Criminalising coercive control is not the answer: An abolitionist critique

Interrogating attempts at criminalising coercive control from an abolitionist framework.

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On Thursday 24 September, Labor MP Anna Watson introduced a private members bill to the New South Wales Parliament to amend the Crimes (Domestic and Personal Violence) Act 2007. The amendment seeks to criminalise coercive control in domestic relationships. Coercive control refers to the use of controlling and manipulative behaviours including psychological, emotional and financial abuse within  domestic relationships. Coercive control is committed to gaining and maintaining control over another person. This bill will make it an offence to engage in coercive control over another person in a domestic relationship. Carrying a maximum penalty of imprisonment for five years and/or a fine of $5,500 and, in cases deemed to be aggravated, a prison sentence of ten years imprisonment and/or a fine of $13,200.

Anna Watson is not alone in proposing legislation to criminalise coercive control with Green’s MLC Abigail Boyd giving notice for  similar legislation in June this year. Women’s Safety NSW, a state-wide peak body for women’s specialist services, have said that “criminalisation of coercive control [is] essential if Australia is to achieve a substantial reduction in violence against women and domestic homicide.” While domestic violence services and some advocates have praised the move to criminalise coercive control, criticism of the bill has emerged from prison and police abolitionists, who have labelled the proposed legislation as embedded in ideas of carceral feminism.

Carceral feminism refers to a response to gendered violence which calls for increased policing, law reform and harsher prison sentencing for perpetrators. Though originally coined by Elizabeth Berstien in her discussion of sexual labour and calls to criminalise sex work, it has come to refer more broadly to feminists reliance upon the criminal justice system for safety and protection.

Feminist anti-violence movements fought for the social and legal recognition of domestic violence and an increase in punishment for perpetrators of this violence. Historically, the criminal justice system – whether via the police or the courts – saw domestic violence as a discrete and interpersonal family issue. Feminists fought to have the system recognise domestic violence as a political issue that the state needed to address. In doing so, many feminist anti-violence activists failed to recognise the violence rooted in the criminal justice system itself.

In her book Decriminalising Domestic Violence, Leigh Goodmark argues that while criminalisation of domestic violence brought tangible benefits to some women, the criminal justice system has failed to prevent intimate partner violence by trying to solve what is  fundamentally a social issue without broader investment in social services and infrastructure. A broader community response that incorporates housing, health, economic security and  structural change to gender relations and patriarchy is imperative.

In failing to recognise the violence inflicted by policing and the prison system, carceral feminism relies on the idea that violence can be prevented or ‘fixed’ through punitive measures, reinforcing and empowering these violent systems. The proposed legislation relies on women being willing and able to involve the police in situations of violence. For many women, involving the police can lead to additional violence, with the police acting as another perpetrator of violence in denying support, inflicting further harm and compounding existing trauma. For Aboriginal and Torres Strait Islander women, disabled women, poor women and other women living on the margins, police pose a very real threat to our lives. Policing and prisons serve only to provide a veneer of safety. 

Supporters of the push to criminalise coercive control and reform the criminal justice system to respond to domestic violence have argued that opponents of the bill are defeatist and “nihilistic about the ability of the justice system to protect women.” However, as abolitionists, opposition to the criminalisation of coercive control does not stem from pessimism. Instead, our resistance to it has developed from a thorough understanding of the inherent oppressive nature of policing and the criminal justice system, in addition to the limits of the system in responding to deeper social issues. Abolitionist feminism demands of us as women and people deeply embedded in our communities an optimism in our own ability to respond to violence without reproducing harm. Modern policing and incarceration have become so naturalised that there is immense difficulty in imagining and conceptualising how violence could be addressed outside of these systems. Abolitionists’ optimism and creativity is situated within our ability to imagine alternatives outside disempowering hegemonic systems.

Failures of the police to respond to gendered violence is well documented. Statistics from police data, as reported by the ABC in their investigation of police failing sexual assault victim/survivors, suggest that while approximately one in five women have experienced sexual violence, only 19% of female victim/survivors of sexual assault in Australia reported the incident to police. Further, only 30% of all sexual assault reports led to an arrest or other legal action. For many marginalised women, there are extensive barriers to reporting violence. Research published by ANROWS, for example, highlights the challenges to reporting women with disabilities face, with “substantial” abuse occurring in spite of, and because of, systems that are intended to provide protection. With this knowledge in mind, it is paramount we pay attention to the way calls for criminalisation of coercive control – intended to provide protection – may similarly cause harm. 

We must also consider that, whilst in some cases, reporting may stop future acts of violence, police and the criminal justice system cannot be relied upon as the answer to violence prevention, and often are complicit in compounding the trauma of victim/survivors. Police failure to respond to acts of violence in a meaningful way often leaves victim/survivors re-traumatised and without resolution. Even when police involvement leads to an arrest or other legal action being taken against the perpetrator, victim/survivors are left without material support, as the justice system is unequipped to respond to acts of violence beyond the state’s legal mechanisms. While some supporters of the bill may believe that expanding police powers through criminalising coercive control will improve the literacy and skills of police in responding to violence, abolitionists understand that the issue is not with literacy and skills, but with the limitations of the police’s role within the community.

Current rates of domestic and sexual violence prove that the threat of police involvement and incarceration is not a deterrent for those who commit violence against women. Yet, if we understand gendered violence as a social issue, alternative approaches of both alleviating and responding to violence can begin to be imagined.

Supporters of the proposed legislation believe that the enactment of similar laws in England and Scotland provide a valuable roadmap for their introduction in Australia. However, what supporters of the bill must be acutely aware of, is that as a settler colonial state, Australia’s approach to criminalisation functions differently than in Europe. While supporters of the bill have refuted the idea that police will mistakenly identify women as the perpetrator this is already a pressing issue. In particular, misidentification affects Aboriginal and Torres Strait Islander women, migrant and refugee women, women who don’t speak English and other marginalised women already over criminalised and threatened by the police. By referencing empirical evidence of this not occurring in Scotland and England where coercive control has already been criminalised, advocates fail to recognise Australia’s  unique colonial context in reproducing violence via the policing and prison systems.

As feminists we don’t refute that coercive control and intimidation tactics lie at the heart of domestic violence and pose a serious threat to women’s wellbeing and safety. However, coercive control and intimidation can not be isolated and detached from the broader structural, patriarchal violence that exists. While seeking to expand understandings of gendered violence, this bill poses the very real risk of seeing violence against women as interpersonal and not structurally situated. This fails women whose lives cannot be detached from the structures we live within – whether they be disabled women living in institutions and experiencing abuse at the hands of violent service providers, Aboriginal women subjected to police brutality or criminalised women subjected to sexual violence within prisons.

In questioning the push to criminalise coercive control, we want to make clear we are not disagreeing that coercive control is a form of violence. We do not wish to invalidate the experiences of women who have been subjected to coercive control, and honour victim/survivors sharing their stories – we all want justice. We also acknowledge that the debate happening amongst feminists has become highly polarised in response to this issue and we do not want to be complicit in drawing attention away from what is at stake, which is the lives and livelihoods of women. 

However, what we hope to present is a radical alternative to dealing with violence within our communities. Ultimately as abolitionists it is from a deep love, hope and belief that we as a community, especially those subject to multiple forms of interpersonal and systemic violence, hold the answers and can continue to work towards a world that does not rely on carceral systems. In building strong communities, developing collective care ethics and struggling for structural changes to housing, health and social services we will end violence against women.

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