The Liberal National Party has promised that if it wins the upcoming Queensland election it will introduce a “standalone” domestic violence offence for non-violent offenders who had shown a pattern of psychologically controlling behaviour. The new offence would also prohibit emotional and financial abuse.
The Queensland offence would be modelled on the English offence of “controlling or coercive behaviour”. A similar law is also being considered by the Scottish parliament. However, not all key players in the Australian criminal justice system favour following their lead.
A Queensland government taskforce, the Australian Law Reform Commission (ALRC), and Victoria’s Royal Commission into Family Violence (RCFV) have recommended against introducing a specific family violence offence.
The Australian Law Reform Commission concluded it would be too difficult to define what behaviours should be captured, and the Royal Commission into Family Violence found there was not enough evidence to suggest new laws were necessary.
The English offence of controlling or coercive behaviour
The offence of controlling or coercive behaviour came into effect in England and Wales in late December 2015.
It criminalises controlling or coercive behaviour: that is, behaviour that causes a victim to fear violence will be used against them on at least two occasions, or that causes them serious alarm or distress that has a substantial adverse effect on their day-to-day activities.
The offence is restricted to those in an intimate or family relationship.
Just how the new law operates is illustrated in the case of Graham O’Shea. O’Shea was charged with controlling or coercive conduct in relation to his girlfriend.
He had been in a relationship with the victim for six weeks. He moved into her house and imposed several restrictions. He didn’t allow her to wash. He obtained her bank card and restricted her to an allowance of £10 per week. He refused to let her visit family and would escort her to and from the bus stop when she went to work. He also assaulted her on two occasions.
The victim eventually went to her father’s house and contacted the police. O’Shea was charged with controlling or coercive behaviour, stood trial, and was convicted. He was sentenced to four years’ jail.
O’Shea’s case is just one of more than 4,000 incidents of controlling or coercive behaviour recorded by police in England since the new offence was introduced.
What is psychological harm?
The offence of controlling or coercive behaviour is distinctive because it protects victims from psychological abuse.
Research with women who have been victims of this type of family violence confirms just how negative and severe the consequences can be. Psychological abuse has been linked to anxiety, depression and post-traumatic stress disorder in victims.
Australian law does not readily criminalise psychological abuse. However, there are some exceptions.
It is indirectly criminalised when a court issues a protection order, intervention order or similar to protect a victim of family violence. If the respondent breaches the order by engaging in prohibited conduct (which can include some forms of psychological abuse), they have committed a criminal offence.
Stalking laws also criminalise some forms of psychological abuse by prohibiting conduct that can cause mental or psychological harm to another person. These laws are commonly used to protect women who have been stalked by ex-partners, but are not used if the couple was still living together at the time.
So, psychological abuse of intimate partners is a public health problem. And it is not well-regulated by the law. But is it an issue that the criminal law should concern itself with?
Does Australia need a new family violence offence?
On November 24, at an event hosted by Deakin University’s School of Law, key criminal justice stakeholders – prosecutors, defence lawyers, police, representatives of victims of family violence, and academics – will consider whether existing laws prohibiting family violence are adequate and whether a new law based on the English offence is required.
This roundtable will debate the adequacy of existing Australian criminal justice responses to family violence and consider new initiatives to reduce that violence. Particular issues include:
the adequacy of existing laws to regulate family violence;
whether a new offence similar to “controlling or coercive behaviour” should be introduced in Australia; and
the possibility of using stalking laws against family violence offenders who are still in a relationship.
There are important questions that need to be answered, like how far should the criminal law reach into private lives, how we define “psychological abuse” and “controlling or coercive” behaviour, and when a “normal” argument between partners becomes a crime.
The aim of the roundtable – with people who have a shared goal of reducing family violence but unique perspectives about how – is to move one step closer to answering these questions.
The National Sexual Assault, Family & Domestic Violence Counselling Line – 1800 RESPECT (1800 737 732) – is available 24 hours a day, seven days a week for any Australian who has experienced, or is at risk of, family and domestic violence and/or sexual assault.
Authors: Marilyn McMahon, Associate Professor in Law, Deakin University