On the 11th October 2023, the Queensland government introduced legislation that will change the laws surrounding domestic violence and sexual assault. The Criminal Law (Coercive Control and Affirmative Consent) And Other Legislation Amendment Bill will make coercive control a standalone offence. It will also change the laws surrounding consent in relation to sexual offences. This page outlines the proposed changes and why the Bill is before parliament.
Coercive control
The Bill introduces a new criminal offence known as coercive control.
Coercive control is defined as occurring when:
- a person engages in a course of conduct towards a person with whom they are in a domestic relationship with;
- the conduct consists of domestic violence on more than one occasion;
- the person intends to coerce or control the other person; and
- the course of conduct would be reasonably likely to cause the other person harm.
This offence carries a maximum penalty of 14 years imprisonment.
Definition of family violence
For the purposes of the offence of coercive control, domestic violence is defined as including behaviour that is:
- physically or sexually abusive
- emotionally or psychologically abusive;
- threatening;
- coercive;
- in any other way controls or dominates the other person or causes them to fear for a person’s safety or wellbeing.
The introduction of the offence of coercive control will mean that serious instances of non-physical domestic abuse will be capable of being prosecuted and will attract significant penalties.
Why is the offence being introduced?
The domestic and family violence sector has long recognized that coercive control underpins serious family violence. However, police officers and others who come into contact with victims often fail to identify the signs of it.
Definitions of family violence have long been criticized for failing to adequately encompass coercive controlling behaviour.
The Attorney-General Yvette D’arth stated that the government is committed to ending all forms of domestic violence. She also highlighted the need to improve community awareness of coercive control, saying, “Coercive control is serious, it has serious impacts on the victim and their families and a new, stand-alone offence reflects that non-physical violence is just as dangerous as physical violence.”
In 2022, the Women’s Safety and Justice Taskforce reported on the possibility of legislating against coercive control and women’s experiences of the criminal justice system. The Taskforce found that many women felt they had been failed by the justice system and by the police. This was because the family violence system consisted of incident-based responses to reports of violence, which did not take into account the effects of coercive control.
Stealthing and affirmative consent
Another significant change introduced by the Criminal Law (Coercive Control and Affirmative Consent) And Other Legislation Amendment Bill is the alteration of the definition of consent contained in the Criminal Code 1899.
Under the old definition of consent, a person was taken to consent to a sexual activity if they freely agreed. A person was not taken to consent if their agreement was given because of force, threat, fear of bodily harm, false or fraudulent representations about the nature of the activity, or by a mistaken belief that the person was the victim’s sexual partner.
The proposed new laws expand on the situations where a person is not to be taken to consent to sexual activity.
Under the new laws, a person does not consent if:
- they participate because of a false representation made by the other person about whether they have a serious disease and the other person transmits the disease to the victim;
- they participate on the understanding that a condom will be used, and the other person does not use a condom, tampers with the condom or removes the condom;
- the person is a sex worker and they agree because of a false representation that they will receive payment for the act;
- they suffer grievous bodily harm as a result of the alleged offence. In this situation the grievous bodily harm suffered will be evidence that consent was not given.
Why are the changes being introduced?
The changes to the definition of consent mean that a person will be able to be found guilty of rape in a number of situations where they could not have been previously. This includes the situation – commonly known as ‘stealthing’ – when a man removes or tampers with a condom during sex without the other person’s consent.
The government announced that these changes deliver on a commitment it had previously made to introduce affirmative consent laws so that the law better reflects community expectations about respectful relationships.
The changes are expected to be passed by the Queensland parliament.
If you require legal advice or representation in any legal matter, please contact Taylor Rose.
