It is undeniable that the prevalence of domestic violence offences nationwide and within the confines of NSW has been, and is, an area of concern. Domestic violence manifests in different ways for each complainant. It can be fast and involve an evolving quick succession of events. It often, however, manifests in a slow and pervasive way. Regardless of how it manifests, the law and the criminal justice system need to be able to hold those who perpetrate domestic violence offences to account for their actions.

The Evolution of Domestic Violence Offences

Domestic violence offences can involve physical and/or emotional abuse. The current NSW criminal justice regime addresses both of those ‘types’ of offences by way of specifically categorised ‘domestic violence offences’. A defendant charged and convicted of a ‘domestic violence offence’ has it clearly marked in their criminal record as being such an offender. The stand-alone offence of ‘choking’, for example, introduced in 2018¹, saw the introduction of a specifically mandated criminal offence within the context of a domestic violence framework. Prior to that change, an allegation of choking of a complainant was charged within the framework of a common assault simpliciter charge or, alternatively, if there was an injury sustained as a result of the choking act, an assault occasioning actual bodily harm offence. The law in this regard, that is, adequately criminalising conduct within the domestic violence framework, has progressed and rightfully so.

Coercive Control – What is it?

The most recent development in this space is the introduction of coercive control as a specific form of domestic violence abuse.

It can be defined as:

repeated patterns of abusive behaviour – which can include physical, sexual, psychological, emotional or financial abuse – the cumulative effect of which is to rob victim-survivors of their autonomy and independence².

From a practical perspective, coercive control involves patterns of behaviour that have the cumulative effect of denying complainants the ability to exercise any true level of autonomy and independence. It can manifest, for example, in the monitoring and reading of the complainant’s text messages (with or without their knowledge or consent), and the accessing of their phone call logs and/ or placing restrictions of the complainant’s ability to use a phone. It can include the blocking of access to money in a jointly held bank account or withdrawing all or some of the money from a joint bank account without the complainant’s consent or knowledge, leaving the complainant without any access to funds. Examples of controlling behaviour are too numerous to list but involve the deprivation of rights in various forms and via various methods by the defendant.

Such conduct has invariably been present in the complex dynamics between a perpetrator of domestic violence and the complainant who alleges such conduct. The difference now is, by focussing attention on whether there is coercive control, there is focus on patterns of behaviour, as opposed to specific and individualised criminal acts (which were previously addressed through specific and stand alone offences within the criminal law space).

New Act – New Landscape

The NSW Parliament passed the Crimes Amendment (Coercive Control) Act 2022 (NSW) (the Act) which makes coercive control between current and former intimate partners a criminal offence. In doing so, NSW has become the first Australian State or Territory to create a stand-alone and specific offence for coercive control.

Following its enactment, there is a significant and extensive ‘implementation period³’ which will allow for time to provide training, education, resourcing and raising of general public awareness. It is anticipated that the legislation will commence on 1 February 2024.

A successful prosecution will need to prove each of the elements of the newly inserted section 54D of the Crimes Act 1900 (NSW) which will deal with ‘Abusive behaviour towards current or former intimate partners’: Section 54D(1) An adult commits 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.

The maximum penalty for this offence under this section is imprisonment for 7 years.

Of particular note, in terms of effectively prosecuting a defendant, is the ingrained difficulty in establishing that the defendant possessed the intention by the course of conduct to coerce or control the other person. That is, the prosecution will have to, firstly, establish that the defendant engaged in a course of conduct that amounted to ‘abusive behaviour’, and, secondly, that the defendant intended to do so. Section 54F deals with the meaning of ‘abusive behaviour’.

What constitutes ‘abusive behaviour’?

In accordance with section 54F(1), ‘abusive behaviour’ means behaviour that consists of or involves:

a. violence or threats against, or intimidation of, a person; or

b. coercion or control of the person against whom the behaviour is directed. The legislation then lists the following behaviour which may constitute ‘abusive behaviour’ as being (section 54F(2)(a -i)):

a. behaviour that causes harm to a child if a person fails to comply with demands made of the person,

b. behaviour that causes harm to the person against whom the behaviour is directed, or another adult, if the person fails to comply with demands made of the person,

c. behaviour that is economically or financially abusive.

It also extends to behaviour that isolates a complainant from ‘making or keeping connections with the person’s family, friends or culture⁴’, ‘participating in cultural or spiritual ceremonies or practice⁵’, ‘expressing the person’s cultural identity⁶’. Significantly, the Act also regards ‘behaviour that unreasonably controls or regulates a person’s day to day activities⁷’ as falling within the confines of abusive behaviour.

The legislation, pursuant to section 54E(1), makes it clear that ‘it is a defence if the course of conduct was reasonable in all the circumstances’. In addition, it will be considered reasonable in all the circumstances if taken to be proven of the following:

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.

Inherent and Practical Difficulties

Despite the broad reach and scope of the legislation, the prosecution may face practical difficulties proving coercion or control, coupled with proving the intention of the defendant. Messages are often encrypted through social media apps or platforms. And, even if not encrypted, the pervasiveness of the control often leads to emails, text or audio messages being deleted in advance of any reporting to police. Without the evidentiary ‘paper trail’ supporting the coercive nature of the communication (which can extend beyond the content of the messages, to include the quantity of them, the means used to send them and/or the steps taken to delete them), it may be difficult for the prosecution to prove the coercion or control of a person against whom the behaviour is directed.

It is not unknown for controlling behaviour to extend beyond the complainant and include family or friends who, as a result, may be reluctant to provide a statement to police and/or participate in any DVEC interview. Behaviour that may be categorised as economically or financially abusive can be complicated by cultural factors. That only one person in a marriage or intimate relationship has sole control of the financial affairs of the family, for example, may be considered accepted in some family and cultural structures. It will be interesting to see how the courts interpret such conduct within the meaning of ‘abusive behaviour’.

Time will tell how the effect of the new provisions will play out for both the prosecution and defence. Given the inherent difficulties that are likely to be encountered when prosecuting a defendant under this new regime, it is likely that back up offences are laid in conjunction with the new offences. That being said, it will be interesting to see if defendants are more likely to plead guilty to ‘back up’ offences in lieu of the new legislated provisions.

A crucial part of the puzzle will be the manner in which police are specifically trained moving forward, particularly in relation to evidence-gathering in the fragile and volatile situations that make up the complex relationship in coercive control and abusive partner relationships. BN

ENDNOTES

^{1 NSW Parliament passed the Crimes Legislation Amendment Bill, which inserted a new section 37(1A) into the Crimes Act 1900 (NSW).}

^{2 Coercive Control – Discussion Paper, October 2020, NSW Government, page 2.}

^{3 From, at least 14 months to up to 19 months.}

^{4 Section 54F(2)(g)(i).}

^{5 Section 54F(2)(g)(ii).}

^{6 Section 54F(2)(g)(iii).}

^{7 Section 54F(2)(i).}