Coercive control is an abusive pattern of behaviour in an intimate relationship that can include dictating what a partner wears, limiting access to money, controlling whom they see, persistent texting, endlessly phoning, or tracking their movements.
Justice: The new Bill aims to criminalise coercive control throughout NSW.
While the Domestic Violence Act 2007 had already criminalised stalking and intimidation, it did not directly address these behaviours.
But that might be about to change. The Crimes Legislation Amendment (Coercive Control) Bill 2022 aims to amend both the NSW Crimes Act and the NSW Domestic Violence Act (and their associated sentencing provisions) to criminalise coercive control throughout the state.
The move is a recognition that of the many women killed in the context of their intimate relationships in Australia, most, if not all, endured a form of coercive control in the lead-up to their death. Coercive control is not a "warning" that violence is about to occur. Rather, it is a form of violence implicated in homicide.
There is criticism that the Bill addresses coercive control only in the context of intimate partners when such behaviours also affect elders and other family relationships.
Cases such as the murder of Hannah Clarke and her three children in Brisbane in 2020 have put coercive control under the public spotlight. While an inquiry found that Clarke's estranged husband, Rowan Baxter, had no apparent history of physical violence, Clarke had been subject to escalating forms of controlling and possessive behaviour.
The nation's chief law officers met earlier this month to agree to a draft statement of principles on how to recognise coercive control at a national level, although criminalisation will remain a matter for individual jurisdictions.
The draft NSW Bill is the outcome of a consultation process conducted through a Parliamentary Joint Select Committee between October 2020 and June 2021.
A review team identified coercive and controlling behaviour by the abuser in 99 per cent of domestic violence homicides between 2008 and 2016.
The Draft Exposure Bill is open for consultation, comment and further submissions until August 31. The final bill is expected to be introduced to parliament before the end of the year.
Here's what you need to know about the Crimes Legislation Amendment (Coercive Control) Bill 2022:
How would coercive control be viewed?
The draft Bill defines coercive control as a series of abusive behaviours in the context of an intimate relationship or directed towards a former partner.
Not forgotten: A tribute to Hannah Clarke and her three children, who were murdered by Clarke's estranged husband Rowan Baxter in a tragedy that has helped put coercive control in the spotlight.
It can include intimidation, derogatory taunts, damaging or destroying property, causing death or injury to a family pet, denying financial autonomy, withholding financial support, or using technology or other means to unreasonably monitor or track the other person's activities, communications, or movement.
It can also include threats made to third parties such as a partner's child, and any behaviour that causes a child to hear or witness, or otherwise be exposed to, the effects of coercive behaviours.
Preventing a partner from making or keeping connections with their family, friends or culture, or from participating in cultural or spiritual ceremonies or practice, or from expressing their cultural identity would also be considered a form of coercive control.
What evidence would be needed to establish coercive control?
Like all serious crime, the prosecution would need to prove that the alleged offender had formed the intention that their behaviour would cause the victim physical or mental harm, or that they were reckless as to whether it would cause the victim harm.
The victim would likely need to prove a repeat misbehaviour and show that it had impacted on their ability to act freely.
How would the new law affect policing?
Police tend to be trained to respond to discrete incidents – such as assault or property damage – that involve immediate risks to safety. Coercive control is an offence that must be proven to have constituted a "course of conduct", meaning it occurred more than once and over time.
Determining that would entail different police investigatory techniques and evidence-gathering from those usually deployed when responding to domestic violence incidents now.
Does the proposed legislation go far enough?
There is criticism that the Bill addresses coercive control only in the context of intimate partners when such behaviours also affect elders and other family relationships.
What are the dangers?
There are dangers in a Bill extending police powers in the context of coercive control without accompanying reform of police practices.
First Nations women have long tried to bring attention to existing abuses of domestic violence legislation and Apprehended Violence Orders by police who identify and arrest women as perpetrators when they are victims of interpersonal violence.
In the context of over-policing of First Nations communities and increasing female Indigenous incarceration rates, advocates are concerned that extending police powers in this way poses a significant risk to women of certain communities in particular.
What is the proposed maximum sentence for coercive control?
The proposed maximum sentence is seven years. However, maximum sentences are rarely imposed, and rarely served when taking into account parole. I can foresee that the maximum may be awarded if coercive control is tried concurrently with another crime such as grievous bodily harm or murder.
To know if the sentence is effective, we would need to see how many guilty pleas it attracts when offenders are offered a concession on the seven years.
Dr Kate Gleeson is Associate Professor at Macquarie Law School, Wallumattagal Campus, and a member of the Macquarie University Research Centre for Agency, Values and Ethics (CAVE)
