While there is growing consensus that domestic and family violence is an expression of power that utilises coercive control, Australia’s legal system is designed to respond to incidences of physical aggression. This approach means victims are often mis-identified as perpetrators, and tragically that legal action can sometimes not be taken until it is too late. In today’s analysis, Paul McGorrery (@PaulMcgorrery) of Deakin University (@DeakinLaw) shares a summary of his research, conducted with Marilyn McMahon, on the U.K. experience of criminalising coercive behaviour.

If the Domestic Abuse Bill 2019 currently under consideration by the British Parliament passes, Northern Ireland will become the fourth and final jurisdiction to have criminalised coercive control in the United Kingdom. England and Wales introduced the offence of controlling or coercive behaviour in December 2015, and Scotland and Ireland subsequently introduced the related offences of domestic abuse and coercive control.

What these new offences all have in common is that they represent a significant shift in how the criminal justice system defines and responds to intimate partner abuse. In particular, they shift conceptions of family violence away from the violent incident-based model towards recognition of the ongoing and intricate nature of intimate partner abuse. The violent incident-based model is not only blind to any history of non-physical abuse but also regularly causes police attending an incident to misidentify women as the primary aggressor.

In this blog post, I’d like to provide a quick overview of what types of behaviours those UK offences are directed at, a recent study conducted by myself and Deakin Law’s Professor Marilyn McMahon about how the new offence in England and Wales has been operationalised, and conclude with a recommendation that Australian jurisdictions start seriously considering introducing similar offences.

What behaviours do the new offences prohibit?

Section 76 of the Serious Crime Act (E&W) makes it an offence for one person to repeatedly or continuously engage in controlling or coercive behaviour against a current or former intimate partner, or even another family member they are living with, if that behaviour has a serious effect on the other person. The maximum penalty is five years’ imprisonment. A statutory guidance framework published by the Home Office provides more detail about what types of the behaviour the offence is intended to capture. The Irish offence is mostly the same as the offence in England and Wales.

Sections 1 and 2 of the Domestic Abuse Act (Scot) make it an offence to engage in a course of abusive behaviour that a reasonable person would have foreseen would cause psychological harm to the other person, and which a reasonable person would have foreseen as causing the other person to become dependent, isolated from friends or family, controlled, regulated or monitored, deprived of freedom of action, or frightened, humiliated or degraded. The maximum penalty is 14 years’ imprisonment. If passed, the new offence in Northern Ireland will be mostly the same as the Scottish offence.

Excessive scrutiny is often the first sign of coercive control, which is increasingly understood as the mediator of abuse. Image credit Vector Stock.

Empirical research on the operationalisation of the new offences

There are legitimate concerns associated with criminalisation of any behaviour, and even more that are specific to criminalisation of non-physical abuse. A criminal justice response should be a last resort when responding to a societally undesirable behaviour, there are already a number of offences that are under-enforced in the context of family violence, criminal justice stakeholders and the wider community would need considerable education and training about any new offence (which in turn requires a significant resource investment), and above all else the offence should improve women’s lives, not make them worse (through, for example, further misidentification as the primary aggressor or secondary victimisation via the court process).

To this end, it is critical that any future reforms in this space look to how these offences have been operationalised in the UK. How were the offences drafted, and did any issues arise as a result? How were police, lawyers, judges, perpetrators, victims and the wider community educated and trained about the new offence, and can anything be learned from that experience? In what contexts have the new offences been applied—do they illustrate a pattern of overzealously charging behaviours that are actually ‘normal’ parts of intimate relationships that don’t warrant state intrusion, or conversely do they suggest that police and prosecutors have adopted an overly-high threshold for charging and prosecution?

Given that the offence in England and Wales has been in force for a number of years, it offers the most fertile space to look for empirical data on which to base that analysis. There is, however, precious little primary data available. The most that can be said from publicly available data is that there are just over 9,000 coercive control offences recorded by police each year, about 1,000 prosecutions, a couple of hundred convictions, and more than half of convicted offenders received an immediate custodial sentence. This doesn’t, however, tell us who the offenders and victims were, or what specific behaviours they engaged in.

Our research

In order to fill that gap, Professor McMahon and I coded and analysed hundreds of media reports relating to people who were charged with controlling or coercive behaviour between December 2015 and April 2018. We found 118 offenders whose case had been finalised, 107 of whom were convicted (the other 11 were acquitted or had the charge dismissed).

Who were they? Consistent with decades of research showing that family violence is a gendered phenomenon, we found that 106 offenders were male and 106 victims were female. There was only one case, which received an incredible amount of media attention because it broke the trope of male offender/female victim, in which the offender was female and the victim was male. Almost all of the offenders were current (90) or former (6) intimate partners of the victim, but there were a handful of cases in which he was the son (5) or grandson (1) of the victim. In another 5 cases the relationship wasn’t specified. At least 1 in 5 of these men had prior convictions for family violence, most often against a different partner.

What did they do? Contemporary theorist Evan Stark is credited as the person responsible for the introduction of the new offences in the UK. We used Stark’s model of coercive control—physical violence, intimidation, degradation, isolation and regulation—to code specific behaviours committed by convicted offenders. Our results are, by necessity, an under-representation of the actual prevalence of the specific behaviours. There will have inevitably been attrition between the victims experiencing the behaviours, reporting them to police, the perpetrator being charged, being convicted, the behaviours being read aloud by the sentencing court, and the media then reporting on the proceedings. Nevertheless, our findings are illuminating.

Almost all of the men convicted of controlling or coercive behaviour had engaged in actual or threatened violence. Of the 100 cases in which information about the offending behaviour was reported, 96 involved actual (82) or at least threatened (another 14) violence. There are two possible implications of this finding: either police and prosecutors are only pursuing charges to fruition where there was some actual or threated violence; or actual or threatened violence is a near-inevitable component of all controlling or coercive relationships. This point warrants further exploration in future research.

Other patterns also emerged. Perpetrators were almost infallibly jealous, made accusations of infidelity, and regularly either demanded access to their partner’s phones and social media accounts, or prohibited their partner from doing so. They frequently took away their partners’ economic and financial resources, cut them off from social support structures such as family, friends and work, belittled their partners whenever they had the chance, targeted and exploited vulnerabilities such as pregnancy or disability, used children and animals as ways of perpetuating their abuse, set up complex monitoring systems, and imposed rules on how their partner was to behave. And much like Jane Monckton-Smith’s recent research into the 8 stages of intimate partner homicide, most of these relationships began with (and were subsequently interspersed with) periods of almost extreme affection.

How did the media portray offenders and victims? Contrary to past research, there was far less victim-blaming or offender-absolution in media reports. Instead, the reporting of these cases tended to be sympathetic to victims, didn’t trivialise their experiences, and placed responsibility squarely with the offenders. Whether this is part of the changing community understandings of domestic abuse generally, or a specific result of the new offence eliciting the full extent of the abuse, is another point that may be worth exploring in the future.

The detailed results of our study have now been published in both the Criminal Law Review and Criminology & Criminal Justice.

Have any Australian jurisdictions criminalised coercive control?

To date, no Australian jurisdiction has expressly criminalised coercive control.

The Tasmanian legislature introduced the novel offences of economic abuse, emotional abuse and intimidation years before any other country thought to do the same, but those offences have failed to live up to their promise, with very low conviction rates. The 2016 Victorian Royal Commission into Family Violence in 2016 considered whether a coercive control offence should be introduced, but dismissed the idea because it was considered a purely symbolic gesture. The Special Taskforce on Domestic and Family Violence in Queensland considered the notion but rejected it because of feedback from stakeholders about the difficulties in investigating and prosecuting those sorts of behaviours. In 2010 the Australian Law Reform Commission report into family violence simply said that such a move would be premature. In 2017 the QLD LNP had promised to introduce a coercive control offence if they won (but they didn’t). And in 2018 a private member’s bill in South Australia was defeated.

Early next year Professor McMahon and I have an edited book being released, with views of academics and practitioners from Australia, the US and the UK about the criminalisation of coercive control. It’s our hope that the above data, and our new book, will put the criminalisation of coercive control back on the agenda.

This post is part of the Women's Policy Action Tank initiative to analyse government policy using a gendered lens. View our other policy analysis pieces here.

What does it mean to criminalise coercive control?