Queensland Labor becomes latest party to tackle coercive control

By Chris Woods

Tuesday October 6, 2020

Di Farmer
Di Farmer (AAP Image/Dan Peled)

The Palaszczuk government has issued an election promise to tackle coercive control on “several fronts”, including training programs for first responders and domestic violence case workers, community awareness campaign and consultation process.

In a statement released Sunday night, Minister for the Prevention of Domestic and Family Violence Di Farmer said that while coercive control is mentioned in Queensland’s current domestic and family violence legislation — specifically in definitions of domestic violence, economic abuse and family violence — “it is clearly insufficient.”

“We need to get this absolutely 100% right. There are few governments in the world that have specifically legislated against coercive control and where they have, conviction rates are extremely low.

“Part of the reason for low conviction rates is the difficulty of proving coercive control and demonstrating intent beyond reasonable doubt. Coercive control is also hard for first responders to identify without evidence-based training.”

According to influential Rutgers University sociologist Professor Evan Stark, coercive control can be described as a “malign pattern of domination” that can include “emotional abuse, historical abuse, isolation, sexual coercion, financial abuse, cyber-stalking, and other distal forms of intimidation”.

Farmer also emphasised that many people living with coercive behaviour do not realise what they are experiencing is domestic violence, and cited examples including isolating a partner from family and friends, monitoring their movements, or taking complete control of finances.

Proposals outlined by the Palaszczuk government’s approach would include “gearing up the justice system” and training for first responders and domestic violence case workers to recognise coercive control, a community awareness campaign, and establishing a consultation process with stakeholders — from survivors, domestic violence service providers, legal experts and the Domestic Violence Prevention Council — in the development of a new approach to coercive control.

“Coercive control needs to be examined from all perspectives,” Farmer said. “I don’t for one moment underestimate the complexities of defining and addressing coercive control.”

“Complexity is not an excuse for not acting, we can’t and won’t tolerate any more tragedies in Queensland.”

The announcement follows the horrific murders of Brisbane woman Hannah Clarke and her three children earlier this year, which, as The Brisbane Times reports, saw fresh campaigns to tackle coercive control by groups such as non-profit Small Steps for Hannah, Women’s Legal Service Queensland as well as Clarke’s parents Lloyd and Sue.

“He would sulk, not speak for days, he would threaten to kill himself, go through her phone, through her handbag,” Sue Clarke said. “She would lock up the gym and he would ring within 10 minutes and say ‘where are you, you should be at this point by this time’, just so many little things.”

“We would like to get coercive control as a law if we can.”

LNP leader Deb Frecklington also pledged to introduce a new, not-yet detailed coercive control offence in a package responding to Hannah’s murder in February.

Where else has coercive control been criminalised?

Since 2015, England, Wales, Ireland and Scotland have introduced laws based in part on Stark’s work; the latter, The Guardian reports, allows police and courts to pursue someone on a “course of conduct” offence — a single offence where physical, psychological and coercive behaviour can be prosecuted at once — and includes a “reasonable person test” for defining actions such as limiting a woman’s access to her bank account, prescribing her meal times, moving her car while she was asleep as controlling behaviour.

Stark at the time labelled Scotland’s law the “gold standard” and, responding to criticism that the new offence was too broad and required too difficult evidence of psychological abuse to gather, said:

“There is no evidence whatsoever to suggest that creating this broad offence will lead to reduced reporting or policing of simple assaults. When the new definition of abuse was announced in England, reports skyrocketed. But the critics are right about one thing. What matters now is what happens when the first calls come in under the new law. How will the police and the courts respond to that first caller who insists ‘violence wasn’t the worst part’. Will she be told: ‘Talk about the violence’, or what we hope she’ll hear: ‘Yes, I know what you mean.’”

Here in Australia, the only state that currently criminalises coercive control is Tasmania, which introduced emotional abuse and intimidation offences in the Family Violence Act 2004.

This year, the NSW Labor party has proposed the Crimes (Domestic and Personal Violence) Amendment (Coercive Control) Bill 2020, while Advance SA’s John Darley has reintroduced the Criminal Law Consolidation (Domestic Abuse) Amendment Bill 2020, which he first introduced in 2018 but has yet to progress past first reading.

While the NSW legislation has yet to be released online, the ABC reports it carries a maximum penalties of up to 10 years, covers all intimate relationships — including parents, partners, former partners and children — and defines the conduct that constitutes coercive control by listing a number of behaviours that need to be proven as part of a pattern.

“One of them, for example, says controlling, regulating or monitoring the other person’s day-to-day activities; another part says frightening, humiliating, degrading or punishing the other person,” Opposition spokeswoman on Women and the Prevention of Domestic and Family Violence Trish Doyle said. “That carries a maximum penalty of five years.”

Arguments for and against state legislation

As Deputy Dean of Law at Deakin University Marilyn McMahon and Deakin criminal law researcher Paul McGorrey explored in his 2017 analysis, ‘Criminalising emotional abuse, intimidation and economic abuse in the context of family violence: The Tasmanian experience’, Tasmania’s law (along with another offence for economic abuse) had only rarely been prosecuted over the course of a decade, in part due to a number of factors:

  • The challenge of a short statutory limitation period (initially six months, moved to 12 in 2015)
  • The issue of when control or intimidation will be ‘reasonable’
  • The question of whether s9 actually prohibits emotional abuse
  • The redundancy of the offence of economic abuse
  • The practical redundancy of both offences (insofar as they are covered by alternative, more accessible, criminal offences)

Following Farmer’s announcement, McGorrey issued a critical Twitter thread arguing that the Queensland government is “refusing to commit one way or the other to whether coercive control should be criminalised, but it also doesn’t want to appear to be doing nothing [and so] they release this nice-sounding commitment to ‘do something’”.

Conversely, in piece at The Conversation just last week urging all states and territories to proceed with caution, director of the Monash Gender and Family Violence Prevention Centre Kate Fitz-Gibbon, deputy director Silke Meyer and University of Liverpool sociologist outlined some of the legal challenges cited by Stark — notably relying on victims’ willingness and ability to involve police and proving coercion — as well as a lack of evidence demonstrating the effectiveness of successful convictions:

As yet, there is limited evidence about the impact of criminalising coercive control. The number of charges, prosecutions and convictions in the United Kingdom is often cited as evidence of effectiveness. But the use of the offence in and of itself cannot be assumed as evidence of better outcomes for victims.

We do not know, for example, what proportion of women seeking help for coercive control succeed in court. We also do not know if women feel safer following their partner’s conviction — and whether the justice process validates their experience and achieves perpetrator accountability.

Fitz-Gibbon et al point to the fact neither the 2015 Victorian Royal Commission into Family Violence nor 2015 Queensland Special Taskforce recommended the introduction of a stand-alone offence of coercive control, and outline a number of other unknowns, i.e., how coercive control laws would impact marginalised groups — specifically First Nations women, culturally and linguistically diverse communities, and women with disabilities — or interact with “systems abuse”, a form of abuse where perpetrators extend coercive control over victims through adversarial court proceedings. 

Instead, the three call for a national definition of domestic and family violence that includes coercive control — which would create consistency in all risk assessment and management frameworks but requires consistent and mandatory training to identify and respond to coercive and controlling behaviours for police, lawyers, judicial officers, frontline health workers, child protection workers as well as other child and family service workers — and an extensive consultation process on how to best respond to coercive control is essential.

1800 Respect national helpline 1800 737 732; Women’s Crisis Line 1800 811 811; Men’s Referral Service 1300 766 491

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