In England & Wales, the offence of coercive control was set at a much higher threshold than what is proposed for Queensland.
The controlling or coercive behaviour must be engaged in “repeatedly or continuously” (cf. Queensland’s two occasions). It has to have a “serious effect” on the victim (cf. Queensland’s could have caused some feelings of upset, even if it didn’t). The English offender must know or ought to know that there will be a “serious effect” on the victim (not part of the Queensland offence).
Even in the more tightly defined framework adopted in England & Wales, the guidance to prosecutors had to make this significant concession:
“There might be confusion about where the ‘appropriate’ dynamic of a relationship ends and where unlawful behaviour begins. One way of considering this is describe by The College of Policing Authorised Professional Practice on Domestic Abuse which sets out that: “In many relationships, there are occasions when one person makes a decision on behalf of another, or when one partner takes control of a situation and the other has to compromise. The difference in an abusive relationship is that decisions by a dominant partner can become rules that, when broken, lead to consequences for the victim.”
“Prosecutors should consider the impact on the victim of following, or not following, rules imposed upon them within the wider context of the relationship, where this type of behaviour has occurred within the relationship. It is not necessary for the prosecutor to prove that consequences follow, not least because the fear of consequences is just as powerful. This is intended as a tool by which to recognise a controlling or coercive relationship, rather than a ‘point to prove’.”
In practice, the CPS guidance is useful in identifying the “confusion” but of little assistance in resolving it. What will be deemed a “compromise”, and what will be deemed a “consequence” remains a value judgment. It will vary with the eye of the beholder.
From the public statements made in support of Queensland’s Bill, you might think that the intention is to punish offenders who have come to completely dominate and terrify their victims. The Bill is aimed at protecting victims from having their free will overborne. The behaviour in mind was beyond the simply unreasonable. It was offending which any right thinking person would condemn.
Yet, the Queensland Bill is not tailored to that end.
Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Bill 2023
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