by Greta Madi
Creating new offences which proscribe psychological harm to victims is fraught with uncertainty and thus lawmakers should be wary of creating reactive laws that are soon after rendered redundant.[1]
It is questionable whether the new discourse and understanding of coercive control can effectively translate into legislative reform. Notably, introducing new legislation does not serve to resolve women’s issues relating to access to justice.
The pre-existing concerns regarding;
- A failure of justice authorities, ie police, to enforce criminal law;
- Intimate partner violence offences being difficult to prove; and
- Survivors/Victims’ reluctance to engage with the legal system, still remain prevalent despite legislative reform.[2]
Evidentiary concerns are also largely unanswered. Legislation does not address;
- A victim’s inability to recall precise dates of abusive incidents;
- The fact that a victim’s evidence may be uncorroborated; or
- That there may be no evidence of injury sustained.[3] In fact, these concerns can be exacerbated by new legislation.
How can new legislation make access to justice harder for women?
- The inclusion of a time limitation of 12 months in which the summary offences must charge after the offence, has unintentionally created another barrier to justice which victims must overcome.[4]
- Coercive control abuse is not a ‘one size fits all’ factual analysis.[5] This means it requires individualised investigation of each case as perpetrators tailor their abuse specifically to the individual they know most intimately.
- There is a greater reliance on victim testimony which is undesirable given the victims often dangerous and compromised position during criminal proceedings.[6] At this stage the victim/survivor is incredibly vulnerable and may struggle to provide a detailed narrative of their abuse, especially if they have not experienced sufficient recovery to identify the abuse inflicted on them.[7]
Unintended Consequences of New Legislation on Minority Groups
Some of the unintended consequences of enacting new legislation to protect women directly creates a burden upon indigenous women. Criminalising coercive control means having a single focus on the criminal justice system, which for many minority women who already face barriers to accessing justice, can exclude them from any attempt to tell their experience of abuse.[8] For Aboriginal and Torres Strait Islander women criminalising coercive control could lead to greater state control and an increase in dual arrests in which both parties are arrested in the absence of evidence that distinguishes one party as perpetrator and the other as victim.[9]
Domestic violence generally is policed aggressively in minority communities; with Indigenous women being just as likely as non-Indigenous mean to be subject to Domestic Violence Orders (DVOs).[10] Therefore, legislation can have the unwanted impact of exacerbating already disproportionate incarceration rates of minority groups. State intervention and protection can thus be more harmful than abuse in this context.[11]
Moving Forward
Educational or public awareness programs would serve to improve the justice systems response to coercive control and reduce the barrier of police and prosecution failing to enforce criminal laws and meet the standard of proof.[12]
It is only from the context of a cohesive national strategy that a new offence of coercive control is likely to be most effective.[13] For Evan Stark, the American sociologist that popularised the term, a distinct offence or reforms to include new abusive behaviours under legislation is not sufficient for effective coercive control law.[14] In fact, Stark asserts that legislative reform may not even be necessary if other elements of the coercive control framework are prominent.[15]
It is crucial that frontline responders receive training on how to understand, identify and support those who are impacted by coercive control.
Why Is it Crucial for Front-Liners to Receive Proper Training?
- Police officers serve an important role as first responders to intimate partner violence. Due to this, it is important for officers to have the ability to consider patterns of behaviour and move away from incident-based policing.[16]
- New policy must be informed by a cohesive framework on coercive control to enable police officers to identify the presence of coercive and controlling behaviour.
- A cohesive framework would highlight the need for officers to look for patterns of behaviour and future safety issues for those involved rather than hastily assessing the parties on an individual incident basis.[17]
It is only from the context of reformed police response to intimate partner violence that legislative reform could be effectively implemented.
Have you or anyone you know been impacted by behaviors of coercive control?
At Rowan Skinner & Associates Lawyers (www.rowanskinnerlegal.com.au), we can offer you support during this difficult time. Rowan Skinner is an Accredited Family Law Specialist with over 30 years in the legal field. If you want to discuss your family law matter with an expert Melbourne Family Lawyer, please contact Rowan Skinner at our office on 9995 9155.
[1] Marilyn McMahon and Paul McGorrery, ‘Criminalising emotional abuse, intimidation and economic abuse in the context of family violence: The Tasmanian experience’ (2016) University of Tasmania Law Review 35(2) 8.
[2] Victorian Law Reform Commission, ‘Review of Family Violence Laws’ (Discussion Paper, Law Reform Commission, 2006) [3.25].
[3] Heather Douglas, ‘Do We Need an Offence of Coercive Control?’ (2018) 144 Precedent Sydney NSW 18, 19.
[4] Marilyn McMahon and Paul McGorrery, ‘Criminalising emotional abuse, intimidation and economic abuse in the context of family violence: The Tasmanian experience’ (2016) University of Tasmania Law Review 35(2) 1.
[5] Stark, Evan, How Men Entrap Women in Personal Life (Oxford University Press, 2007) 206-208.
[6] Julia Tolmie, ‘Coercive Control: To Criminalize of Not to Criminalize?’ (2018) 18(1) Criminology & Criminal Justice 50, 55.
[7] Ibid.
[8] Australia’s National Research Organisation for Women’s Safety, Defining and Responding to Coercive Control (Policy Brief, January 2021) 7.
[9] Sandra Walklate, and Kate Fitz-Gibbon, ‘Why Criminalise Coercive Control? The Complicity of the Criminal Law in Punishing Women Through Furthering The Power of the State’ (2021) 10(4) International Journal for Crime, Justice and Social Democracy 1, 4.
[10]Heather Nancarrow, Unintended Consequences of Domestic Violence Law: Gendered Aspirations and Racialised Realities (Springer International, 2019).
[11] Evan Stark, ‘The Myth of Black Violence’ (1993) 38(4) Social Work 485-491.
[12] Royal Commission into Family Violence Victoria Summary and Recommendations (Report No 132, March 2016) 57[42],78[120],96[189]; Julia Tolmie, ‘Coercive Control: To Criminalize of Not to Criminalize?’ (2018) 18(1) Criminology & Criminal Justice 50, 53; Australia’s National Research Organisation for Women’s Safety, Defining and Responding to Coercive Control (Policy Brief, January 2021) 1, 4.
[13] Evan Stark, ‘The Coercive Control Framework: Making Law Work for Women’ in Marilyn McMahon and Paul McGorrery (eds), Criminalising Coercive Control: Family Violence and the Criminal Law (Springer, 2020) 34.
[14] Ibid 40.
[15] Ibid.
[16] Australia’s National Research Organisation for Women’s Safety, Defining and Responding to Coercive Control (Policy Brief, January 2021) 8.
[17] Ibid.
Rowan Skinner is a highly skilled family lawyer with over 35 years of experience across various legal roles and jurisdictions. Rowan specialises in resolving family law disputes such as divorce, financial settlements, child custody and domestic violence cases. Through his diverse and extensive experience, Rowan has a deep understanding of the complexities and nuances involved in family law. Rowan is a skilled negotiator and litigator who follows a compassionate and client-focused approach which prioritises helping you navigate what can be an emotional and challenging time.
