The physical abuse was criminal. Sarah’s isolation and humiliation weren’t. That now changes

Sarah* is smart, educated and professional. She earns good money, comes from a loving family, and has close, supportive friends.

She was also in a coercive control relationship for 16 years. Her partner told her what she should wear, where she could go, and with whom she could associate. He told her she was a bad wife, a bad mother and a bad person. He wore her down to the point that he infected her thoughts. “If all you’re hearing is that you’re bad at everything, it becomes the voice in your head,” Sarah says.

Sarah* says that for a long time, she failed to recognise the non-violent abuse.Credit: Louie Douvis

His physical abuse of her was criminal. But there was no law against isolating her, monitoring her, or humiliating her. There was no law against staging such an intense inquisition of her every move whenever she left the house that it became easier to stay home.

That will change from Monday when NSW’s coercive control laws come into force.

The new laws are a major shift in the state’s response to domestic violence. They widen the justice system’s focus from a specific incident – a slap, a push – to patterns of abuse that might not involve physical contact, but still leave people trapped in a nightmare.

Coercive control could involve forcing a partner to beg for money. It could involve electronically tracking them (abusers sometimes plant them in children’s teddy bears). It might involve threatening to distribute intimate images or harming the children if she doesn’t do as she’s told. Often, it involves all these things in a pattern of domineering cruelty.

Domestic violence advocates agree recognising coercive control as a crime with horrendous impact is a step forward. But there’s nervousness about how the law will work in practice. Senior police and lawyers privately concede gathering evidence to prove the charge in the courtroom will be challenging. And many people – victims, offenders and bystanders alike – still don’t understand coercive control, and think violence requires a raised fist.

Jayke*, a trans man and social worker who is on the government’s lived expertise reference group on coercive control, used to be one of them. His former partner would trash the house when he went out, so he stopped doing it; she’d secretly use his account to send nasty messages to his friends, leaving him wondering why they fell out of contact; and she’d cast him as hopeless and lazy to his children (she even made up the “we’re right and he’s wrong” game).

He’d worked with victim survivors and even while living his nightmare he still didn’t know it was coercive control. “It’s really difficult for people to understand,” he says.

NSW is the first jurisdiction in Australia to criminalise coercive control. Queensland followed, and its law – not yet in force – will be named after Hannah Clarke, who was murdered alongside her three children by her former husband, Rowan Baxter, after being terrorised by him for years. His relentless campaign included refusing to let her wear pink, dictating what she could eat, spying on her through windows, and making false accusations against her on fake social media profiles.

Hannah’s mother Sue Clarke said he was “able to crush her beautiful spirit” by controlling her interactions with loved ones, tracking her every movement and telling her no one else would ever love her. For years, she didn’t know it was abuse. “But he doesn’t hit me, Mum,” she would say. His grip tightened once she left him. Even their kids were petrified. “It was amazing, the power he still had, even though she had broken free,” her father, Lloyd, told a coercive control training conference in Sydney on Thursday.

Queensland will name its new law after Hannah Clarke who, along with her three children, was murdered by her controlling ex-partner.

There was much debate over how to cast the NSW legislation. Lawmakers settled on a law that only applies to adult intimate partners (it does not include the abuse of the elderly or disabled). Prosecutors must prove the offender engaged in the conduct repeatedly, and that the behaviour was abusive (it involved violence, threats, intimidation, coercion or control). Crucially, and controversially, they must prove the offender intended to coerce or control the other person.

“Motivation can be really tricky to demonstrate when you are talking about coercive control,” says Hayley Boxall, a leading domestic violence researcher from the Australian National University. “A lot of the behaviours might not be front-of-brain. They might not be saying ‘I’m doing this to control, subjugate’, they might think that’s what’s expected in a family, or have disordered attachment and emotional regulation issues.”

The offender might have obsessive-compulsive disorder, which involves a desire for order and consistency “that may not be intended to control, but may be experienced as abusive”. Gambling is another, says Boxall: “How do you differentiate between the behaviour underpinned by addiction … controlling the finances due to an addiction to gambling, as opposed to financial abuse?”

In Scotland, which criminalised controlling behaviour in relationships in 2018, the bar was set lower. Prosecutors need only show the perpetrator was reckless as to whether physical or psychological harm would be caused. In its first year, 246 people were prosecuted under its coercive control legislation, and 84 per cent of those were convicted.

Dr Emma Forbes, national lead prosecutor on domestic abuse at Scotland’s Crown Office and Procurator Fiscal Service, said the country’s coercive control legislation was considered the “gold standard”, but prosecutors still faced many challenges – the biggest of which was not the difficulty to prove the offence. “The barrier that was there before is there now,” she said. “Women and children are institutionally disbelieved within the justice system. Women still don’t feel like they will be believed or heard, so it’s about engaging them in the process long enough for them to go to trial and be believed”.

A review of the NSW law in two years will consider whether the threshold of intent should be lowered to recklessness.

In NSW, Boxall is also concerned about how the pervasive, yet subtle, nature of coercive control fits the state’s court system in which prosecutors must use evidence (which can range from victim and witness testimony to photos of injuries) to prove each incident. Coercive control can be difficult to even articulate, let alone pin down in a court of law. “How do you articulate a pattern of abuse that can involve these microaggressions on a day-to-day basis?” she says.

Another hurdle is the public’s lack of understanding of non-physical abuse. Sometimes it takes months or years for a victim to realise what happened. “It’s a bit like the frog in boiling water,” says Sarah. “It’s a slow, gradual kind of build-up, and then you find yourself immersed in it. For so long I defined [abuse] by physical violence, without recognising all those other things.”

Long defined in the public consciousness as physical abuse, methods of coercive control are now being recognised as criminal forms of domestic abuse.

As the law only comes into force on Monday, courts will only be able to consider abuse that occurs from July onwards. And as proving the offence requires a pattern of behaviour, it will take time for that to accrue. As policy co-ordinator of the Women’s Legal Service, Liz Snell is an expert in the prosecution of domestic violence in NSW.

“We’re not expecting to see many prosecutions early on. It’s going to take time,” she says. “We certainly acknowledge that this may be a difficult offence to prove.”

Snell expects the first impact to be seen in applications for apprehended domestic violence orders. “There may be more ADVOs on the basis of coercive control, we would encourage people to report to police,” she says.

NSW Police Deputy Commissioner Peter Thurtell.Credit: Oscar Colman

The police officer in charge of domestic violence, Deputy Commissioner Peter Thurtell, told the Herald on Wednesday that “in the end, this will be very useful for victims and prosecuting authorities. Traditionally, when we speak to victims, we may have not gone down this route of questioning. It may have been something victims did not open up about because they didn’t realise it was something the police could investigate.”

He was not worried about a lack of potential evidence. Police will be able to draw on financial records to prove abuse (to help them along, some abusers use the “description” line in a bank transfer to attack their victim, with lines such as “You will hate my next move” or “snap out of that mood”), text messages to prove intimidation and attempts at isolation, and tracking devices to prove surveillance. They will be able to draw on victim and witness testimonies.

NSW Police have also developed the Empower You phone app, which has a nondescript icon that appears on the home screen but provides a secret portal for victims to make notes, record their abuser and take video and photographs.

Still, the nature of coercive control means victims are often terrified of doing anything to trigger their abuser, let alone making notes about their experience or filming the abuse. “That has always been the case,” says Thurtell. “Fear of retribution is something domestic violence victims have been worried about for a long time.”

The sector is suspending judgment until it sees how the legislation works. “The real effectiveness of the law will only become clear when it is tested at trial, and we expect this will be complex and take time,” says Karen Bevan, chief executive of Full Stop – an organisation which supports people affected by sexual, domestic or family violence. “The implementation of this offence is a critical first step.”

Nicole Yade from the Women and Girls Emergency Centre hopes resources match the rhetoric. Police and shelters are straining under the enormity of their workloads. “I worry that if people realise they’re in an abusive relationship full of coercive control, and they reach out for support and no one is able to support them … do they give up, and say I tried and no-one could help me?”

Still, the sector, police and prosecutors want them to work. “I’ve never seen this level of collaboration,” says Michelle England, the acting Deputy Director of Public Prosecutions who has been leading the office’s training.

Sarah believes the new laws are a step forward and a powerful message that abuse will not be tolerated. But she says victims who do have the courage to prosecute their abusers under an untested law should be staunchly supported.

It’s terrifying to speak up. “There’s shame and judgment not wanting to be seen as weak,” she says. “It’s not my shame, not my weakness, not me who should be judged; it’s my perpetrator’s shame. But we’re not there yet.”

• Names have been changed for legal and personal security reasons.

If you or someone you know is affected by sexual assault, domestic or family violence, call 1800RESPECT on 1800 737 732.

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