New coercive control laws have been introduced in New South Wales to address non-physical forms of domestic abuse. The Crimes Legislation Amendment (Coercive Control) Act 2022 amends the Crimes Act 1900, creating a new offence of coercive control that came into effect on 1 July 2024.
The aim of the new offence is to protect victims from patterns of behaviour that intimidate, control, or harm them.
This offence involves engaging in a course of abusive conduct against an intimate partner with the intent to coerce or control.
What Is Coercive Control?
Coercive control is a pattern of abusive behaviours used to dominate or control another person by hurting, humiliating, isolating, frightening, or threatening them. It is usually seen within domestic and family violence.
It involves repeated and ongoing actions, both physical and non-physical, such as monitoring, harassment, and unreasonable control over daily activities. Coercive control can cause serious harm and includes behaviours that may seem minor individually but are harmful when continuous.
Section 54D of the Crimes Act 1900 (NSW) makes it an offence for a person to:
- engage in a course of conduct against another person that consists of abusive behaviour; and
- they are or were intimate partners; and
- the conduct was intended to coerce or control the other person; and
- a reasonable person would consider the course of conduct to be likely to cause either a fear that violence will be used on a person or a serious adverse impact on the person's capacity to engage in ordinary day-to-day activities.
What is abusive behaviour?
Abusive behaviour, as outlined in the Crimes Legislation Amendment (Coercive Control) Act 2022, refers to actions that involve violence, threats, intimidation, or the coercion and control of a current or former intimate partner. This new offence, effective from 1 July 2024, targets patterns of behaviour that are repetitive or continuous, aimed at exerting control or coercion over the partner.
The act defines abusive behaviour to include various forms of conduct:
- Violence or threats of violence: Physical harm or the threat of such harm.
- Intimidation: Actions intended to instil fear or submission.
- Coercion and control: Behaviors aimed at manipulating or dominating the partner.
Coercive Control Criminal Offence
To establish the criminal offence of coercive control under Section 54D of the Crimes Act 1900 (NSW), the prosecution must prove the following elements beyond reasonable doubt:
- The accused is an adult.
- The accused and the complainant were intimate partners, either currently or formerly.
- The accused engaged in a course of conduct against the complainant: This means a series of continuous or repetitive actions
- The conduct consisted of abusive behaviour: This involves violence, threats, intimidation, coercion, or control.
- Intent to coerce or control: The accused intended for their actions to manipulate or dominate the partner.
- Reasonable person standard: A reasonable person would consider the conduct likely to cause fear of violence or a serious adverse impact on the complainant's daily activities.
Defences
The main defence to an offence of coercive control is if the conduct was "reasonable in all the circumstances". This defence is set out in section 54E of the Crimes Act 1900.
What constitutes "reasonable in all the circumstances" can be broad and context-dependent. Some foreseeable arguments may be actions done in response to the protracted withholding of children in breach of family law orders. In this circumstance, it may be reasonable to place a tracking device in a child's bag to ensure their safety.
As the offence is still new and not subject to any case law, there is little guidance from the courts about what will be deemed 'reasonable'. As such, it is important to seek advice from an accredited specialist Sydney domestic violence lawyer if you are charged with coercive control.
Other defences include duress and necessity.
What is the penalty for coercive control?
The maximum penalty for an offence of coercive control is 7 years imprisonment.
Examples of Coercive Control
Examples of coercive control, which are considered abusive, include:
- Causing harm or threatening harm if demands are not met: This could involve physical violence or psychological threats.
- Financial abuse: Withholding financial support necessary for reasonable living expenses, preventing the partner from being employed, or restricting access to assets.
- Humiliation or degradation: Behavior that shames, degrades, or humiliates the partner.
- Harassment and monitoring: Constantly monitoring the partner's activities or engaging in harassment.
- Property destruction: Damaging or destroying personal property.
- Isolating from family or cultural practices: Preventing the partner from maintaining connections with family or participating in cultural or spiritual practices.
- Harming animals: Injuring or killing pets or animals.
- Deprivation of liberty: Restricting the partner's freedom to move or make decisions.
Why is coercive control a crime?
Coercive control is recognised as a crime due to its significant role in domestic violence and its strong correlation with intimate partner homicides. The NSW Domestic Violence Death Review Team's analysis of 112 intimate partner homicides between March 2009 and June 2016 found coercive and controlling behaviours in all but one case. This highlights the dangerous nature of such behaviours in abusive relationships.
Previously, legal frameworks focused mainly on physical violence, which didn't fully address the broader patterns of control and psychological abuse. From 1 July 2024, coercive control will be a criminal offence in NSW, targeting repeated patterns of abusive behaviours aimed at hurting, scaring, intimidating, threatening, or controlling a current or former intimate partner.
This legal change recognises coercive control as a serious form of abuse and a predictor of more severe violence, including homicide. The decision to expand the definition of domestic violence is driven by statistical evidence, increased awareness, and advocacy from the women's safety sector, aiming to provide better protection for victims.
Coercive Control and Family Law
The introduction of coercive control laws is expected to significantly impact family law proceedings. A conviction for coercive control will likely be presented in family law proceedings, influencing the court's decision regarding the risk of family violence and the safety of family members. Even if a coercive control charge is successfully defended in criminal court, related materials, such as court files, can still be used in family law proceedings.
In family law, the burden of proof is 'on the balance of probabilities', which is lower than the criminal standard of 'beyond reasonable doubt'. This means that even if a coercive control charge does not result in a criminal conviction, a family law court may still find the conduct occurred based on the available evidence. The court can consider material from the criminal proceedings as relevant to assessing risk and making decisions about custody, access, and protection orders.
Even without a criminal conviction, the evidence related to a coercive control charge can significantly impact family law outcomes. Convictions or allegations of coercive control will be critical in family law risk assessments, as courts will consider such findings when determining the best interests of the children involved.
How to get help
There are several support services including helplines that have been designed to help people who have or are experiencing domestic violence, including the following:
- Lifeline 13 11 14
- Mensline 1300 789 978
- Kids Helpline 1800 551 800
- Domestic Violence Line 1800 65 64 63
- Domestic Violence Lawyers (02) 7804 2823
- 1800-RESPECT 1800 737 732
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.