Verbal abuse can be a criminal offence if it is classified as “intimidation” under the Crimes (Domestic and Personal Violence) Act 2007 with penalties of up to 5-years imprisonment or a $5,500 fine. It can also be considered “offensive language” resulting in a $660 fine. Additionally, it may fall under the new coercive control offences in NSW, with a maximum jail term of 7-years.
At law, there is no criminal offence for ‘verbal abuse’, However conduct that is considered verbal abuse can be considered for a charge of stalk and intimidate. “Intimidation” is defined in the New South Wales Crimes (Domestic and Personal Violence) Act 2007 as conduct which causes a reasonable fear of physical harm or injury. This can include contacting someone with the intention of causing a sense of insecurity, via email, phone call, text or other tech-based methods, which is often seen in domestic violence cases. When determining if an act is intimidating, the Court may assess if the individual has a past of being violent. This crime necessitates the Magistrate to assess the situation and the accused’s behaviour to decide if they can be considered as intimidating. It is thus essential for the accused to present their narrative in a way that will convince the Magistrate to accept their explanation of the events.
Alternatively, words in the form of verbal abuse can be considered offensive language. Using offensive language in, near, or audible to public areas or schools is illegal. No exact definition exists to define what is ‘offensive’, but it generally includes anything that could shock or offend a reasonably tolerant person. This is one of the most frequently charged offences in NSW. Courts have traditionally viewed swear words as offensive or verbal assault, yet this could change today given swearing’s prevalence in media and everyday life. The issue is, it can be difficult to discern when words are inappropriate, and those using them can be at risk of censure based on how they are interpreted, not the speaker’s intent.
In certain circumstances, verbal threats, family violence or a verbally abusive relationship can result in the police making an AVO application against a person.
An AVO prohibits another person from engaging in certain behaviours. The law that covers this is the Crimes (Domestic and Personal Violence) Act 2007 (NSW). An AVO application is usually dealt with in the Local Court of NSW.
Every AVO will have conditions that the person does not assault, molest, threaten, harass, intimidate or stalk you. In addition, the court may make other orders appropriate to your circumstances. For example, the violent person must not approach the protected person or your work. He must not engage in any conduct that may be considered verbal harassment, emotional abuse or physical abuse.
In NSW, there are two types of AVOs being ADVO and APVO. An ADVO is an Apprehended Domestic Violence Order and can be obtained when there is a domestic relationship between the parties. The definition of a domestic relationship is contained in section 5 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). It states;
A person has a “domestic relationship” with another person if the person–
(a) is or has been married to the other person, or
(b) is or has been a de facto partner of that other person, or
(c) has or has had an intimate personal relationship with the other person, whether or not the intimate relationship involves or has involved a relationship of a sexual nature, or
(d) is living or has lived in the same household as the other person, or
(e) is living or has lived as a long-term resident in the same residential facility as the other person and at the same time as the other person (not being a facility that is a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999 or a detention centre within the meaning of the Children (Detention Centres) Act 1987 ), or
(f) has or has had a relationship involving his or her dependence on the ongoing paid or unpaid care of the other person (subject to section 5A), or
(g) is or has been a relative of the other person, or
(h) in the case of an Aboriginal person or a Torres Strait Islander, is or has been part of the extended family or kin of the other person according to the Indigenous kinship system of the person’s culture.
In addition to this, you may also be charged with common assault under s61 of the Crimes Act 1900 for verbal abuse which can be considered to cause another person fear immediate and unlawful violence, or that you made physical contact with another person.
Common assault is an act where a person intentionally or recklessly causes another person to apprehend the immediate use of unlawful violence. Meaning the offence can still occur even if you haven’t physically contacted another person, if there is an alleged act causing someone else to fear your use of immediate and unlawful violence.
To be found guilty of common assault, the prosecution must prove beyond a reasonable doubt that:
To establish the offence, police must prove each of the following elements:
If you have been charged with a criminal offence as a result of an allegation of verbal assault or verbal abuse, you should speak to experienced avo lawyers. Contact Lyons Law Group on (02) 7205 5934.