There are increasing calls to making coercive control a criminal offence across Australia. The New South Wales Labor opposition has proposed a bill to criminalise coercive control, with a 10-year maximum penalty. This follows increased advocacy after the killing of Hannah Clark and her three children and the murder of Preethi Reddy.
It is important to recognise the serious impact of non-physical forms of domestic violence. But this does not mean Australia is ready for a stand-alone offence of coercive control. In fact, it would be risky to introduce one at this stage.
What is coercive control?
The term ‘coercive control’ is used to capture the ongoing nature of domestic violence, where the abuse is not always physical but pervades a victim’s daily life.
Coercive control has a devastating impact on victims’ independence, wellbeing and safety. It is the most common risk factor leading up to an intimate partner homicide.
It refers to a wide variety of abusive behaviours including social, financial, psychological and technology-facilitated abuse.
It can include isolating a partner from their friends and family, restricting their movements, using tracking devices on their phone and controlling their appearance and access to money.
It has a devastating impact on victims’ independence, wellbeing and safety. It is the most common risk factor leading up to an intimate partner homicide.
Coercive control in Australia
In Australia, there is significant evidence about the nature and extent of coercive control. However, outside the specialist family violence sector, there is limited understanding of what it is and how best to respond to it.
While some states and territories recognise coercive control under civil law, Tasmania is the only Australian jurisdiction that has introduced specific criminal offences covering elements of coercive control. Research has found the use of these offences (of economic abuse, and emotional abuse and intimidation) has been limited.
Why the push for a criminal offence?
Coercive control has gained significant public attention since the killing of Hannah Clarke and her three children earlier this year. In other countries, law reforms have been underway for a number of years. For example, new offences of coercive control have been introduced in England and Wales and Scotland.
Australian advocates in favour of criminalisation argue such an offence will help change our legal response – focusing on domestic violence as a pattern of abuse, rather than an isolated incident. They also say it will improve community awareness and enhance women’s safety and perpetrator accountability.
Yet, neither the 2015 Victorian Royal Commission into Family Violence nor the 2015 Queensland Special Taskforce recommended the introduction of a stand-alone offence of coercive control.
The limits and risks of criminalisation
Victims will have to prove their accounts of abuse to the requisite legal standard. Without careful consideration, a new law may give victims a false sense of security that in turn, adversely affects their safety.
We must be cautious about criminalising coercive control. In the first instance, successful law reform would rely on victims’ willingness and ability to involve police. But there are many reasons why victims are hesitant to report abuse.
This includes fears they will not be believed, the abuse will escalate if police intervene, or they will be blamed for the abuse committed against them. Police officers also need to know what to look for – they need to be able to identify the coercive and controlling behaviours and get the right information from the victim.
For cases proceeding to court, a key issue is how to prove coercion. An offence of coercive control focuses on a pattern of abusive behaviour. This may involve unremarkable acts – such as undermining relationships with family and friends or monitoring spending – that when viewed in isolation, are not criminal and rarely leave physical evidence. The behaviours may also not have been witnessed by any third party who can corroborate their occurrence.
Any new legislation would need to address these challenges, as victims will have to prove their accounts of abuse to the requisite legal standard. Without careful consideration, a new law may give victims a false sense of security that in turn, adversely affects their safety.
We need more evidence
As yet, there is limited evidence about the impact of criminalising coercive control. The number of charges, prosecutions and convictions in the UK is often cited as evidence of effectiveness. But the use of the offence in and of itself cannot be assumed as evidence of better outcomes for victims.
We do not know, for example, what proportion of women seeking help for coercive control succeed in court. We also do not know if women feel safer following their partner’s conviction – and whether the justice process validates their experience and achieves perpetrator accountability.
Research has shown how adversarial court proceedings can be used by perpetrators to extend their coercive control, in what is called ‘systems abuse’. Careful consideration must be given to ensuring any reforms do not make this form of abuse easier to perpetrate.
In many cases, the legislated punishment for coercive control is significantly lower than that permitted for assault and other related offences. We do not yet know to what extent coercive control has been used to downgrade behaviours attracting a higher penalty – for example, attempted murder.
There is also limited understanding of how coercive control laws would impact First Nations women, culturally and linguistically diverse communities, and women with disabilities. This is a serious concern, given these groups traditionally experience further harm and disempowerment when seeking help from the criminal justice system.
Research has shown how adversarial court proceedings can be used by perpetrators to extend their coercive control, in what is called ‘systems abuse’. Careful consideration must be given to ensuring any reforms do not make this form of abuse easier to perpetrate.
What action is needed now?
In Australia, the first, critical step forward is a national definition of domestic and family violence that includes coercive control, along with consistency in all risk assessment and management frameworks.
This requires consistent and mandatory training to identify and respond to coercive and controlling behaviours for police, lawyers, judicial officers, frontline health workers, child protection workers as well as other child and family service workers.
An extensive consultation process on how to best respond to coercive control is essential.
Looking beyond a quick fix
We urge Australian jurisdictions to be cautious. There may be a place for coercive control in criminal law, but until Australia has undertaken a thorough consultation and set up a rigorous evidence base for change, we need to press pause.
About the authors
Professor Kate Fitz-Gibbon is Director of the Monash Gender and Family Violence Prevention Centre, and Associate Professor of Criminology at Monash University. She is also an Honorary Research Fellow in the School of Law and Social Justice at University of Liverpool. Kate conducts research in the area of family violence, legal responses to lethal violence, youth justice, and the effects of homicide law and sentencing reform in Australian and international jurisdictions, has advised on homicide law reform, family violence and youth justice reviews in several Australian jurisdictions.
Professor Sandra Walklate joined the University of Liverpool in January 2006 following roles at Manchester Metropolitan, Keele and Salford Universities, and Liverpool Polytechnic. Her current research analyses policy responses to intimate partner violence in connection with the N8 Policing Research Partnership in the UK, and as part of the Monash Gender and Family Violence Prevention Centre in Australia. Prof Walklate is President of the British Society of Criminology, and conjoint Professor of Criminology at the University of Monash in Melbourne, Australia.
Professor Silke Meyer is an Associate Professor in Criminology and Deputy Director of the Gender and Family Violence Prevention Centre at Monash University. A criminologist and social worker by training, her research centres on different aspects of domestic and family violence, including women and children’s safety and wellbeing, men’s accountability in their role as perpetrators and fathers, experiences specific to Aboriginal and Torres Strait Islander communities and the role of domestic and family violence-informed practice in child protection, policing and court proceedings.
This article is republished from The Conversation under a Creative Commons license. You can read the original article here.
Far be it from me to take on three professors with vast experience in the relevant area.
I can only input my experience as a magistrate in the UK. I have seen only one case under our new (English) legislation where the alleged abuse was solely coercive with no physical adjunct. And yes, this was difficult for the Crown to prove, but the evidence was overwhelming, including family coming to court stating they had been excluded from relationship with the alleged victim and so on.
In the main, the existence of separate laws has made it easier for evidence to be called supporting of and aggravating other charges as primary rather than hearsay evidence and therefore carries more weight, being open to cross examination.
Having chaired specialist domestic violence courts since their inception in England (I was with the first of the pilot courts) I appreciate the difficulties victims, generally women and often with multiple social and/or cultural challenges, have. The more evidence the prosecutor is able to adduce, the easier it is for the victim as the case looks ever more overwhelming from the defendant’s perspective. This has the effect of bringing about many late changes of plea (to guilty) and therefore spares the victim some of the pain of having to give evidence under special protective measures.
Whether the desired outcomes and protections are best achieved by new legislation in Australia or by amendment to what is already there is a matter for others, not me. But victims do need the protection that society and the courts can give from coercive as well as physical control.