Coercive Control: Transforming Partial Defences to Murder in England and Wales

Introduction

Long has there been academic debate over how a jurisdiction might compassionately deal with a person who kills their abuser. While theories based around battered women syndrome were predominant in the nineties, ¹ the problematic stereotyping this causes has led to uncertainty over the best way to proceed. ² Certainly, we understand intimate partner violence to be a liberty crime rather than merely assault, ³ and a departure from typical approaches to the traditional understanding of this and battered women who kill are welcomed. Particularly, an understanding that this encompasses more than merely physical abuse and violence – though it has long been the pinnacle of domestic abuse, it may not be ‘indicative of reality’. ⁴ Whilst often, a response from the criminal justice system may be based on violent incidents, ⁵ this merely reflects that the physical form of domestic abuse has been the focus because such incidents are ‘already within its ambit’. ⁶ We already see physical violence as a problem and a criminal offence, so being inclusive of this within intimate relationship parameters was no far stretch. The provisions within the new loss of control partial defence have confirmed that this is an accurate reflection of the current law.

In reality, physical abuse is only one aspect of the many facets of intimate partner abuse. In fact, even if the battered woman herself is eventually the victim of a femicide, this is often preceded by possessiveness and jealousy, and a desire to control, as well as physical violence. ⁷ This can be expected to be the norm at the other end of the spectrum, when the abused reacts to the abuse with fatal violence. Therefore, stereotypes of battered women who kill, based on a learned cycle of helplessness from physical violence incidents, will not necessarily be helpful to jurors who must consider much more complex issues. ⁸ Our ever-evolving understanding of the ways in which intimate partner abuse occurs have begun to enter the courtroom, and the legislation must adequately reflect this.

English law transformed the partial defences to murder with the Coroners and Justice Act 2009, providing a new defence of Loss of Control, replacing the previously outdated provocation defence, with a ‘fear of serious violence’ qualifying trigger. ⁹ However, since it came into force in 2010, it has been little used (and remarkably denied) by battered women who kill. ¹⁰ The cases of Farieissia Martin ¹¹ and Emma Jayne Magson ¹² are evidence of this. Both in abusive relationships, both claiming altercations at the time of the fatal act, and certainly fearing serious violence. All the while, men have easily accessed this new defence in situations involving physical altercations. ¹³ This is not to mention the problem with the requirement for the defendant to be fearing some form of physical abuse rather than an accumulation of smaller incidents or a different type of abusive behaviour. This partial defence may have allowed fear to enter the arena as a plausible emotion causing a fatal reaction, but the reliance on ‘violence’ as a physical concept is troublesome.

The recent appeal case of Sally Challen, ¹⁴ a woman who killed her husband prior to the Coroners and Justice Act 2009, was arguably a milestone in English criminal justice. This case saw a murder conviction overturned based on our new understanding of coercive and controlling behaviour and the effect this could have on the development of a medical condition and mental functioning. The appellate court was careful to address the issue of partial defences to murder, particularly that although evidence of coercive and controlling behaviour could amount to an offence, ¹⁵ it is not itself a partial defence, but may be supporting evidence in a diminished responsibility or loss of control plea moving forward. ¹⁶

In cases of intimate partner violence, the question of why the abused person remained in the relationship is often misunderstood and asked without a true picture of the constraints a person in such a relationship may suffer. Though expert evidence may be adduced, it rarely addresses the structural inequalities a battered woman may have to overcome. ¹⁷ The suggestion that evidence of real options for support such as housing, finance, and services such as police could also be presented is an innovative approach to explaining why a person “didn’t just leave” and how this may have led to a defensive strike. It is vital to assess how a victim might be marginalised. ¹⁸

A comparative analysis of how such evidence could be a key strategy in self defence cases in New Zealand, with the use of evidence of the effects of coercive and controlling behaviour to support partial defences to murder in English law, may provide lessons to learn for both jurisdictions:

“… it is an indignity for individuals to have their experiences misunderstood and misrepresented”. ¹⁹

Using this as a starting point for innovation for our current partial defences after twelve years of enactment to be inclusive of other forms of abuse, this article will discuss the current parameters of the partial defence of loss of control and the qualifying triggers, leading to a focus on coercive control and how this may operate within the existing partial defences. The next section will consider why self defence is rarely a realistic option in England and Wales for victim's of abuse who react with fata violence, then moving on to consider how social entrapment evidence might help jurors better understand why leaving an abusive relationship is often not a pragmatic option. The article will conclude with novel and definitive suggest reasons for reform and arguments for why this is imperative.

Loss of Control – Evidence of Qualifying Triggers

The partial defence of loss of control replaced the previous outdated defence of provocation in English law. ²⁰ It has three requirements: that a person lost control, that this was because of a qualifying trigger, and that a person of their sex and age, with a normal degree of tolerance and self restraint and in their circumstances, might have acted in a similar way. ²¹ A qualifying trigger can be one of two things; a fear of serious violence, or things done or said of extremely grave character which gave the person a justifiable sense of being seriously wronged. ²²

The fear of serious violence trigger was a response to the legal conundrum of battered women who killed their abuser, falling outside the remit of the provocation defence due to the requirement of a sudden anger-based response to provocative conduct with no room for slow-burn fear driven responses. ²³ The new partial defence requires a response either from ‘justified’ anger or fear, though with the continuing presence of the concept of loss of control, this may be redundant. Loss of control is an emotion we readily associate with anger, and there is no explanation as to what a loss of control from fear may look like. ²⁴ Additionally, a fear of ‘serious violence’ created the requirement of a high level of physical abuse, or at the very least a threat of such behaviour. ²⁵ This overreliance on such violence may leave many battered women, experiencing a lower level of physical abuse combined with other types of abuse such as emotional, financial or sexual, in a position where they must attempt to establish the ‘anger’ trigger, claiming circumstances of an extremely grave character giving her a justifiable sense of being seriously wronged.

This may also be the case for women using coercive control as their justification for a loss of control and reacting with fatal violence. As Candela observed, ‘The combination of coercion and control is arguably the most devastating form of intimate partner abuse’. ²⁶ Here, the abuse is about the level of control, not the level of violence. Would this make a strong argument for circumstances of extremely grave character giving her a justifiable sense of being seriously wronged? One would certainly hope so. As our understanding of the effects of coercive and controlling behaviour has developed, so too should the law to encompass retaliation to such behaviour (discussed further below). The far reach this behaviour can have, even beyond the remit of a relationship and long after it finishes, is astounding. It has been known for perpetrators to abuse the family law courts with legal proceedings as a continuation of abuse and control, even giving up employment positions to this end. ²⁷ Using family law processes for such frivolous matters which can continue for years is an extension of coercive control beyond the end of a relationship, ²⁸ using the system to deplete finances and cause stress. It forces continuing contact and interferes with recovery. ²⁹ Would such behaviour cause a loss of control? Would it give a person a justifiable sense of being wronged? It is imperative that as we shift our thinking and understanding from battered woman syndrome concepts to that of the effects of coercive control that may be present without severe violence, we are also able to extend this to be utilised in running a successful partial defence. In either situation there is abuse that the abused feels almost impossible to escape.

The issue here may be the built-in safeguard for the loss of control defence under s54(4), excluding a defendant who acted in a considered desire for revenge from utilising the defence. ³⁰ Perhaps a fatal violent reaction in such circumstances would appear to be a premeditated result of the controller's behaviour at prolonging the situation and refusing to accept the end to an abusive relationship. This also represents a departure from the stereotypical notion of femininity portrayed by the media and absorbing into our lives, that women cannot react to their dire circumstances with violence unless they are ‘bad/sad’ or ‘mad’. ³¹ This either denies their femininity, or neutralises their responsibility. ³²

The definition of the offence of coercive and controlling behaviour itself requires it to have a ‘serious effect’ on the victim. ³³ This may be itself suggestive of something which would meet the threshold of circumstances of an extremely grave character. However, in the absence of violence, could this be overlooked? ³⁴ It is also questionable if, even if such a qualifying trigger was established, a loss of control could be proved to have taken place. This is a hurdle suggesting that the loss of control defence, like its predecessor, continues to be based upon the male experience and perpetuating injustice. ³⁵ This is shown in a recent study of ninety two women convicted of killing a partner or former partner, with forty convicted of murder and only six acquitted overall, with evidence in multiple cases that the Crown Prosecution Service pursued murder despite their being strong cases for non-prosecution or manslaughter as obvious options. ³⁶ If a subjective loss of control is difficult to prove in situations of violence or a fear of such from the abuser, it is likely even more difficult to prove in situations which involved little or no violence at all because the abuse manifested in a different way.

Additionally, if the coercive and controlling behaviour had a ‘serious effect’ going on to cause a mental impairment or recognised medical condition affecting mental functioning, this would not be taken into consideration as to its effect on her degree of tolerance and self restraint for the purposes of the loss of control defence, ³⁷ though it can be part of the circumstances if the objective standard is not diluted. ³⁸ This would suggest that the defence of diminished responsibility would be the better option, putting us back in the position we were in prior to the Coroners and Justice Act 2009. Again, women would have to resort to being deemed irrational rather than rational beings reacting to an abnormal situation out of their control. If this is the case, we must question if the Coroners and Justice Act has helped only those suffering physical violence rather than a wider net of abuser victims who kill their abuser, much like Sally Challen.

As the academic debate around battered women who kill has generally revolved around domestic violence and physical abuse until quite recently, it is easy to see how the partial defence of loss of control and the qualifying triggers were aimed at that particular type of abuse. ³⁹ Though this appears to put a premium on physical injury over psychological injury unless it amounts to a psychiatric condition for diminished responsibility, ⁴⁰ this does not preclude the ‘anger’ trigger being utilised for those who fall outside of the remit of fearing serious violence. Herring has acknowledged that battered women should equally be able to use the anger trigger based on the serious wrong of domestic abuse, ⁴¹ and there is little reason to assume this could not extend to other forms of abuse and control in a current or past intimate relationship as a serious wrong. ⁴² Admittedly, if the new defence merely requires control to be lost ‘over which emotion is to determine her actions’, then access to the defence for those suffering any kind of abuse may increase substantially. ⁴³ The serious wrongdoing on part of the victim makes the killing ‘ethically less wicked’. ⁴⁴

Aligning coercive and controlling behaviour with those qualifying triggers would certainly create a consistent legal approach with our increased understanding of such behaviour and the effects. ⁴⁵ There might also be argument for creating a new defence based on being the victim of coercive and controlling behaviour, given the impact it has is rather unique and may not always align with victims of physical domestic violence, ⁴⁶ but for now access to the existing partial defences is vital to reduce moral responsibility. Whether a new defence or an inclusion within the current loss of control qualifying triggers, the focus needs to be on the abuse and the wrong such behaviour represents, rather than continuing on a path of requiring a woman deemed ‘mad’ for the purposes of diminished responsibility.

Would it matter if the jury could not agree which qualifying trigger caused the loss of control? Perhaps for cases featuring a combination of several types of abuse, including physical, emotional, financial and control, there may be evidence of both triggers. Ormerod has speculated over whether jurors must agree only on the verdict, or the route to it also, albeit in the context of manslaughter; ⁴⁷

“There is therefore a greater likelihood that jurors may be left with a range of verdicts in such cases of possibly murder, manslaughter by diminished responsibility and/or loss of control and manslaughter by unlawful act”. ⁴⁸

It may be that, in the case of an abused woman killing her abuser, some jurors may be swayed by diminished responsibility evidence and others by loss of control. Some may believe the fear of serious violence threshold is met, whilst others believe there was a justifiable sense of being seriously wronged. Jurors are required by law to agree on verdict, ⁴⁹ but the various routes to manslaughter and even acquittal in cases of abused women who kill may make the route to such a verdict complex. Without a straightforward case of overwhelming physical abuse, as legislated for by the first qualifying trigger, such a struggle may ensue.

Unfortunately, this all becomes a moot point of we continue to misunderstand women's fear and response to intimate partner violence and control, resulting too often in a verdict of murder. ⁵⁰ As some practitioners have pointed out, the rules around evidence of loss of control remain emphatically problematic, ⁵¹ and reconciling any emotion other than anger with a loss of control response is difficult at best. ⁵² Loss of control continues to promote a behavioural expression almost exclusive to anger rather than fearful contemplation. ⁵³

The Challen Decision and Coercive Control

Intimate partner violence cannot be understood without a comprehensive understanding of both the tactics used by the abuser and the impact on the victim. ⁵⁴ The UK Home Office defines it as to the distinct pattern of behaviour utilised to control another person. ⁵⁵ This is little understood by society, with communities often believing that leaving equals safety. ⁵⁶ Whilst the theory of battered woman syndrome attempts to explain why a woman cannot leave an abusive relationship, it does not give much thought to that concept that it is not safe to leave, or that this may escalate the situation. This equally does not give any appreciation to the lack of access to resources and services a woman may experience when attempting to leave, or the type of debilitating effects of behaviours they have experienced. These may include monitoring of a victim's life and little access to basic needs. ⁵⁷ Particularly for female victims, coercive control can exploit gender roles, with the offender looking like a ‘traditional man to outsiders’. ⁵⁸ The reality is that all forms of abuse are based on control, even violence, and there is a definite relationship between emotional, financial and physical abuse. ⁵⁹ It may be that violent conduct is not the behaviour most indictive of danger:

“An increasing body of research suggests that coercive control may be a more accurate measure of conflict, distress and danger to victims than the presence of physical violence”. ⁶⁰

Whilst the progressive coercive control offence in English law has allowed for those who use such behaviour in a way that will have a serious effect to suffer repercussions similar to those who use physical violence, ⁶¹ building up a picture of the offender's tactics may prove more difficult than dealing with isolated violent incidents. This is not to say that the new offence is not novel and innoivative. It has been advocated that use of our domestic law on coercive and controlling behaviour be adopted in the US since it encompasses ‘the multidimensional and complex layers of coercive control’. ⁶² A clear departure from requiring violent conduct will encompass the widely supported notion that frequency and duration, rather than severity, play the pivotal role in abuse and control. ⁶³ In particular, regulation of daily living arrangement and roles most often associated with women in the home, such as mother, homemaker and sexual partner. ⁶⁴

Self Defence and English Law

For an abuse victim acting in self preservation, a full defence to murder providing an acquittal remains elusive in English law. Self defence requires a genuine belief acting defensively is necessary, and the force used to be reasonable, adding an element of proportionality. ⁸⁴ Without any imminent threat, if a person acts when their abuser is off guard, or if the abuse is not always physical, this will negate any traditional argument of self defence. Additionally, if a woman meets a physical threat of fists with a weapon such as a knife, the proportionality element may not be satisfied. The difficulty here is that English law does not provide a wider consideration or interpretation of what is ‘necessary’, having regard to the circumstances of an abusive relationship. It remains reliant on a violent threat situation.

Of course, whether self defence or partial defences to murder, that ever looming issue of her not leaving the relationship becomes apparent. This is a misunderstood concept which suggests that women have a viable option of leaving an abusive relationship with support of services and no threat of retaliation by their former partner. This idea of her ‘contributing to the problem’ is one the legal system needs to address and discard, particularly through the lens of abuse going beyond physical assault. The law needs to reflect that a person in a coercive or controlling relationship is essentially ‘a prisoner in his or her own life’. ⁸⁵ It is even common for victims of coercive control to suffer from Post Traumatic Stress Disorder. ⁸⁶ The criminal law, as well as police responses, need to be based less on violent incidents and more on oppression driving women to act in self preservation or to, at the very least, require assistance from authorities. ⁸⁷ Unfortunately, it is common for the media to perpetuate a narrative that recognises a victim of violence and not a woman actively pursuing her own preservation, and this idea does not sit easily with the concept of self-defence. ⁸⁸

In English law, the rules of self defence are slightly extended for householders acting in defence of their home. The Crime and Courts Act 2013 amended s76 Criminal Justice and Immigration Act 2008 to address the level of force that can be used in such cases, namely that force will be deemed as reasonable as long as it is not grossly disproportionate. It is certainly questionable as to why householders may defend their homes with disproportionate force and not abused women protecting their own body and/or mind. This was recently debated during the Domestic Abuse Bill, ⁸⁹ where extending the defence in this manner was rejected. Even a past partner entering the home uninvited may not be regarded as an intruder for these purposes. ⁹⁰ Though, as Edwards has pointed out, a mere change to legislation may not be enough if the application of the law itself is shaped by stereotypes ⁹¹ :

“… the law on self defence did not develop at a time when it was recognised that a woman might need to use force against a male aggressor”. ⁹²

Do the criminal justice system's reflections of reasonableness allow real consideration of a woman's experiences of abuse to be taken into account? Many academics argue not. ⁹³ Additionally, a woman's credibility may be undermined if her first account of how the fatal account occurred is not truthful, as has occurred in previous cases. ⁹⁴ Use of a weapon is also very difficult to argue as ‘reasonable’ when it comes to a woman combating the strength of her partner, instantly making the use of self defence ‘notoriously difficult’. ⁹⁵ There have been cases where the court has focused on any previous violent conduct on part of the abused woman rather than such episodes from their abuser to negate self defence. ⁹⁶ Though, as Ormerod has noted, even if we managed to incorporate a different view on reasonableness of force for such cases, this does not necessarily lead to a great protection for the abused woman who kills as there may be no imminent threat. ⁹⁷

In New Zealand, the excessive force self-defence case of Ruddelle ⁹⁸ might provide a particularly interesting comparator. In this case a fifty eight year old female fatally stabbed her partner twice. The relationship was abusive, resulting in a total of sixteen calls to police in a period of four years. She had previously sought help from a women's refuge and protection orders. The fatal event occurred during an argument at their home, observed by her fourteen year old son. Evidence of social entrapment had been introduced at her trial – an explanation of the barriers faced in leaving such a relationship. Though her claim of self-defence itself, in regard to both herself and her son, had failed, a finding of manslaughter was returned. The judge had additionally noted that ‘the jury did see this as a case of excessive self-defence’, ⁹⁹ and a lenient home detention sentence was passed of eleven months and two weeks. This shows similarities to the current stance in English law – if self defence fails, might loss of control fill the gap? However, such a sparing sentence might remain elusive. Perhaps the use of social entrapment evidence as utilised in the case of Ruddelle might prove to be beneficial.

Social Entrapment

For some jurisdictions, finding a route to self defence and acquittals in non-traditional cases has been of great importance. Particularly of note is the suggestion of using social entrapment evidence to explore and develop the concept beyond the traditional defence. Such evidence provides the court with evidence of her real-world options – what support was realistically available such as authorities like police, housing, financial support and help with children. There is certainly a good argument for viewing intimate partner violence as a form of social entrapment, as evidence of this:

“… would provide juries with a fuller and more accurate picture of the nature of the abuse that the defendant was experiencing, and what she might reasonably have perceived her realistic safety options to be, at the time that she used defensive force against her abusive partner”. ¹⁰⁰

For example, how could a woman in an abusive relationship leave and secure new housing if he has damaged her current rental property, or ruined her credit by purchasing things in her name? ¹⁰¹ Additional isolating tactics may include monitoring all aspects of her life and movements, and cutting her off from friends and family. In the case of Ahluwalia, ¹⁰² a letter she wrote to the victim, her abusive husband, during their marriage spoke of stopping any behaviours that would halt his abuse, even laughing with friends or drinking coffee. ¹⁰³ This mentality of an isolated woman will have an affect on her own view of the options available to her. Would Kiranjit Auluwalia have made such promises if she thought contacting the police and moving out of the marital home with her children were viable options? There may also be negative responses from the wider community affecting the woman's view of escape options – perhaps more so when culture and religion come into play, as in Ahluwalia's case. The role intersectionality plays in the psyche of an abused person and their mindset is fundamental, and the criminal justice system need also to take this into consideration. ¹⁰⁴

If a woman has attempted to utilise support services previously, whether this is a refuge, police or medical help, this may have had an adverse effect in two ways. Firstly, if she remains in the situation and the abusive relationship despite seeking help, this will no way encourage her to seek such help again. Secondly, if she has suffered dire consequences at the hands of her abuser previously for trying to seek help, she may realise that this is no longer a viable option (and actually puts her in more danger). This also identifies that contacting support services for one particular event does nothing to thwart the ongoing threat. ¹⁰⁵

Whilst battered woman syndrome has been used in the criminal justice system to explain why a woman does not leave an abusive relationship, based on the theory of learned helplessness, social entrapment seeks to explain why leaving and seeking such help may not have been a viable option or aided her situation, perhaps even making it worse. ¹⁰⁶ Douglas identified separation from an abusive partner as ‘a period of heightened risk’. ¹⁰⁷ This makes it unsurprising to learn that a recent study has shown that victims wait an average of three years before seeking help. ¹⁰⁸ Such recognition that an adult is not always an autonomous actor able to choose their social, personal and economic roles would be in the interests of justice. ¹⁰⁹ Isolation caused by abuse, whether physical, emotional, or through coercive control, does by design prevent access to external sources for support and help.

The argument here is clear – evidence of social entrapment both gives a much more coherent picture of the abused person's life and the obstacles they may face or have faced in trying to leave the relationship without resorting to their own acts of self-preservation.

Conclusion

The criminal law needs to continuously develop in understanding of abuse. Through new technology comes new avenues for abuse and surveillance. Whilst the law has developed to with an increasing awareness of those who suffer intimate partner physical violence, we need to acknowledge that victims of coercive control are less visible but not uncommon. Providing legal redress for the many facets of coercive control, as well as providing avenues for lessened culpability when this results in an abuse victim using lethal violence is not merely important; it is vital. When the criminal law is developed and advanced, the behaviour society will not tolerate is illustrated. If we measure abuse only by the severity of injury, we will continue to contribute to injustice. An option worth serious consideration is to shift our understanding of intimate partner violence from evidence of physical abuse and its result using a mental health model, such as that provided by battered woman syndrome, to an encompassing coercive control model capable of appreciating social entrapment.

Admittedly, a vital cog to this wheel of justice is a sound understanding of the many facets of abuse that can occur in intimate partner relationships. This understanding needs to extend beyond the courts, particularly to police and other services pertinent to such victims seeking help. Recognition that abuse stretches beyond the physical and its often obvious injuries to more subtle signs and cries for help are pertinent in victims being able to obtain help before the situation escalates further. Assistance and training for Police Constables, with a working model of coercive control, plays an instrumental role in any advancements in this arena. ¹¹⁰

Statistics in this area are encouraging. In the year ending March 2022 there were 41,626 incidents of coercive control recorded, compared to 24,856 in the year ending March 2020. ¹¹¹ This may suggest improvements in recognising such incidents, rather than in increase in occurrence. The introduction of s76 Serious Crimes Act 2015 gave the potential for revolutionary change to the way agencies within the criminal justice system respond to and deal with intimate partner abuse, ¹¹² and these statistics are suggestive of that, but a continuation of this needs to occur:

“It is important not to understate progress. The development of the way that police respond to intimate partner abuse is a story of progress, but it is a story that needs to continue to develop” ¹¹³

What are the options for reform? We could legislate for a partial defence of coercive control, to operate much as the other partial defences to murder do. Modelled on the offence itself and the evidence of which courts find admissible, this defence could allow evidence of controlling behaviour and social entrapment to show why a victim felt trapped in their situation and prisoner within their own life, desperately acting from self-preservation of mind as well as body. Alternatively, we could consider extending the existing partial defence of loss of control to allow for fear of serious violence or continuing abuse, providing scope for a much wider concept of abuse. The advantage to this option is that the objective feature of the defence allows for consideration of the circumstances of the defendant. This could include social entrapment and real world options for leaving as admissible evidence, as well as the many dimensions to coercive and controlling behaviour within a relationship.

Though either of these approaches do focus on mental state of the accused rather than the harm caused by the ultimate victim, ¹¹⁴ which does not necessarily align with the approach taken by the offence of coercive control, some form of progress is certainly warranted and desperately needed. Regardless of the route taken, an expansion of the partial defences to look beyond physical abuse is necessary. The Coroners and Justice Act 2009 was certainly a milestone in criminal justice for victims of abuse, and it sent a message to twenty first century thinking around relationships, domestic violence and sexual infidelity. It is now time to push that precept further, in light of the Serious Crimes Act 2015, and be inclusive to more victims of abuse.