 23) 56.
[235] Bishop and Bettinson (n 222) 9.
[236] Ibid.
[237] See, eg, Domestic Abuse (Scotland) Act 2018 s 2; Serious Crime Act 2015 (UK) s 76; Home Office, ‘Statutory guidance framework’ (n 78) 3.
[238] See, eg, Family Violence Act 2004 (Tas) ss 8, 9.
[239] Stark and Hester (n 116) 86.
[240] Bettinson (n 225) 214, citing Evan Stark, Coercive Control (n 4).
[241] Domestic Abuse (Scotland) Act 2018 s 2.
[242] NSW Government, Coercive Control Discussion Paper (n 88) 15.
[243] Stark and Hester (n 116) 86; Scott (n 101) 177.
[244] Serious Crime Act 2015 (UK) s 76.
[245] Family Violence Act 2004 (Tas) ss 8, 9; Domestic Abuse (Scotland) Act 2018 s 2.
[246] Domestic Abuse (Scotland) Act 2018 s 4(1).
[247] Michele Burman and Oona Brooks-Hay, ‘Aligning policy and law? The creation of a domestic abuse offence incorporating coercive control’ (2018) 18(1) Criminology and Criminal Justice 67, 74.
[248] McGorrery and McMahon, ‘Prosecuting controlling or coercive behaviour in England and Wales’ (n 91) 579.
579.
[249] For an exploration of evaluating the difficulties in applying these tests, see Tony Nisbet and Ann-Claire Larsen, ‘Normativity and the ordinary person formula: Comparing provocation and duress in Australia’ [2019] UWALawRw 19; (2019) 45(2) University of Western Australia Law Review 249; Eric Colvin, ‘Ordinary and Reasonable People: The Design of Objective Tests of Criminal Responsibility’ [2001] MonashULawRw 9; (2001) 27(1) Monash University Law Review 197.
[250] Stark, Coercive Control (n 4).
[251] McGorrery and McMahon, ‘Prosecuting controlling or coercive behaviour in England and Wales’ (n 91) 579.
[252] Ibid 579.
[253] Family Violence Act 2004 (Tas) s 9A; Family Violence Amendment Act 2015 (Tas) s 5 brought this new limitation period into effect on 6 October 2015.
[254] Douglas, ‘Do we need a specific domestic violence offence?’ (n 58) 457.
[255] Stark, Coercive Control, (n 4) 109.
[256] Bettinson (n 225) 205.
[257] See, eg, Domestic Abuse (Scotland) Act 2018 s 6; Serious Crime Act 2015 (UK) s 76(8).
[258] NSW Young Lawyers, Submission to the Inquiry into coercive control in domestic relationships (4 February 2021) 18 <https://www.parliament.nsw.gov.au/ladocs/submissions/70522/Submission%20-%20112.pdf>.
[259] Ibid 18.
[260] Serious Crime Act 2015 (UK) s 76(8).
[261] Domestic Abuse (Scotland) Act 2018 s 6.
[262] Parliament of NSW Joint Select Committee on Coercive Control, Coercive control in domestic relationships (Report 1/57, June 2021) 98.
[263] Serious Crime Act 2015 (UK) s 76(11)(a).
[264] Family Violence Act 2004 (Tas) ss 8, 9.
[265] Domestic Abuse (Scotland) Act 2018 s 8(b).
[266] Bettinson (n 225) 213.
[267] Crimes Act 1900 (ACT) s 35.
[268] Family Violence Act 2016 (ACT) s 43.
[269] Bettinson (n 225) 214.
[270] See David Brown, ‘The limited benefit of prison in controlling crime’ (2010) 22(1) Current Issues in Criminal Justice 137.
[271] State of Victoria, Victorian Royal Commission into Family Violence: Summary and recommendations (Paper No 132, March 2016) 27 <http://rcfv.archive.royalcommission.vic.gov.au/MediaLibraries/RCFamilyViolence/Reports/RCFV_Full_Report_Interactive.pdf> .
[272] No To Violence, Predominant Aggressor Identification and Victim Misidentification (Discussion paper, 21 November 2019) 4, citing Leigh Goodmark, Decriminalizing Domestic Violence: A Balanced Policy Approach to Intimate Partner Violence (University of California Press, 2018).
[273] Michele Burman and Oona Brooks-Hay, ‘Aligning policy and law? The creation of a domestic abuse offence incorporating coercive control’ (2018) 18(1) Criminology and Criminal Justice 67, 75.
[274] Ibid 75.
[275] ANROWS, Defining and responding to coercive control (n 25) 6.
[276] Scott (n 101) 181, citing Scottish Government and Convention of Scottish Local Authorities, A Partnership Approach to Tackling Violence Against Women in Scotland: Guidance for Multi-Agency Partnerships (2009).
[277] ACT Government, Australian Capital Territory Response: Australian Government National Plan to Reduce Violence against Women and their Children 2010-2022 (Fourth Action Plan 2019-2022, 2019) 4 <https://www.communityservices.act.gov.au/__data/assets/pdf_file/0004/1451272/Implementation-of-the-4AP.pdf>.
[278] Ibid 5.
[279] ACT Government Community Services Directorate, ACT Domestic and Family Violence Risk Assessment and Management Framework: Supporting an integrated domestic and family violence service system (Draft framework, October 2020).
[280] ANROWS, Defining and responding to coercive control (n 25).
[281] ACT Government, Australian Capital Territory Response: Australian Government National Plan to Reduce Violence against Women and their Children 2010-2022 (n 277) 4.
[282] Douglas, ‘Legal systems abuse’ (n 13) 94.
[283] Hayley Boxall and Anthony Morgan, Experiences of coercive control among Australian women (Statistical Bulletin 30, March 2021) 10.
[284] Barwick, McGorrery and McMahon (n 68) 149.
[285] Women’s Legal Service Tasmania (n 59) 2.2.
[286] For example, through media campaigns following the death of Hannah Clarke in QLD.
[287] NSW Government, Coercive Control Discussion Paper (n 88) 37.
[288] Kim Webster et al, Australians’ attitudes to violence against women and gender equality: findings from the 2017 National Community Attitudes towards Violence against Women Survey (Research report, March 2018) 41.
[289] McMahon and McGorrery, ‘Criminalising Coercive Control: An Introduction’ (n 129) 14.
[290] McGorrery and McMahon, ‘Prosecuting controlling or coercive behaviour in England and Wales’ (n 91) 579.
579.
[291] Heather Douglas, ‘Battered Women’s Experiences of the Criminal Justice System: Decentring the Law’ (2012) 20 Feminist Legal Studies 121, 132.
[292] Scotland Police, Domestic Abuse Matters Scotland Evaluation Report (Report, May 2020) 3.
[293] Crown Office and Procurator Fiscal Service (Scotland), Domestic Abuse and Stalking Charges in Scotland 2019-20 (Report, 8 September 2020) 8. <https://www.copfs.gov.uk/media-site-news-from-copfs/1902-domestic-abuse-and-stalking-charges-in-scotland-2019-20>.
[294] Iain Brennan et al, ‘Policing a new domestic abuse crime: effects of force-wide training on arrests for coercive control’ (2021) Policing and Society (advance online publication) 1.
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