The new coercive control offence in NSW: (how) will it work?

Abstract

ABSTRACT NSW has recently made using coercive and controlling behaviours in intimate partner relationships a criminal offence. The new offence commenced 1 July 2024. This paper considers the ‘purposes’ of the offence, analyses its provisions, and examines how it is likely to operate within the NSW criminal justice system. Our analysis raises two seemingly incompatible concerns. Firstly, we observe that ‘on the books’ the offence is overly complex and narrowly constructed and therefore may be hard to prove as a matter of law and fact. Infrequent use of the offence may result in it failing to achieve its intended goals of enhancing the criminal law’s broader response to domestic and family violence and saving lives. Secondly, there is a risk the offence will lead to increased criminalisation of already marginalised groups by reason of its potential to capture relatively low-level offending and the nature of summary justice – the jurisdiction in which the overwhelming majority of cases will be finalised.