In our overview of the coercive control laws, we touched on a few examples of the new definition of “domestic violence” in relation to coercive control.
In this first of two articles, we’ll take a more detailed look at some of the key concepts introduced to define what “domestic violence” is for the purposes of the coercive control legislation in Queensland.
Domestic Violence in Coercive Control
Establishing that there has been more than 1 incident of “domestic violence” is an essential part of determining whether a “coercive control offence” has been committed.
Importantly, this article and the definitions of domestic violence we’re going to talk about only apply to the coercive control offence. These are not general concepts or definitions that impact other areas that might involve “domestic violence”. The only relevance of them at the moment is to establish whether or not the required element of domestic violence is met in an alleged offence of coercive control.
Concepts around Domestic Violence
Below we’ll discuss the primary definitions that have been introduced as part of the attempt to criminalise a wider range of unacceptable behaviours within the confines of a domestic relationship.
Before we do that, there are a couple of important points to make.
First, domestic violence here does necessarily mean a single event. The amendments make it clear that domestic violence might take place over time or multiple events that, when taken together, meet the requirements.
Next, the amendments say that the behaviours we are going to discuss must be considered “in the context of the relationship” between the relevant people. It’s not immediately clear what this statement is attempting to achieve.
Most likely, introducing the idea of “context” is an attempt to allow for the thought that some of the behaviours discussed are acceptable or unacceptable from a subjective point of view. That is, the legislation seems to embrace the idea that something might be domestic violence in one unique relationship but is arguably not in another.
Possibly this application of context is designed to assist with some of the concerningly broad ideas that we are about to discuss, however only time will tell us whether that is so.
Top Tier Definitions vs Specific Examples
The way domestic violence is defined, it first provides a high level top-tier list of what domestic violence is. After that it provides a list of behaviours that are automatically considered to be domestic violence.
In this article we’re going to deal with the first, high level concepts and definitions. In a later article we will go into more detail on the specific list that has been provided.
There are six primary behaviours addressed in the definition of domestic violence. They are:
- Physically or sexually abusive;
- Emotionally or psychologically abusive;
- Economically abusive;
- Threatening;
- Coercive; and
- Anything else that controls or dominates the second person and causes them to fear for their safety or wellbeing (or that of someone else).
We’ll discuss each in turn.
Physically or Sexually Abusive
This first category captures the traditional, physical elements of potential domestic violence.
The idea of physical or sexual abuse is not a new one, and so we won’t offer more detail in this article on the topic.
Emotionally or Psychologically Abusive
Emotional or psychological abuse starts to get into more challenging territory, partly because it can be difficult to define.
The coercive control laws attempt to define it as “behaviour by a person towards another … that torments, intimidates, harasses or degrades the other person.”
As you can see, the definition itself introduces 4 new concepts: torment, intimidate, harass, degrade.
These terms are not, themselves, defined further. As a result they will have their ordinary meanings. Over time we expect that words like these will be analysed by reference to specific behaviours or circumstances and a body of Court opinions will start to clarify the full scope of behaviours that might constitute those things.
What we do have, though, is a set of “examples” in the legislation of what the parliament considered would fit within the category of emotional or psychological abuse.
The image below shows the examples provided:
The examples are not exhaustive. They are designed to illustrate the types of behaviours that the main term is supposed to capture.
As you will see, some of them are fairly clear and others are less so.
For example, the behaviour of “repeatedly contacting a person by SMS message” will inevitably depend upon the content of the messages and the willingness of the recipient to receive them. The example, as written, is probably broader than the intended definition since there are more specifics.
So it’s important not to read the examples and make them part of the definition. Each behaviour is going to turn on its own independent facts.
Economically Abusive
Economic abuse is, again, defined. It means:
Behaviour by a person … that is coercive, deceptive or unreasonably controls another person:
- in a way that denies the second person the economic or financial autonomy the second person who have had but for that behaviour; or
- by withholding or threatening to withhold the financial support necessary for meeting the reasonable living expenses of the second person or child
The types of behaviour this definition is designed to address are fairly clear. Some cases of domestic violence will involve one party allegedly exerting significant or total control over the other’s finances in a way that leaves the other helpless or dependent.
But the definition itself is quite confusing.
First, the behaviour must “be coercive, deceptive, or unreasonably control” the other person. Despite that, none of the examples (below) seem to deal with how deception is related to the topic – they focus heavily on coercion and control.
Next, neither “coerce” nor “control” are defined here. Coerce is defined elsewhere but not in relation to this phrase. That’s particularly relevant because the “unreasonable” requirement only exists for control, but not for coercion.
So if a behaviour is coercive then it is captured – whether “unreasonable” or not. It might be implicit to some that all coercion is unreasonable, but for our part some clarity would be welcome.
Finally, the examples they provide are again lacking some context or detail. Many of them simply insert the word “coercing” or “unreasonably” without justifying the use of the word, so it is difficult to take much helpful guidance away from them.
For example – when is a disposal of property reasonable as opposed to unreasonable? When is getting someone to relinquish control over income “coercion” and when is it not?
At the moment, all the examples do is rely upon terms that are not defined rather than provide any practical context, and so in reality don’t offer us much to go on.
Here are the examples provided of “economic abuse”:
Threatening
There is no explanation of what “threatening behaviour” is intended to include for the purposes of domestic violence.
However, the concept of “threats” is one that is fairly well explored in the context of criminal law.
A threat, generally, is a statement of intention to do harm. It can be made aloud or in writing, or it can be implied (for example, by body language).
Generally speaking a “threat” for criminal law purposes needs to be of a nature and level of seriousness that an ordinary person might be influenced by or fearful of it.
The big question here is: threatening to do what?
There are various kinds of threats understood in criminal law, such as threatening violence, threatening to share intimate images with others, threatening to enter property and so on. Here, the reference is simply to “threatening” behaviour without any further explanation of the nature, gravity or intention of the threat that must exist.
One future concern we would have is that “threatening” gets tied to the concept of “harm” in this legislation. As we have discussed elsewhere, the definition of “harm” is extremely broad and concerning on a number of levels. If the intended meaning is a “threat to do harm [the defined term]”, then threatening behaviour will be an extremely broad concept and well beyond any normal or sensible understanding of the concept of “violence”.
Coercive
Coercive behaviour is, by definition, domestic violence for the purposes of coercive control offences.
Here, to “coerce” a person means “compel or force a person to do, or refrain from doing, something”.
What words like “compel” or “force” mean (or how they are different from each other) is not clear. In a broad sense, people “compel” or “force” those in family relationships to do or not do things all the time in different ways.
As a similar issue with “threat” discussed above, it also doesn’t seem relevant what the coerced behaviour in question actually was. Any coercion of any kind to do or not do anything seems to be caught.
So, for example, if a spouse forces their partner to stop smoking by some means, that is technically speaking coercion and an act of domestic violence. (We should point out that this example might have an available defence of “reasonableness”, but that’s a topic for another article. Strictly it still falls within the definition.)
Controlling or Dominating
Lastly, we come to a specific kind of controlling or dominating behaviour.
That is, behaviour that “in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else”.
We’ve discussed the idea of “controlling” earlier a few times so won’t revisit that.
There is a new term here: “dominates”. Yet again this is undefined. It’s also not clear how it is intended to be different from “control”. It implies a significant degree of influence by one person over another, but in many ways the two terms seem to overlap. We cannot think of any examples that might be “dominating” that are not also “controlling”.
Either way, the critical element here is that the behaviour in question must cause the second person to fear for their safety or wellbeing, or that of another person.
This creates a specific need to establish a link between the behaviour and the fear, and in doing so appropriately eliminates the possibility of a person being fearful without cause being caught by the definition.
It does add another (undefined) concept though: “wellbeing”.
This would seem to be generally broader than “safety” and include both physical and less physical issues such as mental health or psychological damage. How broad it goes will depend on which definition the Courts end up adopting.
For example, Cambridge dictionary defines wellbeing as “the state of feeling healthy and happy”.
If that definition or one like it is used, then to fear for one’s wellbeing could include simply the fear that you might not be happy – which would seem to be inappropriately broad. Given that it includes fear for another, it could even include fearing that someone else might not be happy.
We can only hope that the Courts will tread cautiously before embracing a definition of what wellbeing is, or is not, for the purposes of this legislation.
Is This where Domestic Violence is Headed?
As you can see, even just with our high-level definitions there is a lot to think about, and a lot of questions to ask about how the coercive control legislation is going to work in practice.
While these broad definitions of “domestic violence” are, for the moment, limited to the coercive control legislation, we cannot help but wonder if they are a sign of things to come in other areas such as parenting matters.