By Christy Fischer (she/her)
Content warning: discussions of domestic and family violence, and gender violence
Following Jess Hill’s popular book and recent documentary series See What You Made Me Do, there have been widespread discussions about criminalising coercive control as a form of domestic and family violence. While, for many, these discussions provide a sense of hope and progression, there are implications to these proposals. This article aims to deconstruct current arguments and implications of the proposed new laws surrounding coercive control, and shine a light on the unintended impacts these laws may have on Aboriginal and Torres Strait women in Australia. It will analyse the proposed law, the implications of racism, and alternative approaches to tackling domestic and family violence in Australia.
The "Crimes (Domestic and Personal Violence) Amendment (Coercive Control) Bill 2020" would criminalise coercive control, with perpetrators seeing up to 10 years of jail time if convicted. This bill aims to move away from charging singular incidents of domestic and family violence, and shift towards evaluating patterned behaviours of control and abuse for consideration as evidence. This change would provide victims with a platform to show evidence of abuse, where physical violence may not be present, such as in the recent Hannah Clarke case (Riga, 2021). While this bill seems to be a positive and progressive move for Australia, there seems to be a lack of consideration and critical thinking of its impacts on marginalised groups. Criticisms of the new law include the risk of further discrimination and oppression of First Nations women, who at present make up one-third of all female prisoners (McDonald, 2020).
There is no denying that Australia fails to protect women from domestic violence and abuse, and that change needs to occur. The question is, what is the most effective way of tackling the problem without further victimising women, and particularly, women of colour?
According to the NSW police, some examples of domestic and family violence that can be prosecuted as a crime include; "physical assault (punching, hitting, kicking, pushing, throwing things at a person), stalking, unwanted sex or sexual acts, breaking Domestic Violence Orders or making some type of threat" (NSW Government, 2020). The limitation of the current law is that psychological, emotional, social, sexual and economic control/abuse is difficult to prove as there can be a lack of tangible evidence (Hill, 2019). As the law stands, behaviour patterns that are not related to physical violence are rarely prosecuted or convicted, often leaving women legally unprotected from their intimate partner's abuse (Hill, 2019).
The proposed law reform aims to tackle and prosecute coercive control, which as Jess Hill states, provides context and a broader picture of controlling patterned behaviour (Hill, 2019). The proposal focuses on moving away from incident-based domestic violence to understanding how the perpetrator systems of abuse are ongoing and relentless (D'Agostino, 2020).
For many people, the term coercive control is a recent one, now adopted by many working within the human service field. One definition of coercive control states that it "…targets a victim's autonomy, equality, liberty, social supports and dignity in ways that compromise the capacity for independent, self-interested decision-making vital to escape and effective resistance to abuse" (Stark, 2012). Jess Hill describes coercive control as a way of understanding the "typical plotline" perpetrators take. She summarises this plotline saying, "You'll have been isolated in some way; you'll have had your access to money probably restricted in some way or your access to independence; you'll have been belittled and degraded; he will probably have made threats either to self-harm or to harm you and/or the kids or the animals" (D'Agostino, 2020). On the surface, the proposed changes spark hope for a safer future; however, in analysing the impacts of this proposal within an intersectional lens, several negative implications arise for First Nations women in Australia.
The main concern regarding the proposed law reform is the further oppression of First Nations women. There are several ways in which this could occur. These include an increase of "misidentifying" the victim and perpetrator, racism, and the bias that First Nations women are viewed as neither being excellent witnesses nor victims (Watego et al., 2021). Furthermore, the ever-present and serious risks associated with further state and police involvement in the lives of First Nations Australians.
Much of the criticism of criminalising coercive control has come from well-respected First Nations academics, who argue that increasing police involvement will result in more First Nations women being imprisoned rather than protected (Watego et al, 2021). It is reported that 50% of First Nations women who have been murdered by intimate partner violence have been considered as perpetrators of domestic and family violence (DFV) by police (Nancarrow et al., 2020). In a year where there has been a public outcry to abolish the police, it is mind-boggling to understand the drive to increase police expansion (Smee, 2021). A problem with the standing proposal is that it extends the power by the state, which operates within broken and oppressive systems that negatively impact the lives of marginalised Australians, particularly First Nations women (Smee, 2021).
Recent research surrounding the issue of "misidentifying" victims as perpetrators, found that "assumptions about the behaviour of victims of abuse (and women in general) contribute to inappropriate police applications against women who do not fit the stereotypes (Fitz-Gibbon, Walklate, & Meyer, 2020). One article states, "White Australia tends to see both white women and state agents like police as fundamentally good, and both are almost always deemed grieveable and believable” (Watego et al., 2021). Research conducted by ANROWS stated that while policies are in place to provide women with legal protection when facing DFV, the evidence concludes that the system disproportionately impacts Aboriginal and Torres Strait Islander women negatively (Nancarrow et al., 2020). It seems safe to conclude that further strengthening police involvement without first addressing the current systemic issues surrounding the police and Aboriginal and Torres Strait Islander women experiencing DFV, would only further exacerbate the situation.
Carceral feminists (such as Jess Hill) have been called out for neglecting to hear the concerns of First Nations people. Carceral feminism is the advocacy for increasing criminal charges and convictions that deal with gendered issues. It is the belief that the criminal justice system needs to hand down harsher and longer prison sentences as a way of tackling gender inequality (Terwiel, 2020). Implications of carceral feminism were brought to light in a recent article published by The Conversation. The article centred on many of the issues mentioned here, highlighting that when carceral feminists refuse to think about care in its most inclusive sense, they refuse to "walk in love" alongside First Nations women. Ruby Wharton, a Gomeroi Kooma woman, made this powerful statement regarding black deaths in custody: "As long we walk in love we will be able to seek justice" (Watego et al., 2021). Aileen Moreton-Robinson continued this idea stating that "the real challenge for white feminists is to theorise the relinquishment of power so that feminist practice can contribute to changing the racial order” (Moreton-Robinson, 2000). She calls out the privilege of white middle-class women, stating, "Until this challenge is addressed, the subject position middle-class white woman will remain centred as a site of dominance. Indigenous women will continue to resist this dominance by talkin' up, because the invisibility of unspeakable things requires them to be spoken" (Moreton-Robinson, 2000). Speaking about intersectionality is not enough. As intersectional feminists, we are called to rally around First Nations women, pass the mic, and stand with them. We need to acknowledge the privilege and power we are born into and work to dismantle, not strengthen, oppressive practices.
The final episode of See What You Made Me Do consisted of a five-panellist forum discussion. During the discussion, Sandra Creamer suggested alternative approaches to tackling domestic and family violence, one of these being to take a social entrapment approach. One of the defining features of this framework are the three identifying qualities that make up the definition of intimate partner violence:
•The social isolation, fear and coercion that the predominant aggressor's coercive and controlling behaviour creates in the victim's life;
•The indifference of powerful institutions to the victim's suffering; and
•The exacerbation of coercive control by the structural inequities associated with gender, class, race and disability (Ptacek, 1999)
This approach looks at the complex nature of the primary victim to understand the context of their behaviour. This is important because it renders the predominant aggressor's patterned behaviour visible, and identifies how that behaviour limits the primary victim's options of resistance and their ability to escape the abuse (Tolmie et al, 2018). It also simultaneously considers the other systems of power in the primary victim's life (Tolmie et al, 2018). This requires conducting a careful inquiry into what coercive and controlling behaviours the primary aggressor has deployed, and evaluating how these behaviours impact the victim’s ability to be self-determined (Tolmie et al, 2018). A social entrapment framework requires inquiry into how both formal and informal networks have responded to the primary victim's help-seeking endeavours. Most importantly, it considers the intersecting structural inequities, such as poverty, trauma, colonisation, racism, and disability (Tolmie et al, 2018).
To accurately contextualise a victim there needs to be a collaborative and integrated service approach, where it is documented by all stakeholders how the predominant aggressor has "intimidated and frightened the primary victim and her children, isolated her from potential support, undermined her relationships with those around her, punished her acts of resistance, undermined her stability and independence and fostered a dependence on him" (Tolmie et al, 2018). This approach focuses on less binary views of aggressor and victim, and contextualises a victim and their behaviour. This could potentially reduce the high levels of "misidentifying" victims and aggressors, and further protect women and children from domestic and family violence without contributing to further oppression of First Nations Women (Tolmie et al, 2018).
So, the questions remain, where to from here? As self-identifying feminists, what does action look like moving forward as allies to our First Nations communities? The first step is to research and think critically about who is being impacted the most, intentionally or unintentionally. LISTEN to First Nations people as they are the experts of their stories. Reflect on what true inclusivity looks like from the point of view of marginalised groups. Engage in difficult conversations, where you lean into the discomfort of the unknowing. Ask questions, stay curious and dig deeper.
When writing this article, I remembered one of the ten behaviours and cultural issues that leaders identified as getting in the way of organisations, which came out of Brenè Brown's research.
"When something goes wrong, individuals and teams are rushing into ineffective or unsustainable solutions rather than staying with problem identification and solving. When we fix the wrong thing for the wrong reason, the same problems continue to surface. It's costly and demoralising" (Brown, 2018).
It makes me wonder if that is what is happening here, that rushing into a solution, sustainable or not, feels better than staying with the problem. There are no easy solutions, but no solution is worth introducing further ways for "entrenched abusive power" relationships to exist between the state and First Nations women.
If you would like to read further into this topic, please see the full list of references below.
Bibliography
Brown, B. (2018). Dare to Lead. Vermilion.
D'Agostino, E. (2020, December 3). Bendigo Advertiser . Retrieved from Understanding of coercive control 'absolutely imperative', Jess Hill says: https://www.bendigoadvertiser.com.au/story/7036740/we-need-to-talk-about-coercive-control/
Fitz-Gibbon, K., Walklate, S., & Meyer, S. (2020, October 1). Australia is not ready to criminalise coercive control — here’s why. Retrieved from The Conversation: https://theconversation.com/australia-is-not-ready-to-criminalise-coercive-control-heres-why-146929
Hickey, S. (2020, December 4). Sydney Criminal Lawyers. Retrieved from 2020: 'Worst Year' for Domestic Violence Offences: https://www.sydneycriminallawyers.com.au/blog/2020-worst-year-for-domestic-violence-offences/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration
Hill, J. (2019). See What You Made Me Do. Australia: Black Inc.
McDonald, P. (2020, March 31). ABC News. Retrieved from 'Urgent action' needed over high proportion of Indigenous women in prison, report says: https://www.abc.net.au/news/2020-03-31/urgent-action-needed-over-indigenous-women-in-jails/12103372
Moreton-Robinson, A. (2000). Talkin' Up to the White Woman: Indigenous Women and Feminism. University of Queenland Press, 325-329.
Nancarrow, H., Thomas, K., Ringland, V., & Modini, T. (2020, Novemember ). Accurately identifying the “person most in need of protection” in domestic and family violence law. Sydney, NSW, Australia.
NSW Government. (2020, August 21). NSW Government Communities & Justic. Retrieved from The law on domestic violence: https://www.facs.nsw.gov.au/domestic-violence/police-law-help/the-law
Ptacek, J. (1999). Battered Women in the Courtroom: The Power of Judicial Responses. Boston: Notheastern University Press.
Riga, R. (2021, Febuary 14). ABC News. Retrieved from Hannah Clarke's arents push for coercive contro to be made a crime one year on from horrific murders: https://www.abc.net.au/news/2021-02-14/qld-hannah-clarke-domestic-violence-murder-anniversary-brisbane/13137484
Smee, B. (2021, May 3). Queensland police misidentified women murdered by husbands as perpetrators of domestic violence. Retrieved from Gardian : https://www.theguardian.com/australia-news/2021/may/03/women-murdered-by-husbands-labelled-perpetrators-of-domestic-violence-by-queensland-police
Stark, E. (2012). Re-presenting Battered Women: Coercive Control and the Defense of Liberty” . Quebec: violence Against Women: Complex Realities and New Issues in a Changing World.
Terwiel, A. (2020). What is Carceral Feminism? Political Theory, 421-442.
Tolmie, J., Smith, R., Short, J., Wilson, D., & Sach, J. (2018). Social Entrapment: A Realistic Understanding of the Criminal Offending of Primary Victims of Intimate Partner Violence. New Zealand Law Review, 181.
Watego, C., Macourn, A., Singh, D., & Strakosch, E. (2021, May 25). Carceral feminism and coercive control:when Indigenous women aren't seen as ideal victims, witnesses or women. Retrieved from The Conversation: https://theconversation.com/carceral-feminism-and-coercive-control-when-indigenous-women-arent-seen-as-ideal-victims-witnesses-or-women-161091