What is Coercive Control?

Coercive control is a form of domestic abuse that involves a pattern of behaviours used by one person to dominate and manipulate another, which aims to stirp the victim of their sense of freedom. Recognising the devastating impact of this form of abuse, since 1 July 2024 coercive control has been formally displayed under criminal law in NSW.

These regulatory changes reflect a growing awareness of the prevalence and seriousness of coercive control in relationships. This landmark decision is a direct response to the increase of domestic violence offences and aims to ensure people are held accountable while offering victims the necessary support they require. These advancements reiterate the commitment of NSW to address and reduce domestic violence offences.

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This can occur in several ways including: 

1. Physical Control: This involves using or threatening to use physical violence to cause fear and compliance
2. Psychological Control: This involves using mind games and gaslighting to undermine a victim’s psychological sense. 
3. Emotional Control: This involves exploiting emotions to manipulate, shame, or guilt trip the victim
4. Financial Control: This involves exercising control over the victim’s financial resources to limit their independence and ability to leave the relationship

Examples of Coercive Control

A few examples of this form of abuse can be: 

1. Isolation
   • Social Isolation: This involves preventing the victim from seeing friends or family, often using excuses such as concern for the victim’s safety
   • Control of Communication: This involves monitoring/restricting the victim’s phone calls, messages, or social media to cut off external support
2. Intimidation
   • Threats: This involves making threats to harm the victim, their loved ones, or pets to cause fear and ensure compliance. 
   • Stalking: This involves constantly following the victim or constantly showing up to places they are at to enforce control and create fear. 

3. Control over daily life
   • Micromanagement: This involves dictating what the victim wears, eats, or how they spend time. 
   • Decision-Making: This involves taking over all major decision, such as where to live, work, or what to purchase. 

How has coercive control been addressed previously?

Prior to the recent changes, coercive control was addressed through different legal frameworks in NSW, mainly under the Crimes (Domestic and Personal Violence) Act 2008 (NSW). This act provided protection to those in domestic relationships by criminalising stalking and intimidation as forms of abuse. 

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Apprehended Domestic Violence Orders were another key mechanism used to protect victims who were experiencing coercive control. An ADVO is a court order which is designed to protect victims from violence, harassment, and intimidation by imposing restrictions of the behaviour of the accused. This order can include prohibitions on contacting a victim, residing in their home, or approaching them. 

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Although these measures provided some level of protections, they usually fell short in addressing the nature of coercive control as this is a more complex issue. 

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The recent change in legislation to address coercive control aims to address these limitations by recognising coercive control as a distinct form of abuse. This reflects a better understanding of domestic violence and provides stronger protections to victims.

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Introduction of Crimes Legislation Amendment (Coercive Control) Act 2022

The Crimes Legislation Amendments (Coercive Control) Act 2022, which came into effect on 1 July 2024, marks a significant advancement in the legal framework in addressing domestic abuse in NSW. This legislation introduces specific changes aimed at recognising and criminalising the patterns of behaviour of coercive control. The key changes in the legislation include: 

1. Criminalisation of Coercive Control: Coercive control is now recognised as a criminal offence. 
2. Section 54D Abusive Behaviour Towards a Current or Formal Intimate Partner: This new section targets abusive behaviours within both current and former intimate relationships, recognises the ongoing impact of these relationships, even after they have ended.

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The introduction of this legislation was driven by the growing recognition of coercive control in domestic violence cases. Between the years of 2008 and 2016, it was found that 99% of intimate partner domestic violence homicides involved coercive controlling behaviours. These statistics highlight the essential need for measures that address the cause of domestic violence and to provide protection before the situation escalates.

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New South Wales is the first state in Australia to criminalise coercive control, setting a precedent for the other states and territories to follow. This step demonstrates the commitment of NSW to addressing domestic violence. Section 54D specifically addresses abusive behaviour towards current or former partners. 

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What is abusive behaviour?

Under the Crimes Legislation Amendment (Coercive Control) Act 2022, abusive behaviour is known as actions or patterns of behaviour that exert control, intimidate, or are coercive over a current or former partner. These behaviours are criminalised when they form a pattern that undermines the victim’s sense of safety. Examples of abusive behaviour under this act include: 

1. Isolation 
2. Intimidation 
3. Control over daily life 
4. Monitoring and surveillance 
5. Manipulation 
6. Economic Abuse 
7. Physical and Sexual Abuse

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Who will this new legislation affect?

The Crimes Legislation Amendment (Coercive Control) Act 2022 specifically targets abusive behaviours within the context of current and former intimate relationships. This means that the legislation is designed to protect people who are or have previously been in intimate relationships.

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Although the legislation is significant in addressing coercive control, its scope is currently limited to intimate partner relationships. However, to address the need for protection against all forms of domestic abuse across other relationship types, there will be a provision for reviewal in 2026. This review will assess the effectiveness of the legislation and consider expanding it to include other types of relationships such as: 

1. Family members including parents, children and siblings 
2. Household members such as roommates or carers

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This review ensures that the legislation has lesser limits and remains responsive to the nature of domestic abuse and provides protection to all individuals who are impacted by this. By 2026, the policymakers will have the opportunity to evaluate the impact of the current legislation and make a decision regarding its expansion.

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Implications for Perpetrators 

Under the new Crimes Legislation Amendment (Coercive Control) Act 2022, people found guilty of coercive control can face the following penalties: 

1. Imprisonment: If you are convicted of coercive control under section 54D of the Act you can face a maximum penalty of up to 7 years in prison. 
2. Criminal Record: A conviction for coercive control will result in a criminal record. This can have several implications on your future, possibly impacting employment opportunities and traveling.
3. ADVO: Court may issue an Apprehended Domestic Violence Order against you to prevent further abuse of the victim. This can impose restrictions on your movement and communications between people.

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The introduction of strict penalties for coercive control offences serves as a deterrent to potential abusers. It highlights the serious nature of the offence and the serious consequences it will have, aiming to promote healthier relationships.

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What are the defences to this offence? 

Under the Crimes Legislation Amendment (Coercive Control) Act 2022, there are specific defences available to people charged with the offence of coercive control. Section 54E displays the conditions under which you may raise a defence against a charge under section 54D(1). 

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Section 54E provides a defence if you can demonstrate that your course of conduct was reasonable in all circumstances, The defence operates under the following conditions: 

1. Subsection (1)

In proceedings for an officer under section 54(1), it is a defence if your course of conduct was reasonable in the circumstances. This means that you must provide evidence suggesting that your actions, although potentially controlling or abusive, were justified or reasonable given the specific context and circumstances. 

2. Subjection (2) 

For subsection (1), the course of conduct is considered reasonable in all circumstances if: 

1. Evidence is presented that raises a genuine issue regarding the reasonableness of the conduct. 
2. The prosecution fails to prove beyond a reasonable doubt that the conduct was no reasonable in the circumstances. 

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This means that once you present evidence that indicate your conduct may be reasonable, the burden shifts to the prosecution. The prosecution must then demonstrate, beyond a reasonable doubt, that the conduct was unreasonable. 

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The inclusion of this defence addresses that certain behaviour, which may be considered controlling or abusive, could be justified in specific circumstances. For example, if the actions were taken in a genuine concern for someone’s safety or wellbeing it may be considered reasonable. 

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Challenges of the new legislation

Coercive Control is subjective

The offence of coercive control can be subjective and differ from couple to couple. What may be considered acceptable in one relationship may be considered controlling or abusive in another. The subjectivity can complicate the enforcement of the new legislation as each couple have unique dynamics which could be deemed controlling from an outside perspective but may be mutually acceptable or consensual in the relationship.

Difficulty in enforcement 

Coercive control is often complex and can be subtle. This can make the offence challenging to detect, investigate and prove beyond a reasonable doubt in court. 

Proving the pattern of conduct

Proving a course of conduct is a lot more difficult than proving an isolated incident of abuse. Coercive control involves a pattern of behaviour over time, this requires more evidence and a more thorough investigation. Law enforcement officers and prosecutors must gather extensive evidence such as witnesses, communication records and analysis to establish a pattern of abuse.

Law enforcement resources 

The need for a more detailed investigation will place additional demands on law enforcement resources. Officers must understand the intricacies of coercive control which is more complex and goes beyond traditional domestic violence charges. This will require more specific training, more time, and more resources to ensure cases are handled properly.

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Need expert legal advice?

Faraj Defence Lawyers have assisted clients across a wide range of criminal matters. If you or anyone requires legal representation please reach out to our team. 

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We strive for excellence in everything we do, regardless of the case. Book in your free initial consultation with us today by calling  (02) 8896 6034 or emailing us at af@farajdefencelawyers.com.au

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