Horrific tragedy sparks a nationwide drive to criminalise coercive control

Background

There has been a nationwide effort to criminalise coercive control since the tragic murder of Hannah Clarke and her three children Laianah, 6, Aaliyah, 4, & Trey, 3, at the hands of her estranged husband Rowan Baxter, in Queensland on 19 February 2020 when he set their car on fire.

Ms Clarke had allegedly been emotionally, physically, sexually and financially abused by Baxter during their relationship. Mr Baxter was subject to a Domestic Violence Order at the time of the incident however this proved to be ineffective in protecting Ms Clarke and her three children.

In March, Ms Clarke’s family established the foundation ‘Small Steps 4 Hannah‘ in honour of Hannah, Aaliyah, Laianah and Trey. The charity states its mission is to “put a halt to the incidences and severity of domestic and family violence in Australia”.

In October 2020, the NSW Attorney General Mark Speakman SC MP established a joint committee to inquire and report on coercive control in domestic situations. The inquiry will provide the background information necessary to determine whether legislation should be drafted in order to make this form of abuse a criminal offence, as has been in England, Wales and Scotland since 2015.

So, what is coercive control?

The term, “coercive control” is used to capture the ongoing nature of domestic violence, where the abuse is not always physical but pervades a victim’s daily life. Coercive control is a strategic form of ongoing oppression used to instill fear and exert control over a partner and can be comprised of the following actions:

• Limiting a partner’s access to money
• Turning children against a partner
• Denying a partner freedom and autonomy
• Isolating a partner from their support system
• Tracking a partner’s phone and monitoring their activity
• Gaslighting
• Name-calling and other forms of verbal abuse
• Controlling aspects of a partner’s health, eating habits and body
• Regulating the sexual relationship
• Threatening the children

Why the drive for a criminal offence for coercive control?

Currently the most commonly utilised protection for victims of domestic violence is an Apprehended Domestic Violence Order (ADVO). An ADVO can be made where a partner is able to establish that they were a victim of a physical assault, threats of physical harm, stalking, intimidation or harassment and has a reasonable fear to believe that this behavior will continue.

ADVO’s focus on specific events that have taken place such as a physical assault or a verbal threat.

A criminal offense of coercive control would allow police to consider the overall history of abuse in the relationship and establish a course of conduct that amounts to the offence of coercive control, rather than focusing on one isolated incident.  

Issues around criminalizing coercive control

A coercive control offence would require gathering evidence on a series of acts or events over time. Many of these acts leave little physical evidence and may occur behind closed doors. As such prosecutors may be required to rely heavily on victim statements that cover multiple events over the course of many years. In order establish the offence the individual events would need to be proven beyond reasonable doubt and to prove that they overall amounted to the conduct of coercive control. 

Defendants would then be required to give detailed and protracted evidence, addressing each of the alleged acts set out within the victim’s statement.

The legislature would need to carefully consider the balance between appropriate protections for victims and the need to ensure procedural fairness to defendants

Where to from here?

The Joint Select Committee on Coercive Control will report to Parliament by 30 June 2021. Whilst there has been significant public outcry for law reform in this field following the murder of Hanna Clarke and her three children, whether any law reform actually eventuates will depend heavily on the recommendations of this report.  

Are you, or someone you know in a domestic violence situation?  Please refer to the numbers listed below for immediate assistance. Should you require assistance from our experienced Family team Team contact 8525 2700 or click here to request an appointment.

1800 Respect 1800RESPECT – 1800 737 732 https://www.1800respect.org.au/
Domestic Violence Line 1800 65 64 63 or http://domesticviolence.nsw.gov.au/
Child Protection Helpline tel:132111
For a full list of crisis numbers and helplines click on the following link https://www.facs.nsw.gov.au/about/contact/helplines#child-protection

Article written by Adrian Stock
Photo by Anthony Tran on Unsplash