Written by Despina Bouletos
On 1 July 2024, new laws came into effect in New South Wales criminalising the act of coercive control. Although this legislation was passed by State Parliament in 2022, its implementation was delayed in order to allow sufficient time for training of police and the rollout of a public awareness campaign.
The changes to legislation were prompted by the NSW Domestic Violence Death Review which found that coercive control was a precursor to 97% of intimate partner homicides between 2000 and 2018.
What is Coercive Control?
Coercive control refers to a repeated pattern of behaviour (that can be physical or non-physical) used to control or dominate another person. Examples of behaviour that may constitute coercive control include, but are not limited to:
- Financial, emotional or physical abuse;
- Intimidation and threats to a person, their loved ones or their pet;
- Tracking a person’s movements; or
- Isolating them from family and friends.
Broadly, any steps taken to intimidate, hurt, humiliate, harass, isolate or monitor another person could constitute coercive control. Coercive control can be targeted at either a current or former intimate partner.
The Legislation
The new offence against coercive control is set out in s54D of the Crimes Act 1900 (NSW) (“the Act”).
A person is guilty of the offence of coercive control if:
a. They engage in a course of conduct against another person that consists of abusive behaviour;
b. They were or are an intimate partner of that other person;
c. They intend for the course of conduct to coerce or control the other person; and
d. A reasonable person would consider the course of conduct is likely, in all the circumstances, to cause:
i. Fear that violence will be used against the other person or a third party; or
ii. A serious adverse impact on the capacity of the other person to engage in some or all of their ordinary day-to-day activities.
The Act sets out a detailed definition of “abusive behaviour”, which consists of:
• violence or threats against or intimidation of a person; or
• coercion or control of the person against whom the behaviour is directed.
In order for the offence to be made out, the accused must engage in a “course of conduct”, that is, their behaviour must be either repeated and/or continuous.
The maximum penalty for this new offence is imprisonment for a period of 7 years.
It is a defence to the offence if the course of conduct engaged in by the accused was reasonable in all the circumstances. At this early stage, it remains to be seen how the Courts will determine whether conduct was “reasonable” or not.
Implementation
Stakeholders have already raised several potential issues as to the application of the legislation, in the two months since it has been operative. One concern is that victims seeking to establish coercive control may be required to document what is happening to them in order to be able to satisfactorily establish a pattern of conduct. Further, it may be difficult for some victims to report coercive control to police, depending on the level of control exercised by the alleged offender.
On 4 September 2024, the first charge of coercive control was laid under the new legislation. The accused was charged with a range of domestic violence offences including coercive control, stalking and intimidation, intending fear of physical harm and assault occasioning actual bodily harm.
To date, police have received approximately twenty-three reports of coercive control since the new laws came into effect. Figures released by the NSW Bureau of Crime Statistics and Research indicate that:
- 91% of the people who placed reports were female;
- 60% of the reported incidents involved allegations of threats and intimidation;
- 48% involved alleged shaming, degrading or humiliating behaviour;
- 50% of the reported cases involved alleged harassment, monitoring or tracking; and
- 39% involved financial abuse.
Ultimately, the offence of coercive control is a complex one containing a number of elements, and is likely to be refined as further prosecutions occur. Consideration will also need to be given as to the nature of the evidence required in order to make out the offence.
The contents of this post are for informational purposes only. They do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. If you require legal advice or representation for your criminal matter, please contact our experienced criminal law team.
