3. NSW looks at coercive control laws. Jess Hill
While New South Wales considers drafting legislation on coercive control, Scottish laws to criminalise such behaviour have already made a significant difference in domestic abuse cases. By Jess Hill.
For years before Rowan Baxter brutally murdered his estranged wife, Hannah Clarke, and their three children, his behaviour bore all the hallmarks of the most dangerous form of domestic abuse. He forbade Hannah from wearing shorts, even at the gym. He coerced her into having sex every night by making life miserable for the children the next day if she refused. According to reports, he hacked into Hannah’s phone and secretly recorded her conversations. It took a long time for Hannah to see this as abuse, for one clear reason: as she told a friend, “He never hit me.”
This is coercive control – a form of domestic abuse that almost always follows the same script. Perpetrators seek to dominate, and virtually colonise, their victims by isolating them, micromanaging their behaviour, humiliating and degrading them, monitoring their movements, gaslighting them and creating an environment of confusion, contradiction and danger – all held in place by the believable threat of violence. Actual physical violence may be minor, rare or not used at all.
What we know is that coercive control, in both heterosexual and samesex relationships, is the strongest risk indicator of potential homicide by an intimate partner. In a recent domestic homicide review in New South Wales, 77 out of 78 perpetrators had used coercive control before killing their partners. And yet, in the eyes of the law, most of the behaviours common to coercive control are perfectly legal. Laws empower police to arrest people for discrete acts of violence, but not for an ongoing pattern of controlling behaviour, aside from intimidation and stalking.
Since the murder of Hannah Clarke and her children, calls to criminalise coercive control are becoming louder and more prominent. This week, the
NSW attorney-general, Mark Speakman, announced he would be consulting on new laws, telling The Australian that the fact it was a precursor to homicide was “a reason to criminalise this sort of behaviour”.
If he decides to draft new laws, he will have a strong template to work from: the “gold standard” of coercive control laws in Scotland, which became effective in April 2019.
In drafting the Scottish legislation, the women’s sector, working alongside victim-survivors, played a central role – and it shows. Not only are the laws sophisticated and nuanced, but they are also backed up by a countrywide education program – led in part by the domestic abuse charity Scottish Women’s Aid – that has trained local services, 14,000 police and every judge and sheriff in the country. “This new offence is groundbreaking,” said Police Scotland’s crime and protection lead, Gillian MacDonald, when the laws were announced. “For the first time, it will allow us to investigate and report the full circumstances of an abusive relationship.”
Scottish Women’s Aid chief executive Marsha Scott and her team sweated over the legislation for more than four years, working with survivors, legislators, police and the prosecutor’s office; they wrestled through several drafts until it was a law Scott believed would work for victims. Upon its launch she said, “We think this new law has the power to transform Scotland.”
When I spoke to her several months later, she was still buoyant, but was quick to point out that the laws hadn’t been a magic fix for the justice system. “We are seeing a very mixed bag at the moment in terms of response,” she said. “It would probably be surprising if that were different.”
Those reservations aside, the law has already exceeded her expectations. A few weeks after it came into effect, the Women’s Aid helpline received a call from a woman who had been reporting to the police for “a long time”. The police were always sympathetic, says Scott: “They’d say, ‘We understand, it’s abuse, but it’s not criminal in Scotland until the new bill comes through.’” After the bill came into force, she says, the police “were like, ‘Yeah, all right – it’s time!’ The guy pled guilty, [the woman] got a two-year nonharassment order, and she said she hasn’t felt this safe in years.”
Coercive control legislation has actually made it easier to prove domestic abuse in Scotland, compared with when courts could only hear evidence about specific incidents. “That’s because it’s a ‘course of conduct’ offence,” Scott explains, “and this can be proved in court using an enormous range of evidence, like women’s phones, and all kinds of elements of everyday life which were not admissible as evidence before.”
But how can you prove something as insidious as coercive control? The Scottish law requires the prosecutor to demonstrate that there was a pattern of abusive behaviours – two or more incidents of abuse that a reasonable person would see as causing physical or psychological harm, including fear, alarm and distress. These include classic traits of coercive control, such as isolating a person from friends and family; depriving them of basic needs; monitoring them through online communications tools or spyware; taking wages and benefits; making threats to reveal or publish personal information, to harm a child, or to hurt or kill other people or pets; and causing criminal damage, such as destruction of property. The Scottish laws go even further, though, and include other complex, difficult issues that are essential for our justice system to grapple with – for instance, the perpetrator forcing or coercing the victim to take part in criminal activity such as shoplifting, or to abuse or neglect the children in order to encourage self-blame and prevent the victim from calling police.
Detective Superintendent Gordon McCreadie, who until recently was the national police lead for domestic abuse in Scotland, says the genius of the new legislation is that all the harms are included under the one charge. Physical abuse, sexual abuse, psychological abuse, control, threats and surveillance are all considered equal. And there needn’t be any physical or sexual violence present for a charge to be laid. Also, critically, the law does not make a distinction between those who intended to cause physical or psychological harm and those who were reckless as to whether the behaviour would cause harm. That speaks to what we know about perpetrators – that some use coercive control instrumentally, as a modus operandi in all their relationships, while others re-create the same techniques of coercive control spontaneously, almost unconsciously.
After the laws were implemented, it didn’t take long for the Scottish courts to record a conviction. Within two months, Glasgow man William James Murdoch was found guilty of a number of new offences, including harassing his former wife with abusive phone calls and breaching the peace. In November 2019, 54-year-old Kevin Skelton was jailed for 18 months for a variety of offences, including threatening to kill his former partner of 29 years and set fire to the house. On one occasion, he had seized her mobile phone and disconnected the landline to stop her calling for help.
However, the most innovative and radical feature of this bill, according to Marsha Scott, is the inclusion of children as direct victims. She says, “We didn’t get everything that we wanted with this, but we got a great improvement – that children can be harmed by domestic abuse even if they are not present, and they don’t see or hear the abuse of their mother.”
Research on the impact of coercive control on children is still in its infancy, but a recent study by British researcher Dr Emma Katz found that children who had lived through coercive control where no physical violence was present had all the same resultant harms as children who had witnessed or even experienced direct physical or sexual abuse themselves.
Criminalising coercive control is not a new idea, and there are many in the legal and domestic violence sectors who oppose it. They have legitimate concerns, particularly that victims will be wrongly charged. But across Britain to date, those fears have not materialised: the vast majority of offenders convicted – 96 per cent in Scotland, for example – have been male.
“For 40 years,” says Scott, “women and children have been saying that the emotional and psychological violence is the most traumatic, the most difficult to recover from, the most minimised by the system. Now we’re hearing women and children say, ‘Oh my god, the police asked me questions about what I really care about.’ The law we have in Scotland now actually prosecutes what hurts people. Even if we do nothing else with this bill, what we have already done is say, ‘What you’ve been telling us matters.’”
According to Mark Speakman, NSW will this year consult on whether to make coercive control laws a reality in the state, and is willing to push forward even if other states do not. Queensland’s opposition leader, Deb Frecklington, has renewed her pledge to criminalise coercive control if the Liberal National Party wins the state’s October election. Western Australia and
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Victoria remain on the fence.