*The author of this piece is known to Women’s Agenda but wishes to remain anonymous.
In more recent times, coercive control has been exposed as one of the more insidious abusive tactics employed by intimate terrorists. Survivors often refer to this kind of psychological abuse as ‘the worst part’ of an abusive relationship, and to some extent I agree. As a result of increasing awareness in this space, Australia’s attention has turned to the issue of whether to create specific criminal offences targeting these behaviours. This is not unprecedented – international jurisdictions like England, Scotland and Wales have had similar laws in place for some time.
At the risk of stating the obvious, how our communities and legal systems deal with the problem of domestic abuse matters. Domestic abuse is no longer considered a private problem. It is now broadly acknowledged as a problem of epidemic proportions with far-reaching consequences for individuals, communities, service systems and the economy.
At its core, the criminal justice system exists to protect the victimised, punish perpetrators and prevent crime, so naturally the desire to stop intimate terrorism in its tracks leads us to consider the enactment and enforcement of laws neatly designed to punish abusive behaviour.
It is unclear whether or not such laws would have a deterrent effect if the problem is more accurately described as one of ‘male entitlement and humiliated fury ’ – as preeminent author on the subject, Jess Hill describes it.
There is no compelling evidence that increased criminalisation is linked to decreasing crime rates, in fact there appears more likely an inverse relationship. With family courts all over our country ordering victims to remain living in close proximity to their perpetrators to facilitate “meaningful relationships” between their children and their abuser, a criminal justice response is unlikely to result in increased safety for these victims other than for the short period of time the perpetrator is physically locked away, if indeed they are given a custodial sentence at all.
So far the discussion around coercive control in Australia has largely been theoretical; but survivors don’t live in a theoretical world. The apprehension I feel as a survivor and victim of ongoing domestic abuse is very real and I fear becoming collateral damage in the midst of unintended consequences of such law reform.
There is a theory called ‘Blackstone’s Ratio’ that encourages us to consider whether it is more important to protect the innocent or to punish the guilty by suggesting that it would be ‘better that ten guilty persons escape, than one innocent suffer.’
Where the innocent and guilty are as intimately interconnected and entwined as current or former intimate partners, this dilemma is even trickier to unambiguously resolve by a dispassionate arbiter.
Many coercive and controlling partners are uncannily adept at weaponising legal systems against their victims. As uncomfortable as it is to consider, enacting laws criminalising coercive control will require a difficult conversation about just how many innocent victims we are prepared to misidentify as perpetrators in order to secure the convictions we hope to attain or the crimes we hope to deter (assuming we could deter them).
Asserting that we can eliminate this risk entirely would be nonsensical, so inevitably we must turn our minds to risk mitigation and acceptable margins of error. With so many survivors currently inhabiting the literal margins of society – experiencing multiple disadvantages and vulnerabilities – the idea that we might miscalculate the risk is terrifying.
Recently, I had to defend a domestic violence cross-application. The man who tried to strangle me, shot my pets, threatened murder-suicide and whom I ultimately left, has unfortunately but predictably continued his campaign of terror post-separation.
I have had three protection orders granted in a five year period. Each and every time I make an application for a protection order, my relentlessly litigious abuser files his own cross-application against me alleging all manner of unfounded allegations – from that one time I gave him an unsolicited wedgie in a moment of frivolity, or an unkind comment I made many years ago – to the potentially problematic allegation that I have used my access to our children’s social media accounts to enact covert surveillance of him by viewing his Facebook page.
Sometimes the things survivors do to keep themselves safe (especially in the absence of a system they can trust) can seem ill-conceived to the casual onlooker.
When my husband physically assaulted me for the last time, I had bruises and injuries to ‘prove’ beyond a reasonable doubt that he had done it. There was a hysterical triple 0 phone call from me and also from a neighbour which added credibility to my account of the abuse. Where on previous occasions I had evasively explained away my bruises and injuries, I remember feeling absurdly thankful that he had again taken things that far during the incident that ended our relationship. Getting a protection order on that occasion was a relatively simple process that police largely conducted on my behalf. I was able to focus on healing my wounded self and on seeking safety for my children, instead of litigation strategy and conduct.
On that occasion, my husband’s abusive behaviour earned him a criminal conviction. I am acutely aware that many survivors of horrific coercive control are not able to feel the vindication I felt upon my abuser’s criminal conviction for the simple reason that their abusers chose to terrorise them in different ways than did mine.
The invisibility and intangibility of coercive and controlling behaviour makes these acts and the people who commit them especially insidious and difficult to objectively pin down. I wish nothing more or less for victims in this situation than for them to be believed and protected in a way that upholds their human dignity and inherent right to a life free of violence and intimidation.
Despite my desire for domestic abusers to be held accountable for the psychological torture they inflict upon their victims, I remain intensely ambivalent about the criminalisation of coercive control.Many Australian women are already criminalised for fighting back against abuse and I’m keen to ensure that we don’t create another arena wherein the law can be weaponised by perpetrators to further marginalise and punish genuine victims of domestic abuse.
Don’t get me wrong, I’m not suggesting we throw the proverbial baby out with the bathwater, but rather if we are to pursue this path we do so with caution, creativity and compassion for those of us whose traumatised minds are primed to fear the worst.
The experience of criminal litigation as a defendant, victim or witness is somewhat different than as an aggrieved part in a civil DV Court, however at least in the civil DV jurisdiction in my State, a Court is required to determine who is ‘most in need of protection’ where there are competing accounts of abuse levelled by both parties at each other. I would be most interested to see how the criminal jurisdiction might tackle this issue with its uncompromising black and white ‘guilty’ or ‘not guilty’ binary. The higher standard of proof required in a criminal court may mitigate the risk to some degree, but it will not eliminate it – especially where victims have in fact fought back against their abuser in ways that may, on the face of it, satisfy the elements of a crime of coercive control without careful, nuanced attention to the matter of intent.
The economic and personal cost of engagement in lengthy litigation as a victim or respondent is not insignificant, regardless of the jurisdiction. I cannot begin to count how many days of my post-separation life have been spent writing affidavits, reading court materials, attending appointments with police and lawyers, showing up to court and generally stressing about being embroiled in a legal proceeding. This represents significant time that I have had to take off work, but more importantly it was time when I was emotionally less available to my children, who also suffer when their parents are at legal loggerheads. This cannot be underestimated or ignored in our quest for a ‘just’ outcome.
Survivor voices should be amplified by the media, researchers and the broader advocacy and community sector; not sidelined. We must be vigilant in ensuring that their voices are not drowned out by competing agendas, blind zeal or a susceptibility to paternalistic knee-jerk responses. They should be front and centre of this conversation. Survivors’ brains are often ‘on guard’ and hypervigilant in their capacity to identify risk and danger, which perhaps explains my current reservations in relation to the very idea of enacting such laws. With an astute re-frame, these very attributes position survivors to be better able to pre-empt and predict perpetrator reactions and responses than anyone else – after all, their very survival once depended upon their capacity to do so. Invite us to play devil’s advocates.
This is how we will design world-leading responses to the problem of coercive control and concurrently engender faith in the system by those who need to trust it most.