LAW479 - Coercive Control PDF

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Introduction This paper outlines the benefits and shortcomings of introducing a new offence criminalising ‘coercive control’ (‘CC’) in Australia. CC is defined as “a strategic course of self-interested behaviour designed to secure and expand gender-based privilege by establishing a regime of domination in personal life.”1 This form of family violence is more difficult to identify as it consists of a pattern of psychological and/or economic abuse over time as opposed to the traditional view of family violence which focuses on instances of physical violence.

With the UK and Scotland recently criminalising CC, various Australian legal bodies have debated on whether Australia should also introduce a new offence criminalising CC.2 Although most jurisdictions have included emotional and economic abuse in their definition of family violence, Australia has not criminalised coercive and controlling behaviour.3 Tasmania has uniquely recognised economic and psychological abuse as legitimate manifestations of family violence.4

Benefits of New Offence 1. Public Education on Serious Nature of CC Currently, CC is trivialised and normalised. As defined above, CC exploits gender roles. Examples of such behaviour include the abuser restricting the people his partner’s social space, denying her financial autonomy, and expecting her to fulfil “wifely duties”.5 Superficially, these actions mirror gender roles such as relying on the man of the household for financial needs with the women being the homemaker.6 However, when viewed as a pattern of CC behaviour aimed to take away the victim’s autonomy, the abuse becomes evident. Non-physical abuse has a more enduring and serious impact than 1

Evan Stark, ‘Coercive Control’ in Lesley McMillan and Nancy Lombard (ed.), Violence Against Women: Current Theory and Practice in Domestic Abuse, Sexual Violence and Exploitation (London: Jessica Kingsley, 2013) 18. 2

Australian Law Reform Commission, Family Violence — A National Legal Response,!Report No 114 (2010); Special Taskforce on family violence in Queensland (2015); Royal Commission into Family Violence,!Summary and Recommendations, Vol 1 (2016) 211. 3

Marilyn McMahon and Paul McGorrey, ‘Criminalising Emotional Abuse, Intimidation and Economic Abuse in the Context of Family Violence: The Tasmanian Experience’, (2016) 35(2) The University of Tasmania Law Review 1, 2. 4

Family Violence Act 2004 (Tas) ss8-9.

5

Evan (n1) 21.

6

Ibid.

physical violence and should not be trivialised.7 By introducing a new offence, the public would be educated on the seriousness of CC and would no longer tolerate it. 2. Improves Judicial System The current criminal justice system has fragmented the long-standing patterns of IPV into separate offences.8 This fails to capture the dynamics of IPV as it evolves over time and can occur with little to no physical abuse occurring.9 For instance, 37% of CC crimes in the UK took place without physical abuse.10 Without a new offence, such perpetrators “avoid being caught” by hiding behind non-physical abuse.11 The new offence would also help to put the victim’s experience into perspective and aid earlier intervention. For instance, the police would put more weight on the risk of harm and prioritise a victim experiencing lowlevel physical violence with CC, should evidence of CC become legally relevant.12 Thus, CC should be criminalised to expedite judicial intervention and improve the current criminal justice system.

Shortcomings of New Offence 1. Uncertain Scope It is difficult to establish the scope of the new offence as it is unclear when the relationship stops being ‘normal’ and becomes ‘abusive’.13 If the scope is too broad, normal gendered behaviours in relationships may be misidentified as coercive or controlling behaviour.14 The determination of whether a behaviour constitutes as CC is also dependent on if the

7

Ibid 27.

8

Bettinson V and Bishop C ‘Is the creation of a discrete offence of coercive control necessary to combat domestic violence?’ (2015) 66(2) Northern Ireland Law Quarterly 179, 191. 9

Hanna C 'The paradox of progress: Translating Evan Stark’s coercive control into legal doctrine for abused women’ (2009) 15(12) Violence Against Women 1458, 1466. 10

Charlotte Barlow et al, ‘Putting Coercive Control into Practice: Problems and Possibilities’, 2019 !The British Journal of Criminology, 14. 11

Rosemary Bolger, ‘Domestic violence perpetrators using non-physical abuse 'to avoid being caught’, ABC News (Online, 8 March 2015) . 12

Bettinson and Bishop (n8) 191.

13

McMahon and McGorrey (n3).

14

Bettinson and Bishop (n8) 193.!

partner consented and the validity of that consent.15 If the new offence is defined too narrowly to only regulate IPV, emerging issues such as elderly abuse might not be taken into account. Therefore introducing an offence to regulate the private aspects of a relationship is tedious as a delicate balance between maintaining privacy and justice is difficult to achieve.16

2. Low Prosecution Rates There is no guarantee that a new offence would lead to higher prosecution rates. There had only been 27 convictions in the UK in 2016 following the new offence17 and in Tasmania, only eight people were convicted under s9 and none under s8.18 This is because firstly, the victims are hesitant to come forward with their claims of CC despite it being an offence.19 Hence introducing a new offence alone is not sufficient to educate the public on the seriousness of CC as victims do not view CC as family violence. Secondly, the police are unable to identify patterns of CC as they are accustomed to identifying separate incidents of family violence. Despite criminalising CC, the UK police failed to identify evidence of CC through witness statements and other records in 87% of the cases.20 CC behaviours are specifically designed by abusers to exploit a victim’s personal fears and consist of “gestures, phrases, and looks that only have meaning within the relationship.”21 Therefore, should a separate offence be legislated, Australia should follow in Scotland’s footsteps by providing specialist training for police officers to recognise these gender dynamics. 3. Unintended Consequences

15

Julia R Tolmie 'Coercive Control: To Criminalize or Not to Criminalize? ‘ (2018) 18(1)!Criminology & Criminal Justice 50, 56. 16

ALRC (n2) 46.

17

Barlow et al (n10) 4.

18

McMahon and McGorrey (n 3) 11.

19

Barlow et al (n10) 10.

20

Ibid.

21

Tolmie (n15) 54.

Should the police fail to understand the dynamics of IPV and CC, victims might be misidentified as primary aggressors.22 CC perpetrators can easily manipulate the situation by minimising their actions to make their victims seem like the perpetrators of abuse.23 Women can be portrayed as deceitful and emotionally manipulative by playing into gender roles and hence viewed as the primary offenders of CC.24 Thus, family violence perpetrators could still exercise CC despite the new offence as the fundamental problem of exploiting gender roles exists. Conclusion A new offence of CC should not be legislated merely as a quick fix. Although legitimising CC by legislating it is a step in the right direction, it cannot be done without addressing the fundamental issues within the criminal justice system. Current resources should be first channelled into proper specialised training for the police and raising public awareness on CC to restructure the criminal justice system before a new offence can be introduced.

22

Madeleine Ulbrick and Marianne Jago, ‘Police misidentification of the ‘primary aggressor’ in family violence incidents in Victoria’ 2018 Policy Paper 1 Women’s Legal Service Victoria 1, 2. 23

Tolmie (n15) 62.

24

Ulbrick and Jago (n22)....