New South Wales will become the first Australian jurisdiction to criminalise coercive control after historic legislation passed Parliament earlier this month.
Coercive control is a form of domestic abuse that involves patterns of behaviour that have the cumulative effect of denying victim-survivors their autonomy and independence. It can involve physical, sexual, psychological or financial abuse.
The gist of coercive control is therefore about creating and maintaining power and dominance over another person or persons. Although there has been no stand-alone offence to date, conduct which amounts to coercive control has often been adduced in criminal trials to establish existing domestic violence offences.
Attorney General Mark Speakman, who described coercive control as a form of domestic terrorism, said: “Domestic abuse isn’t just about physical violence. Perpetrators of domestic abuse also use physical, sexual, psychological and financial abuse to hurt and control their ‘loved one’. Sadly, this behaviour is a known precursor to domestic violence deaths.”
Section 54D of the Crimes Act
The new law will make it an offence to carry out repeated abusive behaviours to a current or former intimate partner with the intent to coerce or control.
Under section 54D(1) of the Crimes Act, an adult will commit an offence if:
(a) the adult engages in a course of conduct against another person that consists of abusive behaviour, and
(b) the adult and other person are or were intimate partners, and
(c) the adult intends the course of conduct to coerce or control the other person, and
(d) a reasonable person would consider the course of conduct would be likely, in all the circumstances, to cause any or all of the following, whether or not the fear or impact is in fact caused –
(i) fear that violence will be used against the other person or another person, or
(ii) a serious adverse impact on the capacity of the other person to engage in some or all of the person’s ordinary day-to-day activities.
(2) For subsection (1)(a):
(a) the course of conduct may be constituted by any combination of abusive behaviours, and
(b) whether the course of conduct consists of abusive behaviour must be assessed by considering the totality of the behaviours.
What is abusive behaviour?
Abusive behaviour will mean behaviour that consists of or involves the following:
(a) violence or threats against, or intimidation of, a person, or
(b) coercion or control of the person against whom the behaviour is directed.
Examples of abusive behaviour will include:
- behaviour that is economically or financially abusive, such as withholding or controlling access to money;
- threatening to harm children or take them away;
- behaviour that shames, degrades or humiliates;
- isolating an individual from their friends and family;
- behaviour that harasses a person, or monitors or tracks their activities; or
- behaviour that deprives a person of, or restricts, their liberty
What is the maximum penalty?
The maximum penalty will be 7 years imprisonment.
Is there a defence?
Yes. It will be a defence if the course of conduct was reasonable in all the circumstances. The defence will be established where:
a) evidence adduced is capable of raising an issue as to whether the course of conduct is reasonable in all the circumstances, and
(b) the prosecution does not prove beyond reasonable doubt that the course of conduct is not reasonable in all the circumstances.
The new offence is not expected to come into force until 2024.
