5. Legal and policing train wreck
While feminist lawmakers have spent recent decades weaponizing our legal system against men, some prominent lawyers have bravely spoken out, objecting to what is happening. The renowned American Supreme Court Justice Antonin Scalia once wrote: “When everything is domestic violence, nothing is.”
He was objecting to the labelling of all behaviour harmful to women as “domestic violence,” arguing this trivialises the plight of women really at risk, distorts the law, and impoverishes the language.
Every inquiry into criminalizing coercive control has met with similar disquiet from legal scholars and practising lawyers. Criminal laws often involve severe punishments. Consequently, they have long been reserved for more serious anti-social conduct like assaulting or killing people.
Now lawmakers are proposing to criminalize a newly invented behaviour, concocted in 2007 by a feminist academic with a talent for marketing but little concern with evidence. Given its dubious pedigree, it is probably unsurprising that criminalising coercive control has a host of legal and enforcement problems – problems that the legal fraternity have been prepared to call out.
The lie that women are always victims never perpetrators
Since Tasmania is currently the only state currently criminalising coercive control, the experience there gives us some idea of what is in store. Some Tasmanian legal academics had this to say about coercive control laws:
“…from their inception they have been bedeviled by problems…”
And they offered this advice to other states:
“…caution is necessary to avoid the pitfalls of uncertainty and overcriminalisation…”
Some of the pitfalls that they refer to are that the laws are so vague that it is unclear what is illegal (uncertainty) and that behaviour that isn’t truly serious may be criminalised (overcriminalisation).
Traditionally, only more serious anti-social conduct (called public wrongs) is criminalized. Any reasonable analysis shows that coercive control falls well short of that threshold. Realising this, the NSW DPP has warned of the problem of extending criminal law into non-violent interpersonal relationships :
“A comparison can be reasonably drawn between coercive conduct and bullying. Both involve unhealthy relationships, belittling and aggressive patterns of behaviour and have a profound impact on the victim. Bullying is recognised in the workplace as misconduct; however, it is not a criminal offence.”
Vague definitions make bad law
A major concern of lawyers is that crimes require a specific guilty act or “actus reus.” Coercive control isn’t defined by a particular act but instead by a vaguely defined pattern of behaviour. Rather than being characterised by actual physical acts, this crime centres on the perception of the “victim”. As the Tasmanian academics quoted earlier said:
“…the new offences are significant, for they challenge traditional conceptions of the criminal law that rely on the criminalisation of causing, or threatening, physical harm…”
A US academic pointed to similar problems with the UK legislation:
“Such a statute fails to put a person on sufficient notice of the content of the criminal law for him to conform his behavior to it. It also encourages arbitrary or discriminatory enforcement…”
“Such a vaguely drafted criminal statute would raise insurmountable due process problems under the U.S. Constitution.”
These problems will also apply to the proposed NSW and Queensland laws. For example, under the NSW legislation, one can be found guilty even when allegations don’t specify where or when the offence occurred. Allowing such vague accusations was advised against by the Director of Public Prosecutions.
As well, the Law Society rejected this approach because it removed an “important procedural fairness safeguard.” NSW Young Lawyers also pointed to UK experience that a lack of particulars makes ‘trying to respond (from a defence perspective) … near to impossible’. Even feminists criticised the legislation as vague.
The inherent vagueness of coercive control is highlighted even more clearly by the fact that, in the ACT, the Attorney-General is uncertain whether their current laws cover it:
“Attorney-General Shane Rattenbury said elements of coercive control may already be covered.”
Even the victims don’t get it
Indeed, according to the Commonwealth Attorney-General’s Department, coercive control is so nebulous that “victim-survivors” may not think they have a problem:
“[S]ome victim-survivors find it difficult to recognise that what they are experiencing is coercive control, or that it is family and domestic violence. Some people may not recognise their own experience in the way coercive control is often described.”
One feminist group put it even more clearly in their submission:
“…many women do not realize they are in an abusive relationship…”
Apparently, only with very special feminist training is the problem revealed. See Part 4.
Then there are the problems with the proposed punishment. In NSW, coercive control can be punished with up to 7 years jail, compared with 2 years for common assault. Yet coercive control need not involve any violence and can even be totally harmless. (See the Attorney General’s Second Reading speech.) How does this make sense?
Asking for false allegations
Couple the nebulous nature of coercive control with the deliberate weaponizing of these laws against the result is an invitation to make false allegations. See part 4. Australian academics have already seen this problem with the Tasmanian legislation:
“…a party to a failing or otherwise acrimonious relationship could take advantage of the apparent expansiveness of the coercive control offense to use the criminal law as a weapon against their partner. … Or, even worse, it might create an incentive for a partner seeking legal advantage in a divorce to make false accusations.”
A submission by the Australian Brotherhood of Fathers flagged it as a particular concern with the NSW legislation:
“One critique of the criminalisation of coercive control is that it will create new opportunities for legal systems abuse, that is where perpetrators use the legal and other formalised systems to further assert control over their partners.”
This is made worse because:
“…there are significant financial (and parenting) incentives along with practically no consequences for false allegations…”
Bad news for police and the court system
Police are dreading having to deal with these news laws, according to correspondence received by Mothers of Sons from serving officers. They are already snowed under by work caused by the domestic violence laws, particularly dealing with the large numbers of false allegations being used for strategic advantage in family law battles. In NSW, domestic violence assaults make up only 4.8% of major crimes but take up 50-70% of police time. In Queensland the situation is similar with domestic violence taking up to 80% of police time in some areas. With the introduction of coercive control how much time will police have left to deal with assaults, robbery and other offences?
In 2019 in England and Wales, police investigated a total of 24,856 coercive control reports. Of these 584 were prosecuted resulting in 305 convictions. In other words, 98% of reports were not worth prosecuting and only 1% resulted in a conviction. This workload is compounded by the complexity of processes in domestic violence cases, the time taken by continual feminist re-education – see Part 4 – and the pressure to prosecute as many such reports as possible.
What’s it all for?
Finally, there is a major problem related to the purpose of the legislation. There’s a Spielberg movie called The Minority Report, a dystopian science fiction fantasy involving a special police unit which is able to arrest murderers before they commit their crimes.
That’s exactly the type of nonsense being rolled out in our legal and policing systems. Media and government have made clear that the purpose of the coercive control legislation is to jail men before they murder their partners. But this is based on a lie – there’s no evidence that coercive control predicts domestic homicide.
The truth appears to be that important legal safeguards are being dismantled in a crazed drive to punish more men. Hopefully, one day, the prejudice and discrimination which underpins this feminist crusade may fall out of favour. But the damage to our legal system is likely to be long lasting
Read all about it in Part 6 – Male victims in the news.