#criminal law #consent #domestic violence #evidence #sexual offences

Author: Rebecca Fogerty

On 11 October 2023 the Queensland government introduced the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Bill 2023 into Parliament.  The Bill follows recommendations of the Women’s Safety and Justice Taskforce to create a stand-alone offence of coercive control.  The Bill has not yet been passed into law, and is currently under consideration by the Legal Affairs and Safety Committee.

It has long been acknowledged that criminalising coercive control is complex because, by definition, it is a course of conduct that encompasses a wide range of behaviours, some of which, in isolation, may not meet the threshold for criminal sanction.  There are divergent views within the community about the best way to legislate against coercive control.

The proposed new offence is located in the Criminal Code.  It carries a maximum penalty of 14 years’ imprisonment.  The offence applies only to adults in a domestic relationship, which is defined as “relevant relationship” in the Domestic and Family Violence Act.  This includes past and present intimate partner relationships, wider family relationships and informal care relationships.

The offence criminalises conduct of an adult where: • the person is in a domestic relationship with another person; • the person engages in a course of conduct against the other person that consists of domestic violence occurring on more than 1 occasion; • the person intends the course of conduct to coerce or control the other person; and • the course of conduct would, in all the circumstances, be reasonably likely to cause the other person harm.

Some of the features of the offence in its current proposed form include:

1. The course of conduct must consist of domestic violence occurring on more than one occasion.
2. The person intends that the course of conduct be coercive or controlling of the other person.  Put another way, the draft legislation does not require the person to have the requisite criminal intent for each individual act that makes up the coercive/controlling course of conduct.
3. The prosecution is not required to provide particulars for (or specify) each act said to constitute the coercive/controlling course of conduct.
4. The jury does not have to be unanimous in deciding what acts of domestic violence constitute the coercive/controlling conduct.

The Bill allows a court hearing a charge of coercive control to make a restraining order against the defendant, whether the person is found guilty or not guilty or the prosecution ends in another way, similarly to the existing restraining order provisions in relation to the offence of stalking, intimidation, harassment or abuse in section 359F. The Bill also provides that upon an indictment charging a person with the crime of coercive control the person may alternatively be convicted of the crime of unlawful stalking, intimidation, harassment or abuse if that offence is established by the evidence.

As previously noted, the Bill is currently under the consideration of the Legal and Safety Affairs Committee, which is due to present its report on 27 November 2023.  Regardless of whether any amendments are recommended, the Bill, if passed, undeniably represents a significant reform of Queensland’s criminal law, evidence and procedure. 

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual.