Coercive control: Can the law fix this?

Our aptitude for dealing with widespread pandemics has certainly been tested through COVID-19. The impacts have weaved their way into many facets of our lives, from health to wealth.

But unawares to some, we are also dealing with a different kind of pandemic–one that quietly bubbles behind closed doors, through text messages and arguments; financial control and oppression.

Domestic and Family Violence (DFV) is a different type of pandemic in which 1 in 4 women have been suffering for years, and one we can all agree, must be acknowledged and stopped. However, when you dig deeper into domestic violence, you realise there is more to it than the physical incidents and unfortunately, there is no ‘one size fits all’ approach to stopping it.

You don’t always have to bare visible bruises to be a DFV victim, and many have suggested that being isolated and controlled can be even more devastating than being physically abused. In part, these tactics undermine the capacity for independent decision-making and inhibit effective resistance or escape.

The Death Review Board has recorded that in many cases of DV homicide’s, coercive control is almost always a feature of the relationship and in some cases, there has been no physical violence recorded before an intimate homicide occurs.

In February this year, Australia was shocked by the murder of Brisbane mother Hannah Clarke and her three young children. The 31-year-old Mum desperately screamed for help from her car in a quiet suburban street whilst her estranged husband doused her and their children in petrol, setting them alight before taking his own life.

Hannah’s death brought the nation to an emotional standstill, sparking discussion around the importance of recognising the serious impacts that non-physical forms of domestic violence has on victims. The incident brought to the surface a phrase many hadn’t heard–let alone truly understood–Coercive Control.

What is coercive control?

Sometimes referred to as ‘intimate terrorism’, is a form of domestic violence in which a perpetrator uses a pattern of behaviours to dominate and control their victim. This can include isolating or turning them against their family and friends, enforcing rigid rules, humiliating or insulting them and monitoring their movements.

Coercive control can be masked by pseudo-caring tactics that may appear attentive and thoughtful when in reality, the perpetrator is micro-managing and conditioning their victim to become isolated and dependent.

Coercive behaviours can vary case-by-case depending on the ‘victimology’ and are often highly idiosyncratic and tailor-made to the victim’s insecurities. One of the most alarming features–it can happen to anyone.

Associate Professor Molly Dragiewicz has conducted much research into coercive control and domestic violence, specifically in the context of post-separation parenting and coercive behaviours that are technology-facilitated.

She explains our modern-age dependence on technology has become an added medium for coercive control to manifest in domestically violent relationships.

 “It often begins with gestures that appear flattering. They put their victim on a pedestal and make them feel wanted and loved,” Assoc. Professor Dragiewicz says.

“It could start with a request to continuously text photos of where they are and what they’re doing or calling repeatedly on FaceTime so they can see their location.’

“At first, a victim might think this is them being ‘caring’ and ‘engaged’ in their life, but before they know it, the demands become relentless and next minute, they aren’t allowed to leave the house without permission.”

Over time, as an abuser’s actions worsen and become more restrictive, victims begin to doubt their self-worth, confidence, sanity, and autonomy. Once under the spell, the perpetrator’s behaviour will slowly change until the victim suddenly begins to wonder where it all went wrong.

The push for law reform

The Clarke family deaths sparked advocacy and debate around the proposal to criminalise coercive control in Queensland. The government has since faced pressure to outlaw repeated non-physical abuse.

In an interview, recently appointed Attorney-General Shannon Fentiman said she was committed to “legislate against coercive control as a form of domestic violence”, but says she’s unsure whether new criminal offences should be created or existing laws should be strengthened.

Currently, in Queensland, coercive control is not specifically captured under the existing criminal code and unless a victim is physically injured, stalked, or their property is damaged they aren’t fully protected.

Concerns have been raised that many DV victims are slipping through the cracks and remain in dangerous situations that can lead to tragic endings like the Clarke family.

In 2015, England and Wales introduced the offence of “controlling and coercive behaviour” into Section 76 of the Serious Crime Act 2015.

The offence is recognised as gender-neutral, relating to people in current intimate relationships. It states a person commits coercive control if:

1. A repeatedly or continuously engages in behaviour towards another person (B) that is controlling or coercive;
2. At the time of the behaviour, A and B are personally connected;
3. The behaviour has a serious effect on B; and
4. A knows or ought to know that the behaviour will have a serious effect on B.

In Australia, an incredibly complex and delicate debate has begun between advocates, legal practitioners and criminologists with some arguing the laws could become difficult to define and prosecute, leaving victims even more exposed and potentially criminalised themselves.

“We aren’t great at recognising women’s defensive behaviour and I’m concerned that perpetrators will take advantage of that. If police aren’t trained properly, we could see women mistakenly identified as primary aggressors,” Assoc. Professor Dragiewicz says.

Women’s Legal Services (WLS) CEO, Angela Lynch AM says criminal law provides a base line for acceptable behaviour in our community. The current ‘incident-based approach’ to DV, she says, provides too many opportunities for the law to ‘backfire’ on victims when the history of the violence and controlling aspects of the relationship are not considered in the charge.

She says that by not making coercive control an offence in Queensland, we’re sending a message that controlling behaviour is acceptable or ‘not as important’ as physical harm.

“It’s not really surprising [that it hasn’t been criminalised] as criminal law has always prioritised physical violence and abuse over emotional and psychological harm,” Ms Lynch says.

“Historically, women’s experiences of domestic violence and abuse were not considered, when developing the criminal law.”

She says the proposed laws would better safeguard victims and police forces legislatively as well as operationally.

“Any criminalisation [of coercive control] must be accompanied by state-wide training for police, first responders and the community more broadly.’

“For example, it may be operationalised in a way that only specifically-trained police with extra levels of seniority are able to sign off on the offence.”

“It will promote them [lawyers] in asking a full history of all aspects of violence from their clients and specifically ask questions about the existence or not of controlling and coercive behaviour,” she says.

Criminal Lawyer and accredited specialist, Rebecca Fogerty believes coercive control and domestic violence require a multifaceted response if we are to eradicate it from society and legal professionals require essential education on the topic.

“Coercive control needs to be reflected in a material way in the civil and domestic violence jurisdictions, so that victims may rely upon it when they are seeking protective court orders,” she says.

“The experience of jurisdictions where there is a coercive control criminal offence has been muted, in that there seems to be few prosecutions and little evidence that the criminal provision has a deterrent effect on perpetrators.’

 “A further concern is that there is a real prospect that conduct that is not criminal may be captured by the offence provision, thereby creating the potential for miscarriages of justice.”

Kristy Bell – accredited specialist (criminal law) – has represented a number of clients whose alleged behaviour in particular relationships could be labelled as ‘coercive control’. However, she feels criminalising this behaviour would be almost impossible and could become detrimental to domestic violence victims.

“I do not think coercive control should be criminalised. Our law already provides for the imposition of domestic and family violence protection orders which can be justified by coercive control,” Ms Bell says.

“The higher standard required of evidence in criminal matters, means a greater degree of exposure to the criminal justice system for a complainant and the adversarial nature of that litigation may serve to aggravate the defendant such that the risk of actual violence of threatening behaviour is increased,” she says.

In a court of law, she says coercive control would be almost impossible to limit or define and even more difficult to adduce evidence to convince a jury a defendant is ‘guilty beyond reasonable doubt.’

“The behaviours constituting ‘coercive control’ are, by definition, covert. The evidence in such matters would likely constitute the word of the complainant against the word of the defendant, not as to a discreet event, but in relation to an innumerable number of incidents, and/or behaviours occurring over a lengthy period of time in an intimate, personal relationship.”

In her experience, there is more to be gained from prevention than cure, starting with early education and funding in the right places for DV victims. In addition, funding directed at early intervention perpetrators programs could also be beneficial.

“The consistent feedback I’ve had in practice from clients completing perpetrators courses, is that they are enlightening, educational and well-worthwhile. It is a terrible shame that these programs are not properly funded and widely accessible,” Ms Bell says.

“For many perpetrators, education seems to have a profound impact on the likelihood of reoffending.”

The eradication of domestic violence from society is a laudable aim and despite strong, differing opinions, value can be placed on all perspectives. The challenge becomes striking the perfect balance.

The fierce and unwavering passion that members of the legal profession and community have committed to ensuring coercive control is dealt with effectively and delicately is undeniable.

When it comes to this complex conversation, there may not be an obvious ‘right’ or ‘wrong’ solution, however, there is one notion that undoubtedly resonates with both sides of the coin…

Nobody expects victims of domestic and family violence to suffer in silence or continue to deal with abuse–not now, not ever.

Combining their expertise with Legal Aid Queensland (LAQ), QLS has released an updated Domestic and Family Violence Best Practice Framework.

The collaborative framework seeks to help all lawyers in dealing with legal matters where domestic and family violence is identified. Practitioners are encouraged to use the framework when working with either persons experiencing or persons using violence, across all areas of law.

DVConnect is a 24-hour crisis support line for women affected by domestic and family violence. Phone 1800 811 811 or dvconnect.org

DVConnect Mensline is crisis support, advice and referral service for men who are seeking support around their experiences or use of domestic and family violence. Phone 1800 600 636 from 9am to midnight, 7 days.

Mensline Australia is a 24-hour counselling service for men across a range of relationship and wellbeing issues. Phone 1300 789 978.

Kids Helpline is a 24-hour counselling service for young people between 5 and 25. Phone 1800 55 1800.

Suicide Call Back Service is a 24-hour crisis and counselling line for anyone who is feeling suicidal or worried about someone. Phone 1300 659 467.