17 March 2021

Proposed New Domestic Violence Offence of ‘Coercive and Controlling Conduct’

Labour MP Anna Watson has introduced the Crimes (Domestic and Personal Violence) Amendment (Coercive and Controlling Behaviour) Bill 2020 into NSW Parliament. This bill aims to create a new offence of engaging in conduct that constitutes coercive control in a domestic relationship.

 

What is ‘coercive control’?

‘Coercive control’ is used to describe patterns of abusive behaviour, designed to control the other party to a relationship. The concept of ‘coercive control’ extends to a wide range of behaviours, that generally involve recurring incidences of violence, intimidation, isolation, and control that occur over an extended period.

 

Why criminalise coercive control?

In the second reading speech Ms Watson indicated the purpose of this bill was to improve the way police and the criminal justice system respond to domestic and family violence, in an attempt to provide greater protection to victims and their children.

Introducing a new Domestic Violence offence has gained significant support following the tragic murders of women including Preethy Reddy and Hannah Clarke and her three children, by former partners. Investigations into the deaths of Ms Reddy and Ms Clarke revealed that while there was no suggestion of physical violence in these relationships, there was evidence of long histories of coercive and controlling behaviours. The NSW Domestic Violence Death Review Team have highlighted that coercive and controlling behaviour is a significant predictor in intimate partner homicides. Indicating that coercive and controlling behaviours are evidenced in the majority of homicide cases they review.

Further, it has been suggested that the effect of coercive and controlling behaviours can often be more impactful and just as traumatic as physical violence. Impacting on the victim’s dignity, liberty, autonomy and personhood and as well as their physical and psychological wellbeing. The creation of a specific offence of coercive control intends to recognise this harm and send a clear message to the community that such behaviour is unacceptable.

The Crimes (Domestic and Personal Violence) Act 2007 provides the legislative framework for responding to Domestic and Family Violence in criminal law. NSW laws recognise that Domestic and Family Violence extends beyond physical violence and may involve exploitation of power imbalance and patterns of abuse.

However, the current Domestic Violence offences in NSW have been criticised as focusing too heavily on isolated incidents and incidents involving physical violence. Proponents for the new offence suggest that Domestic Violence is far more nuanced and complex than this and current offences fail to adequately capture conduct that occurs in a series of events over time. This new offence intends to criminalise destructive behaviour that is currently outside the scope of the criminal law.

 

The proposed offence:

The bill proposes to criminalise conduct that constitutes the coercive control of another person who the perpetrator has or had a ‘domestic relationship’ with.

Conduct that constitutes coercive and controlling conduct is defined in the bill to include conduct that has, or is reasonably likely to have, one or more of the following effects on the victim:

  • Making them dependent or subordinate to the perpetrator.
  • Isolating them from their family, friends and other sources of support.
  • Controlling or regulating their day-to-day activities.
  • Depriving or restricting their freedom of action.
  • Depriving them of, or restricting, their access to support services such as health or legal practitioners.
  • Frightening, humiliating, degrading or punishing them.

The bill proposes a maximum penalty of 5 years imprisonment, a fine of $5,500 or both.

The bill also provides an aggravated offence if the coercive and controlling conduct is directed at a child, makes use of a child, or takes place in the presence of a child, and the conduct is likely to have a serious adverse effect on that child. If passed, those who commit an aggravated offence will be liable to a maximum penalty of 10 years imprisonment, a fine of $13,200 or both.

 

Inquiry into coercive control:

In October 2020 the NSW Parliament established the ‘Joint Select Committee on Coercive Control’, to inquire into and report on, amongst other things, whether or not coercive and controlling conduct should be criminalised.

Throughout the inquiry, the Committee took submissions from the public and in October published their discussion paper. The inquiry identified several potential challenges to criminalising coercive and controlling conduct.

Given the complex nature of such behaviour, a key concern identified was appropriately defining the scope of behaviours that should attract criminal sanction. The Inquiry suggested there is a risk of inadvertently criminalising behaviours that are generally socially accepted, or which may be socially acceptable in the context of one relationship but not another. For example, having one party controlling finances can be indicative of a pattern of oppression or exploitation in one relationship. In another, one party controlling the finances of the couple may indicate a consensual and inoffensive position between two parties.

Criminalising coercive and controlling conduct will also present a challenge to police and the judicial system in terms of gathering evidence and prosecuting offenders. The criminal law tends to focus on particular incidents of offending or individual acts. Coercive control is protracted and cumulative behaviour. This behaviour occurs as a serious of often minor acts over time and only becomes harmful or criminal when taken together as a whole.

Given the nature of such behaviour, reducing the victims evidence into the form necessary to prove a criminal offence will likely be difficult.

It may also put significant strain on victims as witnesses. It will require victims to give evidence of diverse conduct, that in many cases occurred over a number of years. There is concern that victims having to give such significant evidence may result in re-victimisation through the court process.

Concern has also been raised that police investigations tend to focus on single incidents, that involve violence and injury. Given the subtle nature of such behaviour, police may not adequately identify incidents of coercive control. It has been suggested that any change to the criminal law will need to be complemented by a significant investment in education and public awareness, particularly across the criminal justice system, including Police, Legal Practitioners and the Judiciary.

The final concern raised by some submissions is that, studies have shown that there are significant problems with law enforcement misidentifying the primary victim as the aggressor, leading to victims being arrested and charged. Some have suggested that an offence of coercive control could compound this issue, given the complex nature of coercive and controlling conduct and further may be manipulated by perpetrators against victims of domestic violence.

Particular concern has been raised about the impact of a coercive control offence on First Nations women, culturally and linguistically diverse communities and women with disabilities. Groups who already tend to be disempowered when seeking help from the criminal justice system.

 

Coercive Control in other jurisdictions:

Other jurisdictions including Tasmania, England, Wales and Scotland have criminalised coercive control. However, each of these jurisdictions have criminalised coercive control relatively recently and there is limited evidence as to its effectiveness.

The bill is set to debated in parliament later this year. It remains to be seen if the bill will pass, and if so, whether the proposed law will meet its stated aims.

 

Family and domestic violence support in NSW:

If you, or someone you know, is at risk of domestic or family violence, help can be sought from the following organisations:

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