What is Coercive Control?
Renowned sociologist, Evan Stark describes coercive control as a pattern of controlling acts and behaviour involving non-violent forms such as intimidation, isolation and control of intimate partners. The term is used to identify aspects of domestic violence, where the abuse is not physical but rather social, financial and emotional.
Examples of coercive control can include isolating a partner, restricting their movements, cyber-stalking them and controlling the victim’s confinement by extending surveillance and behavioural regulation to all settings where they felt freedom. Stark described coercive control as the type of violence used in capture crimes as it is similarly designed to punish, hurt, or control a victim.
Why is it not already a crime?
In the past few years, England, Wales, Scotland and Ireland have introduced new legislation criminalising coercive and controlling behaviour. However, it’s surprising to note that such behaviour, with the exception of physical violence and stalking, are not criminalised in most Australian jurisdictions. While proposed legislation is being considered in New South Wales and Queensland, Tasmania is the only state to have current laws criminalising a range of conduct falling within the category of coercive control.
Currently, the Intervention Orders (Prevention of Abuse) Act (SA) 2009 provides legislation criminalising domestic and non-domestic abuse. The Act can be interpretated to provide a definition of domestic and family violence (DFV) that expands to covers coercive and controlling behaviour.
There is no distinct offence for coercive control in our jurisdiction. But this may soon change.
The Criminal Law Consolidation (Domestic Abuse) Amendment Bill 2020 was introduced by MLC’s John Darley in February 2020. The proposed bill will criminalise ‘controlling or coercive behaviour in a relationship’. A distinct offence criminalising coercive and controlling behaviour clearly addresses an aspect of DFV outside the scope of current criminal law. As the lesser-known aspect of domestic and family violence, the use of a distinct offence would perform an educative function enhancing recognition of the coercive and controlling behaviour. This can improve a victim’s ability to identify their own experiences and circumstance, to depart from their conditioned perspective of abusive relationship norms and dynamics .
Potential limits and risks to the proposed legislation
Criminalising coercive control isn’t as simple as adding another crime to our legislation. Any new legislation for coercive control would need to address these challenges.
A coercive control offence is the kind of reform that – if implemented cautiously and with precision could lead to a needed ideological shift in how society legitimises the non-physical aspect of DFV. This development in legislation supports and encourages victims and witness to associate such behaviour as coercive control.
In England and Wales, the offence has been enacted with needed measures such as further training of police. The proposed offence necessitates a shift in ideologies of domestic abuse, requiring extensive training of police to effectively identify coercive and controlling behaviour and avoid mistakenly identifying victims as the primary aggressor.
Furthermore, as the offence addresses a behaviour pattern, when viewed in singular incidents, they may not be considered harmful or criminal as such situations rarely leave physical evidence. A key issue with criminalising coercive control is proving the offence.
In Scotland, the offence does not require evidence of harm to the victim but instead proof that the conduct is likely to have a relevant effect. In England, Wales and Ireland, coercive control offences require a subjective test that requires evidence that the victim has suffered significant and impactful damages from the abuse. Such standards of evidence must be considered in any proposed legislation as it affects the investigation, prosecution and proving of coercive control.
Beyond the challenges in identifying and proving the proposed offence, the coercive control offence engages numerous human rights under international instruments. The proposed coercive control offence raises tensions in how the relevant articles of the International Covenant on Civil and Political Rights (ICCPR) might operate.
The proposed legislation addresses an aspect of DFV outside the scope of current criminal law by focusing on the private sphere – the words, actions and behaviours that victims absorb as a private burden. The investigation and prosecution of such behaviour that may not always manifest an act of physical harm, produces evident tension in the rights of the victim and the accused perpetrator. We must consider the rights of the victim who seeks to rely on the proposed law and the rights of the person accused to be presumed innocent and have a fair trial. In order to ensure fair practice, the circumstances of coercive control require the strict application of all criminal law provisions punishing the offence, ensuring all legal procedures in cases involving such allegations are impartial and fair, and unaffected by gender or cultural stereotypes or discriminatory interpretation of the proposed legal provisions.
There is a dire need for coercive control in criminal law, but we must approach this with the proper resources, training and thorough consultation and review. The proposed law reform brings obvious challenges and requires time and effort to implement and reinforce in the law, courts and society. However, note that these challenges aren’t a reason to turn a blind eye.
Criminalising coercive control can be the active steps of law reform needed towards achieving justice and generational change in domestic and family violence.
For further information, the Rights Resource Network has released a Briefing Note on Coercive Control Legislation.
By Eiesha de la Cuesta - UniSA Law and Arts student and Rights Resources Network Intern.
Edited by Bianca Tucci - UniSA Law and Arts student and Rights Resources Network Volunteer.
(Petekarici, Getty Images)