Legislating against coercive control: Scotland’s Domestic Abuse Act
The first instalment in this series of blogs discussed The Women’s Safety and Justice Taskforce and their investigation into the criminalisation of coercive control. Their final report and recommendations will be released around October 2021; however, the taskforce’s May 2021 discussions paper highlighted Scotland’s 2018 domestic abuse legislation as a potential example upon which Queensland’s offence could be modelled.
This blog will explain the Scottish approach to coercive control and the potential impacts if a similar provision were introduced in Queensland.
The offence
The Domestic Abuse (Scotland) Act 2018 criminalises a course of abusive behaviour by a perpetrator against their current or former partner if two conditions are met:
- a reasonable person would consider that the course of conduct was likely to cause the partner or former partner to suffer physical or psychological harm (the objective limb); and
- the perpetrator either intends that the behaviour will cause the partner or former partner psychological harm or is reckless as to whether the course of behaviour causes the partner or former partner to suffer physical or psychological harm (the subjective limb).
The Act includes a non-exhaustive list of violent, threatening or abusive behaviours covered by the offence, which must have as their purpose or be reasonably likely to have the effect of:
- making the partner dependent on or subordinate to the perpetrator;
- isolating the partner from friends, relative or other support;
- controlling, regulating or monitoring the partner’s day to day activities;
- depriving or restricting the partner of freedom of action; or
- frightening, humiliating, degrading, or punishing the partner.
The offence is treated as aggravated where the behaviour is directed at a child, takes place where a child can see or hear, adversely affects the child, or if the child is made use of to direct abusive behaviour at the victim.
A reverse onus defence is available to the defendant if it can be shown that the course of behaviour was in fact reasonable in the circumstances.
If convicted of the offence, perpetrators face up to 12 months imprisonment on summary conviction or up to 14 years on indictment. Of the 206 people convicted of the offence in its first year of operation, the most common penalty was a ‘Community Payback Order’. Received by 106 people, these are flexible community based orders including conditions of community service, supervision, payment of compensation, participation in programs or treatment, and conditions as to residence and conduct generally. Given that the goal of criminalising coercive control is to prevent the occurrence of an ‘incident-based’ or violent offence, these orders aim to rehabilitate offenders before their conduct escalates and in so doing, provide community protection. The second most common penalty, for more serious cases of domestic abuse, was imprisonment of an average sentence of around one year.
Policing
Before coercive control matters even reach a courtroom, the policing of such offences will not be without its challenges in Queensland. Scotland is far ahead of Australia in its broad focus on training for domestic violence. As part of their reforms, $1.48 million AUD was spent to train 14,000 officers to ensure consistency and understanding across the criminal justice system in relation to the new offence. Scotland has also had a long history – over two decades – of domestic violence training across the community to effectively deal with cases and to continue to develop efficient support systems.
Extensive work would be required to ensure consistency in policing when it comes to cases alleging a course of conduct involving psychological, emotional, or financial abuse. Police will need to be able to identify behaviours and collect the right information from alleged victims, witnesses, and the accused. Within Queensland, a high level of funding will be required to deliver effective policing across large geographical distances and Queensland’s diverse cultures, including remote First Nations communities. As coercive control legislation emerges across Australia’s states and territories, consistent terminology will be important to ensure incidents requiring cross-border investigation are based upon the same definitions and understandings of domestic abuse.
The placement of the offence itself must also be considered in relation to policing. Scotland’s creation of a standalone Act would be unusual if adopted in Queensland, and may jeopardise the visibility and perspicuity of the offence. Placing the offence in the Criminal Code Act 1899 (Qld) would highlight the seriousness of this conduct within the broader community as on par with acts of physical abuse. Alternatively, recommendations to place the offence in the Domestic and Family Violence Protection Act would place the offence firmly within the paradigm of domestic and family violence, which may guard against the offence being used outside its intended scope. The offence’s placement may have a noticeable effect on community understanding and policing of coercive control.
Given the lack of community understanding regarding coercive control, the policy objectives must afford fairness to each party; thus the evidentiary thresholds for establishing the offence must be examined closely.
Potential evidential challenges
Scotland’s offence is intentionally designed to focus on offending conduct rather than harm to the victim. This is deliberate to relieve evidential hurdles that the victim may struggle to overcome. The drafting of such an offence in Queensland must take care to appropriately balance the interests of victims and the rights of alleged offenders.
Several elements of the offence have a relatively low evidential burden – the “course of behaviour” referred to requires only two separate incidents. It is not necessary to prove that either of these incidents caused any actual harm (physical or psychological) to the victim or had any of the relevant listed effects.
Given the broad range of (currently) non-criminal behaviours encompassed by definitions of coercive control, a Queensland offence that would criminalise two incidences that were neither intended to cause or did cause any actual harm may disproportionately affect defendant’s rights.
In relation to the circumstances of aggravation, no evidence of adverse effects to the child is required, merely that a reasonable person would consider adverse effects to the child to be a likely result of the alleged course of conduct. The Act also stipulates that evidence from a single third-party source is sufficient to prove this aggravation. The protection of children who witness domestic abuse is just as important as the protection of victims themselves; however, the fact that the offence can be aggravated based upon a singular source’s testimony that the child may have been negatively affected, where the child need not even be aware of the alleged behaviour, may be problematic.
Overall, legislating against coercive control presents serious evidential issues – a pattern of abusive behaviour often involves unremarkable acts that are not criminal in isolation and do not leave any evidence. The general lack of third-party witnesses to corroborate testimony also presents issues, and that coercive control behaviours often do not warrant attention or recording in the same way that physical abuse incidents do. Scottish cases to date have had to rely on extensive expert evidence to corroborate statements.
Ultimately, the issue of evidence in coercive control presents a hard balancing act. Drafting an offence that is not too difficult to establish for alleged victims, but also does not unfairly burden defendants will be challenging. While cases with clear intent on the part of the offender and demonstrable harm to the victim present few issues, the outcome of cases with limited evidence or unclear intention remains unpredictable. The prevention of coercive control may remain ineffective if perpetrators are not aware of the likely consequences of their course of conduct, and victims are unable to predict the outcome if they are to report their partner. Ultimately, the law needs to be as clear as possible.
Appropriate sentencing will also need to be carefully considered, given that Scotland’s offence leaves much to judicial discretion. Further work may be required to establish a ‘hierarchy of harms’ in order to sentence appropriately, and how such harm can be evidenced without extensive expert opinion, the evidence of the complainant, or the admission of hearsay. Further research, guidance and training may be required to overcome these issues of evidence and sentencing in drafting Queensland’s offence.
Conclusion
The key area where we can prevent coercive control is within our communities – given its definitional, policing, evidence and sentencing challenges, a focus on research, training and education is required. We must take care to appropriately allocate time and resources to this issue before any legislation is finalised. The consequences of an offence that is not supported with adequately trained police, broader community understanding, and clarified principles of evidence and sentencing cannot be predicted.