The Law

The ‘Coercive Control’ Bill vs Common Sense

NSW Labor MP Anna Watson’s Coercive Control Bill would make criminals of us all, unless we can prove our behaviour was reasonable in the circumstances.  It is walking-on-eggshells legislation. If the Bill is passed, it could become quite common that, as in Kafka’s novel The Trial,

Someone must have slandered Joseph K, for one morning, without having done anything truly wrong, he was arrested.

Interpersonal violence is already illegal. The point of this Coercive Control Bill can only be to tackle controlling behaviours that do not involve violence in domestic relationships.[i] Verbal and emotional abuse. Sustained bouts of rage, interrogation and wild accusations that erupt from pathological jealousy and anxiety. Endless narcissistic devaluation, dehumanisation, gaslighting, guilt-tripping, and scapegoating. Threats to leave, of suicide, of violence, or of other punishments. These kinds of abusive behaviours in a relationship may leave no visible scars but can result in significant and lasting suffering and trauma. It is understandable that Anna Watson wants to do something about this, but her Bill is extremely problematic and should be rejected outright. I make these comments as a citizen reading the proposed legislation and considering its implications.

The Bill covers a wide range of relationships well beyond what many of us might understand by the term ‘domestic relationship’ – generally taken to mean someone you are now living with under the same roof.[ii]  For example, though you may not even know them, you technically have a domestic relationship with your lover’s former lovers. And they do with yours.

The offence of coercive control is poorly specified. It uses terms that are vague, in that they are broad in scope and wide in range, from trivial to severe. Terms, for example, like ‘monitoring’, ‘restricting’, and ‘limiting’. What kinds of monitoring, limiting, or restricting? How much, and for what purpose? Some of the terms are highly subjective, such as ‘frightening’. Is the offence committed only when there is an intention to frighten? Or is it committed when someone feels frightened, regardless of the intention? What about practical jokes, pranks, and games, which can involve both the intention to frighten and the feeling of being frightened? Usually only a little bit, not for long, and hopefully with everyone laughing afterwards, including at their own fear. They are some of the ways we learn to deal with surprise, fear, and amuse each other at the same time.

Restricting another person’s freedom of action is criminalised. Yet all relationships involve compromise and limits on each other’s behaviours. What actual behaviour might be considered restrictive? When does asking someone to do, or not to do, something become a restriction on their freedom of action? Does the crime need to involve physical force, or the threat of it, or the imposition of a consequence if a request is not complied with? At what level or severity of consequence? Is the crime committed if the other person feels thwarted, doesn’t get their own way, or if they feel they can’t do whatever they like? The proposed legislation makes an offence of any attempt to set boundaries in a domestic relationship, subject only to the defence that it was reasonable under the particular circumstances. It is walking-on-eggshells legislation – almost anything is an offence, unless you can prove it was reasonable under the particular circumstances. And you had better have a record of them.

The proposed coercive control offence appears to presume that the people involved in the domestic relationship are psychologically functional adults. Yet this is not the case in a wide variety of domestic relationship situations. This includes those involving children and whose parents do, and are expected to, bring them up. It includes situations where the domestic relationship involves people with mental illness such as schizophrenia or bipolar disorder or who have debilitating conditions or diseases such as autism, Alzheimer’s and dementia. It includes situations when the domestic relationship involves someone who has, or comes to have, an addiction such as to drugs, alcohol, or gambling. It includes situations in which the domestic relationship involves someone who has, or comes to have, a serious mental health issue such as depression, post-traumatic stress disorder, paranoia, anxiety, agoraphobia, and so on.

In those kinds of relationships, one person may be a psychologically functional adult and, typically, takes a degree of responsibility for the other person and monitors and regulates their activities and exercises a degree of control over them. Society in fact expects this of the psychologically functional adult. Yet the proposed legislation criminalises controlling, regulating or monitoring the other person’s day-to-day activities and criminalises behaviour that limits another person’s freedom of action, subject only to the defence of it being reasonable under the circumstances. The legislation does not appear to allow for the possibility that monitoring, regulation and control may be exercised in a loving way for a parenting, caring, or therapeutic purpose.

In any relationship, but particularly in a domestic relationship, the people involved have to get along with one another. This can involve actions that seek to limit another person’s behaviour. We don’t just let other people we live with do whatever they like. And they don’t just let us do whatever we like. We may ask each other to do things, or not to do things, and maybe there are consequences. This is particularly true of parent-child relationships. But also for adults. Consider, for example, a spouse who finds out their partner is having an affair. The spouse insists the affair must end, that the partner not see that person anymore, or divorce will be the consequence. The proposed coercive control legislation criminalises such behaviour by the spouse as it is seeking to limit another person’s freedom of action to continue the affair.

Society’s expectation is that parents socialise their children as they grow up, teaching and modelling good behaviour, and pointing out and correcting poor behaviour. Including, for example, violent behaviour such as sibling fighting. Parents are expected to control, regulate and monitor their children’s day-to-day activities. Parents are routinely asking their children to do this or telling them not to do that. Getting them ready for school on time, getting them wash their hands or clean their teeth, to take turns, to do their homework, and a myriad of other things — yet the proposed coercive control offence criminalises controlling, regulating, or monitoring another person’s day-to-day activities and criminalises limiting another person’s freedom of action.

What is a parent to do with one or more of their own children behaving badly? Call the police and prosecute? Or is the parent to rely on the defence that their behaviour to control their child was reasonable in the circumstances? In what circumstances is it reasonable to control, regulate, monitor, or limit your child’s behaviour? Actions many parents use would be criminalised. For example, sending a child to their room, grounding a teenager or confiscating their phone might be considered isolating them and punishing them – an offence under the proposed legislation. It is certainly limiting their freedom of action. As are insisting on a specific bedtime and limiting a child’s screen time.

We would all be criminals if this Bill becomes law. It criminalises a wide range of vaguely described behaviours that are widespread in our family and community lives, behaviours that are intrinsic to domestic relationships. If prosecuted, we are allowed the defence that our “conduct was reasonable under the particular circumstances”. Instead, the onus should be on the prosecution to prove that the action occurred and that it was unreasonably coercive and controlling under the particular circumstances.

It is likely the Bill, if passed, will lead to a large number of vexatious or false claims for a variety of reasons. An accusation of coercive control might be an act of retaliation, revenge, or spite. A person saying they are the victim of coercive control may be a gambling addict whose partner has sought to limit their access to money and who retaliates with an accusation of coercive control. They may be a narcissist who accuses their partner, projecting onto them their own controlling behaviour. Indeed, a controlling partner could use the threat of a coercive control accusation against their victim as another way of controlling them. This will tie up a lot of police and court resources and cause a lot of harm to people falsely accused.

Coercive control is almost invariably exercised in private, when the controller and their victim are alone and there are no witnesses. Verbal and emotional abuse leave no tangible corroborating evidence. Control actions involving violence are already crimes. It is likely that many, or nearly all, coercive control cases will involve only the competing testimonies of the participants. It will be difficult to secure criminal convictions. This, too, will tie up a lot of police and court resources.

Coercive controllers are almost invariably people with serious, chronic personality disorders like narcissistic personality disorder. Passing a law will not change or stop their dysfunctional behaviours. You cannot legislate a narcissist to respect others, or a pathologically jealous or paranoid person to trust others. Nor will it help the people whose misfortune it is to get into relationships with them. It is unlikely a victim of coercive control will accuse their controller until they have escaped. And it will give authorities a cover under which they could arrest virtually anyone at any time without them having done anything truly wrong. Like Kafka’s Joseph K, we may plead

“… there’s been a mistake. How is it even possible … to be guilty? We’re all human beings here, one like the other.” “That is true” said the priest “but that is how the guilty speak”.

Dr Michael Green has a PhD in Systems Engineering.

[i] Crimes (Domestic and Personal Violence) Amendment (Coercive Control—Preethi’s Law) Bill 2020. https://www.parliament.nsw.gov.au/bills/Pages/bill-details.aspx?pk=3797

[ii] Crimes (Domestic and Personal Violence) Act 2007, Section 5. http://www5.austlii.edu.au/au/legis/nsw/consol_act/capva2007347/s5.html

14 comments
  • Salome

    While they are criminalising all these behaviours within relationships, why don’t they add infidelity to the list? For completeness’ sake, of course.

  • lbloveday

    At the end-of-year-10 Parents-Teacher meeting to explain options for year 11/12 subjects the Principal told the girls “Just choose what you think you’ll like”. No advice, not even guidance, from teachers to be given, nor presumably from parents. Options included “Dance” – the chances of my daughter selecting a rigorous math subject rather than “Dance” was zero.
    .
    But I won the battle for her to do double math in Year 12 and not Mickey Mouse math and “Dance”: with “coercive control” which I presume would be illegal under this legislation- do “Dance” at the public school, or double math at your beloved Catholic School. So she agreed to do double math and when she found out that so few girls were doing double math that they went to a boys school for Specialist Maths, she was ok with it (and met her first boyfriend).

  • Colonial

    One can understand (even sympathize) with what Ms. Watson MP is trying to achieve, especially now that pre-arranged marriages, households where spouses and children have few social contacts, access to
    a resident visa is a potent weapon and perhaps language difficulties are increasingly prevalent in Australia. The scope for domestic tyranny is rising. However, lawyers will always find that the source of society’s manifest ills lies in an insufficiency of laws. So let’s have more of them…
    Therefore Dr Green is absolutely correct.
    It is often believed (by people in Australia who have not experienced them) that tyrannical regimes rely on draconian and brutal laws to maintain their populations in a state of subjectivity. The reverse is the case.
    Clear and specific laws allow people to calculate exactly how far they can go (“thus far and no further”). Police states (e.g. East Germany, apartheid South Africa) therefore prefer laws that are vague and crimes that are ambiguous – so you never know when you have overstepped the line. To be on the safe side you give all political opposition a wide berth. The rule for a successful police state is: “It is not so much that injustice must be done, but it must be seen to be done.”
    We see this in Victoria for example where the police can invade your house and arrest you in your pyjamas for an ill-considered tweet. The media “optics” may have been poor but the pay-off was probably exactly what the legal draftsmen intended. Steer clear, keep your head down, your mouth shut, mind your own business.

  • J Vernau

    The definition of “domestic relationship” casts a wide net, while the coercive conduct can be against anyone and [really!] their dog:
    Section 14A, subsection (3);

    “Conduct may have, or be reasonably likely to have, an effect referred to in subsection (2) on a person even if the conduct is directed at a third person, including a child, relative or friend of the person, or a companion animal owned by or in the possession of the person.”

  • en passant

    This law is absolutely necessary if we are to move to the final anarchist nirvana where the state will wither away and the mob rules through tyranny. Remember the fear of the Emperor’s had for the Roman Mob & Robespierre’s Terror fanned by the pettifoggers denouncements? Oh, how the Stalinist’s long for the goo old days when Stalin could declare “I want this man shot!” – and Beria could answer “Show me the man and I will show you the crime!”
    As we claim to be a civilised ‘Nation of Laws’ (far too many, in fact) this law and many others like it are just the manifestation of how perfect we intend to become … You know, totally subservient, mask wearing denizens of this Brave New World of elites and proles.
    All we need is a police force willing to ruthlessly enforce these dystopian laws then (once we have removed the ‘unmasked’ to a suitable concentration camp) life will be pure paradise. Trust me. I am an Oz politician who can see a dandemic opportunity when I need one …

  • Stephen Due

    It would be great if the scope of this Bill could be expanded to include extra-domestic situations that arise in the general community.
    In particular the Bill could usefully be applied as a defence against lock-downs, border closures, surveillance, police intimidation and similar measures, in so far as it criminalizes the following under Section 14A:
    2(b) Isolating the person from relatives and friends
    2(c) Controlling, regulating or monitoring the other person’s daily activities
    2(d) Restricting the other person’s freedom of action
    2(f) Frightening or humiliating the other person [e.g. pregnant woman in pyjamas]

  • Roman Dost

    “Verbal and emotional abuse. Sustained bouts of rage, interrogation and wild accusations that erupt from pathological jealousy and anxiety. Endless narcissistic devaluation, dehumanisation, gaslighting, guilt-tripping, and scapegoating. Threats to leave, of suicide, of violence, or of other punishments.”

    – So, you’ve met my ex-wife.

    Seriously, she did all that then some. So I welcome the proposed legislation. I could have been able to rid myself of my ‘better half’ that much sooner.

    I don’t think the drafters understand just how normalised the-will-to-dominate is in many women. And if given half a chance, how many men will simply collect evidence and prosecute, if this goes ahead.

  • Brian Boru

    14D Defence of reasonableness
    In criminal proceedings brought against a person for an offence under section
    14A or 14B, it is a defence that the conduct was reasonable in the particular
    circumstances.

    Now; just who decides what is reasonable behavior? Those who exercise coercive control of course.

  • Andrew Campbell

    It is not just the Andrews Labor government in Victoria governing by deceit and deception. The Berejiklian Liberal/National government in N.S.W. is also governing by deceit and deception, arriving at the same conclusion by a more subtil methodology.

    Their Bill, ‘The Children’s Guardian Amendment (Child Safe Scheme) Bill, read with their official ‘The Implementation Guide’ establishes a new level of accountability and oversight for children’s religious organisations, with the Office of Children’s Guardian seeking to be involved in the day-to-day running of religious children’s and youth activities, including the content of their teaching.

    The Bill goes beyond the welcome and legitimate concerns of the Royal Commission into Institutional Responses Child Abuse.

    The Bill can be found here: Draft bill – https://www.nsw.gov.au/sites/default/files/2020-12/child-safe-scheme-bill-consultation-draft.pdf

    The ‘Implementation Guide’ with the Bill sets Child Safe standards for religious groups. Many are unexceptional and commendable. However, Standard 4 includes, ‘Equity is upheld and diverse needs are taken into account.’

    The Guide can be found here: https://www.kidsguardian.nsw.gov.au/ArticleDocuments/838/CSS_ImplementationGuideFaithOrganisations.pdf.aspx?Embed=Y

    Under a listing of “barriers” to religious groups implementing the Standard: “Some people in faith-based organisations do not accept sexuality and gender diversity.” (Implementation Guide p 19). And on the same page “Discussion of ‘healing’ can have a negative impact on people with disability.” The Guide encourages religious groups to “Contact LGBTIQ+ community organisations to build relationships and look for opportunities to work together” (Implementation Guide p 20). An example is “an apology to LGBTIQ+ friends and to all who have been adversely affected by the teachings and behaviour of Christians and their churches” (Implementation Guide p 21).

    It is not hard to see where this is going. A Christian (or Muslim!) youth group or school that decides, in a programme on sexuality, to raise their Scripture’s concerns with LGBTIQ+ issues and behaviour may come to the attention of the Office of the Children’s Guardian. For failing to uphold equity and not taking diverse needs into account the group could be, under the Bill, warned and leaders required to undergo re-education by the Children’s Guardian. Substantial financial penalties could be imposed.

    The Office of Chidren’s Guardian is clearly intending to influence and require affirmation of LGBTIQ+ sexuality and gender diversity issues; contrary to the expressed understanding of the Bible for Christians and the Quran for Muslims. The Guide and the Bill establishes LGBTIQ+ sexuality and gender diversity rights over religious freedoms and rights.

    Different paths. Same conclusion. Same deceit and deception.

  • Suburban Boy

    Colonial, from your comment I suspect you have never actually read apartheid-era South Africa’s most-criticised legislation. The terms of the offences the laws create are clear and easy to understand.

    The two key pieces of legislation are the “Prohibition of Mixed Marriages Act 1949” and the “Immorality Act 1927”. The former statute made it a crime to contract a marriage between a European and a person of another race; the latter made sexual activity between a European and a non-European a crime.

    While the precise scope of the crimes might not be entirely clear from my summary descriptions (especially the definitions of races), the Acts themselves clearly defined the circumstances that they declare to be illegal.

  • Stephen

    i could say a lot about this. There seems to be a lot of devil in the detail. I wont rave on however. My only comment – the assumption of innocence should not be infringed. The Leviathon State should prove that the accused was unreasonable. Not the other way around.

  • simonbenson65

    If this legislation, proposed by a feminist, becomes law, I suspect there will be feminists who will get precisely what they do not want: criminalisation of their desire to coerce and control males! Woops!

  • wstarck

    At last, the routine use of Coercive Control by the agents and agencies of government will be ended.

  • talldad

    Is there not already a well-established body of law about “duress” and “coercion”?

    Why can’t that be applied to domestic relationships?

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