Should it Be a Crime to Exert ‘Coercive Control’ Over a Domestic Partner?

by Jarryd Bartle

In a move met with a mixed response from family violence experts, a law has been introduced into New South Wales parliament which aims to make it a criminal offence to isolate and control a domestic partner through coercive means.

The Crimes (Domestic and Personal Violence) Amendment Bill 2020 seeks to introduce the offence of ‘coercive control’ within the context of a domestic relationship into the Crimes (Domestic and Personal Violence) Act 2007 – which is a piece of legislation containing offences such as stalking or intimidation as well as contravening an apprehended violence order.

The proposed offence is also known as ‘Preethi’s Law’ in memory of Preethi Reddy, who was murdered by her former partner.

If passed, it would carry a maximum penalty of 5 years in prison, or 10 years where the offending is directed towards or occurs in the presence of a child.

What Is Coercive Control?

Coercive control is a pattern of behaviour within family or intimate partner violence, where perpetrators seek to make a person dependent by isolating them from support, exploiting them, depriving them of independence and regulating their everyday behaviour.

Within the criminal law, the offence is seen as a form of “liberty crime” perpetuated to strip a victim of their autonomy.

Specific criminal offences directed at coercive control have been implemented in England and Wales since 2015, and Scotland since 2019.

An important precursor to coercive control laws are offences directed at emotional abuse. For example, the Tasmanian criminal law has recognised offences of economic abuse as well as emotional abuse and intimidation since 2004.

Coercive control is a course of conduct offence, that is, it isn’t proven by a singular act but a pattern of behaviour. The NSW bill defines ‘coercive control’ as conduct that has, or is reasonably likely to have, one or more of the following effects:

  1. making the other person dependent on, or subordinate to, the person,
  2. isolating the other person from friends, relatives or other sources of
  3. support,
  4. controlling, regulating or monitoring the other person’s day-to-day
  5. activities,
  6. depriving the other person of, or restricting the other person’s, freedom
  7. of action,
  8. depriving the other person of, or restricting the other person’s, access to
  9. support services, including the services of health practitioners and legal
  10. practitioners,
  11. frightening, humiliating, degrading or punishing the other person.

This definition is in line with the Scottish offence of coercive control, which is now seen as the ‘gold standard’ for criminalisation amongst advocates.

Arguments for Criminalisation

Some family violence researchers and advocates have been calling for the criminalisation of coercive control in recognition of the harm that results from controlling patterns of behaviour. Coercive control is commonly conceived as a form of ‘intimate terrorism’.

From the perspective of advocates, to criminalise discrete acts of violence such as assault or injury, whilst remaining silent on behaviours designed to strip victims of their sense of autonomy and self-worth reflects a clear gap in the criminal law.

Criminalisation, advocates argue, can provide a means for cultural change to recognise abusive patterns of behaviour as deserving of widespread criticism. As academics Paul McGorrey and Professor Marilyn McMahon put it:

Criminalising these abusive behaviours demonstrates our strongest denunciation of them. It legitimises victims’ perceptions that what they are experiencing is unacceptable. It gives the broader community a language and shared understanding that can lead to long-term changes in attitudes.

There is also hope that criminalising coercive control can result in earlier interventions in abusive relationships before violence escalates further.

review of 372 intimate partner homicides in the UK found many men who kill their intimate partners (and it is almost always men killing women) followed a timeline of escalation which included patterns of coercive control. It is hoped that by criminalising coercive control, actions by law enforcement and support services can prevent tragedies from occurring.

Concerns Regarding Criminalisation

Support for criminalising coercive control is not shared by all family violence researchers and advocates.

Many have noted a lack of evidence supporting the criminalisation of coercive control. Early evaluations of coercive control offences in England and Wales have noted issues with both police acknowledgement and successful prosecution of these offences.

Moreover, the relatively recent implementation of the ‘gold standard’ approach in Scotland, along with the hindrances of the COVID-19 pandemic, mean that it’s unclear whether the Scottish offence has achieved its goals.

Many advocates note that the law is a blunt instrument when it comes to social practices of violence rooted in gender inequality, with our adversarial system a poor fit for the needs of victims and the rehabilitation of offenders.

There have also been concerns raised regarding potential unintended effects of criminalisation including the use of coercive control offences against victims of domestic violence as well as the poor history of protective criminalisation for marginalised groups including indigenous women and women with disabilities.

Whilst these concerns have been labelled ‘nihilistic’ by advocates for the criminalisation of coercive control, sceptics of criminalisation could equally argue that faith in criminal justice responses to entrenched patterns of violence remain unrealistic and naïve.

As Professors Kate Fitz-Gibbon, Jude McGulloch and Sandra Walklate have noted:

Law reforms should be evidence-based and informed by an understanding of the problems the reform seeks to address. Policymakers must also look beyond the criminal law as a “quick fix” to a long-standing social problem and instead strengthen civil remedies, service access and delivery.

The NSW bill is currently before the Legislative Assembly and many believe it will pass in some form, given it has received support from the NSW Liberal Government.

The Department of Communities and Justice has released a discussion paper on the subject, inviting submissions from interested parties.

Going to court?

If you have been charged with a domestic violence offence or served with an apprehended violence order, call Sydney Criminal Lawyers anytime on (02) 9261 8881 to arrange a free first conference with an experienced defence lawyer who will advise you of your options and the best way forward, and fight for the optimal outcome.

Author

Jarryd Bartle

Jarryd Bartle practised as a criminal defence lawyer before moving on to specialist consultancy. He has written for several publications including The Guardian, VICE and The Conversation, covering a range of criminal justice-related topics.

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