What constitutes criminal behaviour in family relationships and is it time for new laws?
In the wake of the horrific murders of a Queensland mother and her three children, a newly-published book by DLS researchers Professor Marilyn McMahon and Dr Paul McGorrery will provide important insights into the call for a review of Australia’s family violence laws.
Prof. McMahon specialises in criminal law and criminal procedure and Paul McGorrery is a criminal lawyer and DLS PhD candidate.
Their book, Criminalising Coercive Control, focuses on whether psychological, emotional or economic abuse should be criminalised.
Prof. McMahon says it grew from a discussion about the role of criminal law in domestic violence, its effectiveness, and its limits in protecting victims.
‘Paul and I were particularly interested in developments in England and Scotland where researchers and activists had succeeded in getting new crimes – controlling or coercive behaviour (England) and domestic abuse (Scotland) – introduced. This was quite a distinctive development because it established offences whose essential feature is the causing of emotional or economic harm. This moves beyond the traditional focus on physical violence. It fits with an emphasis on coercive control that has been identified as a core component of domestic abuse.’
Coercive control describes the behaviour of (usually) men who perpetrate family violence through psychological abuse, coercion, intimidation, humiliation, isolation, manipulation, and economic abuse. Physical abuse is often present but not essential for coercive control.
Prof. McMahon says it emphasises how abusers control – or micro-manage – their partners, the destructive and cumulative effect of this behaviour, and how it undermines a victim’s autonomy, sense of self-worth and confidence.
‘It is consistent with what many victims report - that the psychological abuse is often worse than all but the most extreme physical abuse. Increasingly it is being recognised as a core of aspect of domestic abuse and a key warning sign that the abuse might escalate to homicide,’ she explains.
One of key issues now being considered in mainland Australia is the introduction of laws that directly criminalise the causing of emotional and economic harm in domestic relationships (Tasmania already has laws that make emotional abuse and economic abuse offences).
‘The recent murders of Hannah Clarke and her three children by her estranged husband has profoundly shocked Australians’ she says.
‘Hannah’s husband had engaged in many controlling and abusive behaviours before the murders and she obtained domestic violence and other orders against him. In the context of these terrible murders, several state governments are now considering whether identifying and directly making those controlling behaviours a criminal offence would help victims and prevent the abuse escalating to murder.’
In 2005, Tasmania became a world leader on the issue by criminalising emotional abuse and economic abuse and that’s where the researchers began their work – by investigating the state’s offences.
‘We thought – is this the sort of offence that should be introduced in every Australian state and territory? To answer that question, we thought that it would be good to bring together leading Australian and international experts for a roundtable discussion … and from that roundtable the book emerged,’ says Prof. McMahon.
They also wanted to examine why the Tasmanian legislation seems to have made little impact, while also analysing the more successful outcome of new offences in England and Scotland.
Prof. McMahon says Australia currently has a mixed bag of laws across the states and territories that deal with family violence.
‘One of the most common strategies for domestic abuse victim is to take out an intervention order which, if breached, becomes a criminal offence. These orders typically prohibit a wide range of behaviours – not only physical violence, but often emotional abuse, coercion and controlling behaviours. In principle they should offer victims a great deal of protection but the real problem comes with their implementation – they are often ineffective.’
Law reform in the area of family violence is often difficult and protracted – especially when it comes to introducing offences that criminalise non-physical emotional abuse.
‘Formulating an offence that criminalises emotional abuse but which doesn’t criminalise ordinary, reasonable behaviour requires drafting skill,’ says Prof. McMahon.
‘Fortunately, we now have existing models of how to do this and we can benefit from critically examining them – we don’t have to “re-invent the wheel”. Our research took us to researchers both in Australia and overseas with expertise in the topics we were investigating.’
Beyond framing new offences, she adds that academic research also plays a key role in evaluating effectiveness.
‘Evaluation is particularly important as reforming the law without knowing how the new laws are operating is virtually useless. We need to see if any new law is having its intended impact and giving victims greater protection.’
With family and domestic violence impacting Australians of all ages and backgrounds – but particularly women and children – Prof. McMahon says Criminalising Coercive Control is a publication for all those who are interested in the prevention of family violence.
‘The most important reason for this research is that it deals with one of our most devastating social problems. It is particularly relevant now because it makes us think about key issues such as the role (and limits) of law in stopping domestic violence, the benefits and problems associated with introducing offences which criminalise psychological abuse, and alternative means for prosecuting non-physical harms. If the introduction of a new offence helps reduce levels of domestic violence and offer greater protection for victims, that is a major step forward.’