Is Emotional Abuse Subjective? Legal Complexities, Practical Realities and Reform
Whether emotional abuse is subjective is one of the most contested questions in Australian criminal law. The answer is not simple. It requires a careful examination of what the legal system is trying to achieve when it addresses emotional abuse, how well current laws reflect the lived experience of victims, and where reform is needed. For those facing allegations of emotional abuse, domestic violence charges, or coercive control in New South Wales, understanding the legal landscape is essential.
National Criminal Lawyers has examined the current legislative frameworks governing emotional abuse, the tensions between legal certainty and the deeply personal nature of this conduct, and the gaps that leave both victims and defendants exposed to unfair outcomes. This article draws on that analysis to provide a practical and legally grounded guide to one of the most complex areas of NSW criminal law.
What Is Emotional Abuse Under NSW Law?
Emotional abuse does not have a single, standalone definition in NSW legislation. Instead, it is captured across several overlapping legal frameworks, each with its own scope, language, and limitations.
Apprehended Violence Orders
Emotional abuse is most commonly prosecuted through breaches of Apprehended Violence Orders (AVOs). Approximately 40% of AVOs restrict any form of communication, meaning that texting, calling, or contacting a protected person through a third party can constitute a breach. Data from the second quarter of 2024 shows that among the 100,111 active Apprehended Domestic Violence Orders (ADVOs) in NSW, 4% were breached in just three months between July and October. This high breach rate reflects how difficult these orders are to understand and comply with consistently.
Well-meaning but unintentional contact, such as an apologetic message or a response to communication initiated by the protected person, can still constitute a breach and give rise to criminal liability.
Stalking and Intimidation
Emotional abuse is also captured by stalking and intimidation offences under section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), which criminalise conduct intended to cause fear of physical or mental harm. These offences suffer from significant ambiguity. The intent element is difficult to define, because almost any negative communication could theoretically be characterised as causing mental harm, and the concept of mental harm itself remains vaguely defined in the legislation.
Coercive Control
The Crimes Legislation Amendment (Coercive Control) Act 2022 (NSW) was a landmark development, recognising emotional abuse as part of a pattern of controlling behaviour over time. The legislation expands the definition of emotional abuse to include humiliation, degradation, and punishment, but requires these to form a “course of behaviour,” meaning repeated and ongoing conduct rather than isolated incidents.
This creates a practical tension. On one hand, the threshold for criminalising emotional abuse is lowered, potentially capturing ordinary interpersonal conflict when removed from its relational context. On the other hand, criminal liability arises only after repeated behaviours, meaning severe abuse reported early may fall outside the scope of the law, while less severe but persistent conduct may be criminalised.
The Reasonable Person Standard
A key legal test applied across these frameworks is the reasonable person standard, which appears in both the Coercive Control Act and in section 474.17 of the Criminal Code Act 1995 (Cth), which governs using a carriage service to menace, harass or cause offence. However, the statutory guidance around this standard is vague. For coercive control, a reasonable person must decide whether conduct is likely to cause “serious adverse impact” on everyday activities, a formulation that is both narrow and open to broad interpretation.
How the Criminal Justice System Can Fail Victims of Emotional Abuse
Beyond the statutory uncertainties, a deeper issue is how the criminal justice system handles victims of emotional abuse in domestic violence matters. The law prioritises maintaining social order over delivering justice for individual victims, and the practical consequences of this can be significant.
In New South Wales, the Director of Public Prosecutions (DPP) holds wide discretion to prosecute or discontinue cases regardless of the victim’s wishes, based on “public interest” considerations. Australia does not permit judicial review of non-prosecution decisions, which means a victim has no legal mechanism to challenge a decision to abandon their case.
Where a victim believes that continuing prosecution may damage their wellbeing or relationships, the DPP’s decision to proceed in the public interest can compound trauma rather than alleviate it. Conversely, where a victim wishes to withdraw but the DPP proceeds, the process can feel coercive in itself. Authorities should adopt protective measures to confirm whether a victim’s decision is truly voluntary rather than the product of pressure from an alleged perpetrator.
This is particularly important given that emotional abuse cases hinge on the victim’s subjective experience. A prosecution that proceeds without regard for what the victim actually wants risks producing outcomes that serve the legal system’s administrative interests rather than the person at the centre of the matter.
Why Emotional Abuse Is Inherently Subjective
Perhaps the most contested aspect of emotional abuse law is whether conduct that one person experiences as deeply harmful can or should be treated the same as conduct that another person regards as a normal feature of their relationship.
Context and Relational Norms
NSW Police commonly cite shouting, yelling, and belittling a person as emotional abuse under domestic violence laws. Yet, unless accompanied by aggression or malicious intent, these behaviours may reflect the ordinary tensions of human relationships rather than abuse. Some couples develop patterns of interaction that outsiders might characterise as emotionally harmful, but which both parties regard as normal within their relationship.
Consider a scenario where one partner makes repeated calls overnight following a heated argument. Legally, this may constitute an offence under section 474.17 of the Criminal Code Act 1995 (Cth). But if both partners regularly escalate emotionally and the behaviour is mutual, the intent to harass becomes far less clear. What appears to be harassment from a legal perspective may reflect a dysfunctional but mutual coping pattern.
Cultural and Ethnic Context
Cultural, traditional, and ethnic contexts further complicate the assessment of emotional abuse. Behaviours that Australian law would characterise as abusive may reflect deeply ingrained cultural norms in some communities, particularly around gender roles and family responsibility. Immigrants displaying culturally conditioned responses to family dynamics may not intend harm but rather be responding to displacement and cultural pressure. This does not excuse abusive conduct, but it does complicate the application of a universal legal standard.
The Question of Consent
One of the least resolved questions in emotional abuse law is whether emotional abuse can be consented to. The 1993 UK case R v Brown established that consensual conduct causing harm may still be unlawful on public policy grounds. While this case is neither Australian nor specifically about emotional abuse, it raises an important question: if two people mutually agree to a style of interaction that a third party would characterise as emotionally abusive, should the law intervene?
In some cases, conduct that appears abusive from the outside is the product of explicit mutual agreement. In others, a pattern of escalation may develop that neither party initially intended but which hardens over time into something harmful. Current laws do not meaningfully address where the line falls, and this gap creates real uncertainty for both victims and defendants.
A Proposed Framework: Intent, Consent and Severity
Given the complexity and subjectivity of emotional abuse, a one-dimensional legal test cannot fairly capture the range of conduct that comes before the courts. National Criminal Lawyers proposes that any legal assessment of emotional abuse should be structured around three core elements:
- Intent: Whether the accused intended to cause emotional harm or to control the other person. This guards against penalising accidental, contextual, or socially normal behaviours where no harmful purpose was present
- Consent: Whether the other person consented to the behaviour, expressly or implicitly. This respects individual autonomy and distinguishes genuinely abusive conduct from conduct both parties accepted within their relationship
- Severity: The objective and subjective severity of the harm caused, assessed by reference to the frequency, duration, and impact of the conduct on the victim’s life, contextualised by cultural and relational factors
Applying this framework would allow courts and prosecutors to more fairly balance the protection of victims against the rights of defendants, and to avoid the over-criminalisation of interpersonal conflict that current statutory language risks producing.
Defending Emotional Abuse and Domestic Violence Charges in NSW
If you are facing allegations of emotional abuse, coercive control, or related domestic violence charges in New South Wales, the legal issues are rarely straightforward and the consequences of a conviction can be severe. These matters can result in criminal convictions, AVO conditions restricting your freedom, and lasting impacts on your family, employment, and reputation.
National Criminal Lawyers has extensive experience defending clients facing emotional abuse allegations, coercive control charges, AVOs, and related domestic violence matters across New South Wales. Our team understands that these cases are deeply contextual, that the legal frameworks are ambiguous, and that a rigorous, nuanced defence is essential to a fair outcome.
Our offices are located across Western Sydney, including Parramatta, Blacktown, Liverpool, Bankstown, Penrith, and our head office in Bella Vista. Our senior criminal defence lawyers, headed by principal lawyer Michael Moussa, bring over 25 years of combined criminal law experience to every matter.
Do not face these allegations without specialist legal representation. Contact National Criminal Lawyers today on 1800 CRIM LAW for a free, confidential consultation. Our experienced team is available to discuss your case, explain your options, and begin building your defence immediately.
Time is critical in criminal matters. Early legal intervention protects your rights, preserves defence opportunities, and maximises the prospects of a favourable outcome.
