Coercive control is a key part of domestic violence. So why isn’t it a crime across Australia?

Paul McGorrery, Deakin University and Marilyn McMahon, Deakin University

This article was originally published in The Conversation on 27 February 2020

The recent killing of Hannah Clarke and her three children by her estranged husband has raised national attention to the types of behaviour that might lead to such a horrific crime, and how we might spot it early enough to intervene.

Researchers have known for decades most family violence involves forms of abuse other than physical violence, such as social isolation, emotional abuse and financial abuse.

However, we are now experiencing a watershed moment where the broader community is starting to recognise that too.

Evidence is mounting that Hannah’s husband had a long history of psychological abuse and controlling behaviours, sometimes called coercive control.

This is something we and others believe should be a crime in all jurisdictions across Australia.

In a nutshell, coercive control is a collection of behaviours designed to strip someone of their sense of autonomy and self-worth. Some examples of these behaviours include removing male contacts from a partner’s social media, dictating where and when their partner sleeps and eats, threats of self-harm if the relationship ends, and physical violence.

Perpetrators are nearly always male. And research by the UK charity SafeLives shows perpetrators can come from all works of life and social demographics.

If we can predict it, we can prevent it

There is a recognised timeline of behaviours that tend to occur before one partner (or ex-partner) kills the other.

A review of 372 intimate partner homicides in the UK found many men who kill their intimate partners (and it is almost always men killing women) followed an eight-stage homicide timeline.

For instance, the offender tends to have a history of abuse (either against the same or a different victim), the relationship often doesn’t start out as abusive, their behaviour tends to gradually become controlling, there’s a trigger (such as the end of the relationship) and then they escalate and kill their partner. There are clear similarities between the killing of Hannah and her children and this timeline.

Because we can predict these incidents, perhaps we can prevent them.

Just as importantly, not only is coercive control a warning sign for intimate partner homicide, it is also a wrong in itself. Victims report coercive control is often worse than all but the most extreme physical violence.

It’s time to criminalise coercive control

Tasmania is the only jurisdiction to have made certain coercive controlling behaviours (in particular, economic abuse and emotional abuse) criminal offences in Australia.

But we and others believe coercive control should be a criminal offence in its own right in each state and territory.

Such criminalisation needs to be part of wider reforms to address the unacceptable reality that a current or former partner murders a woman every week in Australia, and millions of Australians experience emotional abuse by an intimate partner at some stage in their lives.

 

How has this worked internationally?

England and Wales made coercive control a crime in 2015. Ireland and Scotland followed suit in 2019, with promising early results in Scotland. And last week a Californian senator introduced a bill to criminalise coercive control.

To illustrate the types of cases these laws might apply to, consider the first successful conviction for coercive control in Ireland.

According to media reports, Kevin Dunleavy called his partner nearly 6,000 times in three months (more than 60 times a day). He made her take her phone with her when she left the house. He made her answer video calls so that she could show him where she was and who she was with. He threatened and attacked her. And he burned her clothes so she couldn’t leave the house.

 

Because the court could look at his behaviour as a whole, he was given a sentence that reflected the overall seriousness of his behaviour, nearly two years in prison.

It’s not just more law, it’s an ideological shift

In jurisdictions other than Tasmania, the types of behaviours we might call coercive control are recognised as forms of family violence. But, generally, these behaviours can only be prosecuted as a breach of an intervention order (otherwise known as a domestic or apprehended violence order).

This is an issue because many women who need protection do not have intervention orders. Even when they do, police don’t always take action when those orders are breached. And it sends the wrong message to victims: that these behaviours are only wrong if a court order is in place.

Criminalising these abusive behaviours demonstrates our strongest denunciation of them. It legitimises victims’ perceptions that what they are experiencing is unacceptable. It gives the broader community a language and shared understanding that can lead to long-term changes in attitudes. It gives police and others in the justice system a tool to intervene. And because of that, it may even save some lives.

There are, though, some concerns. Most importantly, the criminal justice system already struggles to respond to physical violence. And women are often misidentified as the perpetrator, especially in intervention order proceedings. Why should we expect it to do any better with the more complex concept of coercive control?

Training is critical

The answer, which is supported by conversations we’ve had with police and service providers in the UK, is that with proper resources and training, criminalising coercive control becomes more than just adding another crime to the thousands already in the statute book.

It necessitates a fundamental shift in the way police, prosecutors and judges see domestic abuse, not as a series of separate events but more like the way victims experience it: cumulatively, and comprehensively.

Criminalising coercive control isn’t, though, as simple as just cutting and pasting from one jurisdiction to another. It would require a detailed review what’s happened in other countries, and how best to legislate in each state and territory. It will also take time to implement, and uptake may be slow, as has been the case in England and Wales. That is, this isn’t the sort of reform that can happen overnight.

Instead, criminalising coercive control is the kind of reform that, done right, could lead to generational change in how we as a society conceptualise domestic violence.


If this article has raised issues for you or someone you know, contact the national sexual assault, family and domestic violence counselling service– 1800 RESPECT (1800 737 732).


Paul McGorrery, PhD Candidate in Criminal Law, Deakin University

, Deputy Dean, School of Law, Deakin University

This article is republished from The Conversation. Read the original article.

AFLM name change debate shows again how men are considered ‘the norm’

Kate Seear, Associate Professor in Law, Monash University

A shorter version of this was first run in The Guardian on 12th February 2020

“How long until AFL headquarters formally commits to renaming the men’s competition AFLM?” This was the question I put to Nicole Livingstone, the head of women’s football, and Steve Hocking, head of football operations at the AFL, on my ABC radio program, The Outer Sanctum, ABC last weekend.

The debate on social media – over both the question and the answer – was swift and polarised. It took a further three days for it to make its way into the mainstream media. When it did, the conversation exploded.

Predictably, many condemned the suggestion that the men’s competition should be renamed. Some argued that we shouldn’t mess with over 150 years of tradition, seemingly forgetting that before the AFL was the AFL, it was the VFL, and before that, the VFA. Others argued – without further elucidation – that this was yet another case of “political correctness gone mad”. A tired slogan all too often advanced without any attempt to explain it, the argument is supposed to be self-evident. What is the point, though? Are we being told that any attempt to question the words we use and the meanings they make is an illness of mind, a kind of “sickness”, a pathology?

I can’t help but see an irony, in any event, in that those who accuse others of being overly sensitive about the strictures of language would cling so dearly to it once it is opened up to critique and challenge.

Other critics noted that the men’s competition is the “norm”, meaning that there is no need to distinguish it from the women’s. To do so would be an insult to the men’s game, since we already know that “AFL” is synonymous with men.

Proponents of the “M” are of course well aware of its normative status. This is precisely the problem they want us to reflect on.

Mark Robinson, writing for News Corp, called the debate “silly”. Without detailing any of the arguments in favour of a change, Robinson asked “Why are we even having this debate?”, before answering himself: “AFLW is the women’s. AFL is men’s. End of discussion”. Robinson went on to say that “It’s OK for the AFL to champion causes but it does pick and choose”. Without irony, Robinson then picked and chose a cause of his own, suggesting that while the “scourge” of gambling was an important issue worth addressing, the AFLM debate was not.

Let me explain, then, why so many footy fans have chosen this as their issue. Given Robinson and others may be unaware of the context, let me explain why we are having this debate.

First and foremost – as the debate itself reminds us – language matters. Language does not simply reflect society but shapes it. These issues have been the subject of academic analysis by experts in semiotics and linguistics for decades.

For example, language can produce and reproduce hierarchies, especially through what the Algerian-French philosopher Jacques Derrida called ‘binary logic’. He argued that binary pairs – such as mind/body, reason/emotion, objectivity/subjectivity, order/chaos and masculine/feminine – dominated Western language and thought. Each word in the pair derives its meaning from the other, meaning that language is relational.

These pairs also happen to be hierarchical: mind is valued over body, reason over emotion, objectivity over subjectivity, and masculine over feminine. The pairs are also connected, with women historically associated with the subordinated ‘other’ of each binary pair (emotion, body, chaos, subjectivity).

This is just one example of the way that language reflects and reinforces meanings, shapes systems of thought and social norms, including the things we come to value and devalue. Our values and norms are shaped by the repetition of these words and the relations between them. This is what the philosopher Judith Butler meant when she once described the “reiterative power of discourse to produce the phenomena that it regulates and constrains”.

There are other ways that language has shaped and constrained how we come to think of women. This is best summed up in the classic observation by feminist writer Simone de Beauvoir, who said that:

“In actuality the relation of the two sexes is not quite like that of two electrical poles, for man represents both the positive and the neutral, as is indicated by the common use of man to designate human beings in general; whereas woman represents only the negative, defined by limiting criteria, without reciprocity.”

Our language has long been dominated by words that position men as the default or norm. Words such as ‘mankind’ and ‘manmade’ are used to denote humanity as a whole. They reinforce the notion that this is a world by, for and of men. Many of us who sit outside these norms feel our absence acutely, and frequently, in ways that those who occupy the dominant status may never notice, be aware of, or appreciate. To us, it matters.

Laws and other canonical documents often referenced only men, raising questions about whether women (and others, such as non-white men) existed in the eyes of the law at all. In some cases, the absence of references to women meant that they had no rights in law, and could not benefit from them. For those ‘others’, language really mattered, in a very tangible way.

These tendencies in language – to privilege men and erase or omit women – are pervasive, widespread, and continue to linger today. And one need not be excluded from legal rights to care about these omissions and erasures or to feel that our lives might be made just a bit better if our language was more deliberately inclusive.

Of course, the addition of an M reinforces a binary of its own (men/women) which many might consider itself problematic. This is an important observation, and one that could be addressed by the AFL if it were to consider a gender-neutral approach to the naming of the elite competitions. For now, however, we are stuck with AFLW and a binary approach to sport. And so as long as this persists, we have a problem. It is – crucially – also a problem of the AFL’s own making. It chose to differentiate between the two elite level competitions in such a way.

The debate over AFLM cannot be separated from these histories and the injustices that language helps to perpetuate. It matters that the sport’s governing body (the “AFL”) is wholly synonymous with the men’s competition (the “AFL”) so that the men’s competition remains the default, or norm. What message does this send to women, men, boys and girls about the value placed on both women and women’s sport? It signals that we are lesser. This is repeated in every other aspect of the sport’s governance: from inequalities in pay and resourcing, the shortened season, the difficult conditions under which many athletes compete, and the long fight to even get a women’s competition in the first place.

The subordinate status of AFLW is produced not just by historic inequities, differences in resourcing and pay inequities but by the continued positioning of women’s sport as an afterthought: a symbolic and literal ‘other’ to the men’s. If this week’s debate is anything to go by, many people think this is ‘just a fact’ and prefer it to stay this way. But that is a backward-looking view; one which clings to old linguistic and structural patterns. It is a view that must change if the game is to grow, and if gender equality – in sport and society – is to ever become a reality.

When leading sports commentators dismiss the “M” debate as silly and meaningless, then, they demonstrate an ignorance of language’s constitutive power, the historic privileging of men as the norm and the force and significance of linguistic repetition.

It would be a small gesture to add an “M”. It won’t fix everything, but I’m not sure that anyone is claiming it will. For many of us, it would be a profound and meaningful step. One that will harm no-one, but mean a great deal to those of us so often on the outside. This includes future generations of girls, who do not yet know they are the ‘other’. Let us hope they never need to.


Kate Seear, Associate Professor in Law, Monash University

A shorter version of this article was originally published in The Guardian. Read the shorter article.

Domestic violence will spike in the bushfire aftermath, and governments can no longer ignore it

Rowena Maguire, Queensland University of Technology, Danielle Bozin, Queensland University of Technology and Gary Mortimer, Queensland University of Technology

This article was originally published in The Conversation on 18 November 2019

Over the past two weeks, bushfires have raged across New South Wales and Queensland. While the narrative appears focused on potential causes and political point-scoring, what’s lost in this discussion is the role of post-disaster recovery, and specifically how it relates to gender.

Disasters have gendered impacts. Generally, disasters disproportionately affect women and girls, with women and children 14 times more likely to die in a natural disaster on a global scale.

In the Australian bushfire context, research shows women are more likely than men to want to evacuate, and men are more likely than women to want to remain and “fight the fire”. This means men are three times more likely to die in bushfires compared with women.

But the gendered impacts of bushfires also affect the aftermath. There’s a growing awareness in Australia among researchers and those working in women’s support services that natural disasters amplify conditions leading to incidents of domestic violence.

Yet climate, disaster and environmental law and policy is “gender blind” – they don’t mention or recognise gender as an issue.

Gender violence after disasters

People struggle to cope long after a disaster has settled from significant levels of family disruption, including displacement, social isolation, psychological trauma and financial despair.

The current bushfires have destroyed many houses and led to widespread trauma, which means longer term repercussions, such as the financial ramifications of loss of property and halted economic activity, will build.

These impacts carry with them an emotional toll that can place pressure on household dynamics and bring families to breaking point. If history tells us anything, this will include an increase in gender-based violence.

Following Hurricane Katrina, a study found a 98% increase in violence against women as measured from before and after the disaster.

A study conducted following the 2004 Whakatane flood in New Zealand found police callouts doubled and the workload for domestic violence agencies tripled in the aftermath of the flood.

Similarly, the Women’s Health Goulburn North East organisation (a specialist women’s health service) reported in the wake of the Black Saturday Bushfires in Victoria in 2009 an increase in the incidence of domestic violence against women during post-disaster recovery.

What’s more, women already living in an abuse relationship may experience greater severity post-disaster, because they may be separated from support systems like family and friends that offered some protection. These women may be forced to rely on the perpetrator for survival, or access to services.

Addressing gender in climate law

Climate law remains largely gender blind in Australia. In 2017, following years of lobbying, women’s groups were successful in getting the United Nations Framework Convention on Climate Change to adopt “gender action plans”.

These plans promote two key concepts: gender balance and gender responsive policy.

Gender balance is defined as being achieved when there are approximately equal numbers of men and women participating in international environmental negotiations.

Gender responsive policy requires governments to identity, understand and implement initiatives aimed at addressing gender gaps in the environmental sector.

The creation of these UN gender action plans means governments, including the Australian government, should start identifying and responding to the gendered impacts of climate change. But the Australian government has yet to bring these recommendations to its climate policies.

Australia doesn’t adopt UN recommendations

The key organising international text on disaster management is the Sendai Framework for Disaster Risk Reduction, a 15-year non-binding UN agreement, which requires countries to apply a gender sensitive approach in preparing and responding to disasters.

But Australian disaster policies don’t do this. For example, Queensland’s State Disaster Management Plan is effective in terms of physically responding to a disaster, but the policy remains gender blind. It does not adequately consider the effects of sudden or slow onset disasters at the household level.

Not only does the Australian government need to adopt a gender sensitive approach in disaster policy and planning, but also it should better fund groups at the front line responding to gendered violence following a disaster.

This includes groups providing legal support like Womens Legal Services and Legal Aid and should extend to groups providing accomodation, counselling and other support for women impacted by gender violence.


The National Sexual Assault, Family & Domestic Violence Counselling Line – 1800 RESPECT (1800 737 732) – is available 24 hours a day, seven days a week for any Australian who has experienced, or is at risk of, family and domestic violence and/or sexual assault.


Rowena Maguire, Senior Lecturer, Faculty of Law, Institute for Future Environments, Queensland University of Technology

, Lecturer in Law, Queensland University of Technology

, Professor of Marketing and Consumer Behaviour, Queensland University of Technology

This article is republished from The Conversation. Read the original article.

Episode 27: Asher Flynn

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In this episode of the Scarlet Letter, I chat to Associate Professor Asher Flynn about her research on image based sexual abuse and the harms it perpetuates. 

Check out the latest episode of our podcast, the Scarlet Letter.

Consent law in Queensland

Jonathan Crowe, Professor of Law at Bond University, and Bri Lee, author and freelance writer.

This post was originally published on Jonathan and Bri’s website Consent law in Queensland.

**The Law Reform Commission is now accepting submissions until January 31. Please see below for information on how to make a submission**

Consent law in Queensland can be complicated. We actually have quite a comprehensive, progressive definition of consent, but the ‘mistake of fact’ defence undermines and contradicts that definition. It allows defendants to benefit from old attitudes and rape myths, undoing the practical effects that society’s changing attitudes toward consent have had on the definition itself.

A recent empirical study into Australian stakeholder perceptions of the ‘mistake of fact’ defence in rape law—including lawyers, sexual assault professionals and members of the broader community—found that many participants viewed the notion of mistaken belief in consent as vague, overly broad and “biased in favour of the defendant”.

WHAT IS THE CURRENT DEFINITION OF CONSENT?

The crime of rape is defined in Queensland (as it is throughout Australia) as sexual intercourse without “free and voluntary consent”. There is a list of factors that will render consent not freely and voluntarily given, such as threats, intimidation, and fraud. Passive non-resistance (like ‘the freeze’) does not equate to consent, particularly in situations where the complainant feels intimidated. A complainant’s consent also cannot be inferred from unrelated social behaviour such as: her clothes, level of intoxication, or her willingness to accompany the defendant to a private location.

AND WHAT IS ‘MISTAKE OF FACT’?

Section 24(1) of the Criminal Code says that “[a] person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.” The relevance of this in rape and sexual assault trials typically arises when the defendant suggests they had a mistaken belief that the complainant consented.

If the facts of a case make it potentially relevant, the prosecution must prove that the defendant did not have an honest and reasonable belief that the complainant was consenting. The jury may believe that a complainant didn’t want the sex and didn’t consent, but they will acquit the defendant if they believe he had an honest and reasonable belief that the complainant was consenting. (It’s a two-part defence. The ‘honest’ part is a subjective question: What did the defendant have in his mind? The ‘reasonable’ part is an objective question: What would a reasonable person in his position have had in his mind?)

AND WHAT’S THE PROBLEM WITH ‘MISTAKE OF FACT’?

The ‘mistake of fact’ defence undermines the law’s attitude to free and voluntary consent. Consent cannot be established by pointing to the complainant’s social behaviour, level of intoxication, or lack of physical resistance. However, all these factors have been used to benefit defendants who say theirs is a ‘mistake of fact’ situation.

In practice, as you can read in these cases, the ‘mistake of fact’ defence makes it extremely difficult to secure convictions for any sexual assault or rape cases that involve intoxication, ‘the freeze’, mental incapacity, or language barriers – whether present in the defendant, complainant, or both. For example, if a defendant was drunk, this may help him to argue he had an honest belief the complainant was consenting. But if a complainant was drunk, this may also help the defendant argue the complainant’s drunken behaviour wasn’t clearly communicating ‘no’. If you’re a survivor, it’s a lose-lose scenario.

WHAT ARE “RAPE MYTHS” AND WHAT HAS CHANGED?

Rape law has long been influenced by harmful myths such as the idea that most rapes are committed by strangers, ‘no’ sometimes means ‘yes’, or that women are responsible for being raped if they dress provocatively, drink alcohol, engage in flirtatious conduct, or accompany the accused to a private location. These pernicious myths feed into the social construct of the ‘ideal victim’ as a chaste, modest woman who is raped violently by a stranger in a public place. However, the best and most recent data we have from the Australian Bureau of Statistics confirms women are most at risk of being sexually victimised in a residential location, by someone known to them, without the use of a weapon, and rarely with corresponding physical injuries.

Queensland rape law now recognises that rape can be committed in private by someone known to the complainant, and that consent cannot automatically be inferred from the complainant’s dress, level of intoxication, sexual history or lack of physical resistance. These are hard won and important acknowledgments that need better enforcement. However, the ‘mistake of fact’ defence undermines this progress, by letting ‘rape myths’ back into the courtroom through the back door.

NOW IS THE TIME TO MAKE YOUR VOICE AND OPINION COUNT

The Queensland Law Reform Commission has released its consultation paper which is available to read and download here. It’s over 100 pages long and can be complex, so please don’t think you need to read it all, or be a lawyer, to contribute. These laws impact you and you have a right to understand them and have your voice heard when they are being reviewed.

We have summarised the consultation paper and you can download it here. We have also drafted some responses to the main issues which you can also download as a Word document here. We did this so that you can add your own opinions and experiences, and to encourage more people to make submissions.

The Law Reform Commission is accepting submissions until January 31, so this is your chance.

Submissions should be emailed to lawreform.commission@justice.qld.gov.au

Or posted to: The Secretary Queensland Law Reform Commission
PO Box 13312 George Street Post Shop QLD 4003

You are allowed to make anonymous submissions, or request that your submission not be publicly shared. Just say so in your letter or email.

To learn more and view a sample letter, please visit Consent law in Queensland


Jonathan Crowe is Professor of Law at Bond University. He has researched Queensland rape law for more than 15 years. His work on this topic has appeared in the Criminal Law Journal, the UWA Law Review and the Bond Law Review.

Bri Lee is a freelance writer and the author of Eggshell Skull. Her journalism has appeared in The Monthly, The Guardian, The Saturday Paper, and elsewhere. She is qualified to practice law, but does not.

New Books on Gender and the Law from Hart!

ROSE QC

The Remarkable Story of Rose Heilbron: Trailblazer and Legal Icon

Hilary Heilbron

Rose QC

Re-issued in paperback to mark the centenary of legislation enabling women to enter (join) the professions for the first time in the United Kingdom. 

Rose Heilbron QC (later Dame Rose Heilbron), was an English barrister, who became a world famous icon of the 1950s and 1960s. She was one of the two first women King’s Counsel (later Queen’s Counsel) in 1949 and the first woman Judge in England in 1956 when she became Recorder of Burnley. This biography, written by her daughter Hilary, also a barrister and Queen’s Counsel, charts her rise to prominence and success against the odds, excelling as an advocate and lawyer and later as only the second female High Court Judge in a career spanning nearly 50 years. She broke down many barriers with a string of firsts in the legal profession. She became a pioneer for women at the English Bar and for women generally, championing many women’s causes in an era when it was not fashionable to do so. 

Hilary Heilbron is the only child of the late Rose Heilbron and herself a barrister and Queen’s Counsel. She practises commercial litigation and international arbitration in London and in other jurisdictions and sits as an international arbitrator.

Order online at www.hartpublishing.co.uk – use the code CV7 at the checkout to get 20% off your order!

 

Scottish Feminist Judgments

(Re)Creating Law from the Outside In

Edited by Sharon Cowan, Chloë Kennedy and Vanessa E Munro

Scottish Feminist Judgements

An innovative collaboration between academics, practitioners, activists and artists, this book rewrites 16 significant Scots law cases, spanning a range of substantive topics, from a feminist perspective. Exposing power, politics and partiality, feminist judges provide alternative accounts that bring gender equity concerns to the fore, whilst remaining bound by the facts and legal authorities encountered by the original court.

Paying particular attention to Scotland’s distinctive national identity, fluctuating experiences of political sovereignty, and unique legal traditions and institutions, this book contributes in a distinctive register to the emerging dialogue amongst feminist judgment projects across the globe. Its judgments address concerns not only about gender equality, but also about the interplay between gender, class, national identity and citizenship in contemporary Scotland.

The book also showcases unique contributions from leading artists which, provoked by the enterprise of feminist judging, or by individual cases, offer a visceral and affective engagement with the legal. The book will be of interest to academics, practitioners and students of Scots law, policy-makers, as well as to scholars of feminist and critical theory, and law and gender, internationally.

Sharon Cowan is Professor of Feminist and Queer Legal Studies at University of Edinburgh, Scotland.

Chloë Kennedy is Senior Lecturer in Criminal Law at University of Edinburgh, Scotland.

Vanessa E Munro is Professor of Law at University of Warwick, England.

Order online at www.hartpublishing.co.uk – use the code CV7 at the checkout to get 20% off your order!

Episode 26: Maddy Ulbrick

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In this episode of the Scarlet Letter, I chat with Madeleine Ulbrick, who has recently completed her PhD at Monash University on the topic of economic abuse, and the disproportionate effect that this form of abuse has on women. 

Check out the latest episode of our podcast, the Scarlet Letter.