Why Criminalisation of Coercive Control is Not Enough

By Gabrielle Ebeling
November 25 is the international day against domestic violence. This photo was taken in Bonn, displaying the work of an artist. (CAPTION AND IMAGE CREDIT: Mika Baumeister)

Content warning: domestic abuse

“The system failed… it is so frustrating. It is so devastating.”

As Prime Minister Scott Morrison stood before a sombre Parliament to deliver these words of mourning, the nation was gripped by a sense of despair which has become uncomfortably familiar. 

After months of attempting to sever ties with him, Brisbane woman Hannah Clarke died February 19, 2020, after her estranged husband doused her in petrol and set her alight, simultaneously killing their three children. 

As the smoke settled, the calls for action grew strong and thunderous: Australia is failing on a systemic level to adequately protect victims of family violence, rendering domestic abuse our most urgent issue of law and order. 

Hannah’s death was the violent finale to a crescendo of abuse. What started as a beguiling romance slowly morphed into a comprehensive war of attrition. He followed her, demanded sex and ignored her for days when she showed little interest. He controlled her social media, her finances, what she wore and who she met, specifically and deliberately micro-regulating her daily life in order to erode her sense of independence and self-worth. 

What Hannah had experienced was coercive control: a purposeful pattern of behaviour that takes place over time in order for one individual to exert power, control or coercion over another. 

Submissions to Victoria’s Royal Commission into Family Violence revealed such conduct is at the core of almost all abusive relationships. Victims told of forced isolation from friends and family, of “intentional and planned” efforts to destroy the victim on every level. Comprising of a series of behaviours that may, when viewed in isolation, seem minor or trivial, the abuse manifests itself in a gradual yet “all-encompassing awareness that you are living with something that is dangerous.”  

Evidence continuously shows the presence of such behaviour is the most reliable indicator of future sexual assault and severe or fatal violence. This is largely because the crux of coercive control is its systematic corrosion of the victim’s autonomy, independence, equality, social supports and personal dignity, all of which are crucial if a victim is to resist and escape the abuse. 

Yet despite the centrality of controlling behaviour in abusive relationships, it is not a crime in mainland Australia. 

The law currently deals with domestic abuse in two ways. Firstly, through the implementation of family violence intervention orders, which can be granted to prevent behaviour that is “emotionally and psychologically abusive.” Though a breach of these orders is a crime, many breaches are not prosecuted. If they are, magistrates often rely on fines and other low-end orders as punishment. Secondly, in cases involving physical assault, perpetrators are prosecuted for offences such as battery and assault. 

This leaves a gap in the law which allows non-physical abuse to go unnoticed and unpunished.

Hannah Clarke’s death propelled deep community outrage that had been brewing for years. For months, the media was spattered with images of the glowing Brisbane mum and her three grinning children, recounting the ‘tragedy’ which had left the community “shaken, appalled and desperately saddened.” 

In response to the community heartbreak, both the New South Wales and South Australian Parliaments have drafted bills criminalising coercive control, offences carrying maximum penalties of five and seven years imprisonment, respectively. 

When emotional drivers underlie the momentum to effect positive change, the criminal law is often turned to as a remedy for the problem which has caused community pain. Such legislative action can be defined as penal populism: a simplistic governmental response to community outrage that often results in poorly drafted legislation that fails to deliver what the public expect. Namely, the prevention of crime. 

While coercive control legislation would mark a monumental shift away from the violence model of abuse, which sensationalises discrete episodes of physical assault, the reality is that the laws are unlikely, in and of themselves, to serve victims’ needs and prevent future harm.  

When England implemented laws criminalising coercive control in 2015, police forces told the Bureau of Investigative Journalism they found the charges “hard to achieve” and “challenging to prove.” Only 16% of arrests made for coercive control between January 2016 and July 2018 led to charges being brought, a rate far less than that of physical violence offences. The Bureau found officers were too busy to sit with victims and tease out the minutiae of routine behaviours which have a cumulative effect on the person’s psyche. 

Despite training, some officers struggled to see the difference between a purposeful pattern of behaviour designed to control a person, and common arguments and jealousies that regularly feature in intimate relationships.  

This inability of police and legal professionals to adequately understand the complexities of domestic abuse would be detrimental to the proper enforcement of coercive control laws. Compounding this detriment is the fact that the adversarial criminal trial process, which the victim will enter if the laws are used, is not a nice place for survivors of intimate crimes to be.  

Research shows that for victims who pursue criminal action, a sense of justice is achieved by regaining what their abuser took from them: voice, validation and control. The very nature of our adversarial system, however, makes this inherently hard to accomplish. In this system, it is the State which brings the action on the victim’s behalf, rendering the victim a mere witness. In defence of the accused, victims are questioned and doubted, and their inability to accurately recount experiences of torment and distress is portrayed as an indication of dishonesty. 

Though laws have been put in place to prevent stereotypes and harassing techniques infiltrating the courtroom, victims of intimate crimes continue to report their experiences in the justice system to be re-victimising and re-traumatising. 

Most victims, however, do not even make it to the court. It is estimated that between 14% and 52% of family violence victims report their experiences to police. It is also common that victims do not want the perpetrator to be punished; other considerations, such as the need for financial support, or a desire for their children to have a relationship with both their parents, make criminal action undesirable. 

As such, while criminalisation and punitive remedies are a popular, quick-fix solution to the corrosive issue of coercive control, the criminal law system is not one which is currently set up to facilitate the protection and respect that victims need. 

If the laws are to be effective, they need to be drafted with careful expert consultation to ensure they are clear and capable of being operationalised in the legal context. They need to be accompanied by additional funding to train police officers and judges in their application to ensure victims are not trivialised and dismissed. 

More importantly, the intervention system needs to be reformed to facilitate the needs of those who do not wish to bring criminal action. 

This includes improving the family violence intervention order system by ensuring the responsibility for safety is not on the victim’s shoulders. Key family violence agencies and experts should collaborate to enact a consistent and rigorous approach to perpetrator accountability, one which monitors perpetrator conduct and harnesses the authority of the courts. Given recidivist perpetrators account for a disproportionate number of family violence incidents, the focus should be placed on exploring different program models which work with perpetrators to help them take responsibility and change their behaviour. Though imprisonment is a popular solution to offensive behaviour, evidence suggests incarceration is often an ineffective means of deterring and rehabilitating offenders and fails to actually reduce crime.

One year has passed since Hannah’s death. It has been a year of unparalleled stress and isolation, a year in which perpetrators’ ability and desire to entrap has swelled. Now, more than ever, our nation is in desperate need of a system that validates, respects and protects victims of family violence, one which acknowledges the seriousness of the insidious mental torture through which almost all victims suffer. 

The criminal law cannot achieve this alone.  

If you or someone you know is experiencing domestic abuse, you can receive confidential counselling by calling 1800 RESPECT on 1800 737 732. 

If you are worried about your behaviour towards your partner or family members, you can seek advice by calling the Men’s Referral Service on 1300 766 491. 

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