Domestic coercive control could soon be criminal in Australia

14th Oct 2021

Domestic abuse in the form of coercive control could soon be a criminal act under changes to domestic violence laws being considered by state and territory governments in NSW, Queensland, Victoria, SA and the NT. But what exactly is coercive control, and how would the legislation work?

What is coercive control?

Coercive control is a type of domestic abuse, sometimes referred to as ‘intimate partner violence’, that describes repeated patterns of behaviour used by the perpetrator (predominantly male) to exercise control and power by eroding a person’s autonomy, independence and self-esteem.[1]

Coercive control does not describe any single form of abuse, but instead includes behaviours such as physical, sexual, psychological, emotional or financial abuse and intimidation. It is commonly a precursor to intimate partner homicide.[2] The Crown Prosecution Service (CPS) in the UK identified 25 relevant potential behaviours of a perpetrator.[3] However, it emphasised that this is not an exhaustive list.

Criminalising coercive control in NSW and other jurisdictions

NSW established a public inquiry into coercive control in domestic relationships in October 2020, with a joint select committee to consider and report on the problem. The inquiry had the aim of answering questions detailed in a government discussion paper.

It resulted in over 100 submissions on the subject of how NSW could criminalise coercive control.[4]

In announcing the NSW inquiry, the State Attorney-General and Minister for the Prevention of Domestic and Sexual Violence Mark Speakman stated in a media release: ‘The impact of this abuse is abhorrent, but the appropriate response to this behaviour remains an ongoing challenge for law enforcement and legal minds alike.’

The committee handed down its report at the end of June 2021, unanimously recommending that coercive control be criminalised – but only after a substantial program involving education, training and wide stakeholder consultation.[5]

Proposal to create specific criminal offence

Currently in NSW and most other jurisdictions in Australia, non-physical violence in a domestic and family violence context is prosecuted through other criminal offences, such as stalking or intimidation.

In its submission to the inquiry, the Law Society of NSW outlined the current pathways to prosecuting elements of coercive control. In NSW, the Crimes (Domestic and Personal Violence) Act 2007 (CDPV Act) provides the legislative framework for responding to domestic violence in criminal and civil law.

The CDPV Act prohibits some forms of coercive control by criminalising stalking and intimidation with an intention to cause fear of physical or mental harm. Section 11(1)(c) of the CDPV Act provides that existing criminal offences, when committed in the context of a domestic relationship, can constitute a domestic violence offence if they involve coercive or controlling behaviour.

Other relevant criminal offences under the Crimes Act 1900 that address aspects of coercive control include offences such as malicious damage, cruelty to animals, unlawful deprivation of liberty and recording and distribution of intimate images of a person without consent (also known as ‘revenge porn’).

As is the case in NSW, there are increasing calls at a national and state and territory level to address coercive controlling behaviour through a specific criminal offence, rather than by further expanding existing legislation.

Coercive control laws in other jurisdictions

Other jurisdictions have introduced offences specifically to criminalise coercive control in the context of domestic and family violence.

Abroad, these include England, Ireland and Scotland; in Australia, Tasmania criminalised emotional and economic abuse in 2005.[6]

Other states and territories currently considering introducing such legislation include Queensland, SA, Victoria and the NT.

Difficulties of criminalising coercive control

Part of the difficultly of criminalising coercive control is spelling out in legislation where coercive control becomes a criminal act or a sign of violence to come. As the CPS in the UK explains, ‘there might be confusion about where the ‘appropriate’ dynamic of a relationship ends and where unlawful behaviour begins’.

The difference is that, while in some relationships there may be times when one person takes control of a situation or makes a decision on behalf of their partner, in an abusive relationship decisions made by the dominant partner can become rules that have severe consequences for the victim who breaks them.

However, as Jess Hill points out, ‘[E]ven if we could find a reliable way to criminalise this behaviour, how might a survivor prove that in so many ways they were trapped – even though it looked to the world like they could have just left?’[7]

In jurisdictions that have already criminalised coercive control, there has been difficulty in prosecuting offences involving non-physical manifestations of violence. For example, in Tasmania the two offences introduced in 2005 have rarely been used and challenges around enforcement have been identified.

Another reason for reluctance to criminalise coercive control is the danger it could present for victims. In particular, critics point to the harm it could cause Aboriginal and Torres Strait Islander women, who are already over-policed, fearful of child protection services, and often misidentified as perpetrators and criminalised when they themselves are the victims of domestic abuse.

The Safe & Together Model in Australia

It was recently announced that judges in the Family Court and Federal Circuit Court will receive training run by the US Safe & Together Institute.

The Safe & Together Model, which uses a ‘behavioural approach to mapping patterns of abuse on the way families function’, is both highly regarded and endorsed by many domestic violence experts in Australia.[8]

This is a positive step in Australia’s path towards recognising and addressing coercive control, particularly given that Scotland, which has had the greatest success with the criminalisation of coercive control, had similar training for its own judges.

Finding the best way to deal with coercive control as a society is complicated, with critics fearful that criminalisation has the potential to cause further harm to victims, particularly First Nations women and women from minority groups. As an alternative to criminalisation, there have been recommendations for investment in front-line services that will truly aid victims.

Despite the diverse views on how to deal with the problem of coercive control in our communities, there is no doubt that the increased public and political attention and discussions in Australia are an important first step towards helping victims and survivors.

This is an edited version of an article first published at Stacks Law.

Anneka Frayne is the Director of Stacks Law Firm in Tamworth, working in family law, wills and estates and disputes and litigation.

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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[1] L Morales-Brown, ‘What are the signs of coercive control?’, Medical News Today, 29 June 2020.

[2] NSW Government, Coercive Control – Discussion Paper (PaperOctober 2020).

[5] M Davis and E Buxton-Namisnyk, ‘Coercive control law could harm the women it’s meant to protect’, SMH, 2 July 2021.

[7] J Hill, See What You Made Me Do: Power, Control and Domestic Abuse, Black Inc, 2019, 7.

Tags: Domestic Violence Law reform Abuse Criminal law