Inside Story

Shadow pandemic

Proposed NSW legisation focuses a new lens on domestic abuse

Paul McGorrery and Marilyn McMahon 2 July 2021 1008 words

Coercion and control are the core of domestic and family violence. iStockphoto

Just fifteen years ago the concept of “coercive control” was scarcely discussed, at least not by anyone other than frontline support workers. Not in the media, not in the general community and certainly not in courtrooms. Domestic abuse was usually physical, sometimes sexual, and always tangible.

In reality, though, most domestic abuse involves coercive control: a pattern of physical, sexual, financial and psychological abuse that one person (usually a man) uses to control and dominate another person (usually a woman, and usually an intimate partner).

This week a multi-party parliamentary committee recommended that New South Wales become the first jurisdiction in mainland Australia to criminalise coercive control. (Tasmania introduced related offences sixteen years ago.) After nearly a year of research and consultation, a committee of Liberal, Labor, Greens and One Nation MPs unanimously recommended that coercively controlling a current or former intimate partner should become a crime.

The committee didn’t specify the precise wording or scope of the new offence. But because these laws exist in Britain and elsewhere — as the committee highlights in its report — we can expect two key elements to feature.

First, like stalking laws, a coercive control offence will focus on a pattern of abuse, not on isolated incidents. This means the justice system will be forced to see abuse the way victims experience it, as an ever-present threat. This focus on repeat behaviour will present challenges to investigating police. But it will also deal with a key shortcoming in the main response to family violence: intervention orders. These orders sometimes result in women being mistakenly identified as the primary aggressor, because they limit police’s consideration to the immediate event (disregarding the possibility that her actions, if any, may have been taken in self-defence). By looking at the whole of the relationship, rather than just the most recent incident of violence, the new offence provides a better lens for assessing who is the real abuser.

Second, the new offence will outlaw psychological, emotional and financial abuse. Isolation from family and friends, degrading and humiliating conduct, and deprivation of necessary financial resources will be prohibited. This is behaviour that has traditionally fallen outside the scope of the criminal law. The offence won’t, though, apply to reasonable behaviour, and it will only apply if the offender intended the behaviour to cause harm to the victim or if a reasonable person would have known that harm was likely. Concerns that the new offence will prevent parents from disciplining their children, or spouses from taking the family car without the consent of their partner are wrong and inflammatory.

Other elements of the new offence are less settled. For instance, while overseas jurisdictions limit their coercive control offences to familial relationships, or some more narrowly to intimate partners, the committee left open the possibility of including broader relationships.

It is also important to realise that as groundbreaking as this proposed reform is, in some ways it isn’t new. Most states and territories already indirectly criminalise coercion, psychological abuse, control, emotional abuse and financial abuse when it occurs as a breach of an intervention order. What is novel is that the new offence wouldn’t require victims to first go to court and obtain an intervention order before the abuse became criminal. Instead, they could directly seek the assistance of police, who would now be better able to respond.

So, how might this new law work in practice? The case of Natalie Curtis, who lived with her husband just east of London, is illustrative. By the end of their six-year relationship, he was calling her up to forty times a day, threatening to kill her, throwing her belongings out of the house and smashing their furniture. He blamed Natalie for his behaviour.

As is often the case, the relationship didn’t start out that way. He initially seemed attentive and caring, but over time that attentiveness became surveillance, and care became control. Natalie describes it as “a drip effect, each event gets a bit worse and a bit worse… And then someone has control over you.” She developed severe anxiety and panic attacks, and eventually went to the police. Her husband was charged with controlling or coercive behaviour and ultimately sentenced to two years’ jail.

Of course, some of his behaviour, such as threats and property damage, was already criminal. But the justice system, viewing them in isolation, often doesn’t take these offences seriously enough. In fact, two years before Natalie left him for good, her husband received a suspended prison sentence for threatening to kill her. A few weeks later, after he promised to reform and begged her to take him back, they moved back in together. It got worse after that.

To be clear, criminalising coercive control is not a panacea for the shadow pandemic of family violence that costs our country lives, untold misery and billions of dollars every year. And there are still important tasks ahead. The NSW committee recommended establishing a taskforce to oversee careful drafting of the new offence, to consult about its final form, and to monitor its implementation. That taskforce will need to deal with concerns about the ability of our justice systems to deal with domestic violence and “invisible” harms. The new law must also be drafted and implemented carefully to meet the needs of Indigenous Australians.

The committee made it clear that a new offence was contingent on broader, systemic reforms occurring concurrently: widespread community education campaigns; extensive training for everyone whose work will be affected by the new law; and additional resources for domestic violence services and criminal justice agencies to help them absorb the extra workloads created by the new offence.

With nearly all states and territories now considering whether to criminalise these forms of family violence, New South Wales leads the way. A new law that directly outlaws these forms of abuse will give effect to what victims, frontline workers and researchers have known for decades: that coercion and control, rather than physical violence, are the core of domestic and family violence. •