The New South Wales government recently announced that it is introducing a new criminal offence relating to family violence matters. Under the Crimes Legislation Amendment (Coercive Control) Act 2022, which will come into effect in July 2024, coercive control will be a standalone offence. This will be the first time such an offence has been introduced in an Australian jurisdiction. This page outlines the new offence and the reasons for its introduction.
The offence of coercive control
Under section 54D of the Amendment Act, it will be an offence for an adult to:
- engage in a course of conduct against another person that consists of abusive behaviour; and
- the other person is or was an intimate partner of the adult; and
- the adult intends to coerce or control the other person; and
- a reasonable person would consider the course of conduct likely to cause the other person to fear EITHER that violence would be used on a person OR that the course of conduct would have a serious adverse impact on the person’s capacity to engage in ordinary day-to-day activities.
Coercive control will attract a maximum penalty of seven years imprisonment. However, a person has a defence to this charge if their behaviour was reasonable in all the circumstances (section 54E).
Definition of abusive behaviour
Section 54F contains a definition of abusive behaviour for the purposes of the offence of coercive control. Abusive behaviour is defined here as violence or threats against a person or coercion or control of the person.
The provision also gives examples of the sorts of conduct that may amount to coercive control. These include financially abusive behaviour, behaviour that destroys or damages property, behaviour that kills or injures an animal, and behaviour that harasses a person or monitors their activities.
Why is coercive control being made an offence?
Coercive control is the name given to a series of non-physical abusive behaviours that can be as damaging to victims, or more so, than physical violence. The introduction of a standalone offence of coercive control represents a shift in how family violence is dealt with by the criminal justice system. While previously, prosecutions related to specific instances of violent behaviour, it will now be possible to prosecute offenders who engage in patterns of controlling or abusive behaviour, even where this conduct does not consist of physical or sexual violence.
Family violence organizations have long been highlighting the need for the subtler, non-physical forms of family violence to be better recognized. In October 2020, a discussion paper on coercive control was tabled by NSW Attorney-General Mark Speakman. The paper noted that victims-survivors of family violence often say that the worst part of the experience was the subtle controlling behaviour that was not visible from outside of the relationship. Furthermore, research has demonstrated that coercive control is a predictor of intimate partner homicide.
The introduction of a specific offence of coercive control was proposed as a measure to address a previously overlooked aspect of family violence at an early stage. It is intended to make perpetrators accountable for all their abusive behaviour rather than only for individual instances of abuse.
Other jurisdictions
Since 2015, coercive control has started to be introduced as a standalone offence in a number of jurisdictions. These include England, Ireland and Scotland. Tasmania has also introduced offences that criminalise certain types of non-physical abuse. However, no other Australian state or territory has introduced a standalone offence of coercive control.
Responses to the changes
The move to make coercive control a discrete offence in New South Wales has been met with mixed responses. While supporters of the move claim that the new offence will fill a gap left by the previous family violence offences, opponents are sceptical that it will have the desired effect.
Some opponents of the amendments support the goal of criminalising coercive control but believe that the criminal justice system is not yet ready for this to occur. These voices claim that the deficiencies in existing laws lie in their implementation rather than in their content. These critics have argued, in particular, that the existing offence of ‘stalking or intimidation’ under section 13 of the Crimes (Domestic and Personal Violence) Act 2007, is capable of being used to prosecute offenders for patterns of violence in a relationship. However, this does not commonly occur due to lack of education and training within occupations that respond to family violence.
Furthermore, some voices have criticized the criminalization of behaviours that do not generally amount to offences. This gives rise to a very slippery concept of coercive control that is likely to be difficult for police and other in the justice system to accurately assess. These voices argue that coercive control offences in other jurisdictions are not working as intended. For example, in Tasmania, there have been very few prosecutions for the offences of economic abuse and emotional abuse.
Other opponents of the move believe that criminalization of family violence behaviours is not the solution. These voices argue that criminalization leads to the disproportionate policing of Indigenous people and other marginalized communities. They further point out that victims of family violence are often unwilling to engage with police and that criminal penalties rarely have the desired deterrent effect, and may further entrench disadvantage. Instead, they advocate alternative approaches aimed at correcting gender and race power imbalances.
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