The proposal comes in the wake of an independent review into the adequacy of the way in which domestic violence complainants are treated in the criminal justice system, including whether current protections are sufficient to reduce the endemic problem of domestic abuse in the United Kingdom and provide justice for victims.
One of the reviews conclusions was there needs to be greater consideration of the mitigating factors and ‘special circumstances’ in cases where a victim kills their abuser after suffering prolonged and sustained abuse.
Under the proposal, a murder charge could be reduced to manslaughter despite a complainant’s intent to kill, and the definition of self-defence would be broadened to include assaults in circumstances where they are not a response to an imminent threat.
Harsher penalties for domestic violence offences
Other sentencing changes being considered are increased penalties for domestic violence offences, coercive control being designated as an ‘aggravating factor’ during sentencing proceedings – in other words, a factor which increases the seriousness of offending and can thereby lead to a more severe penalty than that which would otherwise be imposed.
The campaign for change
The campaign for sentencing reform in the UK is being championed by Sally Challen who was sentenced to 18 years in prison after being found guilty of bludgeoning her husband of 31 years to death with a hammer in 2010.
During her murder trial Ms Challen issued a plea of manslaughter on the grounds of diminished responsibility, but that was dismissed by the court. She was freed in 2019 after her conviction was thrown out based on new evidence which proved that she had been subjected to coercive control, over many many years.
Coercive control was made a criminal offence in England and Wales in 2015.
Those laws provided a model for lawmakers here in Australia because of the similarities between the UK justice system and our own.
The offence of coercive control in New South Wales
In 2022, coercive control was also made a criminal offence in New South Wales.
The Crimes Legislation Amendment (Coercive Control) Bill 2022 (NSW) inserted a new section 54D into the Crimes Act 1900 (NSW), which makes it a criminal offence to engage in behaviours which constitute ‘coercive control’.
Under the changes, coercive control is defined as a form of domestic abuse that involves patterns of behaviour which have the cumulative effect of denying victim-survivors autonomy and independence, such as:
- Withholding financial support necessary for meeting the reasonable living expenses of the complainant, or another person living with or dependent on the complainant, in circumstances where the complainant is dependent on the financial support to meet his or her living expenses.
- Preventing, or unreasonably restricting or regulating, the complainant seeking or keeping employment or having access to or control of his or her income or financial assets, including financial assets held jointly with another person.
- Making unreasonable demands about how the complainant exercises his or her personal, social or sexual autonomy and making threats of negative consequences for failing to comply with the demands.
- Denying the complainant access to basic necessities including food, clothing or sleep.
- Withholding necessary medical or other care, support, aids, equipment or essential support services from the complainant or compelling him or her to take medication or undertake medical procedures.
The maximum penalty for the offence is seven years’ imprisonment.
The introduction of ‘coercive control laws’ has been an important step toward addressing domestic violence which continues to escalate unabated across Australia. It was introduced after several bodies of research showed that ‘coercive control’ is often a predictive factor of violence and is prevalent in 99% of domestic abuse situations.
‘Intimate partner homicide’ is the most common form of homicide in Australia, accounting for more than 20% of all homicides and about 60 percent of all domestic homicides.
Is it legal to ‘record’ threats by a partner?
Because not all forms of domestic violence leave visible bruises, scars and broken bones, one of the significant challenges for victims is gathering enough information or proof, particularly of coercive control, or emotional and psychological abuse, to press charges.
Coercive control is not always easy to identify either – and often the perpetrator and victim are the only ones who are aware that they’re occurring within the relationship.
New South Wales Police recently introduced an app which is still in development, but which will work as a “Domestic Violence diary” enabling victims to secretly log and document incidents of violence on their phones with notes and photos and videos.
The well-intentioned app, designed by two police officers, is designed to empower victims to gather a body of evidence, but there are questions about whether such evidence would be admissible in court.
The Surveillance Devices Act 2007 (NSW) outlines that people cannot be recorded without their knowledge, even people who may be suspected of committing a crime.
And there are safeguards within the legislation to ensure that even police have protocols and procedures to follow when recording interviews or interactions with ‘persons of interest’ during criminal investigations. Failing to follow these procedures, can make any recording inadmissible in a court of law.
And it is important to ensure we uphold these safeguards of civil liberty – personal rights and freedoms, particularly as technology continues to move at a rapid pace.
There are also concerns that the recording app may be useless for Indigenous Australians. The Australian Institute of Health and Welfare figures show that indigenous females and males are about 35 and 22 times as likely to be hospitalised due to family violence-related assaults as other Australians.
And there are concerns that the app could give victims a false sense of safety, and mean they stay longer in a violent situation than they should.
That’s not to suggest the app is not an innovative idea and we do need more solutions of this nature because domestic violence is complex and each situation is unique.
Many believe there is a pressing need to ensure victims have a range of options for seeking safety, protecting themselves, and successfully prosecuting perpetrators.