Coercive control became a criminal offence in New South Wales on 1 July 2024.
The offence addresses repeated or continuous abusive behaviour directed by an adult towards a current or former intimate partner, where the behaviour is intended to coerce or control that person.
Coercive control may involve physical violence, but physical violence is not required. The offence recognises that repeated non-physical conduct can restrict another person’s autonomy, independence and ability to participate in ordinary life.
What Is Coercive Control?
Coercive control generally describes a pattern of abusive behaviour used to dominate, intimidate, isolate or control another person.
The behaviour may develop gradually and can involve different actions that appear minor when viewed separately. The alleged course of conduct must be considered as a whole and in the context of the relationship.
Examples may include:
- Isolating a person from family, friends or support networks
- Monitoring their movements, communications or online activity
- Controlling access to money or employment
- Restricting access to essential services
- Damaging property
- Threatening a person, child, relative, pet or other person
- Using immigration status as a means of control
- Repeated humiliation, intimidation or degradation
- Restricting a person’s freedom of movement
- Controlling personal, social or cultural activities
- Using technology to monitor or harass a person
Whether particular behaviour is legally abusive depends on the complete circumstances. An unpleasant, unreasonable or unhealthy relationship does not automatically establish the criminal offence.
What Must the Prosecution Prove?
The offence is contained in section 54D of the Crimes Act 1900 (NSW).
To establish the offence, the prosecution must prove beyond reasonable doubt that:
- The accused was at least 18 years old.
- The complainant was at least 18 years old.
- The accused and complainant were current or former intimate partners.
- The accused engaged in a course of conduct against the complainant.
- The course of conduct consisted of abusive behaviour.
- The accused intended that course of conduct to coerce or control the complainant.
- A reasonable person would consider that the course of conduct would be likely to cause fear that violence would be used against the complainant or another person, or cause a serious adverse impact on the complainant’s capacity to engage in ordinary day-to-day activities.
Each element must be proved beyond reasonable doubt.
What Is an Intimate Partner?
For this offence, an intimate partner includes a person who is or was:
- Married to the accused
- A de facto partner of the accused
- In an intimate personal relationship with the accused
An intimate personal relationship does not necessarily have to involve a sexual relationship.
The offence does not presently extend to every family, household or care relationship. Other criminal offences and apprehended violence orders may nevertheless apply to abusive conduct occurring outside an intimate-partner relationship.
What Is a Course of Conduct?
A course of conduct involves behaviour occurring repeatedly, continuously, or both repeatedly and continuously.
The behaviour does not have to occur in an uninterrupted sequence or immediate succession. Different forms of conduct may collectively constitute the alleged pattern.
The prosecution must identify the nature and description of the behaviours alleged to constitute the course of conduct and the period during which they allegedly occurred.
The offence applies only to conduct occurring on or after 1 July 2024. Earlier conduct cannot itself constitute the offence, although whether it may be admissible for another evidentiary purpose depends on the circumstances and applicable evidence law.
What Is Abusive Behaviour?
Under the legislation, abusive behaviour means behaviour involving:
- Violence or threats against a person
- Intimidation
- Coercion or control of the person against whom the behaviour is directed
The legislation contains examples, but the list is not exhaustive. Conduct may be physical, sexual, psychological, emotional, financial, technological or otherwise controlling.
The Court must assess the alleged behaviour in its complete context rather than considering each incident in isolation.
Must the Complainant Actually Experience Fear?
No.
The prosecution does not have to prove that the complainant was actually afraid or that their daily activities were actually affected.
The statutory question is whether a reasonable person would consider the course of conduct likely, in all the circumstances, to cause:
- Fear that violence would be used against the complainant or another person; or
- A serious adverse impact on the complainant’s capacity to undertake ordinary day-to-day activities.
Evidence about the complainant’s actual experience may still be relevant, but actual fear or impact is not a separate element that must be proved.
Intention to Coerce or Control
The prosecution must prove that the accused intended the course of conduct to coerce or control the complainant.
It is not necessary to prove that every individual action was separately intended to have that effect. The relevant question concerns the accused’s intention in engaging in the course of conduct as a whole.
Intention may be proved through direct evidence or inferred from the accused’s words, actions and the surrounding circumstances.
Is There a Defence?
Section 54E provides a defence where the course of conduct was reasonable in all the circumstances.
If evidence capable of raising that defence is before the Court, the accused does not bear the ultimate burden of proving reasonableness. The prosecution must prove beyond reasonable doubt that the course of conduct was not reasonable in all the circumstances.
Whether the defence is available depends on the conduct alleged and the complete evidentiary context.
What Is the Maximum Penalty?
The maximum penalty for an offence under section 54D is seven years’ imprisonment.
The offence is serious and may also affect:
- Bail
- A person’s criminal record
- Employment
- Professional registration
- Firearms licences
- Immigration status
- Existing or future apprehended violence orders
- Parenting and family law proceedings
The actual penalty, if the offence is proved, depends on the seriousness of the conduct and the offender’s circumstances.
Coercive Control and AVO Proceedings
A criminal charge for coercive control and an application for an apprehended domestic violence order are separate legal proceedings, although they may arise from the same allegations.
An ADVO can impose restrictions concerning contact, communication, residence and proximity to the protected person.
Breaching an ADVO is a separate criminal offence. A person subject to an interim, provisional or final order must comply with its terms unless the order is formally varied or revoked.
If You Have Been Accused of Coercive Control
Obtain legal advice promptly and comply strictly with any bail conditions or ADVO.
Do not contact the complainant contrary to an order or ask another person to contact them on your behalf. Preserve relevant material, including:
- Messages and emails
- Call records
- Financial records
- Photographs
- Location information
- Social-media communications
- Documents concerning the relationship
- Potential witness details
Do not delete, alter or selectively edit relevant communications.
A lawyer can advise about the elements of the charge, the alleged course of conduct, admissibility of evidence, bail, ADVO proceedings and available defences.
If You Are Experiencing Coercive Control
If you are in immediate danger, call 000.
Support is available through 1800RESPECT on 1800 737 732. A person experiencing coercive control may also seek advice about reporting conduct to police, obtaining an ADVO and addressing related family law issues.
Speak to a Criminal Defence Lawyer
Aspire Legal advises and represents clients in coercive-control prosecutions, domestic-violence offences and apprehended violence order proceedings.
Call 02 8806 2299 or email info@aspirelegal.com.au to arrange a consultation.
This article contains general information only and is not legal advice. The application of the law depends on the alleged conduct, evidence and individual circumstances.