Addressing Coercive Control Without Criminalisation: Unlocking Victorian Justice

Insidious. There is perhaps no better term to describe the course of conduct associated with a deeply concerning form of domestic abuse: coercive control. Describing this hidden form of violence was the starting point for the Addressing Coercive Control Without Criminalisation: Unlocking Victorian Justice Webinar, organised on International Women’s Day (8 March 2022) by the Victorian Aboriginal Legal Service (‘VALS’).

Panellists provided diverse perspectives including Dr. Crystal McKinnon, an Amangu Yamatji academic and researcher, Dr. Amanda Porter, a Yuin lecturer, researcher and advocate and an opening address by Professor Chelsea Watego, a Munanjahli and South Sea Island woman and academic.

The criminalisation of coercive control has been intensely debated across Australia in recent years, especially in the aftermath of the murder of Hannah Clarke and her three children in 2020.

However, views on the merits of criminalising coercive control are polarised. Most family violence organisations, advocacy and policy makers recognise coercive control to be a grave societal issue, and share a determination to reduce its prevalence in Australia. From a retributive justice standpoint, a new criminal offence appears to be a reasonable solution.

However, speakers at the VALS Webinar made it clear that the case for criminalisation is not straightforward. They questioned whether a new offence would have the deterrence effect promised, or make any meaningful difference to victims. Several reasons were proffered.

First, the concept of coercive control is not new to Victorian law. Although not a discrete offence in the Crimes Act 1958 (Vic), the Family Violence Protection Act 2008 (Vic) contemplates coercive control as a form of family violence, for which a Family Violence Intervention Order may be made.

Secondly, because of its insidious nature, prosecuting coercive control to a criminal standard is notoriously difficult. Police are also not adequately equipped to recognise the behaviour, again due to its less obvious nature. Moreover, police failure to respond to victims of domestic violence is already well documented. For example, in a recent audit report, the NSW Police Force was found to be lagging behind other Australian jurisdictions in its implementation of efforts in responding to cases of domestic violence. This under-resourcing has led to a finding where 68% of respondents in a survey were reported disagreeing with the notion that the police provided a trauma-informed service.

This report comes at a time when NSW Police faced sustained criticism in shortcomings in case management of domestic violence.

Thirdly, of utmost importance, the criminalisation of coercive control may very well harm those it purports to protect due to victim misidentification. The risk of misidentification, with harmful repercussions, is pronounced for one group already vulnerable in our society: First Nations women. Repercussions include removal of children, and destruction of a family unit.

This harsh reality was encapsulated in Professor Chelsea Watego’s opening address, “As much as victims of coercive control experience a sense of powerlessness of experiencing a form of violence that is not as visible as other forms, Blak women, non-binary and transfem have experienced this exact violence entering into this conversation”.

A recurring theme of the VALS webinar was: whose voice within this debate over coercive control warranted attention?  

Whose Voice?

Webinar panellists suggested that voices calling upon carceral, punitive responses are afforded prominence to promote their views to the wider community, gaining much traction. Such voices typically belong to ‘middle-class white women’. But ‘other’ voices, those belonging amongst the marginalised and vulnerable, are silenced for daring to oppose the dominant view in public discourse. As stated most eloquently by Dr Amanda Porter, ‘Can you even call it a debate, if other voices are excluded’?

It is time that ‘other’ voices are given equal opportunity to be heard.  One can only imagine the lived experiences of those of whom the law already bears harshly upon. It makes perfect sense that these voices are calling for everyone involved to think beyond a punitive approach. This is especially so when proposals for more criminalisation appear to be a knee-jerk reaction to tragic and highly publicised events that have occurred in the community. If a carceral response is all we can think of in public discourse, as a community, we are merely perpetuating the very colonial ideologies this country was built upon. Echoing similar sentiments expressed at the VALS webinar, it is perhaps time we allow other voices to speak for themselves. If their lives are the ones to be most affected everyday as they live and breathe, perhaps the time is now for the rest of us to listen. Not just in this debate but all debates in public discourse.

Taking into account our history, if we are to truly effect change for all victims of coercive control, past and present, we must imagine alternatives beyond a punitive response. This is not to detract from the horror experienced by women like Hannah Clarke, but to ensure that we as a society do not remain complicit in perpetuating further injustices.