PROSECUTING NON-PHYSICAL ABUSE BETWEEN CURRENT INTIMATE PARTNERS: ARE STALKING LAWS AN UNDER-UTILISED RESOURCE?

• Date: 01 January 2019
• Author: McMahon, Marilyn

Contents I Introduction II Can Stalking Laws Be Used to Prosecute Non-Physical Abuse between Current Intimate Partners? A Interpreting Stalking Laws B The Proscribed Behaviours C The Harm Requirement D Stalking in Current Relationships: A Case Example III Are Stalking Laws Actually Being Used to Prosecute Non-Physical Abuse between Intimate Partners? IV Should Stalking Laws Be Used to Prosecute Non-Physical Abuse between Intimate Partners? A Principles Supporting Criminal Liability B Opposing Criminal Liability: The Principle of Fair Labelling C Balancing Competing Principles: Understandings of Stalking 1 Fair Labelling and Understandings of Stalking 2 Expert Discourses on Stalking 3 Community Perceptions of Stalking V Conclusion I Introduction

Whether criminal prosecution should extend to those who engage in nonphysical abuse (emotional, financial and psychological) of their intimate partners has emerged as a key concern in the criminal law following the introduction of the new offence of controlling or coercive behaviour in England and Wales in 2015. (1) This article investigates whether stalking laws in Australia and New Zealand could or should be used to prosecute those who engage in this form of abuse, locating the analysis within a framework of recent family violence legislative reforms and policy developments. (2)

There is little doubt that stopping family violence has become one of the top priorities of governments in Australia and New Zealand. The Tasmanian government has published an action plan to take a coordinated approach to family violence. (3) A special taskforce established by the Queensland government made 140 recommendations for a whole-of-government response to domestic violence. (4) The New Zealand government is currently considering wide-sweeping legislative amendments designed to improve victim safety. (5) The Victorian government has agreed to adopt all 227 recommendations of the Royal Commission into Family Violence, (6) recently issuing a 10-year plan to put those recommendations into effect. (7) Underpinning these new government strategies is a consistent theme: combatting family violence is simply not possible without a coordinated and collaborative response between agencies and organisations; (8) and the problem must be addressed in a cohesive, multi-faceted and holistic manner.

One of the tools that is often employed in response to family violence is the criminal law. For instance, although the prosecution of physical assaults within the family as criminal offences has had a chequered history, (9) it is now generally recognised that a physical or sexual assault on an intimate partner should be prosecuted and punished. (10) Contemporary conceptualisations of family violence, however, now emphasise that it involves more than physical violence; it also includes non-physical abuse as an integral component. (11) While the dynamics of 'physical abuse' and 'non-physical abuse' are interactive, 'non-physical abuse' broadly refers to conduct that may result in myriad diverse harms, variously described in terms such as 'psychological', 'mental, 'emotional, 'social' and 'economic'. There is considerable overlap between these various terms, but collectively they operate to distinguish these harms from physical harms. That is, what these harms generally share is intangibility; they are subjectively experienced by the victim without any necessary and invariant physical manifestation.

Definitions of family violence in relevant civil legislation now typically include psychological or mental harm as forms of family violence, (12) and acknowledge that 'domestic violence extends beyond physical violence and may involve the exploitation of power imbalances and patterns of abuse over many years'. (13) For instance, the definition of 'family violence' in s 5 of the Family Violence Protection Act 2008 (Vic) includes:

(a) behaviour by a person towards a family member of that person if that behaviour--

(i) is physically or sexually abusive; or

(ii) is emotionally or psychologically abusive; (14) or

(iii) is economically abusive; (15) or

(iv) is threatening; or

(v) is coercive; or

(vi) in any other way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person. (16)

Relevant legislation in Queensland and the Australian Capital Territory is similarly broad and includes non-physical abuse, such as emotional or psychological abuse, economic abuse, threatening or coercive behaviour and behaviour that controls or dominates the victim. (17)

This conceptualisation of family violence in civil laws raises the issue of how far the criminal law's reach should extend in regulating abuse in familial relationships. In particular, to what extent should governments intervene and use the coercive power of the criminal law to protect family members from harms that have not been traditionally recognised by the criminal law, such as non-physical abuse?

In considering this issue, there is a need for a principled approach that balances the gendered and substantive harms associated with non-physical abuse with the appropriate limits of the criminal law. On the one hand, there are significant negative outcomes associated with long-term psychological abuse by an intimate partner. Elevated levels of substance abuse, (18) depression or anxiety, (19) post-traumatic stress disorder, (20) homelessness, (21) involvement in the criminal justice system, (22) chronic stress, and a range of other physical ailments (23) have been identified in victims of psychological abuse. On the other hand, the criminal law is 'a powerful, expensive, and invasive tool'. (24) It should only be used as a last resort (25) and, when used, should extend only as far as absolutely necessary. (26)

With that de minimis caveat in mind, there are two primary ways in which non-physical forms of family violence are currently criminalised. First, a broad range of behaviours are indirectly criminalised through what Andrew Simester and Andreas von Hirsch have referred to as a two-step prohibition. (27) The first step involves a court making a civil order imposing certain restrictions on a respondent who has already engaged in some form of family violence and who poses a risk of committing further violence. (28) The second step is to then punish that person if they act in contravention of those conditions. (29) This latter step is the mechanism through which emotional and psychological abuse is indirectly criminalised. In each state and territory of Australia, and in New Zealand, a respondent who breaches an intervention order by engaging in any of the specified behaviours that classify as 'family violence' will have committed a criminal offence. (30) As the definitions of 'family violence' in each jurisdiction are broad and generally incorporate emotional abuse, psychological abuse, economic abuse and controlling or coercive behaviours, (31) a respondent will have contravened an intervention order if they engage in such conduct. That breach offence is then usually punishable by a maximum of two years' imprisonment, (32) although there are some jurisdictions in which an aggravating factor (such as persistent or multiple contraventions) will increase that maximum penalty to five years. (33) Simester and von Hirsch have explicated a number of advantages to two-step prohibitions--for example, they improve the prosecution's ability to prove that the defendant 'knew or ought to have known' that their behaviour was wrong. (34) There are, however, concerns in relation to two-step prohibitions in the context of family violence. Criminalising non-physical abuse only when it is in breach of a court order can: misidentify the real harm of the behaviour; result in inappropriately low penalties; and give the impression that family violence per se is decriminalised in the absence of an intervention order. (35) An over-reliance on civil preventive orders may also constitute undercriminalisation (a failure to adequately employ the criminal law) given that the true targets are significant wrongs and harms. (36) Further, this civil-criminal hybrid form of criminalisation may negatively affect the legitimacy of the law as a whole, because it bypasses the procedural rights that should accompany the criminal process. (37)

The second and more straightforward way in which non-physical abuse can be criminalised is through direct criminalisation, with offences not preconditioned on the existence of a civil order. Although it is unlawful in each of the jurisdictions of Australia and New Zealand to physically assault a family member, (38) regardless of whether a court order is in place, the same is not yet true of most forms of non-physical family violence. Thus far, Tasmania is the only jurisdiction in Australia to have expressly extended the criminal law to address these forms of intimate partner abuse.

In 2005, new offences came into effect in Tasmania that criminalised certain non-physical harms in the context of family violence: specifically, emotional abuse and economic abuse. (39) To be found guilty of these offences, there is no requirement that an intervention order be in place. In their first decade of operation, these offences appear to have been charged infrequently, with the Tasmanian Sentencing Advisory Council reporting only eight convictions for the offences by 2015. (40) More recent research by police prosecutor Kerryne Barwick, in conjunction with Paul McGorrery and Marilyn McMahon, however, indicates that there have now been at least 40 successful convictions, an increase which they attribute to a change in the way in which the limitation period associated with the offence is framed. (41) Nevertheless, this is still a small number when compared to the number of family violence incidents and prosecutions in Tasmania each year. (42) This relative scarcity of prosecutions for...