South Australian Bills South Australian Bills[Index] [Search] [Download] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Criminal Law Consolidation (Coercive Control) Amendment
Bill 2020
A BILL FOR
An Act to amend the
Criminal
Law Consolidation Act 1935
.
Contents
Part 2—Amendment of Criminal Law
Consolidation Act 1935
4Insertion of Part 3 Division 1B
14CMeaning of
conduct that constitutes coercive control
14DMeaning of
prescribed relationship
14FAggravated coercive
control
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Criminal Law Consolidation (Coercive
Control) Amendment Act 2020.
This Act comes into operation 1 month after the day on which it is
assented to by the Governor.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Criminal Law Consolidation
Act 1935
4—Insertion
of Part 3 Division 1B
After section 14A insert:
Division 1B—Coercive control
14B—Interpretation
In this Division—
cause—a person causes harm if the person's conduct is
the sole cause of the harm, or substantially contributes to the harm;
mental harm means psychological harm and includes emotional
reactions such as distress, grief, fear or anger;
reckless—a person is reckless in causing physical or
mental harm to another if the person—
(a) is aware of a substantial risk that the person's conduct could result
in physical or mental harm; and
(b) engages in the conduct despite the risk and without adequate
justification.
14C—Meaning of conduct that constitutes coercive
control
(1) For the purposes of
this Division, a person engages in conduct that constitutes coercive
control of another if the person engages in conduct that has, or is
likely to have, 1 or more of the following effects:
(a) the conduct makes the other person dependent on, or subordinate to,
the person;
(b) the conduct isolates the other person from their friends, relatives or
other sources of support;
(c) the conduct controls, regulates or monitors the other person's
day-to-day activities;
(d) the conduct restricts the other person's freedom of
movement;
(e) the conduct restricts the other person's freedom of action;
(f) the conduct restricts the other person's access to support services,
including the services of health practitioners and legal
practitioners;
(g) the conduct frightens, humiliates, degrades or punishes the other
person,
where—
(h) the person intends the conduct to cause physical or mental harm to the
other person, or is reckless as to whether the conduct may cause such harm;
and
(i) a reasonable person would consider the conduct to be likely to cause
physical or mental harm to another person,
(whether or not such harm is in fact caused).
(2) For the purposes of
subsection (1)
, a reference to conduct includes a reference to—
(a) an omission; and
(b) a threat to engage in conduct; and
(c) conduct, or a threat, directed at another person (including the
offender, a family member of the victim or a third party); and
(d) conduct, or a threat, directed at a pet or other property belonging to
a person (whether the victim or otherwise).
(3) However, conduct of the following kinds will be taken not to
constitute coercive control of another:
(a) conduct engaged in with the lawful consent of the other
person;
(b) conduct that lies within the limits of what would be generally
accepted in the community as normal incidents of interaction within a
relationship (however, this paragraph does not apply in relation to conduct
where a person intended to cause physical or mental harm);
(c) such other conduct, or conduct of a kind, as may be prescribed by the
regulations.
(4) This section applies in relation to conduct engaged in within this
State or within any other jurisdiction.
(5) To avoid doubt, a single act may amount to conduct that constitutes
the coercive control of another person.
14D—Meaning of prescribed
relationship
For the purposes of this Division, a person is in a prescribed relationship
with another person if—
(a) they are
married to each other; or
(b) they are
domestic partners; or
(c) they are in
some other form of intimate personal relationship in which their lives are
interrelated and the actions of 1 affects the other; or
(d) they are related to each other by or through blood, marriage, a
domestic partnership or adoption; or
(e) they are related according to Aboriginal or Torres Strait Islander
kinship rules or are both members of some other culturally recognised family
group; or
(f) 1 is the carer (within the meaning of the
Carers
Recognition Act 2005
) of the other; or
(g) they live in the same household.
14E—Coercive control
(1) A person who engages in conduct that constitutes the coercive control
of another person with whom the person is, or was, in a prescribed relationship
is guilty of an offence.
Maximum penalty: Imprisonment for 7 years.
(2) If a defendant
is charged with an offence against this section in respect of a course of
conduct—
(a) it is not necessary to prove that the defendant was, or ought to have
been, aware that each act making up the course of conduct amounts to conduct
that constitutes coercive control of another; and
(b) the information need not—
(i) allege particulars of each act with the degree of particularity that
would be required if the act were charged as a separate offence; or
(ii) identify particular acts or the occasions on which, places at which
or order in which acts occurred; or
(iii) identify particular acts as causing, wholly or partly, particular
harm to the victim.
(3) A defendant may be charged with an offence against this section in
respect of a course of conduct even if some of the acts making up the course of
conduct occurred before the commencement of this section.
(4) A court sentencing a person for an offence against this section is to
sentence the person consistently with the verdict of the trier of fact but
having regard to the general nature or character of the conduct that constitutes
the coercive control of another person determined by the sentencing court to
have been proved beyond a reasonable doubt (and, for the avoidance of doubt, the
sentencing court need not ask any question of the trier of fact directed to
ascertaining the general nature or character of the conduct that constitutes the
coercive control of another person determined by the trier of fact found to be
proved beyond a reasonable doubt).
14F—Aggravated coercive
control
(1) A person who, in circumstances of aggravation, engages in conduct that
constitutes the coercive control of another person with whom the person is, or
was, in a prescribed relationship is guilty of an offence.
Maximum penalty: Imprisonment for 15 years.
(2) For the purposes of this section, a person engages in conduct that
constitutes the coercive control of another person in circumstances of
aggravation if—
(a) the conduct, or a threat to engage in conduct, is directed at a child
of the other person; or
(b) the conduct involves directly or indirectly using a child of the other
person to control the other person; or
(c) the conduct occurs within the view or hearing of a child of the other
person; or
(d) the conduct involves the use of a weapon of any kind; or
(e) the conduct involves the distribution of, or a threat to distribute,
an invasive image of the other person; or
(f) the person had, before engaging in the conduct, previously been found
guilty of an offence against this section or
section 14E
, or a corresponding offence against the law of another State or Territory;
or
(g) the conduct occurs in any other circumstances prescribed by the
regulations for the purposes of this paragraph.
(3) For the purposes of this section, if—
(a) conduct that constitutes the coercive control of another person forms
part of a course of conduct; and
(b) 1 or more acts making up that course of conduct occurs in
circumstances of aggravation,
then the course of conduct will be taken to have occurred in circumstances
of aggravation.
(4) If a defendant
is charged with an offence against this section in respect of a course of
conduct—
(a) it is not necessary to prove that the defendant was, or ought to have
been, aware that each act making up the course of conduct amounts to conduct
that constitutes coercive control of another; and
(b) the information need not—
(i) allege particulars of each act with the degree of particularity that
would be required if the act were charged as a separate offence; or
(ii) identify particular acts or the occasions on which, places at which
or order in which acts occurred; or
(iii) identify particular acts as causing, wholly or partly, particular
harm to the victim.
(5) A defendant may be charged with an offence against this section in
respect of a course of conduct even if some of the acts making up the course of
conduct occurred before the commencement of this section.
(6) A court sentencing a person for an offence against this section is to
sentence the person consistently with the verdict of the trier of fact but
having regard to the general nature or character of the conduct that constitutes
the coercive control of another person determined by the sentencing court to
have been proved beyond a reasonable doubt (and, for the avoidance of doubt, the
sentencing court need not ask any question of the trier of fact directed to
ascertaining the general nature or character of the conduct that constitutes the
coercive control of another person determined by the trier of fact found to be
proved beyond a reasonable doubt).
(7) In this section—
invasive image has the same meaning as in Part 5A of the
Summary
Offences Act 1953
.
14G—Alternative verdicts
If—
(a) a jury is not satisfied beyond reasonable doubt that a charge of an
offence against
section 14E
or
14F
has been established; but
(b) the Judge has instructed the jury that it is open to the jury on the
evidence to find the defendant guilty of a specified offence against this or any
other Act; and
(c) the jury is satisfied beyond reasonable doubt that the specified
offence has been established,
the jury may return a verdict that the defendant is not guilty of the
offence charged but is guilty of the specified offence.