Legislating against coercive control: The Hear Her Voice Report
Previous instalments of this series outlined the background to the coercive control debate in Queensland and discussed the Scottish legislative model which was anticipated to serve as an exemplar in the development of Queensland legislation.
The Hear Her Voice report (the Report) was recently released by the Women’s Safety and Justice Taskforce. It is the final report by the Taskforce which outlines their findings and recommendations in relation to the criminalisation of coercive control.
This blog will discuss the findings and recommendations of the taskforce and analyse the potential outcomes assuming such recommendations are to be adopted in Queensland.
The extent of the issue
The Report found that as a general proposition coercive control receives inefficacious responses from the criminal justice system.
As discussed in earlier instalments, coercive control is often not understood comprehensively and thus, the Report held, it receives limited resourcing and inadequate or inconsistent responses from police. As much of domestic violence policing takes an ‘incident-based’ approach, cases of physical violence take priority. The Report found that such an approach means more destructive and less apparent behaviour can occur where otherwise it could have been prevented.
The Report found that there was a negative culture within the Queensland Police Service surrounding coercive control, including negative attitudes held by individuals who dismissed legitimate complaints, failed to properly investigate, colluded with manipulative perpetrators and failed to mitigate conflicts of interests relating to complaints made against police officers. Additionally, cultural incapability of certain officers exacerbated issues in responding to cases of coercive control between First Nations people.
In cases that proceeded to court, the Report suggests that coercive control victims struggle with a hostile and unsafe environment which lacks supportive services such as safe rooms and the use of remote evidence. The domestic and family violence court process was also noted as a barrier to achieving safety for victims of coercive control, who could be subjected to further contact with their abuser through constant unnecessary adjournments.
The Taskforce concluded that these shortcomings can be solved through a suite of reforms focussing on education of police and judicial officials, as well as the introduction of a standalone coercive control offence similar to that adopted in Scotland.
Recommendations
The Report contains a total of 89 recommendations ranging from proposed education/training schemes, media and communication strategies, definitional, evidence and sentencing amendments as well as the creation of new offences. The main recommendations are summarised below.
Training/Education
The taskforce proposes an initial stage of reform which focusses on training and education of the police and judiciary so that they have an adequate understanding of the new coercive control scheme in order to efficiently and justly enforce it. The Taskforce proposes training throughout the QPS as well as creating specially trained detectives. They also propose five days of training each year for judicial officers.
Further proposed training will occur throughout the legal sector.
To address awareness in the broader community, the taskforce proposes:
- Communication strategies to educate the wider public;
- Media regulations (akin to this surrounding suicides) which ensure a consistent standard of reporting;
- Programs that target young men within schools.
Whilst some of these education schemes target a more long-term shift in culture and awareness, others will serve as a prerequisite to later stages of reform that focuses on the introduction of new offences, discussed below.
New offences/sentencing amendments
The report suggests two new offences as well as an amendment to the existing offence of unlawful stalking. To accompany these offences, it also makes amendments to some areas of sentencing and evidence law.
The New Coercive Control Offence
As anticipated, the new offence was modelled off the Scottish model. It would work in conjunction with an amended definition of domestic violence under section 8 of the Domestic and Family Violence Prevention Act 2012 (Qld) (‘DFVP Act’) that includes coercive control.
The new offence recommends criminalising the undertaking of a course of conduct constituting two acts of domestic violence, where a reasonable person would consider this course of conduct to be likely to cause one person in the relationship to suffer physical, psychological, emotional or financial harm. No proof of actual harm is required.
The offence will carry a maximum penalty of 14 years imprisonment. A complete defence exists if the defendant can prove on the balance of probabilities that the conduct was reasonable in the context of the relationship as a whole.
A new aggravating factor on sentence will apply if the commission of a domestic violence offence was also in breach of an existing court order or injunction or if the offence exposed a child to domestic violence.
The Taskforce further recommends that the offence be included within Schedule 1 of the Penalties and Sentences Act 1992 (Qld) so that a court may make an Serious Violent Offender declaration in relation to repeat perpetrators of serious domestic violence. Such a declaration would require these offenders to serve 80% of their sentence before being eligible for parole.
This new offence, with its lower threshold, would aim to be more easily established where other more serious offences (strangulation etc.) cannot be sufficiently particularised.
The Taskforce reasons that such an approach is sought to avoid an ‘incident-based’ approach by shifting focus from the particulars of domestic violence incidents and instead focussing on establishing that a course of conduct of domestic violence has been undertaken.
The Taskforce also made other recommendations in terms of the introduction of new post-conviction civil supervision and rehabilitation orders. These will be available where an offender had engaged in behaviour constituting domestic or family violence (including choking, suffocation or strangulation), and where the court considers that making the order is appropriate in all the circumstances to prevent the offender from further engaging in domestic and family violence.
The New Facilitation Offence
The Report further recommends a facilitation offence to stop third parties from committing acts of abuse against victims on a perpetrator’s behalf when there is a Domestic Violence Order in place.
This offence would criminalise conduct where:
- a person enables, aids, or facilitates domestic violence against another person on behalf of a respondent to a domestic violence order; and
- that person knew or ought reasonably to have known that the other person was named as an aggrieved on a domestic violence order.
The offence will be aggravated if it is committed for reward — for example, by a private investigator for a fee.
The Amended Stalking Offence
The Taskforce recommended, among other things, an expansion of the definition of stalking to include behaviours such as monitoring social media and online communication, GPS tracking or spyware.
It was also recommended that a new circumstance of aggravation be put in place which increases the maximum penalty if the crime was perpetrated against a person with whom the defendant had a ‘relevant relationship’ with under the DFVP Act.
Other amendments/proposals
The Report makes various other recommendations. The most notable of these are listed below.
Evidence Act amendments
The report proposes to expand the scope of the existing Evidence Act 1997 (Qld) provisions that allow for the admission of relevant domestic violence evidence in criminal proceedings relating to all criminal offences. It also proposes to allow admissibility of expert evidence about domestic violence and for jury directions to allow consideration of the contextual evidence with respect to the nature and impact of domestic violence.
Penalties and Sentencing Act amendments
The Report proposes that it be a mitigating factor if criminal behaviour is partly or wholly attributable to the defendant being a victim of coercive control.
Diversionary Scheme
The report proposes that first-time breachers of domestic violence orders be diverted to a perpetrator program. If they complete this program they should not be further dealt with by the criminal justice system.
Offender’s Register
The report proposes limited sharing of information between police and certain government and non-government entities to provide greater capacity for targeted monitoring and intervention of ‘high-risk’ domestic violence offenders.
General areas of review
In light of their findings, the taskforce recommended further review of defences (namely provocation) and the Serious Violent Offender scheme
Potential impacts
It is encouraging that so much emphasis has been placed on training and education, which arguably will have the greatest impact in preventing and addressing coercive control. In order to ensure justice for both victims and alleged offenders, consistency across the criminal justice system is required to prevent further confusion about coercive control.
As mentioned in the previous instalment of this blog, the proposed offence has relatively low evidential burdens which must be carefully considered so as not to disadvantage alleged offenders. A course of conduct requires the proof of only two non-particularised incidents, neither of which need to have caused actual harm. The nature of abusive behaviour often involves unremarkable acts which are non-criminal in isolation that therefore do not warrant attention or recording. In the Scottish jurisdiction extensive expert evidence has been consistently required to corroborate statements, and ultimately physical incidents, which are more readily understood and evidenced, have taken primacy in policing and prosecuting.
While cases with clear intent and harm are not problematic, it is not clear how this offence will apply to cases with limited evidence and unclear intention. Proposed media schemes must take care to explain with sufficient clarity which behaviours are now criminal and what the consequences of these behaviours will be. This clarity is imperative both to deter potential offenders and empower victims to report behaviours perpetrated against them which they know will be investigated.
There are several new proposals of particular note that seem to go beyond the current status quo in Queensland:
- The recommendation that domestic violence offences fall under the Serious Violent Offender scheme will have huge impacts. Allowing a court to decide that offenders convicted of domestic violence offences must serve 80% of their imprisonment term before being eligible for parole is a significant increase in sentencing that may have particularly burdensome effects in relation to the new offence and its low evidential hurdles.
- Modifications to the Evidence Act which allow evidence of domestic violence to be advanced in relation to all criminal offences would be a significant amendment. Use of ‘contextual’ domestic violent evidence could lead to situations of prejudice in relation to unconnected alleged criminal behaviour. Indeed, how thing will sit with the complex, existing law of similar fact evidence remains to be seen.
However, several encouraging proposals have been made that are likely to be of benefit to all:
- The introduction of diversionary schemes that allow for rehabilitation rather than proceeding to criminal prosecution is encouraging. Dealing with coercive control within the community will ultimately be an effective initial step in order to protect both alleged offenders and victims from the trauma of the criminal justice system.
- Similarly, post-conviction civil supervision and rehabilitation orders are an encouraged sentencing option that would adequately place focus on rehabilitation and education rather than punishment.
Conclusion
Ultimately the Report presents encouraging strategies of education and rehabilitation that are key to solving the longstanding issue of coercive control. The introduction of a new coercive control offence must be carefully considered in order to present a balanced approach to evidence and sentencing. The extension of the domestic violence jurisdiction to the Serious Violent Offender scheme and modifications to the Evidence Act are particularly strict proposals that must be considered carefully to ensure an appropriate balance between the interests of victims and alleged offenders. It will be interesting to see the response to the Taskforce’s report as the process of legislating against coercive control continues. The Report will now be considered by the Attorney-General.