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This article was written by Fernanda Dahlstrom - Content Editor - Brisbane

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

Coercive Control

‘Coercive control’ is a term used to refer to the ongoing abusive behaviour that pervades the life of a victim of family violence. It encompasses a wide range of abusive behaviours include financial, psychological and emotional abuse. The term ‘coercive control’ is used to make it clear that even when a person is not being subjected to acts of physical or sexual violence, or between violent incidents, they may still be getting subjected to significantly abusive and controlling behaviours that can have profound effects on them in the short and long term.

In some jurisdictions, including England, Wales and Tasmania, coercive control has been made into a separate criminal offence. This allows for family violence perpetrators to be prosecuted for the non-physical aspects of their abusive behaviour as well as for acts of physical violence such as assaults and sexual assaults.

These developments have prompted a debate as to whether coercive control needs to be made into a separate criminal defence in Australian jurisdictions, how best this could be achieved and what the likely effects would be.

The case for making coercive control an offence

Supporters of the move say it would help people to understand family violence as a pattern of behaviour rather than an isolated incident and to appreciate the subtler and more pervasive aspects of abuse rather than focussing only on overt violence. Advocates of legislating against coercive control say doing so would validate the experiences of victims and make perpetrators more accountable.

The case against making coercive control an offence

Opponents of the move argue such an offence would be difficult to prove as it would require the victim to demonstrate a pattern of behaviour made up of acts that may not have been witnessed by anyone other than the victim. These voices have expressed concern that such an offence would rely on victims being willing to engage with the justice system and give evidence of what has occurred, often while they are still in the abusive relationship.

It has also been pointed out that the proposed offence may result in unintended consequences, such as the downgrading of behaviours that could be charged as more serious offences, such as attempted murder. There is also potential for a prosecution for this offence to make an abusive situation worse for the victim.

There is no evidence that the new laws have been effective in jurisdictions that have implemented them.

Attempt to amend NSW criminal law

In 2020, Labor MP Anna Watson introduced a private members’ bill into the New South Wales Parliament seeking to amend the Crimes Act 1900 by introducing a provision criminalising coercive control. The bill would have made it an offence to engage in coercive control towards a person with whom the offender was in, or had been in, a family relationship and provided for penalties of up to ten years imprisonment. Although Ms Watson received the support of her caucus, the bill has not been made law.

The Tasmanian offence

Under the Tasmanian Family Violence Act 2004, coercive control is a criminal offence. Under the act, economic abuse is an offence, which is defined as consisting of:

  • coercing a partner to relinquish control over their assets;
  • disposing of property owned solely or partly by a partner without the partner’s consent;
  • preventing a partner from accessing jointly held financial assets for the purpose of normal household expenses;
  • withholding or threatening to withhold the financial support needed to maintain a partner or a child.

The act also makes emotional abuse or intimidation an offence. This offence is defined as occurring when a person:

  • pursues a course of conduct that they know or ought to know is likely to unreasonably control or intimidate or cause mental harm, apprehension or fear to their partner.

Both of these offences carry a maximum penalty of two years imprisonment. However, there have been few prosecutions for either of these new offences since they were introduced in 2004.

How else could we address coercive control?

Although the domestic and family violence sector is keen for the issue to be addressed, there are different views as to how this can best be done. In Queensland, the Women’s Safety and Justice Taskforce is currently examining the experience of women across the criminal justice system. The New South Wales government released a discussion paper on coercive control in October 2020 and a Joint Select Committee enquiry was held during 2021, examining the issue in detail.

Aside from legislating against coercive control, other measures that have been suggested to address the phenomenon include:

  • A national definition of family violence that includes coercive control;
  • Training for police in how to identify and respond to coercive control;
  • Extensive community consultation as to how to respond to coercive control;

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

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