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Key flaw 4 of 17 · cl. 1(2), 1(5) and 2(1)
The safeguards of the coercive control offence are missing
[n] evidence items · [n] accounts · [Jurisdictions]
What it does
The Bill borrows its harm threshold from the coercive control offence (s.76(4)(b) Serious Crime Act 2015) but omits that offence’s safeguards. Section 76 requires behaviour that is repeated or continuous (s.76(1)(a)), between people who are personally connected (s.76(1)(b), (2)), where the defendant knows or ought to know it will have a serious effect (s.76(1)(d)). It excludes a person responsible for a child under 16 (s.76(3)) and provides a defence of acting in the person’s best interests where the behaviour was reasonable (s.76(8)). It is supported by statutory guidance (s.77). The Bill has none of these. A single incident, by anyone, towards anyone, can be enough.
The exclusion in s.76(3) exists because Parliament left parents’ conduct towards young children to the child cruelty offence (Children and Young Persons Act 1933 s.1), which requires wilful conduct. This Bill applies to parents with no requirement of wilfulness.
Effects: A parent acting in good faith for their child's welfare has no defence. Parliament decided in 2015 that parents of young children should not be prosecuted for coercive control; the Bill reverses that on one subject only.
At a mimimum
Add the four safeguards that limit s.76 and are relevant here: a requirement that the behaviour be repeated or continuous (as s.76(1)(a)); a fault requirement as to harm, that the defendant knows or ought to know the conduct will have a serious effect (as s.76(1)(d)); a best-interests defence where the conduct was reasonable (as s.76(8)); and an exclusion for persons with responsibility for a child under 16 (as s.76(3)). Require statutory guidance on the offence (as s.77).
Source
CL 1(2) “Conversion practice” means (subject to subsection (3)) any conduct carried out by a person towards an individual with the intention of—
(a) causing the individual—
(i) to have or not to have,
(ii) to believe that they have or do not have, a sexual orientation or a particular sexual orientation; or
(b) causing the individual—
(i) to have or not to have,
(ii) to believe that they have or do not have, a transgender identity or a particular transgender identity.
CL 1(5) The question whether conduct amounts to an abuse of the individual is a question of fact to be determined by reference to all the circumstances of the case, including in particular the nature of the conduct.
CL 2(1) A person commits an offence if the person carries out an abusive conversion practice on an individual which causes—(a) serious harm to the individual’s physical or mental health, or (b) serious alarm or distress to the individual which has a substantial adverse effect on their usual day-to-day activities.
What the Australian and New Zealand evidence shows
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