In July this year, the New South Wales government released a bill outlining a proposed stand-alone coercive control offense for New South Wales.
Under the proposed law, repeated abusive behavior such as controlling an intimate partner’s finances, isolating them from their family or monitoring their whereabouts could be a criminal offense that could result in up to seven years in prison.
Like NSW, Queensland has also pledged to introduce coercive control as an offence. However, this will only happen after undertaking broader systemic reforms. This includes conducting a domestic violence police service investigation.
Both states have pledged to criminalize coercive control despite continued concerns from First Nations women about it. These advocates stated that the introduction of a coercive control offense could lead to further criminalization of First Nations victims-survivors of violence.
Read more: Carceral feminism and coercive control: when Indigenous women are not seen as victims, witnesses or ideal women
“Victim” and misidentification
There is an ongoing problem with police misidentifying victim-survivors of violence as perpetrators. Various Indigenous-led organizations have expressed concerns that this will get worse with the introduction of a new offense of coercive control.
The Victorian Aboriginal Legal Service observed:
as well as the experience […] general risk factors [for victim misidentification] at a higher rate, Indigenous women are also more likely to be misidentified simply because they are Indigenous, due to racism and bias among police and service providers.
The Wirringa Baiya Aboriginal Women’s Legal Center also detailed this issue in its submission to the NSW Joint Select Committee on Coercive Control:
[if an] Indigenous woman is uncomfortable or unable to convince a police officer that she is the primary victim of physical abuse [under the current law] what hope or incentive is there to persuade a police officer that he has suffered ongoing psychological and economic abuse? [under the new law]?
Sisters Inside and the Institute for Collaborative Race Research described in 2021:
Aboriginal and Torres Strait Islander women are routinely misidentified as ‘delinquents’ rather than ‘victims’. Not only will Aboriginal and Torres Strait Islander women and girls not be protected by this legislation, they will be targeted squarely.
First Nations organizations and communities have repeatedly highlighted the role of racism in the misidentification of victims by police. This issue needs to be resolved before governments proceed to implement coercive control as an offence.
Concerns about racism and misidentification of perpetrators are reinforced by recent research by co-author Emma Buxton-Namisnyk. This analysis revealed that nearly one-third of First Nations women killed in spousal violence-related homicides had previously been identified by police as perpetrators of spousal violence.
This research also identified that police officers were likely to describe First Nations women as “uncooperative” or “unwilling” to work with the police.
Police had used terminology like this to describe victims in nearly three-quarters of domestic violence homicides where police had previously been involved in domestic violence incidents. In many cases, the police used this language to justify their decision not to provide protection or assistance to First Nations women when they were victims of violence.
Queensland’s ongoing domestic and family violence police inquiry has also exposed racism and sexism within the Queensland Police Service. This includes the failure to properly investigate deaths of First Nations women related to domestic violence and the common misidentification of victims.
Read more: Women’s police stations in Australia: would they work for ‘all’ women?
The consequences of misidentification
In addition to involving victim-survivors in the criminal justice system, misidentification of victims can expose women to increased child protection intervention and the threat of child removal.
The children of First Nations women are already moving out of the home at an unacceptable rate.
Misidentification of victims can also limit women’s access to support services and allow perpetrators to use legal systems to further abuse victim-survivors. For example, an abuser may attempt to lengthen legal proceedings to intimidate or financially harm a victim-survivor.
“Unintended” but not unintended consequences
The Queensland and New South Wales inquiries acknowledged that the criminalization of coercive control can have “unintended consequences”, particularly for First Nations women.
To say that these consequences are “unintended” implies that these results are also unintended. In this case, the consequences of the criminalization of coercive control for First Nations women are far from unforeseen. They have been repeatedly and explicitly identified and recognized during the legislative reform process. The use of the language of “unintended consequences” seems to be a means of avoiding accountability in the development of laws and policies.
A similar example of law reform negatively impacting First Nations people can be found with previous changes to bail laws in Victoria. The Victorian Aboriginal Legal Service observed:
changes to bail laws introduced in 2018 faced opposition from experts, including the Victorian Aboriginal Legal Service, on the grounds that they would disproportionately affect Aboriginal people. This expertise has been ignored, and new bail laws have led to the remanding of Indigenous women – including survivors of domestic violence – at an alarming rate.
The governments of New South Wales and Queensland have been repeatedly told what could happen if they proceed with the criminalization of coercive control. Instead, they take a “tough on domestic violence” stance, risking significant harm to its most marginalized victims.
Governments need to listen to and respond to First Nations women’s lived experiences, advocacy and evidence-based concerns before embarking on this path. Because it is First Nations women who will suffer the “unintended consequences” of these new laws.