Coercive control: Should it be criminalized?

Coercive Control

A little over a year has passed since Hannah Clarke and her three children had passed away.[1] This event has captured significant public attention which has led to discussions regarding the need to make legislative changes to prevent the recurrence of such a horrific act of violence.

A particular point of discussion raised was the concept of coercive control and whether there is a need to criminalize such behaviour.[2] The preliminary question before any legislative discussion can be had is: what is coercive control?

What is coercive control?

Domestic and family violence is not always physical. Coercive control is an act or pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim/survivor.

Coercive Control is more common in an intimate partner relationship, where the perpetrator  dominates and controls the victim/survivor’s daily life through non-physical means. This notion is similar to that of emotional abuse but is far broader and can capture other forms of abuse such as psychological, social, economic, sexual, and verbal abuse.

What this may look like in reality is where the dominant partner:

  • isolates you from friends and/or family; and/or
  • controls, tracks, and limits your travel, appearance, and access to financial resources or work; and/or
  • deprives you of basic needs, such as food; and/or
  • deprives you of access to support services, such as medical services; and/or
  • repeatedly puts you down such as by saying you are worthless; and/or
  • humiliating, degrading and dehumanising you; and or
  • making threats or intimidating you.

Often Coercive Control is masked as “pseudo-caring tactics” where, in reality, these are tactics used to manipulate the victim/survivor and cause them to become isolated and dependent upon them. Some experts liken it to being taken hostage in an unreal world created by the perpetrator, ultimately entrapped in a world of confusion, contradiction and fear.

Why do people stay in these relationships: how Coercive Control entraps victim/survivor

A common criticism of victim/survivors of coercive control is why they do not or did not leave? On a logical basis, one would expect that if they found themselves in a coercively controlling relationship, or even abusive relationships, the simple solution would be to leave and/or apply for a protection order. This line of thinking does not take into account the lived realities of the victim/survivor.

Some potential reasons why victim/survivor stay are:

  1. The reinforcement of what is the ‘norm’ in a heterosexual relationship: victim/survivors believe that male dominance and controlling behaviours are normal, albeit at times, slightly on the more extreme end.
  2. Isolation: to many victim/survivors who have slowly accepted measures of coercive control implemented by their partner, their isolation plays 2 roles:
    1. Firstly, it shuts them off from the outside world. Third party friends and family—who have the capacity to encourage the victim/survivor to leave, or those who have the capacity to help victim/survivors realize the psychologically manipulative nature of the relationship—their voices are often silenced through isolation.
    2. Secondly, even if they are not completely silenced, when a victim/survivor’s world is dominated by a coercively controlling dominant male, others voices often hold very little weight. Even if they did hold some weight in the victim/survivor’s mind, other factors such as the submission to, and fear of the dominant figure in the relationship often see these voices quickly dwindle, or dismissed through persuasion or threats.

3. Dependence upon the controller: the restrictions upon the travel, finance, often takes away a victim/survivor’s independence and their capacity for independent decision-making. Victim/survivors grow dependent upon the controller, and finds themselves unable to leave.

The combined effect of these factors is what in most cases entraps victim/survivors.

Why is Coercive Control not criminalized yet?

The criminalization of coercive control has continued to gain public attention with the introduction of provisions explicitly criminalizing coercive control in other jurisdictions such as Scotland and England and Wales.[3] The current legislative framework in Queensland does not make Coercive Control a criminal offence under the Criminal Code 1899 (Qld). Coercive Control is currently legislated on as part of the Family and Domestic Violence Act 2012 (Qld) under section 5 which also includes Coercive Control in the definition of domestic violence. This means that as the law currently stands, a victim/survivor can obtain a domestic violence order which includes conditions that target coercive controlling behaviours within the intimate relationship. It is when the conditions of the order are contravened that the offender may be charged with a criminal offence of contravention.

Arguments in favour of criminalization:

There are several arguments raised in favour of criminalization of Coercive Control. One prominent argument is the awareness argument—in that criminalization will raise awareness of such behaviours and raise perpetrator accountability.

Another prominent argument is the deterrence argument­—in that criminalization will send a message to perpetrators that this conduct is not acceptable.

Despite these arguments, there are still several prominent arguments against criminalization.

Arguments against criminalization:

The first is that criminalization of Coercive Control is unlikely to address the police and victim/survivor-barrier. The prosecution of any offence, even if it is criminalized, is dependent upon the incident being reported to the police. The same elements mentioned above that constitute coercive control—fear, intimidation, isolation, and dependence upon the controller—are the same factors that may prevent the victim/survivor from reporting to the police.

Secondly, is the difficult nature of defining Coercive Control which may lead to miscarriages of justice. Coercive Control focuses on a pattern of abusive behaviour that is often subtle and difficult to recognize in isolation. This may prove to be problematic when defining Coercive Control under any proposed legislation.

Of course, whilst such concerns are to be acknowledged, it should not necessarily prevent the legislature from attempting to criminalize Coercive Control, but rather acts merely as a barrier that may require more research, consultation and discussion to adequately overcome.

Even if it has been defined, experts have raised concerns with whether the prosecution of Coercive Control will find much success with the requirement to prove the offence beyond reasonable doubt under Criminal Law. As mentioned above, the focus of Coercive Control is on patterns of behaviour. The implication of this is that the amount of evidence required to prove Coercive Control may be difficult to overcome—particularly within the context of a family home where the evidence will likely be the word of the victim/survivor against the word of the perpetrator.

If the victim/survivor’s case fails, the implication of that to the risk now faced by them is also potentially concerning.

Conclusion:

Whilst it cannot be denied that there is a sense of urgency with the need for legislative reform to address Coercive Control, there are still issues that need to be addressed before it is criminalized. Whether it is the police victim/survivor barrier, further discussion and research in defining Coercive Control, or development systems that ensure the safety of potential victim/survivors—these need to be addressed in order to make a positive change for those trapped in Coercive Controlling relationships.

Lessons can be drawn from other countries who have criminalized Coercive Control such as England and Wales, Scotland or Ireland. Closer to home, lessons can also be drawn from Tasmania which criminalised non-physical forms of family violence such as economic abuse and emotional abuse or intimidation in the Family Violence Act 2004 (TAS).

How can we help?

If you believe you are currently experiencing Coercive Control in your relationship, or any form of Domestic Violence, please seek legal advice.

Getting out of an abusive relationship can be complex, even more so when children are involved. But with a bit of planning, you can make a safe exit from the situation. Through our Family Tree service our Family Lawyers do not work alone – they are part of a wider network of support for clients which includes counsellors, support workers, referrals, and education services.

We will assist you to make decisions about your legal matters which are in accordance with your personal values, so that you and/or your family can move through this period as peacefully as possible, with your integrity intact.

If the threat of violence is imminent, please call the police on 000.

If the threat is not imminent, you can call any of the Domestic and family violence helplines here.

This article was written by Fadzai Mamvura and Ervin Hii


[1] See https://www.abc.net.au/news/2020-02-21/brisbane-car-fire-hannah-clarke-rowan-baxter-family-violence/11985024 for media coverage.

[2] https://www.abc.net.au/news/2020-02-29/hannah-clarke-murder-prompts-nsw-mp-coercive-control-power-law/12012300

[3] Scotland Act: https://www.gov.scot/news/domestic-abuse-act-in-force/; England and Wales Act: https://www.legislation.gov.uk/ukpga/2015/9/section/76/enacted

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