On 1 July 2024, the new coercive control legislation in New South Wales (NSW) came into force. This legislation makes coercive and controlling behaviour in intimate relationships a criminal offence and aims to address patterns of abuse that are not necessarily physical but can be equally damaging. Anyone found guilty of coercive control will face a maximum penalty of up to 7 years imprisonment.
To establish the offence of coercive control, the prosecution must prove each of the following elements beyond reasonable doubt:
- That the accused was an adult (18 years or older).
- That the accused and the complainant were intimate partners at the time of the alleged conduct. Intimate partners can include married couples, de facto partners, or those in an intimate personal relationship, regardless of whether it involved sexual activity.
- That the accused engaged in a course of conduct against the complainant. This means the behaviour was repeated or continuous, potentially spanning multiple incidents, whether within or outside NSW. The behaviour must be abusive, involving violence, threats, intimidation, coercion, or control, and must be assessed collectively to determine if it meets the threshold for abusive behaviour. The course of conduct that will be considered is conduct that occurred on or after 1 July 2024. Any conduct prior to this date will not be considered as part of the coercive control allegation.
- That the accused intended this conduct to coerce or control the complainant. This involves inferring the accused’s state of mind from their actions and circumstances.
- That a reasonable person would consider the conduct likely to cause fear of violence or significantly impact the complainant’s ability to carry out day-to-day activities, regardless of whether this effect was actually caused.
If the prosecution fails to establish any of the above elements, the accused must be found not guilty.
What is coercive control?
The NSW legislation defines coercive control as behaviour that causes a person to fear that violence will be used against them, or behaviour that has a serious effect on the person. Coercive control involves a range of behaviours such as isolation, manipulation, and domination and includes behaviour that causes the complainant to feel shamed, degraded, or humiliated. Key behaviours identified under the legislation include:
- Isolating a person from their friends and family.
- Monitoring a person’s day-to-day activities.
- Depriving a person of basic needs.
- Controlling a person’s finances.
- Threatening to hurt or kill a person or their loved ones.
The law aims to fill gaps left by existing domestic violence legislation, which often focuses on single incidents of physical violence rather than ongoing patterns of psychological abuse.
Available defences
It is a defence to a charge of coercive control if the course of conduct engaged in was reasonable in all of the circumstances. If an accused adduces evidence suggesting that their conduct was reasonable in the circumstances, the prosecution must disprove this defence beyond reasonable doubt.
Potential challenges
While the intention behind the coercive control legislation is commendable, there are several potential problems that may arise, particularly from a defence lawyer’s perspective:
- Vagueness and Overbreadth: The definitions of coercive control can be vague and overly broad. Terms such as “shamed” or “degraded” can be inherently subjective, making it difficult to establish a clear standard of what constitutes illegal behaviour. This vagueness can lead to inconsistent application of the law and may result in some behaviours being unfairly criminalised.
- Evidentiary Challenges: We anticipate that proving coercive control in court will be inherently challenging. Unlike physical violence, coercive control often leaves no tangible evidence. Allegations are likely to be based primarily on the subjective experiences and interpretations of the complainant. This can lead to a “he said, she said” scenario, where the burden of proof may be difficult to satisfy beyond a reasonable doubt.
- Potential for Misuse: There is a risk that the legislation could be misused in the context of contentious relationship breakdowns or custody disputes. Individuals might make false or exaggerated claims of coercive control to gain an advantage in family court proceedings. Allegations will need to be scrutinised carefully to prevent miscarriages of justice.
- Misidentification: In situations where mutual control or coercion occurs, it may be difficult to delineate the roles of “victim” and “perpetrator” clearly.
- Rights of the Accused: As with any criminal legislation, it is crucial to ensure that the rights of the accused are protected. The presumption of innocence and the right to a fair trial must be upheld.
Staying updated on legislation
The new coercive control legislation in NSW is a significant step toward addressing the complexities of domestic violence. However, it is essential to remain vigilant about the potential problems associated with the law’s implementation. Ensuring clarity in definitions, addressing evidentiary challenges, preventing misuse, and protecting the rights of the accused are crucial aspects that need careful consideration from a defence perspective. Balancing the protection of complainants with the rights of defendants will be key to the legislation’s success in achieving its intended goals.
At Hugo Law Group, we ensure we are up to date with legislative amendments and ready to step in to defend your side of the story. As your defence team, we play a critical role in safeguarding your rights and ensuring that the new legislation does not lead to an unjust conviction or overly punitive measures.
Should you or someone you know be charged with an offence, it is essential you receive legal advice from an experienced criminal defence lawyer at any early stage. To discuss your options, call Hugo Law Group in Sydney NSW (02 9696 1361), to make an appointment to speak to one of our lawyers.
