"Coercive Control is at the core Domestic Abuse."
Often overlooked by observers as a somewhat mild one off, though harmful incident. However, behind closed doors it often evident that a pattern of behaviour has formed, a deliberate repeat of these harmful incidents is what amounts to coercive control. Commonly prevalent in relationships where there is a power imbalance, we see the perpetrator, the person in control invokes fear and intimidation to diminish and altogether remove the victim’s autonomy and independence.
For many years coercive control has been overlooked and was rarely identified as domestic violence despite the countless women and children who have lost their lives at the hands of perpetrators. Following the murder of Hannah Clarke and her three children in 2020, Hannah’s parents passionately advocated for change of the existing domestic violence laws and sought to criminalise coercive control, finally achieving substantive change in 2022.
In February 2023 the Domestic Violence and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Bill 2022 passed Parliament. The Bill lays the foundation for coercive control to be a standalone criminal offence by the end of 2023 and sees Queensland finally shift from dealing with isolated incidents of harm to addressing patterns of harmful behaviour.
What does this all mean in reality? The laws address the patterned nature of coercive control and perpetrators who repeatedly subject their partner to physical, sexual, psychological, or financial abuse may now face up to 7 years imprisonment.
There are eight key amendments that seek to protect victims of coercive control:
There are eight key amendments that seek to protect victims of coercive control:
Definition of Domestic and Family Violence is broader.
Coercive and controlling behaviours are defined within the Act, however those behaviours are not themselves defined which sends a confusing message. To clarify the nature of coercive control and domestic violence, reference to a pattern of behaviour is to be included. This will ensure that behaviour that occurs over a period, including single acts, that when considered in the context of the relationship as a whole, are cumulatively abusive, threatening, coercive or cause, are clearly identified as domestic violence.
Contravention of a domestic violence order is additionally included in the definition of a domestic violence offence. These amendments seek to strengthen the systems’ response to coercive control.
Offence of unlawful stalking has been developed.
The overwhelming prevalence of stalking behaviours seen in the context of electronic surveillance of victims and their children has led to the offence of unlawful stalking being updated to ‘unlawful stalking, intimidation, harassment or abuse’ which also introduces a new circumstance of aggravation if a domestic relationship exists between the offender and aggrieved. This will broaden the type of offending that is capture by the offence and will better reflect the way that perpetrators are utilizing technology and other conduct to facilitate this abusive behaviour.
The additional conduct included covers but is not limited to, giving or publishing offensive material to or about the victim. Threatening, humiliating or abusive acts against a person. Monitoring, stalking, or surveilling a person’s movements or activities without consent in any form. Contacting a person in any way using any technology to intimidate, harass or abuse.
The Courts response to applications for Protections Orders are strengthened.
All cross applications for Protection Orders are now to be heard jointly. Concessions will be made for the safety and wellbeing of the person who is determined to be most in need of protection, such as the ability for a witness to give evidence outside of the courtroom.
The Court is permitted to make only one Protection Order unless there is suggestion of exceptional circumstances and clear evidence that both parties need a comparable level of protection from the other. It must be decided by the court which applicant is the person most in need of protection in the relationship and consequently which application is necessary or desirable to best protect the person most in need. The purpose of these changes is to further protect victims in instances where perpetrators misuse the system to continue to commit domestic violence, systematic abuse.
Jury direction and expert evidence on Domestic Violence is now allowed.
The admission of expert evidence is facilitated by the Bill, this evidence may include but is not limited to, the history of domestic violence, the effects of domestic violence and the nature of domestic violence. Evidence is to be given by an expert of domestic violence, being someone with specialized knowledge on the topic, gained by training, study, or experience.
The Court is afforded the discretion to give jury directions that address the misconceptions and stereotypes of domestic violence. The purpose of this addition is to enable juries and judicial officers to be better informed and able to consider evidence of domestic violence which is raised during trial.
Terminology used for sexual offences has been updated.
At long last the criminal code is to be updated to modernize sexual terminology, such as reference to ‘carnal knowledge’ and ‘maintaining a sexual relationship with a child’ which are to be removed from the Act.
These seemingly minor changes do not alter the substantive law rather seek to address the concerns that the previous terminology to some degree appropriated or minimised the criminal conduct.
Ability to award costs has been broadened
The intentional misuse of the court System to exert control or dominance over the other person or to torment, intimidate or harass the other person is known as systems abuse or legal abuse.
The Court is now at liberty to make a costs order against an applicant if the matter is heard and dismissed, and in doing so the Court has formed the view that the applicant was intentionally using proceedings to engage in or continue a pattern of behaviour that is Domestic Violence, including coercive control.
Increased consideration given to Domestic Violence history and Criminal history
The Queensland Police service will now be responsible for collating a perpetrators criminal and domestic violence history to assist in establishing the most appropriate conditions of the order to protect the victim. Similarly, if there is no history the Court must be informed.
The Court has the discretion to make orders around the access to, use and disclosure of the history and further, if it is considered that the history is not relevant, the application can be heard without considering or hearing submissions on the criminal and domestic violence history.
Domestic Violence complainants and other witnesses to be a protected witness
A protected witness may not be cross-examined by the defendant if they are not legally represented meaning that a domestic violence perpetrator cannot personally cross-examine their victim. In this instance the Court can organize or order that the defendant be provided with free legal assistance to undertake cross examination.
