Douglas, Heaher --- "Do we need an offence of coercive control?" [2018] PrecedentAULA 6; (2018) 144 Precedent 18

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DO WE NEED AN OFFENCE OF COERCIVE CONTROL?

By Professor Heather Douglas

Increasingly, Australian legal definitions of domestic and family violence (DFV) draw on the concept of coercive control.

For example, some DFV civil protection order statutes have endorsed a definition of DFV as coercive and controlling behaviour.^[1] Drawing on experiences in clinical practice, Professor Evan Stark developed the term ‘coercive control’^[2] to reflect the myriad forms of subjugation associated with DFV. Stark emphasised the gender-based nature of DFV and contended that it is best understood as a pattern of behaviours designed to deprive women of their freedom and to establish a regime of domination in personal life. Along with damage to property and physical and sexual violence, coercive and controlling behaviours may include depriving intimate partners of food, money and other resources; sabotage of contraceptives; undermining and humiliating intimate partners through insults and put-downs; and isolation tactics including cutting off contact with friends and family and depriving intimate partners of access to communication devices and transport.^[3]

In 2010, the Australian and New South Wales Law Reform Commissions handed down their joint report on the national legal response to family violence. Their report identified the need for a common interpretive framework for DFV across jurisdictions and areas of law.^[4] Picking up on Stark’s research, their report recommended that DFV should be defined across the legal system as ‘violent or threatening behaviour or any other form of behaviour that coerces or controls a family member or causes that family member to be fearful’.^[5] To date, in Australia, the concept of coercive control has not been well-reflected in criminal justice responses and, in particular, in offences. This article reviews the concerns identified in the application of the criminal justice system to DFV. It then reviews current legal responses to consider how coercive and controlling behaviours associated with DFV are reflected in criminal justice responses in Australia, before examining recent developments in the United Kingdom (UK). The article concludes with a consideration of whether a new offence of coercive control should be introduced in Australian jurisdictions.

THE PROBLEMS WITH CRIMINAL LAW RESPONSES TO DFV

There has been significant debate about whether criminal statutes adequately penalise coercive and controlling behaviour, and whether specific offences that reflect coercive control should be introduced.^[6] Various reports and studies have identified a number of concerns with the current application of the criminal law to DFV. Concerns have included that: police and prosecution authorities often fail to enforce the criminal law; that offences related to DFV are difficult to prove and that victims of DFV are often reluctant to assist in prosecutions of DFV-related offences.^[7] Common evidentiary concerns include that victims may not be able to accurately recall dates and times of an incident; the victim’s evidence may be uncorroborated; the victim’s disclosures to others may be inadmissible on hearsay grounds; and there may be no evidence of injury sustained.^[8] Some of these concerns may result from, or be exacerbated by, the fact that the coercive and controlling behaviour that underpins DFV is an awkward fit with most criminal law offences. Criminal offences are mostly incident-based. For example, assault or criminal damage typically do not capture the pattern of coercive and controlling behaviour associated with DFV.^[9] The offence of non-fatal strangulation was recently introduced in NSW and Queensland, specifically to capture a behaviour that is strongly linked to DFV and considered highly risky.^[10] However, it is focused on a single incident of abuse (Criminal Code 1899 (Qld), s315A and Crimes Act 1900 (NSW), s37). There have been some developments in Australian criminal law and sentencing that do attempt to capture or respond to the coercive and controlling behaviours underpinning DFV. These developments, and their limitations, are outlined below.

AUSTRALIAN CRIMINAL JUSTICE RESPONSES TO DFV

As already noted, offences that criminalise one-off incidents of violence or criminal damage are available across Australia and may be relevant in some cases of DFV, but they cannot reflect the pattern of coercive and controlling behaviours that are often at the heart of DFV. Behaviours that may fall outside traditional offence categories may include emotional abuse, reproductive coercion, isolating behaviours and economic abuse.^[11] Current criminal responses that may be able to reflect or respond to some of aspects of coercive and controlling behaviour are outlined below.

Special sentencing responses to offences involving DFV

While courts across Australia generally view DFV as an aggravating factor in sentencing,^[12] in some jurisdictions special sentencing responses have been legislated for in the context of DFV-related offending. For example, in Queensland, sentencing legislation explicitly states that the fact that an offence occurs in the context of DFV is an aggravating factor (Penalties and Sentences Act 1992 (Qld), s10A). An alternative approach is seen in both South Australia and Western Australia, where criminal statutes identify that when various offences are committed by a person against their current or former domestic partner, the fact of this relationship constitutes an aggravation of the offence (Criminal Law Consolidation Act 1935 (SA), s5AA(g) and the Criminal Code Compilation Act 1913 (WA), s221). Pursuant to s188(2)(b) of the Criminal Code (NT), in circumstances where the person assaulted is a female and the offender is a male, the maximum penalty is increased from one year to five years imprisonment. Given the gendered nature of DFV, this provision has been applied in some NT cases involving DFV.^[13] These sentencing responses all recognise the significant harm of DFV and aim to ensure that the context of the offending does not operate as a mitigating factor. However, coercive control is not (clearly) reflected in these approaches.

Contraventions of protection orders

Civil protection order statutes were introduced in all Australian jurisdictions in the 1980s.^[14] A person who has experienced DFV and fears future DFV may be able to obtain a civil protection order with a number of conditions that can prohibit a wide range of behaviours that fall outside the boundaries of traditional criminal law categories. Orders could include conditions that target coercive controlling behaviours within the intimate relationship. In circumstances where a condition of the order is contravened, the offender may be charged with a criminal offence of contravention. Such offences are intended to act as an incentive for the perpetrator to abide by the conditions of the protection order. However, the essence of these offences is disregarding a court order rather than criminalising coercive and controlling behaviour that may underpin the contravention.

Stalking

All Australian jurisdictions have introduced the offence of stalking.^[15] Stalking is a course of conduct offence that focuses on activities that are protracted or occur on more than one occasion. Stalking offences vary between states and territories but relevant activities might include following, contacting, watching or monitoring a person. The behaviours associated with stalking offences include some of the forms of coercive and controlling behaviour associated with DFV, but the offence does not capture the broader range of coercive and controlling behaviours that may be associated with DFV.

Torture

Section 320A of the Criminal Code 1899 (Qld) sets out the crime of torture. This is defined as ‘the intentional infliction of severe pain or suffering on a person by an act or series of acts done on 1 or more than 1 occasion’ and pain and suffering resulting from the torture may be permanent or temporary and may be physical, mental, psychological or emotional. The offence requires the defendant to carry out an act or acts, which may be interpreted broadly to include incidences of physical violence and also acts of exclusion and degradation.

A number of successful prosecutions of torture have been carried out in a domestic violence setting. For example, HAC^[16] tortured his wife over a period of approximately six months and the charge covered incidents including forcing her to swallow chillies; licking up her own vomit; making her sleep on the veranda; disallowing her use of the shower and toilet and forcing her to use an outside hose to wash. While the particular facts of the HAC case also identified physical violence, the offence could at least theoretically be prosecuted in the absence of physical violence.

There are some limitations to this offence, however, for torture, the prosecution must prove both that the victim experienced severe pain or suffering as a result of the acts and also that the accused intended to inflict severe pain and suffering when doing the relevant acts. Intention may be particularly difficult to prove, especially in the context of DFV where there may be no evidence beyond that of the accused and the complainant. This offence is also limited to very serious cases; it must be dealt with in the higher courts and it is associated with a high penalty of 14 years imprisonment.

Emotional and economic abuse

Perhaps closest to capturing the coercive and controlling behaviours associated with DFV are two offences introduced to the Tasmanian Family Violence Act 2004: economic abuse (s8) and emotional abuse or intimidation (s9). In introducing these offences, Mr Parkinson, the Deputy Leader of the Government in Council, commented on the need for the new offences, explaining:

‘The bill creates new offences ... to underline that family violence does not always take an overtly physical form or that it can involve a range of behaviours aimed at isolating the victim and undermining their capacity to take independent action...Economic abuse and emotional abuse, even though they may be seen sometimes as trivial in isolation, often are only part of a systematic course of abuse over time, and that is criminal conduct.’^[17]

The offence of emotional abuse or intimidation requires that the perpetrator knew or ought to have known that the conduct was unreasonably controlling or intimidating, this leaves scope for the accused to argue that the behaviour was reasonably controlling or intimidating.^[18] These Tasmanian offences have rarely been prosecuted. In a recent review, Paul McGorrery and Marilyn McMahon argued that the offences do reflect an extension of the criminal law but they have been hampered by problems, including that they overlap with existing offences, they are redundant and they are poorly constructed.^[19] They identify the risks of over-criminalisation inherent in criminalising psychological abuse through potentially over-regulating human interactions to stop people from hurting each other’s feelings. They recommend caution in both reform of Tasmanian law and in the development of similar offences elsewhere.

THE UK OFFENCE OF COERCIVE CONTROL

An offence of coercive control was introduced in the UK in December 2015. Drawing on Stark’s research, this offence criminalises 'controlling or coercive behaviour' in an intimate or family relationship (Serious Crime Act 2015 (UK), s76). This offence is committed if one person repeatedly or continuously engages in behaviour towards another person that is controlling or coercive, and the behaviour has a serious effect on the victim. A serious effect is defined as causing the victim to fear violence on two or more occasions, or causing ‘serious alarm or distress’ that has ‘a substantial adverse effect’ on the victim’s usual day-to-day activities.^[20] The Crown Prosecution Service (CPS) (UK) has developed legal guidance about the offence and this sets out some of the behaviours that may be part of a perpetrator’s controlling or coercive behaviour.^[21] Behaviours listed include isolating a person, depriving a person of their basic needs and taking control of aspects of daily life as well as assault and sexual violence. The CPS legal guidance also warns that ‘there might be confusion about where the “appropriate” dynamic of a relationship ends and where unlawful behaviour begins’.^[22] Research on the implementation of the new law has found that the offence has been used 62 times (up to June 2016), with several police forces not applying the offence at all.^[23]

IS AN OFFENCE OF COERCIVE CONTROLLING BEHAVIOUR NEEDED IN AUSTRALIA?

A number of concerns have been raised, generally, about whether a new offence is needed and specifically whether an offence of coercive controlling behaviour is needed to deal specifically with DFV. I have argued elsewhere^[24] that it may be possible to introduce a similar offence to the Queensland offence of torture, described earlier, that does not require proof of intention to cause pain and suffering but may be based on recklessness or, in the code jurisdictions, a ‘general’ intent to carry out the behaviours or acts (rather than a specific intent to cause pain and suffering). For this offence, pain or suffering would not need to be determined to be ‘serious’ (as it is in the torture offence) and it could have a lower penalty allowing it to be dealt with in the local/magistrates courts.

However, recent reports have cautioned against creating criminal laws to combat DFV, if those laws will only be 'superficially or symbolically attractive’.^[25] In their analysis of the emotional and financial abuse offences in the Tasmanian context, McMahon and McGorrery have warned that ‘creating new offences based on psychological harm raises the spectres of uncertainty, of over criminalisation and of reactive (and ineffective) lawmaking.’^[26] Walklate and colleagues, in a direct response to the introduction of the controlling and coercive behaviour offence in the UK, have tracked the roots of the concept of coercive control in clinical practice and questioned whether it can usefully be translated into a legal context. In fact, they express a broader scepticism about whether new criminal offences will provide meaningful access to justice for women who have experienced DFV, and they emphasise the need to strengthen civil remedies and support service access and delivery.^[27] While it is necessary to continually improve access to support services for women who have experienced DFV, there remains an important role for criminal justice responses, both substantively in promoting community safety and symbolically in their capacity to publicly denounce DFV.^[28] Given the difficulties identified in constructing an appropriate offence that is both able to be implemented and is effective, but also avoids the problems of uncertainty and over-criminalisation, perhaps the focus should be on improving the more procedural aspects of the criminal law. As previous reports^[29] have identified, many improvements could be made to policing, prosecutorial decision-making, approaches to evidence, witness support and safety, and sentencing in relation to cases involving DFV. These improvements may offer better opportunities for women to access justice than the creation of new offences. As such, it may be that increased funding and training of police, lawyers and judges will afford better outcomes than law reform.

Heather Douglas is a Professor of Law, TC Beirne School of Law, The University of Queensland, ARC Future Fellow (FT140100796). PHONE [phone] EMAIL [e-mail].

This article is based on a 2015 article: H Douglas, ‘Do We Need a Specific Domestic Violence Offence?’, Melbourne University Law Review, Vol. 39(2), 2015, 434-71.

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^[1] See Family Violence Protection Act 2008 (Vic), s5; Domestic and Family Violence Protection Act 2012 (Qld), s8 and the definition of family violence in the Family Law Act 1975 (Cth), s4AB(1), which also reflects this approach.

^[2] Evan Stark, Coercive Control: The entrapment of women in personal life (2007) OUP

^[3] Australasian Institute of Judicial Administration (AIJA), National Domestic and Family Violence Bench Book, chapter 3, <http://dfvbenchbook.aija.org.au/> .

^[4] Australian Law Reform Commission (ALRC) and New South Wales Law Reform Commission (NSWLRC), Family Violence – A National Legal Response, Final Report No. 114/128 (2010), Chapter 5.

^[5] Ibid, [5.167].

^[6] See H Douglas, ‘Do we need a specific domestic violence offence?’ Melbourne University Law Review Vol. 39(2), 2015, 434-71.

^[7] Victorian Law Reform Commission, Review of Family Violence Laws (2006), [3.25]; H Douglas, ‘The criminal law’s response to domestic violence: What’s going on? Sydney Law Review, Vol. 30(3), 2008, 439–69.

^[8] See above note 4, [13.7].

^[9] See above note 6, 437.

^[10] J Campbell, et al, ‘Risk factors for femicide in abusive relationships: Results from a Multisite case control study’, American Journal of Public Health, Vol. 93(7), 2003, 1089-97.

^[11] See above note 3, [3.1.4]; [3.1.2]; [3.1.3].

^[12] Ibid, [9.3.1-Cases].

^[13] Emitja v The Queen [2016] NTCCA 4.

^[14] Ibid, [7].

^[15] See S Kift, ‘Stalking in Queensland: From the nineties to Y2K’, Bond Law Review, Vol. 11(1), 1999, pp 144-56.

^[16] R v HAC [2006] QCA 291 (11 August 2006) [17]-[35].

^[17] Parliament of Tasmania, Parliamentary Debates, Legislative Council, 25 November 2004, 6:07pm; and 26 November 2004, 11:36am (Doug Parkinson MLC).

^[18] M McMahon and P McGorrery, ‘Criminalising Emotional abuse, intimidation and economic abuse in the context of family violence: The Tasmanian experience’, Tasmanian Law Review, Vol. 35(2), 2016, 1-23 and 8.

^[19] Ibid, 4 and 22.

^[20] A Robinson, A Myhill and J Wire, ‘Practitioner (mis)understandings of coercive control in England and Wales’, Criminology and Criminal Justice, 2017, 1027 (online first).

^[21] Crown Prosecution Service, ‘Controlling or coercive behaviour in an intimate or family relationship’ <http://www.cps.gov.uk/legal/a_to_c/controlling_or_coercive_behaviour/#a03>

^[22] Ibid.

^[23] S Walklate, K Fitz-Gibbon and J McCulloch, ‘Is more law the answer? Seeking justice for victims of intimate partner violence through the reform of legal categories’ Criminology & Criminal Justice (online first 2017.

^[24] Elsewhere I have developed an argument for the introduction of a crime of ‘cruelty’. This argument is developed in Douglas, above note 6.

^[25] State of Victoria, Royal Commission into Family Violence: Report and recommendations, Parl Paper No. 132 (2014–16), Vol. III, 224; ALRC and NSWLRC, above note 4, 587; McMahon and McGorrery, above note 18, 4.

^[26] Above note 18, 3.

^[27] Above note 23, 13.

^[28] Above note 6, 443.

^[29] See for example, State of Victoria, Royal Commission into Family Violence: Summary and recommendations Parl Paper No. 132 (2014–16), especially recommendations 41-60, 71-72, 80-84 and 87-92.