The criminalisation of coercive control: Implications for defendants with neurodevelopmental and cognitive disorders

Abstract

New South Wales and Queensland have recently criminalised coercive control. Scholarship surrounding these reforms highlights the potentially negative effects on different sections of the community, with a focus on victim-survivors. However, the implications of the reforms for defendants with neurodevelopmental and cognitive disorders has been neglected. This article describes some of the issues the courts may face in dealing with defendants with neurodevelopmental and cognitive disorders, as a result of the criminalisation of coercive control. Further, it reinforces the importance of adequate disability education and training for all key justice system stakeholders, to improve the effectiveness of the reforms in practice.

‘Coercive control’ is a pattern of behaviour within an intimate relationship that aims to deprive the victim-survivor of their liberty and personal autonomy through the physical, emotional, social and/or economic micro-regulation and domination of their lives. ¹ There is increasing recognition that coercive control is detrimental to the health and wellbeing of victim-survivors. ² Several high-profile cases involving coercive control have also tragically culminated in intimate partner homicide, particularly the 2020 killing by Rowan Baxter of his former partner Hannah Clarke and their three children. ³ As a result, there is increasing academic debate and mounting political pressure on how the law – particularly the criminal law – might best respond to this form of abuse in Australia. ⁴

We recognise the negative impacts of behaviours that may be experienced as controlling by victim-survivors. Nevertheless, the present article considers the potential implications of criminalisation for defendants with neurodevelopmental and cognitive disorders, as they are particularly vulnerable and overrepresented within the criminal legal system. ⁵ In this article, our primary focus is men with neurodevelopmental and cognitive disorders who engage in behaviours that may be experienced as abusive or controlling. However, we recognise that women with such conditions may also engage in such behaviours.

The criminalisation of coercive control in Australia

Tasmania was the first jurisdiction, in 2004, to criminalise some non-physical forms of family violence, such as economic and emotional abuse. ⁶ As discussed below, two Australian jurisdictions – New South Wales (NSW) and Queensland – have now created a stand-alone offence to criminalise coercive control. The introduction of legislation is also under consideration in South Australia, ⁷ Western Australia, ⁸ and the Australian Capital Territory (ACT). ⁹

New South Wales

New provisions in the Crimes Act 1900 (NSW) ¹⁰ (the NSW Act) came into effect on 1 July 2024, making NSW the first Australian jurisdiction to formally criminalise coercive control as a stand-alone offence. ¹¹ Under the NSW Act, an adult commits an offence if:

1) they engage in a course of conduct against their current or former intimate partner that consists of abusive behaviour; ¹²

2) they intend the course of conduct to coerce or control the other person; and

3) a reasonable person would consider the course of conduct would be likely, in all the circumstances, to cause:

  a) fear that violence will be used against the other person or another person or

  b) a serious adverse impact on the capacity of the other person to engage in some or all of the person’s ordinary day-to-day activities.

Significantly, there is no requirement that such fear or impact is in fact caused. The offence carries a maximum penalty of seven years’ imprisonment, although most matters are likely to be resolved summarily. ¹³ It is a defence if the course of conduct was reasonable in all the circumstances. ¹⁴

The Coercive Control Implementation and Evaluation Taskforce was established in NSW in 2022, to provide advice to the Minister on training and education, legislative commencement dates and stakeholder consultation. ¹⁵ Now that the legislation has commenced, the role of the Taskforce includes annual advice to the Minister, as well as several legislative reviews. This will include consideration of the impact of the reforms ‘on Aboriginal people, culturally and linguistically diverse people and LGBTQI+ people’, ¹⁶ whether the offence should apply to a greater number of relationship types, whether the offence should be extended to cover recklessness, and whether (and to what extent) the legislation has contributed to victim-survivors being misidentified as primary perpetrators. ¹⁷ Despite the extensive preparatory work of the Taskforce, ¹⁸ some critics have suggested that the NSW approach was too rushed, with insufficient time allocated for training and education for key stakeholders (eg, police, judiciary). ¹⁹

Queensland

The need for careful planning, community consultation and judicial education was raised by the Women’s Safety and Justice Taskforce, ²⁰ when considering Queensland’s response to coercive control. As a result, Queensland is taking a staged, four-year approach to this issue. ²¹ The Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Act 2023 (Qld) (the 2023 Queensland Act) was assented to in February 2023 and ‘lays the foundation to create a standalone offence of coercive control’. ²² In October 2023, the government introduced the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Bill 2023. This Bill (referred to hereafter as the 2024 Queensland Act) was passed by the Queensland Parliament on 6 March 2024 and is expected to commence in May 2025.

The offence introduced by the 2024 Queensland Act is similar to NSW, in that it applies to an adult who intends their course of conduct to coerce or control another person. However, this can be anyone they are in a domestic relationship with (not only an intimate partner) and a course of conduct is defined as ‘occurring on more than 1 occasion’. ²³ In addition, the relevant threshold is that the ‘course of conduct would, in all the circumstances, be reasonably likely to cause the other person harm’ and a broader range of behaviours is included in the definition of abuse, including making a person dependent on or subordinate to another person, and threats to self-harm. The Queensland offence particularises specific behaviours, while NSW provides higher-level categories of behaviour (although both are non-exhaustive). Notably, the Queensland offence carries a maximum penalty of 14 years’ imprisonment, although it must be dealt with summarily, if the prosecutor chooses this where the defendant pleads guilty. ²⁴ Unlike the NSW offence, there are no specific guidelines relating to the review of the 2024 Queensland Act.

Defendants with neurodevelopmental and cognitive disorders

When considering the effects of law reform, it is of course vital to pay attention to the implications for vulnerable populations. ²⁵ In this article, our focus is on people with neurodevelopmental and cognitive disorders. This encapsulates a number of conditions associated with effects on brain development or cognition, which may affect executive functioning, make it difficult for individuals to learn new things, concentrate, retain information, make decisions and/or exhibit cognitive flexibility. ²⁶ This includes, but is not limited to, intellectual disabilities, Attention-Deficit/Hyperactivity Disorder (ADHD), Autism Spectrum Disorder (ASD) and Obsessive-Compulsive Disorder (OCD). ²⁷ While this list is by no means exhaustive of neurodevelopmental and cognitive disorders, the current article will focus on these conditions, to highlight the impact of the criminalisation of coercive control. It should be noted, however, that many people with neurodevelopmental and cognitive disorders experience comorbidities across these conditions, ²⁸ although they are discrete conditions, as well as other disabilities. Some conditions may also fit different classifications; for example, OCD is typically classified as a psychiatric disorder but is included in the current discussion as it is also associated with cognitive dysfunction. ²⁹

It is difficult to estimate the prevalence of neurodevelopmental and cognitive disorders in Australia, due to a lack of standardised definitions and available data. However, it is estimated that ADHD affects between two and six per cent of Australian adults, ³⁰ while three per cent of Australians will experience OCD in their lifetime. ³¹ The Australian Institute of Health and Welfare (AIHW) ³² estimates that three per cent of the Australian population has some form of intellectual disability and that 0.7 per cent has ASD, however more recent estimates suggest that ASD may occur within 1.3 per cent of the Australian population. ³³

People with neurodevelopmental and cognitive disorders are overrepresented and entrenched in Australia’s criminal legal system. ³⁴ Research estimates that nearly 30 per cent of the Australian prison population has some form of intellectual disability. ³⁵ A study of four correctional centres in NSW revealed that 35 per cent of the sample screened positive for ADHD. ³⁶ People with ASD are also likely to be overrepresented in the criminal legal system. ³⁷ However, these figures must be considered within the context of underdiagnosis of many neurodevelopmental and cognitive disorders and, as such, are likely to underestimate the actual prevalence of these conditions within criminal justice populations. ³⁸

In part, the overrepresentation of people with neurodevelopmental and cognitive disorders in criminal justice populations is likely due to the lack of appropriate/early diagnosis and support/intervention, which contributes to and exacerbates the communicative, behavioural and social needs of individuals with neurodevelopmental and cognitive disorders, when interacting with the courts. ³⁹ ADHD, ASD and intellectual disability may make it difficult for defendants to follow proceedings, understand nonverbal or non-literal communication and social cues, maintain concentration to provide evidence in the witness box, comprehend and retain information, limit impulsive/emotional verbal responses, and uphold appropriate courtroom decorum (eg, not talking unless spoken to, addressing court professionals using honorifics).

Freckelton’s analysis of Australian case law reveals that the presence of ADHD is generally not considered as an issue of accessibility in the courts and adjustments are typically not made to court practice. ⁴⁰ In Bartels’ analysis of cases involving ADHD in the ACT Supreme Court, judges mentioned the defendant’s previous or current domestic violence offences in eight of the 32 (25 per cent) cases analysed. ⁴¹ However, the nexus between ADHD and domestic violence was only (implicitly) acknowledged in one of these cases. Wolf found a growing consideration of ASD in sentencing cases, although she acknowledged there are still gaps in understanding of ASD and limited considerations of its relevance. ⁴² Examination of NSW court processes reveals that Community and Court Liaison Services support defendants with intellectual disability or ASD in navigating court processes, but a lack of screening and awareness may limit the effectiveness of these measures. ⁴³ Similarly, Freckelton noted that, despite the significance of OCD to assessments of criminal culpability and responsibility, due to the pervasive effect of the condition on a person’s functioning, little scholarship or legal education exists surrounding its relevance. ⁴⁴

The implications for defendants with neurodevelopmental and cognitive disorders

Scholars and activists have identified that the criminalisation of coercive control may have negative effects on vulnerable populations, such as individuals with neurodevelopmental and cognitive disorders. ⁴⁵ However, the overwhelming majority of this discourse has focussed on the potential unintended consequences on victim-survivors with neurodevelopmental and cognitive disorders, who are particularly vulnerable to certain forms of domestic violence, such as coercive control. ⁴⁶ In contrast, there has been no research focusing on the implications of the reforms on defendants with neurodevelopmental and cognitive disorders, and how this may influence the effectiveness of this reform in practice. Further, there has been little research into the effects of this reform on people with neurodevelopmental and cognitive disorders in places such as the United Kingdom, where coercive control is already criminalised. There is therefore a limited evidence base to inform Australian law reform initiatives, which risks unintended adverse consequences on such populations and may limit the effectiveness of law reform. ⁴⁷ We will therefore aim to identify the potential challenges that the NSW and Queensland courts may face, as a result of the criminalisation of coercive control, in relation to defendants with neurodevelopmental and cognitive disorders.

Applying a disability lens to culpability

Understanding domestic violence in the context of neurodevelopmental and cognitive disorders

The academic literature indicates that, for some individuals with neurodevelopmental and cognitive disorders, the risk of using violence against family members and intimate partners may be elevated, because of the symptoms associated with the neurodevelopmental and cognitive disorder. ⁴⁸ For example, research focussing on individuals with relationship OCD (ROCD, a dimension of OCD focussed on intimate relationships) has found that this may be characterised by obsessive jealousy, which may manifest as monitoring partners’ behaviours and interactions. In turn, this may lead to the onset of physical assault and sexual coercion within the relationship. ⁴⁹ Similarly, qualitative research with parents of adolescents with OCD has found that parents and siblings of the adolescent were often subjected to aggressively imposed coercive patterns of behaviour, including prohibition of specific behaviours and acts and rules driven by OCD. ⁵⁰ Although these studies do not directly measure coercive control, they highlight behaviours that are consistent with the introduced coercive control offences, such as monitoring, threats and control of choices.

Similarly, research has suggested that the risk of violence is elevated among people with some intellectual disabilities, particularly when co-occurring with ADHD. ⁵¹ People with ADHD may also struggle to maintain healthy romantic relationships and are overrepresented as perpetrators of intimate partner violence (IPV). ⁵² In addition, research suggests that women whose partners have diagnosed or suspected ASD, experience psychological abuse at a significantly higher rate than those whose partners do not have ASD. ⁵³ Again, although psychological abuse is a commonly reported dimension of coercive control, ⁵⁴ there is a gap in the literature regarding the relationship between neurodevelopmental and cognitive disorders and coercive control specifically.

Proving intent to coerce or control in the context of neurodevelopmental and cognitive disorders

One of the primary concerns about the introduction of a stand-alone offence of coercive control is the difficulty of proving the offence beyond reasonable doubt. ⁵⁵ Under both the NSW Act and the 2024 Queensland Act, the prosecution must prove that the defendant intended the course of conduct to coerce or control the other person. Requiring specific intent in NSW will make this a challenging charge to successfully prosecute and may minimise the practical impact of the legislation. ⁵⁶

Although not stated explicitly within the legislation, the inclusion of the requirement that the abusive behaviours were intended to coerce or control is likely informed by feminist scholarship, which is the primary framework through which domestic violence, especially IPV, has generally been analysed and understood. Feminist frameworks describe IPV as a choice made by the abuser, who is primarily motivated by a desire to control and subordinate their partner. This desire for control is understood as the outcome of patriarchal systems and structures, which prioritise and support male dominance over women. ⁵⁷ At an individual level, IPV is attributable to the internalisation of patriarchal systems and processes among men and women, which results in adherence to traditional gender norms (particularly hegemonic masculinities) and attitudes that are supportive of violence against women, and male violence more generally. ⁵⁸

Ascribing motivations to people charged with abusive behaviours is notoriously difficult. In the first instance, people who use these behaviours often find it difficult to articulate why they are abusive towards their partners, even recognising that the abusive behaviour does not make them ‘happy’ and is something they are ashamed of. ⁵⁹ However, even in situations where someone is conscious of their motivations and believes that they are entitled to control their partner, they may be adept at creating alternative narratives to explain the behaviours to other people (eg, ‘I didn’t do it, but if I did I had a good reason’), and to themselves (eg, ‘I didn’t want to hurt her, but she made me do it’). Accordingly, someone charged with coercive control may craft a narrative that the victim ‘provoked’ them into using these behaviours, as a way of avoiding being convicted or to minimise their charge or sentence. Alternatively, they may be adept at creating a narrative where they are able to blame the victim for their use of abusive behaviours. Recent scholarship has noted that a significant proportion of men who kill their female intimate partners have strong and coherent victimhood narratives, where the victim is blamed for everything that is wrong in their lives, and so ‘deserves’ to die. ⁶⁰

These narratives can be compelling and very convincing. As evidence of this, one only has to examine cases in which a man charged with murdering his female partner who dared to leave him has successfully accessed the partial defence of provocation (see, for example, R v Butay [2001] VSC 417; R v Ramage [2004] VSC 508). ⁶¹ Certainly, a unique dimension of coercive control is that these behaviours may appear innocuous or even protective from an outsider’s point of view. This is why coercive control needs to be understood in context, by the meanings imbued in particular (in)actions used by partners, and their impacts on the victim-survivor.

Finally, the literature has identified a range of different motivations and mechanisms that underpin people’s use of what may constitute abusive behaviours within relationships (eg, tracking on mobile phones), other than a desire for control underpinned by feelings of entitlement. ⁶² This includes communication deficits and poor conflict resolution skills, as well as emotional dysregulation associated with dysfunctional attachment. For example, several studies have found that men with an insecure or anxious attachment style may become emotionally distressed and dysregulated when they perceive that their connection with their partner is being threatened. ⁶³ This may include the victim-survivor attempting to leave the relationship or establishing emotional boundaries (eg, refusing to make a further commitment). ⁶⁴ The distress experienced by abusers may lead to externalising behaviours that manifest as coercive control, such as making threats to harm themselves if their partner ever leaves the relationship.

The above perhaps in part explains why the test in England and Wales has not included intent as a requirement, instead requiring that the defendant knew or should have known that their behaviours would have a serious effect on the complainant. In Scotland, the test is recklessness. This had been the original model proposed for NSW, but the threshold was instead limited to intent, following stakeholder consultation, to reduce the potential risks for Indigenous peoples. ⁶⁵

These considerations around determining intent are particularly relevant in cases where the defendant has a disability. Different neurodevelopmental and cognitive disorders are associated with symptoms that can manifest as controlling behaviours. However, they could also be motivated by a desire to mitigate distress and/or dysregulation associated with specific life events and their environment more generally. For example, people with ASD often have difficulty exercising goal-oriented flexibility and the ability to shift actions to achieve a goal, including accepting what are perceived as unfair conditions. ⁶⁶ The inability to utilise goal-oriented flexibility could be experienced as abusive as it can lead to rigidity in expectations and behaviours, regardless of the costs for the other person (ie, the potential complainant). Further, common symptoms of OCD include a need for symmetry and order, sensory sensitivity and pickiness, and a preoccupation and fear of contamination. This means that particular behaviours and actions (eg, someone touching their things) and stimuli (eg, loud chewing), as well as changes to their physical environment (eg, clearing away belongings) can lead to strong emotional reactions, including anger, fear and disgust. In these situations, someone with OCD may use aggression, violence, emotional manipulation and threats as a way of enforcing their routine and ensuring compliance from family members. ⁶⁷ While these behaviours appear abusive and controlling, and are likely experienced as such by intimate partners and family members, they are not necessarily underpinned by a motivation to coerce and control. Instead, they may be seeking to manage and mitigate the emotional and psychological distress associated with the symptoms of their neurological disorder. Lebowitz et al observed, when describing the aggressive behaviours of young people with OCD:

aggressive behavior in disruptive children may be provoked by the desire for a possession or the avoidance of a task [but], the behaviors … were aimed at avoiding the distressing feelings and thoughts associated with OCD. In this sense, the coercive behaviors of obsessive compulsive children represent a special instance of severe interpersonal dysfunction which is at least partially secondary to a neurobiological disorder. ⁶⁸

Within these contexts, it could be that the abusive behaviours are not motivated by a desire for coercion or control but are demonstrative of an underlying need or psychopathology to be mitigated. ⁶⁹

Hopefully, the requirement to prove intent to control will reduce the risk of inappropriately criminalising defendants, whose behaviours are motivated by self-regulatory – rather than more nefarious – objectives. As noted above, the review of the NSW legislation will include consideration of whether to extend the fault element to include recklessness, as is the case in Scotland. If this occurs, there is a risk of inappropriately ensnaring people with neurodevelopmental and cognitive disabilities in the carceral net.

This is not to suggest that an intervention is not required in cases where an individual with a neurodevelopmental or cognitive disorder is using behaviours that are experienced by victim-survivors as controlling and abusive. The impact of controlling behaviours on victim-survivors of IPV can be significant and long-lasting, regardless of the motivations underpinning them. However, controlling behaviours that have a self-regulatory function are unlikely to be addressed or mitigated through criminalisation or mandatory participation in behaviour change programs, which are not always suitable for people with disability. ⁷⁰ People who use controlling behaviours and are neurodivergent and/or who have an intellectual disability have different support and treatment needs, which we discuss later in this article.

As a more general point, the intentionality requirement may present additional issues in relation to proving the new offence beyond a reasonable doubt. There is reason to be concerned that motivated offenders may craft alternative narratives, where they minimise their behaviours, by suggesting they were underpinned by motives other than control. This could include emotional dysregulation and distress, communication deficits and adverse childhood experiences. Court representatives need to be alive to this possibility and interrogate and challenge these narratives, when they are presented.

Ensuring appropriate responses for people with neurodevelopmental and cognitive disorders

Protection orders

Civil protection orders are the primary court response to domestic violence. In NSW, an interim apprehended violence order must be made when there is a domestic violence charge, while a final order must accompany a conviction for such an offence. ⁷¹ Similarly, the 2024 Queensland Act requires the court to consider making a temporary protection order under particular circumstances, including if the court adjourns the hearing of the application and has not already made a domestic violence order. ⁷² Protection orders will therefore likely accompany coercive control charges in both Queensland and NSW and their use has implications for defendants with neurodevelopmental and cognitive disorders.

Research by Legal Aid Victoria ⁷³ found that clients with intellectual disability were overrepresented among those receiving multiple grants of aid for contravening family violence intervention orders. People with neurodevelopmental and cognitive disorders are also at risk of breaching their orders, due to misunderstanding the requirements of the order and/or the consequences of contravening the order. This in turn places them at a particularly high risk of incurring penalties, including imprisonment, and places both the victim-survivor and community at risk of further violence. ⁷⁴ Behaviours such as poor impulse control, regulation of future-directed behaviour and poor memory function, which are common among people with ADHD, are also risk factors for breaching protection orders.

Bail and remand

The new offences in both NSW and Queensland require the prosecution to establish a pattern of behaviour and include a wide range of non-physical and potentially subtle forms of abuse (eg, limiting the other person’s autonomy). As a result, the prosecution is likely to have to gather more evidence, to prove the offence. This will likely lead to lengthy police investigative processes and court trial lengths. ⁷⁵ Defendants may therefore spend considerable time either on bail or on remand, while awaiting trial and during the trial process. ⁷⁶ These issues are particularly relevant in NSW, with recent reforms reversing the presumption of bail so that the defendant needs to ‘show cause’ in serious domestic violence cases and for the new coercive control offence. ⁷⁷ This is likely to have a particularly deleterious effect on people with neurodevelopmental and cognitive disorders.

Sentencing outcomes

Prevalent cognitive impairments, such as executive and memory dysfunction (eg, poor planning and organisation), the inability to remember instructions, and poor impulse control can all influence sentencing outcomes for defendants with neurodevelopmental and cognitive disorders. ⁷⁸ These characteristics make many community-based sentencing arrangements a poor fit for individuals with neurodevelopmental and cognitive disorders. These people may struggle to understand the requirements of their order, organise/manage time for supervision meetings and behavioural change programs etc and otherwise comply with the conditions of their sentence. However, with maximum penalties of seven and 14 years’ imprisonment respectively in NSW and Queensland, viable alternatives are required to avoid exacerbating the overrepresentation of people with neurodevelopmental and cognitive disorders in Australia’s prisons. ⁷⁹ This may be challenging for the courts to navigate, as the limited diversionary programs available for defendants may restrict the number of alternatives to incarceration. ⁸⁰

Therapeutic service delivery

Recent research has identified that counselling and support programs for perpetrators of domestic violence do not accommodate the needs of perpetrators with ASD and/or ADHD and that understanding their experiences and learning styles is critical to the effectiveness of behaviour change programs. ⁸¹ However, the dearth of practitioners with such expertise presents a significant challenge in practice. ⁸² In a longitudinal study of people with ADHD who had been convicted of an IPV offence, Buitelaar et al ⁸³ found that the treatment of ADHD and IPV together significantly decreased the frequency of IPV reoffending, compared with the treatment of IPV alone. Similarly, international research has identified a gap in therapeutic service delivery for perpetrators of domestic violence (including of coercive controlling behaviours) with an intellectual disability. ⁸⁴

It is worth noting that the 2024 Queensland Act will also introduce a new court-based perpetrator diversion scheme under the Domestic and Family Violence Protection Act 2012 (Qld), as a way of intervening at an early stage in the proceedings, and supporting defendant behaviour change. ⁸⁵ However, under s 135F of the 2024 Queensland Act (which is yet to come into effect), this scheme will only be only available when there is an approved provider, who can (and has capacity to) provide a suitable program for the defendant to participate in. Importantly, suitability involves a consideration of the defendant’s language skills and ‘any disabilities, psychiatric or psychological conditions’. While this is a promising initiative, we must acknowledge the limited practical benefit of such a response, given the gaps in service delivery of treatment programs for perpetrators of domestic violence with neurodevelopmental and cognitive disorders, which is essential to their success. Given the limited availability of behaviour change programs where practitioners have expertise working with people with neurodevelopmental and cognitive disorders who are charged with domestic violence offences, including coercive control, the risk remains that such defendants will not have equitable access to this diversion pathway, further contributing to their criminalisation. In any event, this diversionary scheme is targeted at those charged with contravening a protection order, not as a sentencing option for the offence of coercive control.

Conclusion

There is very little community support for coercive controlling behaviours within intimate and familial relationships. ⁸⁶ However, questions remain about the extent to which the public (including victim-survivors and perpetrators) understand what is meant by coercive control and what behaviours would come under the new offences. This lack of understanding is likely to be exacerbated in relation to vulnerable and marginalised groups in our community, including those experiencing neurodevelopmental and cognitive disorders. Our analysis has highlighted some significant potential issues for defendants with such disorders, as a result of the criminalisation of coercive control in NSW and Queensland. Other issues in this context include the implications of the NSW provisions relating to the ‘reasonable person’ test and defence of ‘reasonable … in all the circumstances’ also need to be considered. There is also a risk that there will be inappropriate guilty pleas in Queensland, to avoid the prospect of matters being transferred to the higher courts.

Our analysis demonstrates the importance of assessing the practical implications of law reform through a disability lens. Despite the relationship between neurodevelopmental and cognitive disorders and domestic violence described above, this issue has not been discussed in the Australian academic or political discourse surrounding the criminalisation of coercive control. This is concerning, because people with such conditions are likely to be overrepresented as defendants charged under the new legislation. We therefore suggest the need for further consideration of the relationship between neurodevelopmental and cognitive disorders and the perpetration of coercive control. ⁸⁷

Our analysis does not seek to minimise the negative impacts of controlling behaviours on victim-survivors. Nor are we suggesting that the conditions discussed in this article cause or excuse such behaviour. However, the issues highlighted here reinforce the importance of disability education and training, to ensure cases involving apparent instances of coercive control are understood in their full context and appropriate decisions can be made about their investigation, prosecution and resolution. Judicial education and awareness-raising may also create the potential for courts to provide an opportunity for diagnosis and referrals to be made to the appropriate support services, to facilitate the identification and treatment of neurodevelopmental and cognitive disorders. ⁸⁸ By embedding disability education and support into Australia’s courts, the participation of defendants with disabilities will be improved, along with the quality of outcomes for these individuals. ⁸⁹ If this is combined with service delivery expansion and improvement, the courts could function as a space for defendants with neurodevelopmental and cognitive disorders to be referred to disability-informed therapeutic services that may promote behavioural change and community safety, rather than further entrenching their overrepresentation in the ‘justice’ system.