Domestic Violence and Coercive Control
When it comes to domestic violence offences, Apprehended Domestic Violence Orders can have long-reaching effects on a person’s personal and professional prospects.
Whenever a police officer turns up to a house, most of the time it is because of a domestic violence complaint either from inside the household or by a neighbour.
These kinds of complaints represent a substantial part of police officers’ and prosecutors’ workload.
Apprehended Domestic Violence Orders (ADVOs) granted in the Local Court jurisdiction in 2015 were 27,699, in 2019 it had increased to 31,435. The rate was 368.4 per 100,000 population.[1]
NSW Police attend around 60,000 incidents of assault each year and around half of these are domestic violence related.
The reason for the increase in applications is multifaceted, however part of the reason for the increase in applications is the obligations imposed in the legislation that compels police to take action unless there is a good reason not to make an application: sections 27 (Provisional orders – there is an immediate need to ensure safety and protection) and 49 (Final orders – non-urgent applications).
Given the political sensitivity of domestic violence and the need for those in government to be seen to be addressing the problem. The practical effect is, as the legislation evolves, it invariably captures more nuanced conduct that is classed and assumed to be of a domestic or personal violence nature.
This ‘expansive’ role of the legislation is not necessarily a bad thing, but it explains, at least to some extent why it appears that domestic violence is increasing rather than being addressed and solved. That is, criminal conduct that was previously hidden is now exposed and surfaced into the public domain to be scrutinised.
There is a significant public interest in exposing domestic violence. It is an ongoing problem in our community and costs the State millions in productivity and physical and mental harm to those victims of domestic violence.
The law of domestic violence is to be found in the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (the ‘Act’).
The Objects of the Act are:
- To ensure the safety and protection of all persons, including children who experience or witness domestic violence, and
- To reduce and prevent violence, and
- To enact provisions that are consistent with the principles underlying the Declaration on the Elimination of Violence against Women and consistent with the United Nations Convention on the Rights of the Child, and
- To Empower courts to make apprehended violence orders to protect people from domestic violence, intimidation, harassment, stalking, and
- Ensure that access to the courts is safe, speedy, inexpensive and simple as is consistent with justice.
In creating the Act, the Parliament recognises that domestic violence in all its forms is unacceptable, that domestic violence is predominantly perpetrated by men against women and children, and that it occurs in all sectors of the community.
It is also important to note that domestic violence is not just physical, it is psychological and involves exploitation of power imbalances and may involve a pattern of abuse over many years.
The Crimes Legislation Amendment (Coercive Control) Bill 2022 (the ‘Bill’) was passed on 19 October 2022 to amend the Crimes Act 1900 (Section 54D) to create a new offence relating to abusive behaviour towards current and former intimate partners and to amend the Crimes (Domestic and Personal Violence) Act 2007 to provide a new definition of domestic abuse (Section 6A).
The Attorney General, Mark Speakman said of the Bill in the Second Reading Speech:
“Coercive control is a form of domestic abuse that involves patterns of behaviour that have the cumulative effect of denying victim-survivors their autonomy and independence…it is a proven precursor to domestic violence deaths. Our community has grieved with the families of too many domestic violence homicide victims…this bill is about supporting victim-survivors held hostage in their own homes and in their own lives by domestic terrorism.”
However, despite the claim and definitions, it may still be difficult to demonstrate what coercive control might look like. For example, it could mean:
- Isolating a person from their support systems such as the monitoring of a person’s social media and telephone calls, moving them away from family and friends, and or gas-lighting etc.
- Monitoring activity throughout the day such as creating an atmosphere where the victim feels the person exerting the control is omnipresent and they are under constant surveillance.
- Denying the person’s freedom such as not allowing the person to leave the house.
- Humiliation and bullying of the person, making accusations.
- Limiting access to money and controlling finances.
- Reinforcing traditional gender roles.
- Controlling aspects of your health and body.
- Demands around sexual intimacy.
As can be deduced above, coercive control may be difficult to measure and prove compared to others, and to what extent these types of behaviours might cross the line into criminality. There is a significant grey area despite the attempts to define it.
A criticism is that the legislation does not go far enough and should not only include a “specific intention” to engage in coercive control but also ‘recklessness’ of the behaviour as there is debate that a person may feel they have the right to control the finances but do not believe or ever intended for it to cause harm. However, as shown above, coercive control may not only mean the controlling of finances, but it can mean a myriad of behaviours that are considered together, as a pattern of conduct could amount to an intention.
Irrespective of the question of “specific intent” and or of “recklessness” each circumstance will need to be critically investigated on its own merits. There cannot be a one size fits all approach.
Moreover, another concern is whether the introduction of the new legislation and the expected volume increase of domestic violence matters arising in the courts will result in a justice outcome. It will be difficult for prosecuting authorities to accurately measure and assess what is an offence to the criminal standard. The challenge will be ensuring appropriate experience and objectiveness by the prosecuting authority, is applied to the test for commencing proceedings. If the process of assessment is not applied properly and is politically influenced, the effect of this will be a negative impact on the administration of justice, increased legal costs to the State, and inevitable reputational destruction to the innocent resulting in a collateral damage effect, resulting in the detection of domestic violence being even more elusive and hidden.
Will these new laws practically reform the insidiousness of domestic violence, and reflect a careful, cautious and measured approach to criminalising coercive control, as predicted by the Attorney General, or will it just add to the uncertainty of a criminal justice system already under considerable practical and political pressure to deliver reform and regulation of the scourge of domestic violence? Time will tell.
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[1] NSW Bureau of Crime Statistics and Research, NSW Recorded Crime Statistics Jan 2011 – Dec 2015.