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Options for Legislating Against Coercive Control and the Creation of a Standalone Domestic Violence Offence

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Options for Legislating Against Coercive Control and the Creation of a Standalone Domestic Violence Offence Options for legislating against coercive control and the creation of a standalone domestic violence offence Discussion Paper 1 The Women’s Safety and Justice Taskforce acknowledges and pays respect to Aboriginal peoples and Torres Strait Islander peoples as the Traditional Custodians of Country throughout Queensland. This respect is extended to Elders past, present and emerging. CONFIDENTIAL DRAFT - Options for legislating against coercive control and a standalone domestic violence offence Contents Foreword Introduction 8 What is the Women’s Safety and Justice Taskforce? 8 What have we been asked to do? 8 What is the purpose of this discussion paper? 9 How to make a submission 9 Context 11 The evolving understanding of domestic and family violence 11 What is ‘coercive control’? 11 Why focus on female victims and male perpetrators? 12 Part 1 – How is coercive control currently dealt with in Queensland 13 Community attitudes 14 Mainstream services 15 Domestic and family violence service system response 16 Integrated service response 17 Co-response models 18 Legislative response 18 Domestic and Family Violence Protection Act 2012 19 Police issued protection notices 19 Court issued domestic violence orders 20 Bail 20 The Queensland Criminal Code 21 Admissibility of evidence about coercive control 25 Sentencing 28 Police powers 29 Powers under the Police Powers and Responsibilities Act 2002 29 Powers under the Domestic and Family Violence Protection Act 2012 29 Policies and procedures that guide the response of Queensland police 30 Protective assessment framework and risk assessment 30 What training does the Queensland Police Service provide to officers to help them respond to domestic violence effectively? 31 How does the Queensland Police Service manage police officers who commit or are alleged to have committed domestic violence? 32 Risk management during recruitment 33 When a police officer is alleged to have committed domestic violence 33 2 CONFIDENTIAL DRAFT - Options for legislating against coercive control and a standalone domestic violence offence Part 2 – How do other jurisdictions address coercive control? 35 Legislation 35 Tasmania 35 England and Wales 36 Ireland 37 Scotland 37 Police 38 Canada 39 Scotland 39 England and Wales 39 Victoria 39 New South Wales 40 Europe 40 USA and South America 40 Part 3 – Legislating against Coercive Control 41 What is meant by ‘legislating against coercive control’? 41 What are the possible benefits of legislating against coercive control in Queensland? 42 Improving the legal system’s response to all forms of domestic and family violence 42 Benefits to public health and safety of women and girls 42 Educative function 42 Filling a ‘gap’ in our current legal response to coercive and controlling behaviours 43 What are the risks in legislating against coercive control? 43 Legislation that would criminalise coercive control behaviours 44 Net widening and overcriminalisation 44 Misidentification of the person most in need of protection 44 Increasing overrepresentation of Aboriginal and Torres Strait Islander people in the criminal justice system 44 Challenges for police and prosecution if coercive control was criminalised 45 Training of police, prosecutors, lawyers and courts 45 Reluctance of victims to make a report to the police. 46 Challenges for specialist service providers if coercive control was criminalised 46 Legislation that would narrow the breadth of the civil law response in the DFVP 47 How would success of options to legislate against coercive control be measured? 47 Compatibility with the Human Rights Act 2019 (Qld) must be considered for all options to legislate against coercive control in Queensland 48 Options for legislating against coercive control in Queensland 48 Option 1 – Utilising the existing legislation available in Queensland a more effectively 49 Option 2 – Creating an explicit mitigating factor in the Penalties and Sentences Act 1992 (Qld) that will require a sentencing court to have regard to whether an offender’s criminal behaviour could in some way be attributed to the offender being a victim of coercive control 49 Option 3 – Amending the definition of domestic violence under the Domestic and Family Violence Act 2012 50 Option 4 – Creating a new offence of ‘cruelty’ in the Criminal Code 50 3 CONFIDENTIAL DRAFT - Options for legislating against coercive control and a standalone domestic violence offence Option 5 – Amending and renaming the existing offence of unlawful stalking in the Criminal Code 51 Option 6 – Creating a new standalone ‘coercive control’ offence 51 Option 7 – Creating a new offence of ‘commit domestic violence’ in the Domestic and Family Violence Act 201254 Option 8 – Creating a ‘floating’ circumstance of aggravation in the Penalties and Sentences Act 1992 for domestic and family violence 55 Option 9 – Creating a specific defence of coercive control in the Criminal Code 56 Option 10 – Amending the Evidence Act 1977 (Qld) to introduce jury directions and facilitate admissibility of evidence of coercive control in similar terms to the amendments contained in the Family Violence Legislation Reform Act 2020 (WA) 57 Option 11 – Creating a legislative vehicle to establish a register of serious domestic violence offenders 57 Option 12 – Amending the Dangerous Prisoners (Sexual Offenders) Act 2003 or creating a post-conviction civil supervision and monitoring scheme in the Penalties and Sentences Act 1992 for serious domestic violence offenders 59 Option 13 – Amending the Penalties and Sentences Act 1992 to create ‘Serial family violence offender declarations’ upon conviction based on the Western Australian model 59 Next steps 61 Appendix 1 62 Timeline of key Queensland DFV law reforms 62 Appendix 2 66 Provisions of the Domestic and Family Violence Protection Act 2012 (Qld) relevant to requirements on police to personally serve documents 66 Appendix 3 70 Family Violence Act 2004 (Tas) 70 Appendix 4 71 Serious Crime Act 2015 (E&W) 71 Appendix 5 73 Domestic Violence Act 2018 (Ireland) 73 Appendix 6 74 Domestic Abuse (Scotland) Act 2018 74 Appendix 7 78 Section 13 of the Human Rights Act 2019 (Qld) 78 Appendix 8 79 320B Cruelty 79 Appendix 9 80 Evidence Act 1906 (WA) 80 Appendix 10 85 Sentencing Act 1995 (WA) 85 References 89 4 CONFIDENTIAL DRAFT - Options for legislating against coercive control and a standalone domestic violence offence © Copyright Women’s Safety and Justice Taskforce 2021 5 CONFIDENTIAL DRAFT - Options for legislating against coercive control and a standalone domestic violence offence Foreword At every level of our society, it makes sense to do all we can to end family and domestic violence, including coercive control. We want to hear from victims and survivors of domestic violence—particularly those who have suffered coercive control and acknowledge the courage it takes to share these difficult experiences. We also want to hear from the families and friends of victims, and from those who work to support victim safety and hold perpetrators to account. This includes service providers, advocacy groups, legal stakeholders/practitioners, prosecution agencies, employer groups, employee unions, as well as the The Women’s Safety and Justice broader community. Taskforce has prepared this discussion Our terms of reference focus this discussion paper on improving the safety of women and girls who statistics paper to stimulate discussion and gain overwhelmingly establish are the predominant victims of feedback from the community about the coercive control and domestic violence. We are acutely aware, however, that there are victims who are men and first part of our terms of reference—how perpetrators who are women. We also know that same best to legislate against coercive control sex couples and people identifying as LGBTIQ+ are impacted by these issues and may under report. We and whether there is a need for a new warmly encourage submissions from everyone as we offence of ‘commit domestic violence’. consider these critically important issues and their impact on our society. Unfortunately, our society has become all too familiar We acknowledge there are strong and diverse views with the insidious nature of domestic violence. Experts about criminalising domestic violence and coercive and, following media coverage of recent tragic and control. We welcome feedback on all viewpoints. Our shocking deaths of women and children, the broader Taskforce members were chosen because of their community, now understand that domestic violence is disparate subject matter expertise—each is committed not limited to physical and sexual abuse. to assessing the information we receive with an open Abusive behaviour in domestic relationships may take and curious mind in the best interests of the many forms including a pattern of behaviour called Queensland community. coercive control. This discussion paper consists of three main parts, with Individual acts of coercive control may at first appear discussion questions regularly raised throughout. harmless but, together and over time, they result in the Submissions need not, however, be limited to answering victim’s loss of capacity to make independent choices. these questions. Victims and their children become trapped in a cycle of Part 1 explores how Queensland currently addresses dependence and abuse which they cannot break. The coercive control— through legislation, mainstream and harm to victims, their children and their wider circle of specialised domestic violence service providers, and our friends and relatives
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