Proving Coercive Control in Court
Updated: Oct 30, 2019
The recognition of coercive control is gaining traction in the courtroom as a concept, assisted by its inclusion in definitions of domestic and family violence in Australian legislation. There remains a wide chasm between the knowledge that this abuse exists, and the ability to prove it within evidentiary constraints.
What is Coercive Control?
Coercive control can be simplified as basic human programming through punishment and reward. If the target pleases the perpetrator then life is easy, but if they stand against them life is hard. There are many facets of manipulation which wind the web of power over the abused persons mind, but the intricacies of this form of psychological abuse all come down to this fundamental principle which ultimately teaches the abused person to "behave themselves."
It is easy to demonstrate in a court setting that there is abuse when the punishment delivered in a coercive controlling environment results in actual violence. Everybody understands a split lip. Similarly, stalking and overt intimidation are concepts easily embraced as actions that instill fear upon a victim.
A sophisticated abuser on the other hand is difficult to discern. Simple passive aggressive techniques like silent treatment, dirty looks and withdrawal of affection are much more problematic to demonstrate, yet just as damaging when used systematically on a target to gain control over them.
The Challenge of Proving Coercive Control
Example: Susan comes home from work and is confronted by a messy kitchen. She feels anxious as Bob will be home soon and she knows he will be angry that the kitchen is not clean. If you ask Susan why she thinks this about Bob, Susan will not be able to explain it. Susan has learnt through years of Bob making angry faces, stomping his feet and muttering under his breath about it when it's not kept to his unattainable standards. Dig deeper and other subtle constructs appear: Susan doesn't feel she can spend money, she has isolated herself from her friends and family, and Susan's self esteem is at an all time low.
In Susan's case, without specialised assistance it would be near impossible to prove in a court that she was the subject of abuse. Susan's mind has boundaries and constraints around her behaviour, but Bob would simply say, "I never told her she had to clean the kitchen," "I never said she couldn't spend money," and "I never stopped her seeing her friends." This would all be true. Thus evidence of the control is limited to a perception of Susan's that even if she could put words to, would face opposition in Bob's denial.
Current Legislative Definitions
The majority of current definitions in state and federal legislation that define domestic and family violence include coercive behaviour (see the Family Law Act 1975 (Cth) s4AB, Family Court Act 1997 (WA) s9A, Restraining Orders Act 1997 (WA) s5A, Family Violence Protection Act 2008 (Vic) s5, Domestic and Family Violence Act 2012 (Qld) s8, Family Violence Act 2004 (Tas) s7 and the Family Violence Act 2016 (ACT) s8).
The various legislative provisions do not provide examples that fully encapsulate the slight manipulative behaviour that occurs over time, distinct from overt actions that are easily recognised as criminal. The door is open, however, by virtue of these definitions to lead evidence of this form of abuse. In some instances without overt actions by a perpetrator the task is a difficult one, but not impossible.
The judge has to see what is unseen.
Why is it Important?
Allison Baden-Clay was murdered by her husband Gerard Baden-Clay in April 2012. Allison's parents have expressed that they witnessed patterns of coercive control in the relationship prior to her death. They stated that there was isolation, financial control and a reduction in Allison's self-esteem (See full news article here). These factors are often not enough for interference from law enforcement, yet it proved fatal for Allison.
If you or someone you know is suffering from any form of abuse contact support agencies for assistance and advice in your state or territory or in the case of immediate threat call 000.