When it comes to the law, asking whether emotional abuse is subjective does not yield a simple yes-or-no answer. Instead, this question demands a thorough exploration of what the legal system aims to achieve when addressing emotional abuse. This involves balancing the need for legal certainty and upholding the rule of law against recognising the complex, deeply personal nature of emotional abuse. Given these competing priorities, Sydney Criminal Lawyers recognises that only a nuanced, multi-dimensional approach can truly capture the realities of emotional abuse within the justice system.
This academic essay by our team of Sydney’s top-rated lawyers begins by analysing current legal frameworks governing emotional abuse, highlighting the significant ambiguity in legislation that complicates prosecution and enforcement. It then critiques how the criminal justice system often fails to prioritise victim autonomy, particularly in Domestic Violence Charges, especially those involving coercive control. Following this, the discussion turns to the inherent subjectivity of emotional abuse by examining varied and often contradictory real-life scenarios. Lastly, the essay proposes a structured legal framework based on three essential pillars – intent, consent and severity – to guide future evaluations and sanctions of emotional abuse.
This essay aims to provoke thoughtful discussion and provide a clearer understanding of what legally and socially constitutes emotional abuse. By critically unpacking the complexities and common misconceptions surrounding this issue, the goal is to help both potential victims and alleged aggressors navigate their relationships in a way that avoids legal and personal harm.
At National Criminal Lawyers, we recognise that emotional abuse is often subjective, legally ambiguous, and sometimes unjustly persecuted. Our team has extensive experience defending clients facing allegations of emotional abuse, coercive control, domestic violence charges, sexual assault, and Apprehended Violence Orders (AVOs). With a strong record of success across the NSW court system, we are dedicated to protecting the rights of defendants and ensuring that each case is treated with the nuance it deserves.
1. Legal Regulation of Emotional Abuse: Challenges in Current Legislation
Under current laws, emotional abuse is most frequently criminalised through breaches of Apprehended Violence Orders (AVOs). Approximately 40% of these AVOs restrict any form of communication, meaning that even texting, calling, or contacting a protected person through a third party can amount to a breach. Shockingly, data from quarter 2 of 2024 shows that among the 100,111 active ADVOs, 4.0% were breached in just three months between July and October.[1] This high rate suggests emotional abuse cases under AVOs are challenging to understand and enforce consistently. For example, well-meaning but unintentional communications – such as apologetic messages or responses provoked by contact initiated by the protected person – may still legally breach the order, potentially criminalising otherwise benign conduct.
Emotional abuse is also criminalised under offences relating to stalking and intimidation. These laws criminalise conduct intended to instill fear of physical or mental harm.[2] However, these offences suffer from significant legal ambiguity. The intent element is difficult to define because almost any negative communication could be interpreted as causing mental harm. Moreover, “mental harm” itself remains vaguely defined, creating a circular problem where emotional abuse is judged by an inherently unclear concept.
The introduction of the Crimes Legislation Amendment (Coercive Control) Act 2022 (NSW) was a landmark step, recognising emotional abuse as part of controlling behaviour over time and aiming to prevent domestic homicide, which is preceded by coercive control in approximately 97% of cases.[3] While this is a crucial advance, the legislation assumes all coercive control leads to serious violence, ignoring that many coercive behaviours do not culminate in homicide and can be addressed under existing laws. The Act expands the definition of emotional abuse to include humiliation, degradation, and punishment but requires these acts to form a “course of behaviour,” i.e., repeated and ongoing conduct.
This creates a tension in practice: on one hand, the threshold to criminalise emotional abuse is lowered, potentially capturing socially normal behaviours – especially when removed from their cultural or relational context. On the other hand, criminal liability arises only after repeated behaviours, possibly including conduct that has become normalised or tacitly accepted in a relationship. Paradoxically, this means severe abuse reported early may fall outside the law’s scope, whereas less severe but persistent behaviours may be criminalised. Furthermore, the legislation fails to clarify the intent element, particularly the “intent to control,” leaving it as ill-defined as the stalking offences it complements.
Another important legal test is the “reasonable person” standard, featured both in the Coercive Control Act and in offences under section 474.17 of the Criminal Code Act 1995 (Cth), which covers using a carriage service to menace, harass, or cause offence. However, the statutory language guiding this test is vague. For coercive control, the reasonable person must decide whether conduct is likely to cause “serious adverse impact” on everyday activities[4]—a formulation both narrow and ambiguous. This could exclude conduct seriously affecting one key activity or include minor but cumulative effects across many activities. Similarly, terms like “menacing,” “harassing,” and “offensive” lack precise definitions in criminal law, adding to the confusion. Although the reasonable person test is not inherently flawed, the poor statutory guidance magnifies difficulties in applying it to emotional abuse cases.
2. Victim Rights and the Criminal Justice System: How Victim Autonomy is Often Overlooked
Despite the statutory uncertainties, a more fundamental issue lies in how the criminal justice system handles victims of emotional abuse within Domestic Violence Charges. The law prioritises maintaining social order over delivering justice for individual victims.[5] In New South Wales, the Director of Public Prosecutions (DPP) holds wide discretion to prosecute or discontinue cases regardless of the victim’s wishes,[6] based on “public interest” considerations.[7]
For example, in the Royal Commission’s review of Volkers v The Queen [2020] QDC 25, the DPP discontinued prosecution after accepting untested defence evidence not shared with police[8]—highlighting how prosecutorial discretion can impact justice without the victim’s knowledge. Importantly, Australia does not allow statutory or judicial review of non-prosecution decisions; such decisions fall outside the scope of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
This unchecked power allows the DPP to act contrary to victim wishes, risking further harm. If a victim feels continuing prosecution might damage their well-being or relationships, the DPP’s decision to proceed “in the public interest” can compound trauma. Although concerns exist that victims may be coerced into withdrawing, the law currently dismisses their autonomous decisions unless coercion can be clearly demonstrated. Instead, authorities should adopt protective measures to confirm whether a victim’s decision is truly voluntary.
Moreover, invoking “public interest” to justify prosecution is often linked to deterrence and justice administration but may be inappropriate for emotional abuse offences, which hinge on the victim’s subjective experience. As this essay later argues, emotional abuse is inherently subjective, further complicating the criminal justice system’s approach.
Ironically, the legal system that rigorously protects victims of sexual assault often dismisses victim autonomy in emotional abuse cases, despite both involving deeply personal and traumatic processes. There is a pressing need for a victim-centred approach when prosecuting emotional abuse and coercive control-related Domestic Violence Charges.
3. The Subjective Reality of Emotional Abuse
It is much easier to acknowledge emotional abuse as fundamentally subjective than to agree on a universal legal definition. Whether specific behaviours – like aggression, offensive language or potentially controlling words – constitute emotional abuse depends heavily on the context.
For example, NSW police commonly cite shouting, yelling, and “putting a person down” as emotional abuse under domestic violence laws.[9] Yet, unless accompanied by aggression or malicious intent, such behaviours may be common aspects of human interaction and emotion, not necessarily abuse. This disconnect becomes clearer in households where shouting and even aggressive behaviour are normalised.
Some couples develop desensitised relational patterns, which outsiders might view as emotionally abusive. Imagine a scenario where one partner calls the other 50 times overnight after a heated argument, while the other ignores the calls. Legally, this may constitute an offence under section 474.17 of the Criminal Code Act 1995 (Cth), but context is key. If both partners regularly escalate emotionally with frequent reciprocal calls, intent to harass becomes less clear. What looks like harassment legally might be a dysfunctional but mutual coping mechanism within the relationship.
If such acts are prosecuted, it raises the difficult question of whether prior similar behaviours—previously ignored or accepted—should also be criminalised. This touches on the contentious idea of “mutual abuse.”
The concept of mutual abuse is widely rejected by experts. Ruth Glenn, CEO of the National Coalition Against Domestic Violence, strongly condemned the Depp v Heard verdict, stating:
“There is no such thing [as mutual abuse]. You have a primary aggressor and a primary victim,” she says. “What could be happening is you have a survivor doing what they need to do to defend themselves… but when you have clinicians framing it as ‘mutual abuse,’ it’s very harmful.”[10]
Notably, the legal acceptance of Battered Woman Syndrome in R v Runjanjic and Kontinnen (1991) supports recognising self-defence in abuse cases,[11] distinguishing victim and aggressor roles. However, most critiques of mutual abuse focus on physical violence. Emotional abuse, by contrast, is more easily normalised and often manifests in reciprocal harmful behaviours. Even within a primary aggressor-victim framework, a victim’s abusive actions can blur these roles, raising questions about the framework’s utility.
Cultural, traditional, and ethnic contexts further complicate the understanding of emotional abuse. Some communities normalise or justify behaviours that Australian law would deem abusive, particularly regarding gender roles and domestic responsibilities.
For example, Australian Government initiatives identify “accusing her of abandoning her culture” as emotional abuse in apostasy contexts.[12] Yet in many religious traditions, like conservative Islam, apostasy is punishable by death.[13] Immigrants displaying disapproval of apostasy may not intend abuse but rather reflect deeply ingrained cultural norms. In such cases, some behaviours labelled emotional abuse may instead be trauma responses to displacement and cultural shifts. Pittaway and Rees note that many refugee men feel they have failed their duty to provide and protect, potentially resorting to emotional abuse to regain power amid upheaval.[14]
Perhaps the most contentious issue surrounding emotional abuse is the question of whether emotional abuse can be consented to – a matter that remains largely unaddressed and unresolved in both legislation and case law. The 1993 UK case R v Brown ruled that consensual sado-masochistic acts were unlawful despite consent, citing public policy.[15] Although R v Brown is neither an Australian case nor specifically about emotional abuse, it sets an important precedent: even ‘emotional abuse’ that has been consented to may still be subject to legal punishment despite the victim’s consent. However, emotional abuse typically causes less risk of serious injury, which calls into question the House of Lords’ reasoning in that case.
Consensual emotional abuse can sometimes mirror the sadomasochistic conduct discussed in R v Brown, where the abuse is part of a sexual fetish. More often, though, it occurs when one party clearly communicates to the other that behaviours such as shouting, emotional pressure or confrontational language are acceptable within their relationship. In these cases, consent is usually mutual, creating an understanding that actions which might otherwise be abusive are not considered harmful or objectionable in context.
These examples highlight just how complex and highly context-dependent emotional abuse is, showing its deeply subjective nature when deciding the right legal or disciplinary response. Despite this complexity, Sydney Criminal Lawyers believe that three core elements consistently remain essential in evaluating any claim of emotional abuse: intent, consent, and severity.
4. A Proposed Framework: Intent, Consent, and Severity
Given these complexities, legal frameworks should not rely solely on one-dimensional tests. Instead, Sydney Criminal Lawyers proposes a three-part model for assessing emotional abuse, in various contexts including Domestic Violence Charges and coercive control:
- Intent: Whether the accused intended to cause emotional harm or control the victim. This guards against penalising accidental or socially normal behaviours.
- Consent: Whether the victim consented to the behaviour, expressly or implicitly. This respects autonomy and differentiates consensual conduct from abuse.
- Severity: The objective and subjective severity of harm caused, considering frequency, duration, impact on the victim’s life, and the reasonable person standard contextualised by cultural and relational factors.
By applying this triad, courts and prosecutors – such as Sydney criminal lawyers handling Domestic Violence Charges – can more fairly balance protecting victims with upholding defendants’ rights.
Conclusion
Emotional abuse and coercive control in Domestic Violence Charges are deeply complex and inherently subjective issues. Current laws struggle to capture this complexity, often leading to uncertainty, unfair prosecutions, or victim dissatisfaction. The legal system must evolve to respect victim autonomy, cultural context and consensual nuances, while maintaining effective protection.
If you or a loved one faces allegations or charges involving emotional abuse, coercive control, or other domestic violence matters in Sydney, seeking experienced advice is crucial. Sydney criminal lawyers specialising in Domestic Violence Charges understand these complexities and can provide tailored guidance to protect your rights and interests.
Contact trusted Sydney’s top-rated criminal law firm today for a confidential consultation and ensure you receive the best defence or support available under the law.
[1] NSW Bureau of Crime Statistics and Research, New Domestic Violence Data: Monitoring Apprehended Violence Orders and Coercive Control in NSW (Media Release, 8 October 2024) https://bocsar.nsw.gov.au/media/2024/new-domestic-violence-data-avo-and-coercive-control.html.
[2] Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13(1).
[3] NSW Government, Coercive Control and the Law (Web Page, 2024) https://www.nsw.gov.au/family-and-relationships/coercive-control/law.
[4] Crimes Legislation Amendment (Coercive Control) Act 2022 (NSW) s 3, inserting Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 54D.
[5] S Talarico, ‘What Do We Expect of Criminal Justice? Critical Questions of Sanction Policy, Sentencing Purpose and the Politics of Reform’ (1979) 4 Criminal Justice Review 55, 55.
[6] Director of Public Prosecutions Act 1986 (NSW) s 7.
[7] Office of the Director of Public Prosecutions (NSW), Prosecution Guidelines (March 2021)
[8] Rachael Kramer, ‘Blaming the Victim: The Limits of Domestic Violence Law’ (2016) 136 Precedent 36, 36–39 https://classic.austlii.edu.au/au/journals/PrecedentAULA/2016/66.html
[9] NSW Police Force, Domestic and Family Violence (Brochure, NSW Police Force, undated) https://www.police.nsw.gov.au/__data/assets/pdf_file/0011/597368/DFV_Brochure.pdf.
[10] Ej Dickson, ‘“Men Always Win”: Survivors “Sickened” by the Amber Heard Verdict’ Rolling Stone (Online, 1 June 2022) https://www.rollingstone.com/culture/culture-news/amber-heard-johnny-depp-verdict-metoo-trial-1361356/.
[11] Lenore E Walker, The Battered Woman Syndrome (Harper and Row, 1984).
[12] Australian Muslim Women’s Centre for Human Rights, Muslim Women, Islam and Family Violence – A Guide for Changing the Way We Work with Muslim Women Experiencing Family Violence (Report, 2020) https://amwchr.org.au/wp-content/uploads/2020/10/women-oppose-violence-workers-guide.pdf.
[13] Islam Question & Answer, Punishment for Apostasy in Islam (Fatwa No 14231, 9 October 2024) https://islamqa.info/en/answers/14231/punishment-for-apostasy-in-islam.
[14] Eileen Pittaway and Susan Rees, The Refugee Experience of Domestic Violence and Sexual Abuse (Report, Centre for Refugee Research, 2006) 22.
[15] R v Brown [1994] 1 AC 212, https://www.cirp.org/library/legal/UKlaw/rvbrown1993/.
