Should Australia criminalise coercive control?

As policymakers consider criminalising coercive control, they should reflect on the unintended consequences for refugee and migrant women, Jennifer Maturi and Jenny Munro write.

Proposals to criminalise ‘coercive control’ – a pattern of behaviours that perpetrators of domestic violence use to intimidate and dominate their partners – are building momentum in Australia.

Those in favour of criminalising coercive control suggest that it will help generate a greater understanding of domestic violence, change attitudes within society and the legal system, and help the justice system to recognise what are sometimes more subtle forms of violence than physical assault.

Those against criminalising coercive control question the justice system’s power and capacity to respond to this form of violence, and suggest there are potential unintended consequences for marginalised individuals.

Domestic violence is a gendered problem, and it affects women regardless of race, ethnicity, religion, or class. However, criminalising coercive control can lead to unintended consequences for people from lower socioeconomic backgrounds, Indigenous people, and refugees and migrants.

People from these groups are more likely to be arrested and imprisoned, and female victims charged as perpetrators, and there has been little discussion of what criminalising coercive control might mean for refugee and migrant women specifically.

Recent research – interviews with front line workers from domestic violence and refugee settlement organisations in Queensland – shows the unintended consequences that current domestic violence legislation is already having for refugee and migrant women. This information is useful for considering the possible effects of criminalising coercive control for these women.

Here are five key reasons why we should consider the unintended consequences for refugee and migrant women.

The first is that coercive interventions by the state can make things worse for survivors. Justice system responses to domestic violence can be coercive, intruding on the private lives of victims and perpetrators, and intervening by force when women are deemed unable to make their own decisions.

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Refugee and migrant groups are at higher risk of carceral interventions by the state as there continues to be a belief that they come from backwards cultures characterised by forced marriage, honour killings and so forth.

Workers in our study often raised the issue of police taking Domestic Violence Protection Orders (DVPOs) out against men without their partner’s consent and, sometimes, without their knowledge. This has left women at a greater risk of violence from the perpetrator, isolated, and often facing other issues such as homelessness.

Second, refugee and migrant women have reported being ‘blamed and shamed’ by their community if they report violence or if police get involved without their consent. This could bring further violence against them from community members in Australia, and threats to family living overseas, yet our current domestic violence legislation is ill-equipped to deal with this kind of community violence levelled at women, even under family law provisions.

This violence is often not considered serious enough to warrant intervention under other criminal law either, and threats made to their family members overseas are obviously not within the jurisdiction of Australian law.

Third, refugee and migrant women’s visa limitations often heavily restrict the choices they can make. On top of the violence from their partners and community, visa restrictions and requirements can be another layer of ‘systems abuse’. For example, bridging visas for asylum seekers, spousal visas, and student visas do not entitle women to services such as housing and Medicare, or, in many instances, the basic income that they need to survive if they leave their partner and community.

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This places an additional burden on front line organisations, creating additional work for an already overworked system and taking up limited resources such as places in women’s shelters. So while the criminalisation of coercive control may provide police with new options to charge perpetrators, it does so without regard for the realities of the lives of women who depend on their partners for income and even their right to live in Australia.

Fourth, there is evidence that police end up charging women victims. In our study interviewees said that police taking DVPOs out against women victims was more common than police taking DVPOs out against men.

The research participants said that this was due to language barriers, police not using interpreters, and police misreading the situation. For example, women’s presentation on their arrival seemed emotional or ‘heightened’ while the man was quite passive and calm.

Finally, systemic racism is clouding the implementation of law. Advocates for criminalising coercive control have suggested that legislating coercive control will help to change the culture of the legal system and attitudes towards domestic violence.

But justice responses to domestic violence continue to be rooted in masculine institutions and carry an inherent bias towards women. Adding the complexities of race, culture, and language to the already complex task of recognising coercive control will likely increase the risk of police ‘misreading’ the situation.

This unnecessarily places refugee and migrant women at greater risk of systems abuse and other unintended consequences brought about by legislating coercive control.

Importantly, critics also question why this law would change the culture of the legal system and attitudes towards domestic violence when other legislation has so far failed to do so. Others have questioned whether coercive control legislation could be manipulated by abusers and used against victims, and whether criminalisation could present further barriers that deter women from coming forward to bring charges. All these weaknesses make the legislation ill-advised in its current form.

Before pushing ahead with another law that might have unintended consequences for marginalised groups there must be meaningful consultation with refugee and migrant women and groups that support them, as a solution dictated from above may cause more harm than good.