Not Ready, Not Right: Key Objections to Criminalising Coercive Control in New South Wales

Abstract

In recent years, the New South Wales (‘NSW’) government has taken substantial steps toward legislating a criminal offence of coercive control. In November 2022, these steps culminated in the passage through Parliament of a Bill featuring a proposed offence of ‘abusive behaviour towards current or former intimate partners’. This comment explores the main objections to criminalising coercive control by examining the NSW legislation and the vigorous public policy debate surrounding its introduction, along with leading scholarship and evidence from within and outside Australia. These objections tend to be based in one of two concerns: (i) that the criminal justice system is not ready for a discrete offence of coercive control and (ii) that the criminal law cannot provide an answer to the problem of domestic and family violence. An examination of these two framings reveals that criminalisation is presently seen as a high-risk, short-sighted response to an inherently complex social problem. This position appears to be taken irrespective of any overall belief in the utility or appropriateness of criminal justice–based solutions to domestic and family violence. Implications for the 2022 NSW reforms are duly considered.