In 2023, the Queensland Government proudly introduced and passed amending legislation designed to criminalise behaviour in intimate personal relationships known as “coercive control”.

In doing so it joined a variety of other States around Australia with similar laws.

To many, this was a long awaited positive development in the policing of certain types of domestic violence that frequently fly “under the radar”.

However as with all things, the devil is in the detail. And while the big picture goals behind the new criminal laws might be laudable, the drafting of the laws in question leave plenty to be desired.

Specifically, the laws as drafted potentially criminalise a large swathe of perfectly reasonable, lawful, normal and frequent behaviours in personal intimate relationships.

Let’s take a look at just a few examples of the problematic legislation and its massive legislative overreach.

Joe Unwittingly Becomes a Rapist

Clause 13 of the amending legislation offers a new, broad, definition of what constitutes “consent” for the purposes of sexual interactions. Strictly this is not part of the “coercive control” amendments, but since it is in the same raft of changes it warrants a mention.

Among the many examples of what does not constitute consent, is that a person does not consent if:

the person participates in the act because of force, a fear of force, harm of any type or a fear of harm of any type, whether to that person or someone else or to an animal or property, regardless of—

(i) when the force, harm or conduct giving rise to the fear occurs; or

(ii) whether it is, or is a result of, a single incident or is part of an ongoing pattern;

Examples of harm –

• economic or financial harm
• reputational harm
• harm to the person’s family, cultural or community relationships
• harm to the person’s employment
• domestic violence involving psychological abuse or harm to mental health
• sexual harassment

Now at first glance you might think that all looks personally reasonable. After all, nobody should be consenting to a sexual act out of fear that they might be harmed, right?

Well, as we mentioned, the devil is in the detail.

Did you spot when reading that the other participant in the sexual act does not need to be the source of the fear of harm?

Let’s take a practical example.

Joe and Mary come from conservative Christian families. They were married at 19, and are now 23. Mary has fallen out of love with Joe, but has not told him, and so far as Joe is aware they have a strong marriage. Mary does not hate Joe and feels guilty about her change of feelings. Mary continues to have sex with Joe because she feels it is part of her duty as a wife, and she is afraid that if she doesn’t Joe will question why and word might get back to his or her parents. If it did, that might cause them to talk about her being a “bad wife”, and adversely affect her relationship with her parents.

So – Mary continues to have sex with Joe here because she is fearful about her family relationships and her reputation.

As a result she is deemed to have not given consent to the sexual act.

Joe can be charged with rape.

Can’t Stop Texting the Ex-Girlfiend?

Division 5 of the amending legislation introduces some new concepts to Queensland criminal law.

Among them is the offence of “coercive control”.

To commit the offence of coercive control:

1. You must be in a domestic relationship; and
2. You have engaged in a course of conduct consisting of domestic violence on more than 1 occasion;
3. You intend that conduct to coerce or control the other person; and
4. The course of conduct would be reasonably likely to cause the other person “harm”. “Harm” is defined to mean any detrimental effect on the person’s physical, emotional, financial, psychological or mental wellbeing, whether temporary or permanent.

One of the many ways for behaviour to get captured by this offence, is through domestic violence in the form of “emotional or psychological abuse”.

This is defined as “behaviour by a person towards another person that torments, intimidates, harasses or degrades the other person”.

Included in the examples is “interfering with a person’s ability to access or communicate with the person’s friends or family or with support services by restricting access to any means of communication or otherwise”.

So let’s explore an example.

Joe and Mary are dating. Joe has an ex-girlfriend called Suzie, with whom he is still friends. After a year, Mary learns that Joe cheated on her with Suzie around 4 months after he had started dating Mary. At first, Mary tells Joe that she will not sleep with him as punishment for his infidelity, and posts about it to their friends on social media to humiliate him. Mary insists that Joe stop talking with Suzie or seeing her, and block her from his phone and email so that they cannot communicate. Mary says she will leave Joe if he does not do these things. Joe is confused and upset, and tells Mary that he might become depressed if he can’t communicate with his friend Suzie.

Has Mary committed an act of domestic violence on Joe? Mary is restricting Joe’s freedom to communicate with his friends, and insisting he restrict his method of accessing those communications. Joe may suffer harm through his psychological condition.

So:

1. Mary and Joe are in a domestic relationship – tick
2. Mary has humiliated Joe (an act of domestic violence), and then restricted Joe’s ability to contact his friend (a second act of domestic violence) – tick
3. She intended to coerce Joe into no longer contacting Suzie – tick
4. Joe is reasonably likely to suffer harm in the form of his mental or psychological state.

There’s every chance that Mary’s conduct here is coercive control, and an offence.

Is the Family Budget Now Coercive Control?

The person who controls the money in a family, of course, has significant power over the actions of others.

So, can insisting that someone stop spending money to save the family some money be an offence now?

Possibly. Let’s take a look.

Joe and Mary (poor couple – they’re having a rough time by this point) are about to have their first baby. Joe has realised that with the little one arriving soon they need to tighten up the budget a bit if they’re going to make it through. Mary has a weekly get together with some friends at a restaurant and they take turns paying for each other’s meals. Joe tells Mary that as part of their new budget she isn’t going to be able to go to those catch ups anymore.

Here we turn to the definition of “economic abuse”, which is a form of domestic violence under the new coercive control laws.

Economic abuse includes behaviour that “is coercive … OR unreasonably controls another person in a way that denies the second person … financial autonomy”.

Here, Joe is arguably being “coercive”.  For reasons that aren’t clear, “coerce” is defined in another section, but not for the purposes of economic abuse. Elsewhere, at least, it means “compel or force a person to do, or refrain from doing, something”. So, if Joe tells Mary that she can’t keep going, he has “coerced” her by that definition. Importantly it’s irrelevant whether the coercion is reasonable or unreasonable.

Arguably he is also controlling Mary by telling her she can’t spend money. The only question mark here is whether Joe’s request is “unreasonable” which is going to involve testing all of the circumstances.

The decision also denies her the ability to make her own financial decisions.

So let’s see whether Joe has committed an offence by running through our four part test:

1. They remain in an intimate relationship – tick.
2. Joe has arguably engaged in “economic abuse” (event 1) and isolated Mary from her friends (event 2) – tick.
3. Joe intends the conduct to coerce Mary into not spending the money – tick.
4. It is reasonably likely that Mary will suffer harm, because under the wide definition basically any negative response constitutes harm – tick.

So yes – it appears fairly likely Joe could have committed an offence in his efforts to prepare for the birth of their child.

Where Will it Head?

The concerns we are expressing here are not about the end goal of aiming to prevent (or punish if necessary) truly abusive behaviour.

However, all too often we see overly broad legislation weaponised by individuals seeking revenge on former spouses or as part of family law proceedings. We have no doubt that we will see historically consensual behaviours and agreements re-cast as something akin to an unlawful form of coercion or control.

In addition, the seriously wide drafting of this new legislation effectively criminalises too many normal behaviours. Little thought has been given to defined terms, with the result that terms like “harm” are overly broadly defined, and terms like “control” are not defined at all.

Courts have little option but to interpret the legislation as it is written.

So ultimately whether this legislation turns out as badly as we think it could hinges entirely on the enforcement decisions of the Police – a cold comfort.