Making the Law More Responsive to Domestic and Family Violence

Transcript

Good evening, everyone. It is my pleasure to welcome you to the second event in the Brennan Justice Talk series and our second Justice Talk for this session and tonight's presentation from Associate Professor Jane Wangmann, entitled "Making the Law More Responsive to Domestic and Family Violence: Is Criminalising Coercive Control the Answer?"

My name is Dr Anthea Vogel and I'm the Faculty Co-Director of the Brennan Justice and Leadership Program, and I'm really delighted to see so many of you filtering into the Zoom this evening. I'm joined by a few key members of the Brennan Justice team: one of my fellow co-directors from the LSS, Chloe McKay, who many of you will have met, Crystal Meikle, our wonderful student programs coordinator, and of course, Associate Professor Jane Wangmann, who will be familiar to many of you not only as a member of our faculty here at UTS Law, but also as the former director of the Brennan Justice Program. It's a real pleasure to welcome Jane back wearing a different hat as a presenter of our Justice Talk this evening. Next slide, thanks Jane.

Before we officially begin tonight's presentation, I would like to take a moment to acknowledge the Gadigal people of the Eora Nation, upon whose ancestral lands our city campus now stands. I would also like to pay my respect to Elders, both past and present, and acknowledge them as the traditional custodians of the knowledge for the various lands that we are all Zooming in from this evening. As part of the Brennan community, and a community that is absolutely centrally engaged with questions of law and justice, I really want to note that this isn't just a symbolic acknowledgement, but it is a substantive one. That sovereignty over this land has never been ceded, and that we are committed to treaty, to self-determination, and to Indigenous sovereignty over the lands where we work and live. Throughout the presentation, and as we get going, please feel free to share the lands that you're Zooming in from this evening.

So before we launch into the meeting, I'll do some light Zoom housekeeping, much of which you will all be familiar with. Tonight's presentation is being recorded, but only those of us who have our videos on and those of us who speak will feature in tonight's recording. There will be lots of time, or some time, for questions at the end. I encourage you to engage with Jane's talk and ask questions as they occur to you. It's also fine for you to pop those questions in the chat throughout the presentation and once the presentation has ended. There are lots of us from the Brennan community Zooming in tonight, and it would be lovely to see your faces if you are asking a question and you're able to pop your video on. Last but not least, you are all, of course, entitled to your ROJ points for the talk this evening. But please, if your Zoom name is different to your name on Careers Hub and your name as registered at UTS, just send Crystal a quick email in the chat and she'll be able to register your ROJ points.

So with all of that settled, it is really my pleasure to welcome our special guest and speaker, Associate Professor Jane Wangmann, and introduce you to her. Jane's research is primarily concerned with legal responses to domestic and family violence, and Jane has particular expertise in understanding how the law defines, understands and conceives of this particular harm. Jane's work draws on nearly 30 years of experience in the field of domestic violence and the law. Previously, she has worked as a solicitor in a community legal centre, as a senior policy officer at the New South Wales Attorney General's Department, as it was formerly known, and at the Australian Law Reform Commission. And so with that, I'm really pleased to hand over to Jane to speak to us tonight about coercive control, and invite you all to listen closely and engage with Jane's presentation at the end when we have some time for questions. Thanks so much, Jane.

Thank you, Anthea, and the Brennan Program for inviting me to give this Justice Talk tonight. As Anthea mentioned, for so long I've been on the other side organising these events, and so it is actually a great pleasure to be here tonight presenting on my own work. I too acknowledge that I'm coming to you this evening from the lands of the Darkinjung people of the beautiful Central Coast. I pay my respects to Elders past and present, and I'd also like to acknowledge and extend that respect to any Aboriginal and Torres Strait Islanders who are joining us here this evening. I'd also really like to acknowledge the many Aboriginal women who have worked for decades around domestic and family violence. They've provided immense leadership in this area, and frequently without sufficient recognition. In making this acknowledgement of country, I'm also very conscious that when we talk about the law and domestic violence, it's important to recognise the way in which the law has been used and misused against Indigenous people. It certainly hasn't necessarily provided Aboriginal women with safety, and we've seen many Aboriginal women misidentified and criminalised when they report domestic violence to the police. These concerns were particularly centralised in the debates around the criminalisation of coercive control, and I'll return to some of them during my presentation.

So my presentation today will focus on understandings of domestic violence and coercive control first, why there's been this move towards criminalisation, the developments in New South Wales, what it hopes to achieve, some lessons and some issues that I think we should follow now that the offence is in operation. I want to start by giving you a bit of background to me and my work, and I know Anthea has already done this, but I want to repeat it mainly because in very many ways it shapes and frames my thinking around coercive control and also other parts of my work. I started working in this area over 30 years ago, which makes me feel old, but I started out working as a solicitor in a community legal centre that specialised in domestic violence work. I was going to court, being a duty solicitor and doing AVOs, providing legal advice and various other things. I moved on to do government policy work, again, primarily around violence against women. I worked in law reform commissions, again, around family violence and sexual assault. And now I'm an academic researcher looking into these areas as well. Throughout all of this work, what I'm really interested in is the law as it's practised and experienced by people. So I'm really interested in this question of implementation, rather than simply the law as it's written on the books. Hopefully you see that come through in this presentation.

I'm going to start with understandings about coercive control. I appreciate that many of you may already be aware of this and have good knowledge in this area, but I find that it's a good place to start. One of the things I've noticed in my work since 2020, and it's caused me great frustration, has been the amount of misunderstanding and misapprehensions about what coercive control is, particularly in the media but also in policy discussions in the community more generally. What we have on this slide are comments that victim-survivors made to the New South Wales Joint Select Committee or the Queensland Women's Safety and Justice Taskforce. If you've worked in the area of domestic and family violence before, these comments would be familiar to you. Other comments that are very familiar are, "It was like walking on eggshells," "It was a cage or a web." One of the things that I think it's really important to appreciate at this outset is that this understanding of coercive control comes from victim-survivors themselves. It's not something that's been invented through policy work or invented through research. It's actually what victim-survivors have told us.

I did some research way back in the early 2000s, and one of the questions that I asked women when I was doing this research was very simple: how would you describe your relationship? I didn't ask them about control, but that was how women described it to me. For example, Frances said to me, "Looking back, it was just a full-on controlling sort of relationship." She said that the control was the worst thing that had happened to her. I interviewed her quite a number of years after she had separated, and one of the things she said to me, which I think really captures the impact of coercive control, is, "I just became a non-person, which is what I sort of struggle with now: trying to figure out who I am." I think that really captures it.

I'm just going to move on to more official or formal definitions. Much like domestic and family violence more generally, there is no agreed or set definition of what coercive control is, so it's part of the problem that we have. On this slide are the two ways that those inquiries have sought to describe and define the concepts. On the top, you have the NSW Joint Select Committee, and on the bottom, you have the Queensland Women's Safety and Justice Taskforce. Hopefully you can see that both of them emphasise the patterns of behaviour, the use of physical and non-physical forms of abuse, and the impact of those behaviours on the victim. More recently, we have work at the federal level. National Principles to Address Coercive Control were developed last year. They have many similarities to what you see on this slide here, but they also go on to point out a number of other important things. Some of the behaviours used by perpetrators are incredibly subtle. We often talk about perpetrators being some of the most creative people – they really know how to develop things particularly targeted to a victim – and so sometimes it's only the victim that really knows what those behaviours mean in the context of their relationship. Behaviours might change over time, particularly after separation. Perpetrators might manipulate legal and other systems to continue their abuse. Finally, the National Principles point out that coercive control is gendered – that what we are largely talking about here is men's violence against women, and that race, class, ability and sexuality intersect and frame the experiences of coercive control – not only the experiences of coercive control, but also how the service delivery assists or doesn't assist women, and we need to think about that.

So, to sum it up, coercive control then isn't a list of behaviours – it's not a list of non-physical forms of abuse. What it's getting at is how the behaviours combine, build on each other and create this structure or architecture of control. Control is about describing this and its impact. One of the key writers in this area is Evan Stark. He describes it as a "liberty crime," which I think really tries to capture what we mean by the impact of coercive control. One of the reasons why I start with this is also, hopefully, you can start to see that there are real challenges that the law might face in defining and responding to coercive control – to do it in an adequate way, to really respond to this lived experience. This is something that I want you to keep in mind when I actually start to talk about the way in which the law has responded to it, and to ask yourself whether or not you think it has adequately captured the harm that victim-survivors have told us about.

Before I leave coercive control, I've just got one more thing to say, which is another one of my frustrations. This understanding of domestic and family violence isn't a new thing. The language of coercive control might be new to very many people, and it certainly became very popular from 2020 onwards, but this understanding of domestic violence – that it involves power and control – is longstanding. It's from the 70s and 80s and beyond, and certainly when I was a solicitor, which is many years ago now, this was the understanding that I brought to my work. It might not have been legally actionable, but it framed how I responded and dealt with my clients. It's also true that this understanding of power and control has been reflected in some of our government policies and legislation, although it might not have been acted on. Since 2006, power and control was mentioned in our AVO legislation. Since 2012, it's been mentioned in our Family Law Act.

So, if I say it's not new – and what I have here, that's the Duluth Power and Control Wheel, which many of you would be familiar with, and it's very longstanding. So, if I'm saying it's not new, what is new? What is new is this much more intense and explicit discussion about the nature of coercive control on a widespread level, moving beyond the sector. As someone that's been around for a very long time, this has been a much richer and much deeper discussion than perhaps we've had before, and this is a good thing. We're seeing shifts in thinking. I gave a presentation on this – I think it was at the beginning of last year now – and one of the workers in the room said that she had a client who had gone to the police station and said, "I'm experiencing coercive control." Just that power of giving language to people about what their experience is, is also a good thing and a new thing.

The other thing that's new is talking about the ways in which the criminal law could better respond to this harm. If you think about this history, the criminal law has been quite slow to respond to the harm. Regardless of where you sit on the criminalisation debate – and I'll touch on that in a bit more – these reforms do represent a legislative response that is trying to better respond to the lived experience. We can acknowledge that even if we have some questions about how well it does so. Why is criminalisation the area that we're going into? The key argument for criminalisation is the recognition that the traditional focus of the criminal law in terms of domestic violence has been on discrete incidents of largely physical forms of violence, and that this leaves much of the behaviour that victims complain about – and often say is the most harmful to them, such as psychological abuse – beyond the reach of the criminal law.

While there are some traditional criminal law offences available for non-physical forms of abuse – so many of you would be familiar with offences around threats, intimidation and stalking, harassment via misuse of telephone technology and so on – the thing that's different about the coercive control offence is that for those offences, they're all charged separately, and they don't capture the full range of behaviours within a single package of an offence. What this means is that, up until now, domestic violence has been addressed as these single discrete charges. You might have a charge of common assault there, a charge of property damage over there, maybe a charge of stalking. It's made it really hard to see, if not impossible to see, how the charged act functions: is it a red flag? Are we seeing an escalation of behaviour? You really can't see the picture of the way in which the charge happens within the relationship. It also makes it really easy for the defendant to successfully argue that it was minor, it was trivial, "I was drunk," "I was stressed from work," and really minimising and deflecting those behaviours for a discrete charge. The coercive control offence aims to change this. It aims to make everything, or at least a lot of things, visible at the same time.

The sociologist Michael Kimmel uses a really powerful analogy to explain the difference between looking at incidents and looking at context, which is what the coercive control offence does. He says it's like the difference between looking at the still from a movie. I might look at the still from a movie and I might think it's a comedy, or I might think that this happened or that happened. But when I watch the whole movie, I get a completely different picture of that still, because I see it in context. This is what the coercive control offence is aimed to do: to look at a whole lot of forms of behaviour together and see it in the context to decide whether it was coercive control or something else.

While I'm going to focus on the law in New South Wales, because that's where we are and this is the first Australian jurisdiction to criminalise coercive control, I think it's also important to have a little bit of a picture about what's been happening across this country, because there has been quite a flurry of activity. Interest in criminalisation in Australia comes from developments overseas. England and Wales introduced an offence in 2015, Ireland and Scotland followed in 2018, and Northern Ireland in 2021. These are the countries we tend to look at the most because they're common law countries and they've got a number of similarities to us and a shared history around certain things. But it's worth noting that there have also been developments in other European countries and civil law countries. Two Australian states have made concrete moves in the area: New South Wales, which I'm going to talk about tonight, and Queensland, which also passed legislation this year and it is expected that its offence will start next year. South Australia is close behind with a bill currently before its Parliament. There's been conversations in Western Australia, the Northern Territory and the ACT. The only places where there isn't activity is Tasmania, which has long had an offence of economic abuse and emotional abuse – they've had those offences since 2005. They've been little used, which raises that question of implementation, which I can come back to. The other place where it's not happening is Victoria, and I'd suggest that's probably because Victoria had its Royal Commission into family violence. There's been a whole lot of work that's come out of that, and one of the clear messages from that Royal Commission was: we need to do something around currently available laws before we add in another more complex law. That's kind of been where their approach has been.

One of the reasons why I think this context is important is that we start to see some different approaches across the country, which are going to be interesting to watch. For example, New South Wales and the bill in South Australia both limit their offence to intimate partner relationships. Queensland doesn't. Queensland is enabling the offence to apply to a wider class of relationships, so relatives, and so this will be something that's interesting to watch.

For those of you who have been following these developments across the country, you'd probably be aware that this has been quite a divisive, and continues to be a divisive time, for the domestic violence sector in terms of working out the best way to respond to the harm of coercive control. We all agree that the harm is a really serious one, but there are questions about what is the best way to get the law to do these things. There are many within the sector, including victim-survivors, who are strongly in favour of this change. At the same time, there are many, including victim-survivors, who are against criminalisation, drawing attention to the overwhelmingly negative impact that this is likely to have on Aboriginal and Torres Strait Islander people. There are also many within the sector who are highly cautious; they ask whether more law will make a difference, what we might do instead, and whether we need to do a whole lot of groundwork before introducing this kind of more complex offence because it might have unintended consequences. Indeed, many of the people who are in favour of criminalisation share these concerns.

For those of you who know me or are familiar with my work, then you'd know that I sit pretty squarely in the cautious box. This is not to say that I don't think that the law should respond and take account of coercive control. I definitely think it should. I think that all key legal actors – police, lawyers, judicial officers, other court support workers – should bring an understanding of coercive control to their work if they're going to do it well. But I also think that we need to look beyond criminal law, and I've been concerned about that sort of central focus on criminal law. This is important to family law, immigration, social security, tenancy – the broad spectrum – and we've seemed to have had quite a narrow focus.

What we see in all of these debates and division, and also the work of governments to respond to it, is a number of tensions that the government has sought to balance. One of them is not to overreach – how do you craft a law that doesn't overreach into areas that it's not meant to? There might be things about the way in which some people have decided to organise their relationship; it's not intended to overreach into those areas. Governments have also wanted to avoid the risk of misidentification – that's where primary victims have been identified as offenders in traditional criminal offences. I'm going to return to this problem in a bit more detail later. There's also been concern about how to craft an offence that doesn't add to the over-incarceration of Aboriginal people generally, at the same time as providing a mechanism that does enable some sort of legal response to the serious harm. I suggest to you that this is an incredibly difficult balance to navigate. On the one hand, we see that the government has really tried to craft a law that moves away from the violent incident model that was not appropriate for domestic violence and is attempting to meet lived experience. However, I think we have some questions about whether the balance is right. As you'll see, I'm going to turn to the offence in a minute, it's incredibly narrowly drafted. There are concerns about whether, in fact, it's so narrowly drafted that it's going to be difficult for anybody to use. That's one of the questions in the balance.

I'm going to skip over this slide quite quickly. Its main purpose is to show you that the New South Wales government went through a number of consultative phases to get to the stage where we are today, and I think that's worth thinking about. I was involved in a number of those. Obviously, if you look at the dates, we've been writing submissions for a number of years now. The act that creates the offence was finally passed at the end of 2022, in November. However, the offence only commenced on the 1st of July this year, so that's a bit over 18 months of lead time. What this lead time was intended to do was to allow for a period of time for education and training – particularly of the police, but also of other key personnel – to allow for a community education campaign – some of you might have seen it in your social media feed – to make sure that the criminal legal system is best placed to be able to deal with the offence when it does become operational, which it has on the 1st of July.

At this stage, I'm going to provide a broad-brush overview of the offence, just so that the issues that I want to talk about make a bit more sense. If any of you have looked at it, you will know that it is a very complicated, complex offence. Indeed, I might say that Queensland and South Australia are similarly complex and complicated, and I think that's just something to look at. For those of you that are interested in legislative drafting, I encourage you to have a look at Scotland, for example, which is quite a simple offence. England and Wales is a little bit more complicated, but they are far more simple than the offence that we have drafted, and if one of the key intentions was general community education, I'm not sure that this complexity meets that. Anyhow, I'm going to go through all the components. These are the things that I think are important to recognise. One is, the offence isn't called "coercive control", it's called "abusive behaviour towards an intimate partner". To be charged with the offence, you must be an adult, however, victims can be younger. So it is possible, for example, for a victim who is, say, 16 years of age, and the alleged offender is her ex-boyfriend, and he's 18. The victim can be younger, but the offender has to be an adult. The offence only applies to intimate partners. This was subject to a lot of debate about whether it should be wider, and as I said, Queensland is; I'll return to that. It seeks to criminalise a course of conduct. This means behaviour that's been engaged in repetitively or on a continuous basis. There is no minimum number; it is just that there is a pattern of behaviour over a course of time, and that it involves abusive behaviour.

"Abusive behaviour" is really widely defined in the Act; it's non-exhaustive. It includes a whole lot of non-physical forms of abuse – financial and economic abuse, isolation, denigration and so on – so things that we normally wouldn't see the criminal law responding to. But it also includes physical violence as well, and sexual violence for that matter. The prosecution then also needs to prove that the person – the alleged offender – intended that course of conduct to coerce or control the other person. Intention is a mental element; it's a very high mental element. I'm going to return to that in a bit more detail in a minute. Finally, the prosecution also needs to – so what I've just spoken about is a subjective test: the intention to cause – that the course of conduct will coerce or control the victim. The prosecution also needs to satisfy a reasonable person test. This is that a reasonable person would consider that the course of conduct would cause the victim to fear violence would be used against them, or that the conduct would have an adverse impact on that person's day-to-day activities. Importantly, the prosecution doesn't have to prove those impacts – just that the reasonable person would think that it would have that impact. I suggest to you that it is most likely that the prosecution will seek to lead that evidence from victim-survivors because it's going to help a more successful prosecution, but they don't have to do so.

Hopefully you can see, by talking about all those bits, that the prosecution – it's like a big puzzle. All these bits that the prosecution has to prove have to come together in order to be able to satisfy the offence, so it's going to be quite difficult to do so. It's not retrospective, so this means that the prosecution can only charge behaviours that have happened from the 1st of July onwards, and so that's why we'll also see a bit of a slow uptake. Also available to the defendant is a defence. The defendant can raise a defence that their behaviour was reasonable in all the circumstances. The most common example that's given for this is there might be someone – one person in the relationship might control all of the money because the other person has an addiction to gambling, and so that would be reasonable in all the circumstances, and that's the example that's usually given. If found guilty of the offence, the defendant is liable to up to seven years in prison. However, it's likely that most of these cases will be dealt with in the Local Court. This has been the experience in Scotland – that it's been dealt with at the lower court level. In the Local Court, the highest penalty you can impose is two years, and we do think that's where the vast bulk of cases are going to be dealt with.

Hopefully you can see that this has been very narrowly drafted, and one of the reasons why it's so narrowly drafted – its restriction to adults, its restriction to intimate partner relationships, its restriction to the mental element of intent – are all designed to address the concerns that I mentioned on the previous slide that the government was attempting to balance, to put together, to test out this new offence. I'm going to turn to a couple of these issues in more detail.

The first one is the requirement of intent. As I've said, it's specific intent, so it's a really high mental element. Those of you that have done criminal law will understand that this is a really high mental element to satisfy. It's worth noting that overseas jurisdictions have included a lesser mental element. In England and Wales, the prosecution need to prove that the defendant knew or ought to have known that the behaviour would have this serious effect on the victim, and in Scotland it's recklessness. Recklessness was included in the exposure bill that the New South Wales government released during its consultation phase, but it was removed by the time the bill was introduced to Parliament, largely around those questions of overreach, misidentification and over-incarceration. For those of you that haven't done criminal law, one of the benefits of recklessness – if you want to think about recklessness as a mental element – is that recklessness would involve the prosecution proving that the defendant foresaw the possibility that their behaviour would have the prohibited outcome – so would coerce or control the victim – and did it anyway. You can see that it would enable a greater number of people to come in.

I would also get you to start to think about whether or not requiring the mental element of intent actually fits with what we know about perpetrators of violence. Even though the sociological literature does talk about perpetrators intending their behaviour to control, I'd like to suggest to you that intent in the sociological literature is very different to what intent means in law, and they don't necessarily sit together. What we see with perpetrators is a lot of deflection of their behaviour, denial, minimisation and excuses. Recklessness would enable us to capture some of that, so that's one of the things to watch.

Should the offence cover other relationships? One of the reasons why the New South Wales government restricted it to intimate relationships, other than the reasons I mentioned before, is also because all the evidence that we have available really points to the role of coercive control in intimate partner relationships. I sit on the New South Wales Domestic Violence Death Review Team, and the data from the New South Wales Domestic Violence Death Review Team was used a lot in these debates and discussions because the team had found that almost all of the homicides that it investigated involved coercive control. I'd like to suggest it did because they look at domestic violence cases and that's what they involve. But that's one of the reasons why. We have an evidence base for the inclusion of intimate partner relationships and we don't necessarily have the evidence base for other relationships. This approach was supported by a number of stakeholders like New South Wales Legal Aid, the Aboriginal Legal Service. However, there are a number of stakeholders that would have preferred a wider approach – domestic violence groups, culturally and linguistically diverse groups, Aboriginal and Torres Strait Islander groups and disability groups. One of the things that they are concerned about is that it creates a hierarchy of relationships. New South Wales has long had a very broad approach to domestic relationships in the domestic violence area, and suddenly we have the fact that you might have a criminal offence if it's an intimate partner relationship, but in another relationship – so let's say an adult child against a parent or a carer against a person with a disability – it's going to be OK there, but it's not going to be OK in intimate partner relationships. There's a question about just what messages that sends.

Finally, I just wanted to talk a bit about the risk of misidentification. As I have said, this was one of the main concerns about reform in this area. Misidentification comes about for a range of different reasons. One of the main reasons why it comes about is because of the incident framework of the traditional criminal law. The police might go to an incident – there's been an assault – she admits to having assaulted the partner, but it's seen out of context and not this bigger picture of who is the primary perpetrator of violence in the relationship. It also happens because perpetrators can be very charming and when the police arrive, they're the ones that are calm and collected, and the victim is often quite hysterical, often being abusive to the police as well. So they can be criminalised through that kind of process. There's also simply the misuse, legal systems abus