Hannah Clarke and her children were murdered by her estranged husband Rowan Baxter on a sunny Queensland morning on 19 February 2020. The event was one of the most heinous acts of family violence in Australian history, and it shocked the world. Ambushing his wife during the morning school run, Mr Baxter used petrol and fire to take her life and their three young children, aged just 6, 4 and 3.
Sadly, this is where coercive control can lead, which is the biggest predictor of intimate partner homicide; more so than physical violence. Quite surprisingly, Hannah Clarke had not been physically assaulted by Mr Baxter prior to her murder. In Australia, on average, one woman is killed every week by their partner, or former partner. It should also be noted that one man a month is also killed under similar circumstances. This, of course, is only the most extreme version of family violence. 1 in 6 women have experienced physical or sexual violence by a current or former partner, while for men it is 1 in 16.(1)
Coercive control is a pattern of behaviours which can include a combination of manipulation, threats, intimidation, sexual control, humiliation, isolation, insults, gaslighting, surveillance, financial control, and other abuse that erodes a person's autonomy, self-esteem, emotional stability, independence and ability to flourish. Victims can be trapped in an abusive relationship for decades without any physical violence, but the torment can sometimes be worse. While physical violence can be identified as abuse, many of the behaviours of coercive control can be so pervasive and sinister as to cause the victim to doubt their sanity, and their own virtue, as their self-esteem is gradually eroded. It can often lead to severe depression and post-traumatic stress disorder.
Coercive Control Laws in the UK
On 29 December 2015, England and Wales became the first countries in the world to criminalise coercive control and make it punishable by up to five years in prison. Section 76 of the Serious Crime Act 2015 (UK) - Controlling or Coercive Behaviour in an Intimate or Family Relationship
An offence is committed by “A” if:
“A” repeatedly or continuously engages in behaviour towards another person, “B”, that is controlling or coercive; and
At time of the behaviour, “A” and “B” are personally connected; and
The behaviour has a serious effect on “B”; and
A knows or ought to know that the behaviour will have a serious effect on “B”.
Coercive behaviour is an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim.
Controlling behaviour is a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.
Following the introduction of the law in the UK, English woman Natalie Curtis brought a case against her estranged husband. As an early victory for the legislation, the perpetrator was sentenced to two years imprisonment. Toward the later stages of their relationship Curtis started taking notes about the abuse, saving text messages, phone records and even filming her husband’s outbursts. This was the evidence she was able to provide to the police. There have been hundreds of similar convictions since 2015.
Pushing for Coercive Control Laws in Australia
Following the death of Hannah Clarke in 2020, her parents Sue and Lloyd called for coercive control to be criminalised in Queensland. White Ribbon Australia, Small Steps 4 Hannah, Brisbane Domestic Violence Service and Women’s Legal Service Queensland provided a joint letter and media release in favour of the changes. On 14 October 2022, the first round of legislative reforms to strengthen Queensland’s response to coercive control were introduced into Parliament.
Coercive control has also been considered by the Meeting of Attorneys-General (MAG), which comprises Attorneys-General from the Australian Government, all states and territories, and the New Zealand Minister for Justice. Its purpose is to implement a national and trans-Tasman focus on maintaining and promoting best practice in law reform. At an Extraordinary MAG meeting held on 9 June 2021, the MAG agreed to co-design national principles to develop a common understanding of coercive control and matters to be considered in relation to potential criminalisation. (2)
This has sparked legislative action around Australia. In NSW, on 19 October 2022, The NSW Government’s bill to criminalise coercive control in intimate partner relationships passed the Lower House. In Tasmania, coercive control is partially addressed by the Family Violence Act. In South Australia, Criminal Law Consolidation (Abusive Behaviour) Amendment Bill 2021 has been published for community feedback.
Coercive Control law in WA
In recent years, the laws in WA which deal with domestic violence and coercive control have evolved. For example, under the Restraining Orders Act 1997, the definition of family violence not only includes physical abuse and threats, but also “any other behaviour by the person that coerces or controls the family member or causes the member to be fearful”.
To obtain the protection of a Family Violence Restraining Order, the applicant may provide evidence of coercive control. In this respect, the law in WA acknowledges that victims/survivors are entitled to legal protection from such behaviour. As it stands, however, there is no law in Western Australia that specifically criminalises coercive control.
In March 2022, the WA state government released a paper, “Legislative Responses to Coercive Control in Western Australia.” (3) The purpose of the documents is set out as follows:
“This discussion paper seeks feedback about whether current legislative responses to coercive control in Western Australia are adequate, and if not, what the gaps are and how they may best be addressed - what is working well and where things can be improved.”
It is not as simple as copying coercive control laws from other jurisdictions. Not everyone agrees with criminalising coercive control. As the paper discusses:
“The option of criminalisation as the most appropriate legislative response to coercive control is contested. However, in recent Queensland and New South Wales inquiry processes, the weight of submissions were in favour of criminalisation, and recommendations were made to manage the potential unintended consequences of criminalisation. In Western Australia, we are starting with the question - what is the best way to respond to coercive control in order to increase understanding within the justice system and the broader community, safety for victim-survivors, and accountability for perpetrators?”
“A perpetrator’s behaviour may not appear to be coercive or controlling to someone outside of the relationship, but cause significant harm to the victim-survivor. Responding to coercive control raises complex legal, policy, and social change issues. These questions are being considered across Australia and responses are different across jurisdictions. A recent key question has been whether or not to introduce new offences to criminalise coercive control.”
Submissions closed on 30 July 2022. There is no indication at this time as to whether this will progress to changes in the law in Western Australia.
WA’s current laws on Coercive Control
Whilst WA does not have specific laws criminalising coercive control like the UK, there are a number of behaviours relating to coercive control that are criminalised. In 2020, The Criminal Code in Western Australia was updated to include an offence for persistent family violence (Section 300), which will apply where three or more family violence offences are committed against a single victim within a ten-year period. This offence carries a maximum penalty of 14 years imprisonment. It is designed to capture persistent low-level offending with a “three strike” dynamic. Examples of the crimes covered include, but are not limited to; distribution of an intimate image, various types of assaults, sexual assaults, threats, stalking, property damage, breaches of restraining orders.
While this update in the law may protect victims from repeated overt criminal acts of family violence and abuse, it does not allow victims to provide evidence, and obtain justice, for the everyday, ongoing abuse of coercive control.
Coercive Control and Children
With so many family homes regularly becoming a battleground, it is chilling to consider how much of this is witnessed by children. To develop, children need a safe, loving and stimulating environment. Witnessing abuse, violence and ongoing emotional tension does an unfathomable amount of damage, especially in early childhood. As adults we can rationalise violence and abuse. Children have no psychological armour.
Hannah Clarke knew she had to get her children away from the toxic levels of stress caused by witnessing the abuse perpetrated by their father. She asked her mother to prepare a Will for her because she predicted her own murder. However, despite the danger she was in, she was courageously determined to get her children away from their abuser.
Studies have proven that: “toxic stress has the potential to change your child’s brain chemistry, brain anatomy and even gene expression. Toxic stress weakens the architecture of the developing brain, which can lead to lifelong problems in learning, behaviour, and physical and mental health. When a child experiences toxic stress, the Hypothalamic Pituitary and Adrenal (HPA) hormone axis is over-activated. This results in blood levels of the stress hormone cortisol being higher which can result in long term changes in inflammation and immunity. Studies have shown associations between toxic stress and changes in brain structure. The consequences of this can include more anxiety as well as impaired memory and mood control.” (4)
In summary, subjecting children to too much stress can actually give them brain damage. When we fail to protect children from bitter arguments and toxic abuse, we are causing them permanent physical and psychological harm. Healing is not always possible with counselling and medication. This is why nurturing and protecting children is the most important duty for any parent, and society at large.
The problem for many victims is that if they talk about leaving the relationship, their partners will threaten them with graphic violence and suicide. This can be terrifying because some of them actually follow through with their threats. As a lawyer, I have read SMS messages which threaten, “if you leave me, I will kill the children in front of you and then kill myself”. This is where you must reach out for help. Talk to family and friends. Contact government agencies. Get legal advice. Whilst it can be terrifying, your children know when you are fearful and unhappy. You can never truly shield them from your own suffering. Did you know that a stressed out mother will feed her heightened cortisol (stress hormone) to her infant child through her breast milk?
Hannah Clarke had a Restraining Order “protecting her” from Rowan Baxter. However, it must be understood that if someone is willing to be physically violent, and go to prison, a restraining order may do nothing more than provoke an even more extreme reaction. In fact, a restraining order protecting a mother and her children may create a delusional justification for the violence. Such as, “this is what she deserves for not letting me see my children”. The violent perpetrator is not concerned about what horrible things their children have witnessed, they only care about their own “rights” to their children. To the coercive controller, people are possessions. Sometimes, the only effective protection is to go into hiding.
The problem of coercive control will require an intergenerational solution. We must protect children from witnessing not only violence, but pervasive coercive controlling behaviour, so they do not consider it “normal” and repeat it in front of their own children in the future. In some cases, this requires counselling for the parents. Other times it requires a brave decision to leave the relationship. In severe cases, it requires sending the perpetrator to prison. Whatever the solution, the duty to protect children cannot be delayed or ignored.
Additionally, we should be teaching young people relationship skills through the education system. A long-term committed relationship is not easy to keep on track. It requires an important skill-set that is never formally taught to children. Everyone has emotional baggage, differing expectations, intellectual blind-spots, and personality quirks that get in the way of a happy, functioning relationship. Why is it that we only teach relationship skills in marriage counselling when the damage is already done? Insecurity, resentment, miscommunication and money pressures can turn an otherwise loving relationship toxic. As ill-will and fear grows, so too can inappropriate behaviour. We shouldn’t just assume that young people will somehow figure out what is ethically and morally acceptable behaviour in relationships.
Every parent must remain aware that the relationship with their partner is a performance, and their children are the audience. However, the children don’t just watch the show, they become it. Their personalities are formed by the example set by their parents. If we teach our children by example to be controlling, nasty, petulant and vicious, we set the stage for their own performances as adults. We set them up for misery and failure. We all need to work together to put on a better show, and teach them right from wrong. Otherwise, today’s teenagers will become tomorrow’s abusers.
2. A copy of the MAG communique June 2021 is available at https://www.ag.gov.au/about-us/publications/meeting-attorneys-general-mag-communique-june-2021.