For the past few years,we have been keeping track of cases in which offenders have been convicted of controlling or coercive behaviour in England and Wales,and the results reveal a range of deplorable behaviours. For example,some offenders have
In most cases (but not all),these behaviours have occurred in the context of a relationship that at some point involved actual or threatened physical violence.
And while there have been somemale victims in these cases,the overwhelming majority have been female.
Aren’t those behaviours already illegal in Australia?
Few issues have received as much attention in Australia in recent years as family violence. Yet for all the work that has been done,it is perhaps surprising to note that most of the above behaviours – with the exception of actual or threatened physical violence and stalking – are not criminal. (At least,they aren’t criminal unless a court has previously issued an intervention or protection order,but what message does it send to victims if the abuse they suffer is only criminal if it violates a court order?)
A number of Australian law reform bodies have considered introducing a new coercive control offence here. These include theAustralian Law Reform Commission in 2010,theSpecial Taskforce on family violence in Queensland in 2015,and theRoyal Commission into Family Violence in Victoria in 2016. However,all ultimately rejected this course of action.
But most of these decisions were made before the UK laws came into effect,or at least before we knew how such an offence would work in practical terms. That is no longer the case.
Now that we know what sorts of behaviours this offence would target,it is time to ask again:should coercive control be made a crime in Australia?
TheVictorian Law Reform Commission certainly seems to think so. It was recently asked to consider whether family violence victims should be entitled to compensation from the state if they have been subjected to non-physical abuse,even though it is not yet a crime. The commission rejected that approach,and instead suggested the more appropriate response would be to “criminalise such conduct”.
The nature of the criminal justice system might make inappropriate to address an issue that overwhelmingly affects women.
The Coalition party in Queensland had alsopromised to introduce a similar coercive control offence in that state if it won the 2017 election. The Coalition lost,but the idea was put out there nonetheless.
Arguments against implementing a law
There are some who stilladamantly oppose the introduction of a new offence that criminalises what many family violence victims,including those on a recent episode of ABC’sYou Can’t Ask That,have called the “worst part” of abuse.
Some of these critics are concerned that women could be mistakenly identified as primary aggressors if police aren’t properly trained. For example,recent research byWomen’s Legal Service Victoria found that women had been misidentified as the primary aggressor in about 10% of police-initiated applications for intervention orders.
Critics are also concerned that a new law could divert vital resources away from domestic violence prevention. They also worry the male-centric and adversarial nature of the criminal justice system might make it an inappropriate forum to address an issue that overwhelmingly affects women.
We agree that these issues would need to be addressed as part of any law reform process. But these are obstacles to be overcome,particularly through the involvement of victims of coercive control and advocacy groups in the drafting of any new laws.
These aren’t reasons to turn a blind eye. And they certainly aren’t reasons to expect victims to continue to absorb this sort of abuse as a private burden in which the state has no interest.
Paul McGorrery is a PhD Candidate in Criminal Law,Deakin University,Marilyn McMahon is Deputy Dean,School of Law,Deakin University
This article is republished fromThe Conversation under a Creative Commons license. Read the original articlehere.