Domestic abuse in the form of coercive control could soon be a criminal act under changes to domestic violence laws being considered by state governments in New South Wales, Queensland, Victoria, South Australia and the Northern Territory. 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", which 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. (See Louise Morales-Brown, What are the signs of coercive control?, Medical News Today, 29 June 2020.)

In Australia, the topic attained national prominence last year following the murders of Hannah Clarke and her three young children, at the hands of her husband, the children's father.

Hannah's family has since led a campaign to increase awareness of the phenomenon, and ultimately to legislate against it, believing it would have saved their daughter's life. (See Amanda Gearing, Lloyd and Sue Clarke: 'Coercive control laws could have saved Hannah and her three children', The Guardian, 17 November 2020.)

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. (See NSW government, Coercive Control - Discussion Paper, October 2020.)

The Crown Prosecution Service (CPS) in the United Kingdom identified 25 relevant potential behaviours of a perpetrator. However, it emphasised that this is not an exhaustive list. (See Crown Prosecution Service, Controlling or Coercive Behaviour in an Intimate or Family Relationship, 30 June 2017.)

Coercive control can take a range of forms, but generally involves "micro-managing the victim's daily life in an identifiable pattern". (See College of Policing Authorised Professional Practice, Major investigation and public protection: Domestic abuse, 22 October 2020.)

Hostage-like condition of entrapment also observed in prisoners of war

Evan Stark, who first labelled this type of domestic abuse as "coercive control", explains that the primary outcome is "a condition of entrapment that can be hostage-like in the harms it inflicts on dignity, liberty, autonomy and personhood as well as to their physical and psychological integrity."

Albert Biderman, a social scientist in the US Air Force who was tasked with uncovering why American prisoners of war cooperated with their captors during the Korean War, provided ground-breaking insights into the phenomenon.

He found that there were three primary elements in coercive control - dependency, debility and dread - and in order to achieve it, captors used eight techniques - isolation, monopolisation of perception, induced debility or exhaustion, cultivation of anxiety and despair, alternation of punishment and reward, demonstrations of omnipotence, degradation and the enforcement of trivial demands.

Biderman's "Chart of Coercion" demonstrated that although it may first appear that acts of cruelty are isolated, they are actually intricately connected, and once viewed together, the full picture of coercive control emerges. (See Jess Hill, See What You Made Me Do: Power, Control and Domestic Abuse, Black Inc, 2019, p 16.)

What is the extent of coercive control in Australia?

There is no denying that the rates of domestic abuse in Australia are horrifying.

Jess Hill, an investigative journalist and author, examined the issue of coercive control, its prevalence, the perpetrators and the systems and structures in society that enable them, in her book See What You Made Me Do.

Hill writes of the British culture of brutality against women, with its deeply patriarchal and sexist undertones, which was brought to Australia in 1788 and forced upon Indigenous Australians, who until that time had been insulated from the "social chaos that engulfed parts of England" and whose society was based on strong familial relationships and rich social networks. (See Hill, p 324.)

Now, it is our First Nations people who suffer the worst family violence in Australia, with Indigenous women thirty-five times more likely to be hospitalised for family violence-related assaults, and eleven times more likely to die from their injuries. (See Hill, p 298.)

Prevalence of intimate partner violence in Australia

More broadly, the Personal Safety Survey conducted by the Australian Bureau of Statistics in 2016 found that from the age of 15, one in four Australian women had experienced violence by an intimate partner, with Australian women most likely to experience physical and sexual violence in their own home at the hands of a current male partner or ex-partner. (See Australian government, Useful Statistics: National Plan to Reduce Violence against Women and their Children.)

On average, in Australia, one woman is killed every nine days by a current or former partner. (See Australian Government, Australian Institute of Health and Welfare, Family, domestic and sexual violence in Australia: continuing the national story - 2019 - In Brief, p 13.)

Link between coercive control and intimate partner homicide

The NSW Domestic Violence Death Review Team (DVDRT), established in 2010 under the NSW Coroners Act 2009 to review deaths occurring in the context of domestic violence in NSW, found that in 111 of the 112 (99%) intimate partner homicides in NSW committed between 10 March 2008 and 30 June 2016, the relationship between the victim and the abuser was characterised by the abuser's use of coercive and controlling behaviours. (See NSW Government, NSW Domestic Violence Death Review Team, Report 2017-2019, p 154.)

In each case, the abuser (all of them male) perpetrated various forms of abuse against the victim, including psychological abuse and emotional abuse. It should be noted that in the one remaining case, violence went both ways, with a female perpetrator killing her male intimate partner after a history in which both used violence. In this case there was no primary aggressor or victim.

Criminalising coercive control in NSW and other jurisdictions

NSW established a public inquiry in October 2020, with a joint select committee to consider the problem and report on coercive control in domestic relationships. 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 the state could criminalise coercive control. (See Lucy Cormack, Coercive control: inquiry hears pros and cons and why UK model may not work in NSW, Sydney Morning Herald, 22 February 2021.)

In announcing the NSW inquiry, Attorney General and Minister for the Prevention of Domestic Violence Mark Speakman said: "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." (See NSW Government, Communities & Justice, Media Releases, Coercive control reform, 13 October 2020.)

The committee handed down its report at the end of June 2021, unanimously recommending that coercive control be criminalised - but only after a considerable program involving education, training and wide stakeholder consultation. (See Megan Davis and Emma Buxton-Namisnyk, Coercive control law could harm the women it's meant to protect, SMH, 2 July 2021.)

Proposal to create specific criminal offence of coercive control

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 it involves 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"). (See Law Society of NSW, Coercive control in domestic relationships, 27 January 2021.)

Just as in NSW, there are increasing calls at a national and state 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 (2015), Ireland (2018), and Scotland (2018), while in Australia, Tasmania criminalised emotional and economic abuse in 2005. (See Parliament of NSW, Criminalising coercive control in the context of domestic and family violence: key sources.)

Other states and territories currently considering introducing such legislation include Queensland, South Australia, Victoria and the Northern Territory.

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 Crown Prosecution Service 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, "even 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?" (See Hill, p 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.

Similarly, recent statistics from England and Wales indicate that while the offence of coercive control is increasingly being charged, research has revealed that at least in some police force sectors, it is less likely to be charged or progressed when compared to other domestic violence offences.

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 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.

Creating a specific offence of coercive control creates an additional risk for Indigenous women that they will be wrongly identified as the aggressor who is guilty of using coercive control.

Scotland's approach to coercive control

The approach adopted in Scotland is often held up as the "gold standard" in protecting women and children from coercive control. Although it has only been in place for a short time, it has yielded some promising early results. (See Nour Haydar, Experts from Scotland who led push to criminalise coercive control give evidence to Australian committee, ABC News, 4 December 2020.)

This has largely been attributed to the fact that the legislation was carefully drafted and accompanied by a roll-out of comprehensive training for first responders, as well as training for judges and sheriffs on how the new offence will be prosecuted and how coercive control impacts both adult and child victims. (See Hill, p 258.)

Scottish Women's Aid (SWA) was one of the key players advocating for change in Scotland. It went on to play a central role in crafting the Domestic Abuse Act, with the coercive control laws carrying a maximum penalty of 15 years in prison.

SWA's chief executive Dr Marsha Scott spoke to an Australian parliamentary inquiry looking into domestic abuse in early December 2020. She said the old laws in Scotland - and likely in Australia - were ineffective at responding to coercive control. Dr Scott told the committee that 1,000 cases against alleged offenders have been taken to court, with men overwhelmingly the perpetrators and women and children the victims.

While Dr Scott acknowledged there are some risks attached to enacting coercive control laws, the prosecution data to date suggests these concerns have not eventuated.

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 USA's 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. (See The Courts engage internationally recognised expert to undertake family violence focussed training, Family Court of Australia, 21 April 2021.)

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 Aboriginal women and those from minority groups. They instead call first 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.

Anneka Frayne
Family law
Stacks Law Firm

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