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Legal experts and practitioners are studying Britain’s coercive control law – criminalising domestic abuse that doesn’t involve physical violence – to determine if Australia should adopt similar legislation. By Jo Hartley.

Coercive control and domestic abuse

Sally Challen’s son David (centre) with members of Justice for Women protesting outside the Royal Courts of Justice, London.
Credit: PA IMAGES / ALAMY

In 2011, Georgina Challen, who is known as Sally, was convicted of murdering her husband of 31 years by bludgeoning him to death with a hammer. In the eyes of the law, she was a criminal. The years of mental abuse and coercive control she’d suffered at his hands meant nothing in court.

In March this year, Challen went to court in London seeking an appeal to reduce her sentence to manslaughter. Her lawyer, Harriet Wistrich, co-founder of Justice for Women, which advocates on behalf of women who have suffered male violence, claims Challen was a victim of coercive control – a term that’s been coined to help understanding about domestic abuse being more than physical assault. It’s defined as behaviour that seeks to remove the victim’s liberty or freedom, strip away their self-worth and esteem and violate their human rights – controlling a person’s physical appearance, restricting their access to money, cutting off contact with friends, threatening to reveal or publish information. It was criminalised in Britain in 2015.

“Coercive control as a form of domestic abuse was not widely understood at the time Sally was convicted of murder,” says Wistrich, “but it’s since become more widely known and provides an explanation for the response to her husband’s provocation.”

Challen has been granted permission for an appeal, although the date hasn’t yet been set. Dr Evan Stark, one of the world’s leading experts on coercive control, is working on a new report for her legal team to present to the court.

Britain’s criminalisation of coercive control might have come too late for Challen, but it has given hope to other victims of domestic abuse. And in Australia, some organisations and legal bodies are starting to ask whether it’s a move worth considering here.

At present, Australia has no coercive control laws. Reviews by a Queensland government taskforce, the Australian Law Reform Commission (ALRC) and Victoria’s Royal Commission into Family Violence have recommended against introducing any.

A 2016 report by the royal commission found limited evidence to suggest that new laws were necessary. Similarly, the ALRC concluded it would be too difficult to define what behaviours would be captured by coercive control laws.

“The main issue with changing the current legislation is that there are already numerous definitions relating to family violence and domestic violence across the jurisdictions,” says Shaya Lewis-Dermody, principal solicitor at the Family Law Project. “Changing legislation would be complex and difficult because of this and because all states and territories would need to agree to change.”

This jurisdictional issue was noted by the Victorian royal commission’s review, which outlined that controlling strategies can be “indirect, subtle and psychologically traumatic, involving threats of harm, humiliation and insults, and financial or legal abuse”.

As a direct consequence, a new definition of family violence was incorporated in Victoria’s Family Violence Protection Act 2008, one that recognises violence need not be physical to cause harm and to keep a victim living in fear.

While Lewis-Dermody welcomes such a change in the law, she believes there is still a way to go in recognising coercive control.

“My experience is that these forms of family violence are considered at the ‘lower end’ of the scale, even if they’re acknowledged or proven, which is rare,” she says. “The court is under-resourced and unless a matter has proceeded to trial, they’re unlikely to be overly concerned with these elements of family violence.”

Others who work in the domestic violence area point to the need to overcome the reluctance to report such crimes in order for coercive control laws to be effective. Angela Lynch, chief executive of Women’s Legal Service Queensland, says women subjected to psychological and mental violence are often too scared to do so.

“We see 11,000 women a year and coercive control is extremely common but, because they have no physical scars, women feel they can’t come forward,” she says.

Lynch believes specific laws encapsulating coercive control wouldn’t necessarily change this. She cautions that such laws could work against women: “We often see women with protection orders out against them because they’ve defended themselves and, when the police turn up and the male has scratches, the police take out an order on the woman.”

“The perps can be very charming and eloquent to the authorities, and they know if they can talk to the police first it sets up the precedent of what’s happening. The woman can come across as being very difficult and so police can make a wrong assessment.”

Since the introduction of the coercive control law in Britain, police have brought very few charges.

In 2016, a freedom of information request by British law firm Simpson Millar resulted in a report that showed the law had been used only 65 times in the first six months of its introduction. Eleven out of
27 police forces in England and Wales had not charged a single person with the offence. 

Similarly, laws introduced in Tasmania in 2005 criminalising psychological abuse and financial abuse have rarely been used. This was canvassed in a conference last year organised by Dr Marilyn McMahon, of Deakin University’s law school, and criminal lawyer Paul McGorrery, to discuss criminalising coercive control.

Attendees included representatives from the Victorian and Tasmanian police forces, prosecutors, defence lawyers, the state government, the judiciary and leading academics working in the area of law reform and family violence.

“We discussed whether it was even appropriate to criminalise this type of conduct and, if so, what form the new offence should take,” McMahon says.

Considerations were given to whether victims of family violence were sufficiently protected by existing laws, where the important gaps existed, how broadly protection should apply across
a family unit, and the effectiveness of the models from Britain.

“Concerns were expressed that such laws may overcriminalise conduct, would be difficult to enforce and could potentially distract police from investigating and prosecuting other forms of family violence,” McMahon says.

“Prosecutors drew attention to the difficulty of prosecuting ‘course of conduct’ offences where the alleged criminal conduct extends beyond one event.”

Conversely, McMahon says that a Tasmanian police prosecutor reported on some of the successful prosecutions under Tasmanian law. Other speakers identified the inadequacy of existing laws and the potential effectiveness and advantages of a new coercive control law.

In January this year, McMahon travelled to Britain to meet activists, police, legal reformers and academics involved in developing the new offences.

“It’s clear there are limitations in the formulation and operation of the English offence and, with less than 500 prosecutions so far, it’s not been as effective as anticipated,” she says. “But analysis of the prosecuted cases gives us insight into how this type of offence can operate.”

McMahon acknowledges there are still significant legal problems to be addressed and notes that several follow-up projects have been planned by legal experts and practitioners.

“We’ve analysed the Tasmanian offences and identified their shortcomings, and we’re continuing our contact with people in England and Scotland who are involved in policing and prosecuting the offences,” she says.

“With the benefit of the information provided through analysing the impact and operation of these offences in other jurisdictions, we believe that we can develop an appropriate model offence to introduce in Victoria and other Australian jurisdictions in the future.”

Until then, the Victorian royal commission made a range of recommendations about coordinating approaches to deal with “the couples trajectory of family violence”. Its report advises moving beyond a crisis response to focus on intervention.

“The report noted that there are many ways a person enters the domestic violence system – the police, health professional, court, legal services – and the focus should be on better information sharing and a universal preventative approach amongst these providers to reduce coercive control, rather than changing legislation,” says Shaya Lewis-Dermody.

Angela Lynch agrees there needs to be more focus on improving initial protection for victims.

“We need to ask victims about their experiences of the law,” she says. “What they experienced when they went to the police, how they were treated and how they felt reporting the crime.

“By doing this, we can understand how processes can be improved and then, within that, we can look at the current laws and assess what should and shouldn’t be considered.”

This article was first published in the print edition of The Saturday Paper on Oct 13, 2018 as "Codifying control". Subscribe here.

Jo Hartley
is a freelance journalist