Coercive Control

‘Coercive control’ is a term used to refer to the ongoing abusive behaviour that pervades the life of a victim of family violence. It encompasses a wide range of abusive behaviours including financial, psychological and emotional abuse. The term ‘coercive control’ is used to make it clear that even when a person is not being subjected to acts of physical or sexual violence, or between violent incidents, they may still be getting subjected to significantly abusive and controlling behaviours that can have profound effects on them in the short and long term.

In some jurisdictions, including several Australian states, coercive control has been made into a stand-alone criminal offence. This allows for family violence perpetrators to be prosecuted for the non-physical aspects of their abusive behaviour as well as for acts of physical violence such as assaults and sexual assaults.

The New South Wales offence

In November 2022, the New South Wales parliament passed the Crimes Legislation Amendment (Coercive Control) Act 2022, which established an offence of coercive control. Under section 54D of the Act, an offence occurs when an adult:

• engages in a course of conduct against a person;
• the person is or was their intimate partner;
• the course of conduct is intended to coerce or control the other person; and
• a reasonable person would consider that the course of conduct would be likely to cause fear of violence or to have a serious adverse impact on the person’s capacity to engage in ordinary day-to-day activities.

This offence carries a maximum penalty of seven years imprisonment.

The Tasmanian Offence

Under the Tasmanian Family Violence Act 2004, coercive control is a criminal offence. Under section 8 of that Act, economic abuse is an offence, which is defined as consisting of:

• coercing a partner to relinquish control over their assets;
• disposing of property owned solely or partly by a partner without the partner’s consent;
• preventing a partner from accessing jointly held financial assets for the purpose of normal household expenses;
• withholding or threatening to withhold the financial support needed to maintain a partner or a child.

The act also makes emotional abuse or intimidation an offence. This offence is defined as occurring when a person:

• pursues a course of conduct that they know or ought to know is likely to unreasonably control or intimidate or cause mental harm, apprehension or fear to their partner.

Both of these offences carry a maximum penalty of two years imprisonment.

Queensland – proposed offence

In Queensland, the Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Bill 2022 passed in 2022. This Bill contained some measures for addressing coercive control in cases of family violence, including modernising the offence of stalking and broadening the definition of family violence, with a view to introducing a standalone criminal offence of coercive control in the future.

In October 2023, The Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Bill 2023 (Bill) was introduced to parliament. It sought to introduce coercive control as a standalone offence. The Bill was subsequently referred to the Legal Affairs and Safety Committee for detailed consideration.

South Australia – proposed offence

In 2023, the South Australian government drafted the Criminal Law Consolidation (Coercive Control) Amendment Bill 2023, which sought to make coercive control a standalone offence that would be punishable by imprisonment for seven years.

The government took submissions from the public on the proposed new law during 2023. The government will collate the feedback it receives, make any necessary changes to the Bill, and seek to pass it during 2024.

The Case For Making Coercive Control An Offence

Supporters of the move towards having a standalone offence of coercive control say that this helps people to understand family violence as a pattern of behaviour rather than as an isolated incident and to appreciate the subtler and more pervasive aspects of abuse as well as overt violence. Advocates of legislating against coercive control say doing so would validate the experiences of victims and make perpetrators more accountable.

The Case Against Making Coercive Control An Offence

Opponents of the criminalisation of coercive control argue that the offence is difficult to prove as it requires the victim to demonstrate a pattern of behaviour made up of acts that may not have been witnessed by anyone else. These voices have expressed concern that such an offence would rely on victims being willing to engage with the justice system and give evidence of what has occurred, often while they are still in the abusive relationship.

It has also been pointed out that the proposed offence may result in unintended consequences, such as the downgrading of behaviours that could be charged as more serious offences, such as attempted murder. There is also potential for a prosecution for this offence to make an abusive situation worse for the victim.

There is no evidence that the new laws have been effective in jurisdictions that have implemented them.

How Else Could We Address Coercive Control?

Aside from legislating against coercive control, other measures that have been suggested to address the phenomenon include the following:

• A national definition of family violence that includes coercive control;
• Training for police in how to identify and respond to coercive control;
• Extensive community consultation as to how to respond to coercive control;

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.