Coercive control: To criminalize or not to criminalize?

Abstract

Criminalizing coercive or controlling behaviour in an intimate relationship, as has been done in England and Wales and is proposed in Scotland, has the advantage of offering an offence structure to match the operation and wrong of intimate partner violence. This article raises the question as to whether other jurisdictions should follow suit. It argues that the successful implementation of such an offence may require a complexity of analysis that the criminal justice system is not currently equipped to provide and will require significant reforms in practice and thinking. If it is not successful such an offence could conceivably operate to minimize the criminal justice response to intimate partner violence and be used to charge primary victims.

Keywords

Coercive control crime intimate partner violence

Introduction

In 2015 England and Wales took the bold move of enacting an offence that criminalizes controlling or coercive behaviour within an intimate relationship.¹ In 2017 Scotland proposed a specific offence of domestic abuse, intended to capture the patterns of harm that constitute intimate partner violence (IPV), including behaviours that fall within existing interpersonal violence offences and those that do not.²

This is not the first time that attempts have been made to address patterns of harm, as opposed to one-off events, in the legal response to IPV (Douglas, 2015). Civil protection orders, for example, were developed for this purpose and were also designed to cover abusive behaviours that are not limited to physical violence. The criminal law has also been moving towards criminalizing ‘courses of conduct’ that encompass a broader range of behaviours than physical violence. For example, the UK³ and all Australian jurisdictions have offences of stalking,⁴ New Zealand has the offence of criminal harassment,⁵ while Tasmania introduced the summary offences of emotional and economic abuse in 2004⁶ (Douglas, 2015: 456–457). The English and Welsh and the Scottish reforms are a step further in this direction and raise the question as to whether other countries should follow suit.⁷ In New Zealand the decision has been made not to (Office of the Minister of Justice NZ, 2016: [26]–[29]) and this article attempts to engage with this broader question, rather than the specifics of any particular reforms or reform proposals.

The potential benefits of criminalizing coercive control have been canvassed elsewhere (Tuerkheimer, 2004) and are summarized next. Essentially such a reform offers an offence structure designed to match the operation and wrong of intimate partner violence.

In this article I sound a note of caution. The criminal justice system was not designed to address IPV and the problems that it presents in this context are deeper and more extensive than simply the fragmentation of long-standing patterns of harm into individual transactions. In the third section of this article I suggest that prosecuting coercive control successfully will necessitate a greater reliance on victim testimony and may require a breadth of evidence and complexity of factual analysis that the criminal justice system is not currently well equipped to provide. Such an offence may therefore be unlikely to deliver in practice on the many benefits that it theoretically promises. In the fourth section I raise the possibility of a worse scenario – that enacting such an offence could operate to further minimize the justice response to IPV, invalidate the experiences of primary victims and form the basis of charges against them. I have based the analysis in this article on the most common manifestation of IPV – in which the predominant aggressor is male and the primary victim is female (FVDRC, 2017).

The aim of this article is to point out the complexity of the issues involved when attempting to respond to the ‘wicked’ problem that is IPV within a complex system like the criminal justice system. A complex system is an unpredictable space in which reforms frequently have disappointing and/or unexpected outcomes (Morcol, 2012; Snowden and Boone, 2007). Reforms must also be systemic – addressing multiple layers and aspects of system functioning – and participatory (FVDRC, 2016). This is not a domain in which legislative reform alone will provide any kind of panacea.

The Potential Benefits of an Offence of Coercive Control

Interpersonal violence offences are constructed primarily in terms of incidents. As a result the criminal justice system fragments long-standing patterns of IPV into separate offences (Bettinson and Bishop, 2015; Hanna, 2009: 1461). Each incident is taken out of the pattern in which it occurs and proven and responded to in isolation. A corollary of this point is that the criminal offences are primarily constructed in terms of the use of physical violence. This means that IPV is also stripped of much of its overall architecture – those aspects of the pattern of abuse that are psychological and financial, for example, along with the motivations of the abuser and the cumulative effect on the victim. As a consequence, the totality and meaning of the perpetrator’s behaviour, the continuing risk he poses and the weight of harm experienced by the victim are all potentially misunderstood and minimized at every stage of the criminal justice process – investigation, charging, trial and sentencing.

An offence of coercive control, on the other hand, criminalizes what many have suggested is the underlying architecture of IPV (Tuerkheimer, 2004: 959). Stark (2007: 15) theorizes that IPV should be understood as a liberty crime rather than an assault crime, commenting that it is a

course of conduct that subordinates women to an alien will by violating their physical integrity (domestic violence), denying them respect and autonomy (intimidation), depriving them of social connectedness (isolation) and appropriating or denying them access to the resources required for personhood and citizenship (control).

Criminalizing non-violent manipulation may be important for those victims whose partners ‘rule like dictators over their lives’ (Hanna, 2009: 1463) but who do not experience much, if any, physical violence (Youngs, 2014). This may assist police officers in responding to cases that are potentially lethal because of high levels of psychological control but where there is no overt physical abuse (Bettinson, 2016: 166). It also places physical violence in context and could mean that the police are supported to provide an escalated criminal intervention in respect of repetitive ‘low level’ physical offending (Douglas, 2015: 442).

Criminalizing coercive control has the advantage of making the broader context of the relationship evidentially relevant (Bettinson and Bishop, 2015: 191; Hanna, 2009). Because of the current focus on physical violence the ‘courts hear only parts of victim’s stories’ (Kuennen, 2013: 2; Tuerkheimer, 2004: 979–988). It has been pointed out that when the victim’s account is taken out of context in this manner it may resemble something other than the truth (Burke, 2007: 574; Tuerkheimer, 2004: 983–984; Youngs, 2014). When hearing only about an isolated incident the jury may also assume that the perpetrator was intoxicated, or that it was a minor event, or that it was an act of self-defence against an ‘out of control’ female partner (Burke, 2007: 574; Tuerkheimer, 2004: 985–988). Broader accounts of the perpetrator’s behaviour may therefore add to the victim’s credibility and provide clear evidence of the perpetrator’s motives.

Tuerkheimer (2004: 1016) argues that if the victim’s view of her relationship with the perpetrator is legally relevant then she is encouraged to recount the full range of her experiences – making the experience of giving testimony validating of her lived experience.

Furthermore, if the victim is encouraged to provide complete information this will assist the court to make better assessments of what is going on. The court can determine who is the primary victim in the overall relationship regardless of who used physical force on this particular occasion (Bettinson and Bishop, 2015: 191), appreciate that the physical violence may not be ‘low level’ given everything else that the perpetrator is doing and understand that the perpetrator’s acts of violence are part of a larger pattern of harm and cannot be accidental or unpremeditated.

It is also suggested that an offence of coercive control captures the full wrong of IPV as perpetrated by the accused and the totality of the harm as experienced by the victim (Bettinson, 2016: 167; Burke, 2007: 588; Douglas, 2015: 465; Youngs, 2014). This satisfies the principle of fair labelling and ensures that sentencing responses reflect the harm of the offending (Youngs, 2014). Accommodating a history of uncharged (and therefore unproven) behaviour by the perpetrator is difficult at sentencing if the offence was not charged as ‘representative’ of a broader criminality (ALRC; NSWLRC, 2010: 579, 604–607) or where evidence of uncharged prior abuse has not been admitted in trial as relevant to a fact in issue (ALRC; NSWLRC, 2010: 574). When patterns of harmful behaviour have resulted in past convictions these do not necessarily result in escalated sentences and are, in any case, unlikely to represent the full extent of offending. Furthermore, the very nature of this process relegates to the history of the offence what is actually part of a continuing wrong (Burke, 2007: 575; Tuerkheimer, 2004: 997–998).

Criminalizing coercive control is said to perform an educative function (Youngs, 2014). It may enhance community recognition of IPV, as well as assisting victims to better understand the abuse they have experienced (Douglas, 2015: 465). The UK Law Commission (2014: 126–127) has expressed the hope that fair labelling might contribute to rehabilitation of the offender. When one offence out of a pattern of harm is prosecuted the wrong message is sent; ‘that he has only crossed a line into criminality and he therefore needs to step back behind it rather than desist entirely’ (Gowland, 2013: 389).

Barriers to Successful Implementation

The benefits of enacting an offence of coercive control are obviously contingent on the successful operation of such an offence and it is here that I want to sound a note of caution. The problems with the criminal justice response to IPV are larger than those presented by the fragmented offence structures for interpersonal violence. For example, there are barriers to reporting acts of IPV that already meet the criteria for the existing offences, and, when these barriers are overcome, there are frequently police and prosecution failures to enforce the existing laws and difficulties in meeting the criminal burden and standard of proof (VLRC, 2006: [4.25]). As pointed out by Hanna (2009: 1468; Home Office, 2014: 11):

In the vast majority of cases before the courts currently, the problem is not that the defendant’s conduct did not violate the law. The problem is that the criminal justice system is overwhelmed and underfunded and, depending on the jurisdiction, under enlightened about the concept that men do not have a legal prerogative to beat their intimate partners.

In England the offence of controlling or coercive behaviour has been enacted along with other measures, such as extensive specialist training of police (McMahon and McGorrery, 2016: 101). Of course, if the law is to be successfully applied, shifts will also be required in the collective response of all key criminal justice decision makers, including prosecution lawyers, judges, juries and corrections officers administering sentences.

But the problems presented by the decision-making processes of the criminal justice system go beyond the skill sets and understandings of decision makers. For example, the adversarial system is problematic as a mechanism to determine the truth of what took place and craft a response to IPV, even in respect of traditional violence offences. Judges tend to see themselves as reliant on what prosecution and defence lawyers bring to the table and unwilling to ‘descend into the fray’. Defence counsel view their task as getting their client off the charges. Aggressive pursuit of this agenda may involve objecting to the victim’s statement of facts and recasting what took place as benign (e.g. a strangulation may be recast as putting the victim in a head lock to calm her down), advising the defendant to exercise his right to silence and put the Crown to the proof and subjecting the victim to rigorous cross-examination in order to discredit her. The prosecution, on the other hand, may plea bargain – agreeing to significant rewrites of the statement of facts and a discount of the charges in order to resolve the matter (ALRC; NSWLRC, 2010: 563).

Such problems are likely to have particular bite in respect of an offence that is inherently time consuming, complex and difficult to successfully prosecute. Here I point out that the criminalization of coercive control will add conceptual and evidentiary difficulties to criminal prosecution in the IPV context. This is because it requires a sophisticated factual analysis, an evidentiary base that may place additional reliance on victim testimony and a sensitivity to gender roles. It also presents definitional challenges and may be undercut by the unconscious, collectively held, conceptual frameworks used to make sense of facts involving intimate partner violence.

The need for an individualized and nuanced factual analysis

While it is relatively easy to explain the concept of coercive control in theory, it is not possible to undertake a ‘one size fits all’ factual analysis because each case will involve an individualized package of behaviours developed through a process of trial and error for the particular victim by the person who knows her most intimately (Stark, 2007: 206–208). These behaviours may be subtle and readily understood only by the victim and perpetrator as, for example, when they are designed to exploit fears that are personal to the individual victim or consist of ‘gestures, phrases and looks that have meaning only to those within the relationship’ (Bettinson and Bishop, 2015: 194). Stark provides the example of a perpetrator who would publicly offer his partner a sweatshirt when she performed well in her sport. This apparently considerate gesture indicated to her that she had violated their agreement not to make him jealous and would later need to cover up the bruising she would receive (Stark, 2007: 229).

Appreciating the harms of coercive control requires a focus not only on what the abusive partner has done, but what the victim has been prevented from doing for herself. The impact of the perpetrator’s behaviour on any victim will be cumulative over time, specific to that particular individual and may be contingent on a mix of external influences and personal vulnerabilities (Kuennen, 2013).

One can compare the analysis required here – the potential subtlety and individualized range of behaviours over an expanded period of time that must be examined, as well as the complexity of the analysis required – with what is needed to determine whether there has been the deliberate use of physical violence on any occasion.

Additional reliance on victim testimony

Ritchie (2014) points out that the criminal justice system’s need for victim involvement in the prosecution of criminal offending can be both undesirable and dangerous. Successful prosecution of the existing criminal offences can be heavily reliant on the victim’s testimony and yet frequently victims are in dangerous and/or compromised positions when it comes to giving that testimony, especially after the significant but standard delays in criminal proceedings. Delays, trauma and brain injury can also affect the victim’s ability to accurately recall the details of their experiences (ALRC; NSWLRC, 2010: 563–564; Douglas, 2015). Furthermore, women, and particularly battered women, have ‘credibility obstacles’ in the criminal court (Kuennen, 2013: 25).

I have pointed out that coercive control is a (potentially subtle) web of behaviours over an extended period of time, the particular meaning of which may only be discernible to the perpetrator and victim. Prosecution in such instances will therefore depend on victims being ‘able to appreciate or verbalise the impact of the harm they are experiencing, having left their “hostage-like” state’ (Bettinson and Bishop, 2015: 194). In other words, successful prosecution will necessarily depend on the victim providing a detailed narrative in court. However, recovery may be required before the victim has a realistic understanding about what happened to her. This may not be possible until she is in a position of safety and has had the benefit of skilled support over an extended period of time.

Evidence of physical violence on a particular occasion, particularly when there is documented injury, may be easier to establish independently of the victim’s testimony. And if it is necessary to rely on victim testimony: ‘[f]or many women it is much easier to describe how she suffered an injury than for her to provide a detailed narrative that, as Stark suggests, she herself may not yet understand’ (Hanna, 2009: 1466). Tadros (2005: 1012) argues, to the contrary, that an offence of coercive control may overcome the problems of proof presented by the need to rely on the testimony of the victim in respect of the traditional offences in some instances. His example is: ‘a victim, who seven times in the last year, has been admitted to hospital with bruising. Each time, when asked how the bruising came about, she reports that the injury was accidental.’ He suggests that, while the mens rea for assault may be impossible to prove on any one occasion in this example, considered cumulatively there may be sufficient evidence to convict the accused of domestic abuse characterized by a course of conduct. This example, however, involves drawing inferences from accumulated incidents of physical violence which has caused documented physical injury, rather than the introduction of other forms of coercive and controlling behaviours.

The need for critical understanding of existing gender norms

Applying the concept of coercive control requires a sensitive gender analysis – there is a need to appreciate the manner in which gender socialization and the gendered distribution of resources support patterns of power and domination in heterosexual relationships, particularly in ‘the micro-dynamics of everyday living’ (Stark, 2007: 30). Stark (2007: 21) comments that:

the most common targets of control are women’s default roles as mothers, home-makers and sexual partners. By routinely deploying the technology of coercive control a significant subset of men ‘do’ masculinity […] in that they represent both their individual manhood and the normative status of ‘men’.

To someone who does not have a critical analysis the perpetrator may, however, simply look like an old-fashioned man – one who expects certain standards in his home and in relation to his children. This can be reinforced by women’s traditionally devalued status. Women’s roles as wives and mothers involve a measure of unpaid servitude, even in otherwise egalitarian relationships, and this can make a victim’s oppression difficult to see:

Indeed because most women already perform these activities by default, their regulation in personal life is largely invisible. As we’ve seen, however, the micromanagement of how women perform as women lies at the heart of coercive control and is emblematic of how coercive control violates their equal rights to autonomy, personhood, dignity and liberty. (Stark, 2007: 31)

In other words, male dominance is to some degree naturalized because heterosexual norms permit men a certain degree of dominance in the minutia of everyday living even in non-abusive relationships (Bettinson and Bishop, 2015: 195; Youngs, 2014). Decision makers are themselves formed within and thinking through these roles (Butler, 1993). For this reason Stark (2007: 14) describes coercive control as ‘invisible in plain sight’.

Definitional difficulties

Not only is a sophisticated analysis on the part of decision makers required in order to render visible the manner in which coercive control may exploit existing gender roles, but the concept blurs the line between criminal and non-criminal behaviour (Hanna, 2009: 1461; Kuennen, 2013). If abusive behaviour exploits existing gender norms when does ‘normal’ end and ‘abuse’ begin?

The use of physical violence by a man towards his female partner is not currently acceptable and such behaviour is therefore automatically criminalized unless it is consented to. While it is possible for a victim to consent to being physically harmed, the defence of consent can be withdrawn by the court in cases where the harm reaches a certain level.⁸

This is not so for a range of the behaviours potentially utilized as tactics of coercive control. It is not automatically unacceptable, for example, for the male partner to control a couple’s finances, to hold joint property in their name, to make major life decisions on behalf of both and to dislike and want to minimize contact with their in-laws. Whether these behaviours are acceptable or not depends on whether they were agreed to and agreement can be the result of a matrix of factors (Kuennen, 2013: 14–17).

Testimony about coercive and controlling behaviours that are wider than the use of physical violence therefore opens the door to cross-examination of the victim about her willing participation in the balance of power in the relationship and about her psychological need/desire to be controlled by her partner (Hanna, 2009: 1467). As a result, any chance of a conviction will rest on the victim’s ability to maintain her perspective under cross-examination. This may be difficult when victims themselves are thinking through the framework that has been imposed on them and the experience of what has been done to them (Tadros, 2005: 1007). Ironically a victim who is able to hold her ground under this kind of cross-examination may undercut her claim to have been the victim of coercive control.⁹

The ‘interpretative schema’ for IPV

Quilter (2011) has presented a compelling analysis of the manner in which ‘interpretative schema’ in relation to sexual violence can undercut attempts to reform the legal response to sexual violence (see also Temkin, 2002). Interpretative schema are the sets of understandings that practitioners use to make sense of facts to determine the truth of what happened. How decision makers think about a social phenomenon is hugely significant in how they understand that phenomenon when it manifests in any particular instance and is frequently informed by inaccurate thinking.

This also occurs in relation to family violence. For example, relationships characterized by IPV are often understood as ‘bad relationships’ and relationships are understood to be based on choice and involve mutuality. The solution to a bad relationship is addressing one’s own contribution to what is going wrong or leaving that relationship (Lindauer, 2012; Morgan and Coombes, 2016; Stanley et al., 2012). The assumption is that leaving the relationship is a choice based activity for the victim of IPV and is equivalent to ending the abuse. This resonates with a broader assumption – that victims can effectively address the violence that they and their children are experiencing by simply utilizing the range of tools that they are provided with; for example, contacting the police, getting a protection order and going into temporary refuge accommodation. And that it is appropriate to put the burden of addressing criminal offending on the victim, who is likely to be in a state of considerable trauma. It is therefore part of our interpretive schema for IPV to focus on what the victim has done to address that violence (Schneider, 1991: 983). Victims who do not behave in the manner that we expect are understood to be partially responsible for their situation – contributing to the abuse, choosing the abuse, not being honest about the abuse and/or not acting protectively in respect of themselves and their children.¹⁰

What is missing from the interpretive schema for IPV is an understanding of how the actions of the primary aggressor systematically operate to isolate, frighten and control the victim over time, closing down her options and undermining her choices. Or how responses by those charged with assisting can be ineffectual at best or, at worst, escalate the danger. Rarely articulated in the criminal justice context is the manner in which precarious life circumstances and limited resources – the result of structural inequity and historical trauma – can realistically close off options that are available to others living more privileged lives. In other words, decision makers frequently fail to understand the manner in which IPV, including but not limited to the tactics of coercive control employed in any instance, operates as a form of ‘social entrapment’. Ptacek (1999: 10) describes entrapment as having three dimensions:

(1) […] the social isolation, fear and coercion that men’s violence creates in women’s lives; (2) […] the indifference of powerful institutions to women’s suffering; and (3) […] the ways that men’s coercive control can be aggravated by the structural inequalities of gender, class, and racism.

Quilter (2011) discusses the invisible and entrenched nature of interpretative schema. At the most basic level – in the very language that we use – we mutualize IPV, conceal the perpetrator’s responsibility and render the victim’s resistance invisible when we use phrases such as ‘violent relationships’ to discuss what are in fact patterns of offending and victimization (Coates and Wade, 2007; Wilson et al., 2015). In my own experience people who do not understand how entrapment operates – because they have not personally lived the manner in which coercive control can inhibit resistance and who have life experiences that have led them to expect personal safety at all times and for whom calling the police will always be an effective means of achieving this – can be vehement and entrenched in their judgements of victims.

An offence of coercive control could challenge this interpretive schema if it was used, in conjunction with an understanding of entrapment, to shift the focus onto the perpetrator’s abusive behaviour. However, if victims are understood as complicit in and partially responsible for the serious repetitive physical abuse they endure, how much more so will this be in relation to other behaviours? This will be particularly so where a woman has worked hard to placate the perpetrator and maintain a semblance of normalcy, and when the abusive behaviours are on a continuum with ‘normal’ up one end. It is likely that decision makers will continue to assume that victims who remain in such relationships consent to the overall dynamic of the relationship.

Parallels with sexual violence

The parallels between the issues I have traversed here in relation to the criminalization of coercive control and those which have been documented in the justice response to sexual offending are not confined to the unconscious schema used to understand the phenomenon at a factual level (which have undercut multiple attempts to improve the justice response to sexual violence via legislative reform: Quilter, 2011). For example, sexual offending throws up similar definitional issues because the line between criminal and non-criminal behaviour turns on the consent of the complainant and the reading of that consent by the defendant. Yet consent is frequently obtained under a myriad of pressures that blur the line between a submission without consent and a reluctant consent (Gavey, 2005: 136–165; Raphael, 2000: 48–49), and reduced capacities that blur the line between an uninhibited consent and a complete lack of the capacity to consent. Furthermore, numerous theorists have discussed the manner in which the inequitable power dynamics embedded within the mutually reinforcing practices of sexuality and gender mediate the negotiation of consent to heterosexual sexual connections (Gavey, 2005; MacKinnon, 1987: 5–8, 85–89). These privilege ‘assertive’ behaviour by men, read permission into what should be irrelevant behaviour by women and make sexual encounters easily ‘narrated in ways where the absence of a woman’s desire and pleasure is not only permissible, but almost unremarkable’ (Gavey, 2005: 17). In other words the line between sexual offending and sex is easily (and on some accounts necessarily) blurred. Sexual offending takes place in circumstances where there are competing realities in respect of events that are likely to have been un-witnessed by all except the complainant and defendant. Successful prosecution will frequently depend on the capacity of the complainant to withstand rigorous cross-examination on the minutia of their account in respect of a traumatic encounter that may have taken place a considerable period of time ago. Certainly it is not reassuring – given the potential similarities noted here – that sexual offending is rarely reported to the police and is notoriously difficult to prosecute successfully, while the trial process is widely documented to be traumatic and gruelling for complainants (Graycar and Morgan, 2002: 354–364; MacDonald, 2005).

In fact, the offence of coercive control could be argued to add to the difficulties presented by the requirement for victim non-consent in the context of sexual violence. This is because, unlike serious sexual offending, the actus reus for coercive control cannot be set out in concrete terms (it cannot, for example, be defined in terms of particular sexual behaviours). Instead an indeterminate range of potential behaviours by the accused, possibly taking place over an extended period of time may or may not satisfy the actus reus requirements. For example, the Statutory Guidance Framework in the UK defines controlling behaviour as:

a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour. (Home Office, 2015: 3)

Coercive behaviour on the other hand is defined as ‘a continuing act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim’ (Home Office, 2015: 3). The Framework goes on to set out a non-exhaustive list of 17 types of behaviours which, if they take place repeatedly or continuously and have a serious effect on the victim, could satisfy section 76 of the Serious Crime Act 2015 (Home Office, 2015: 4).

Potential Risks

Here I raise the possibility that if the criminal justice system subverts the concept of coercive control or is unable to properly utilize it, the consequences of enacting such an offence may go beyond a failure to produce the hoped for benefits and include negative effects for victims. This is particularly so in a complex system where reforms must be expected to have unexpected consequences. Two of the risks involved in enacting an offence of coercive control are that it could be used to minimize the criminal justice response to IPV and that it could be used to charge primary victims.

Minimization

Given the complexities involved in applying the concept of coercive control, it is possible that such an offence will be successfully charged only in those cases where the use of physical violence can be established (ALRC; NSWLRC, 2010: 586) and/or where there is independent evidence of levels of coercive control that are overt and extreme (Bindel, 2014). Experience in other contexts would seem to support this possibility. For example, Bettinson and Bishop (2015: 188) point out that judicial applications of course of conduct offending such as stalking frequently lapse back into an examination of individual incidents of assault that can be proven ‘and whether or not these, in combination, amount to a course of conduct’. This is an ‘incident additive approach’ that places a strong continued focus on physical violence.

If this is the case there is the possibility that having an offence of coercive control would exacerbate the current tendency to minimize IPV in the criminal justice response. First, the existence of such an offence could encourage the police to wait for a pattern to emerge in such cases, rather than responding appropriately to individual acts of abuse (Bindel, 2014). The dilemma for police is that if individual offences are prosecuted then principles of double jeopardy mean that those offences cannot be later included to support charges of coercive control (Crown Prosecution Service, 2015: 12).

Second, if police see the offence of coercive control as the appropriate response in all cases involving IPV, then they may fail to prosecute more serious offences of violence that have occurred in order to focus on establishing coercive control (Douglas, 2015). This phenomenon has been observed elsewhere. Douglas (2015: 436) points out that civil protection orders have become the focus of the police response to domestic violence, with breaches being the most common criminal offence charged even when more serious substantive offences may be applicable.

A third concern is that the offence will decriminalize certain acts of abuse in the domestic context. Kelly and Johnson (2008) have proposed that there are ‘typologies’ of IPV. Only one of these suggested typologies, ‘coercive controlling violence’, may be loosely equated with Stark’s notion of coercive control. Other ‘types’ of violence include ‘common couple violence’ and ‘separation engendered violence’.

Whether there are such typologies of IPV is controversial (Gulliver and Fanslow, 2015; Wangman, 2011). Nonetheless this work has the potential to undercut understandings of coercive control in some contexts. For example, during separation, particularly where control was high but there was not much physical violence in the relationship, there is an impulse to assume that one is dealing with a more ‘benign’ type of violence; ‘separation engendered violence’ (Jeffries, 2016: 14). This may undermine the successful prosecution of the offence of coercive control on certain sets of facts, and worse, the criminal prosecution of violent offences per se between intimate partners in such instances. For example, if the offence of coercive control is viewed as the appropriate charge but coercive control is not considered to be present on the facts because the violence is interpreted as being of a more ‘benign’ type then, as pointed out by Douglas (2015: 466) and Rathus (2013: 388–389): ‘one of the effects may be to exclude some very valid experiences of domestic violence from criminalization’.

There are a number of other negative effects that could potentially flow on from enacting an offence of coercive control that is only enforceable in the most extreme cases and/or cases involving physical violence. Stark (2007: 144) refers to this phenomenon as ‘normalizing lower levels of abuse’: for example, the creation of an erroneous impression that few cases of IPV actually involve coercive control because we have few criminal convictions. Another is that, rather than making the criminal justice system more hospitable to victims while educating victims, the community and abusers about coercive control, such an offence could do the exact opposite. Those victims who do not have the patterns of harm that they have been subjected to recognized by the criminal justice system may experience the criminal justice process as extremely damaging, while it would be conversely validating for their abuser (Bindel, 2014).

Mutualization

While the English offence of coercive or controlling behaviour is couched in gender-neutral terms, the Home Office (2015: 7) has issued statutory guidelines that point out that coercive control is gendered and underpinned by wider societal gender inequity. Investigators are directed to take into account gender and ‘any vulnerabilities’ but avoid making assumptions based on stereotypes (2015: 24). Clearly the intention is that investigators will be sensitive to the social patterns of harm and gendered norms discussed in this article, while remaining open to the exceptional case that deviates from these. Gender-neutral provisions, however, open up other possibilities.

As noted above, Stark (2007: 14) points out that gender roles can render invisible the abusive behaviours of IPV perpetrators. The opposite is not the case. Indeed gender roles may throw women’s attempts to assert independence and to equalize power dynamics in their relationships into sharp relief. Furthermore, assertive behaviour by women readily buys into stereotypes of women as demanding and aggressive.¹¹

Unless decision makers have a critical understanding of the operation of gender roles (how they shape life experiences, expectations, options and behaviours) and the historical legacy of gendered oppression, there is a danger that reactions to women will be informed by such biases. A classic example can be found in the response to women who attempt to safeguard their children in the context of family separation. Numerous studies have documented the manner in which such women are vulnerable to finding themselves characterized not as ‘experts’ in the care of their children (based on their past caring experience) and ‘protective’ of their children’s well-being, but as ‘obstructive’ of the other parent’s rights and their children’s best interests (Morgan and Coombes, 2016: 57; Salter, 2014; Tolmie et al., 2009: 678). Gender norms include expectations that mothers will bear a disproportionate burden of the unpaid labour of caring for children, including the mediating labour required to assist fathers to exercise their ‘rights’ to parent, rendering this work invisible (Lacroix, 2006). Mothers’ attempts to build the contact parent’s access around the child’s breast-feeding schedule, for example, or to address neglectful parenting, or insist on access arrangements that reflect the child’s developmental phase or to protect their child and themselves from abuse can be interpreted by fathers and family law professionals as ‘controlling’ and ‘alienating’ and responded to punitively (Bancroft et al., 2002; Jeffries, 2016: 7; Neustein and Lesher, 2005; Tolmie et al., 2010: 324–326).

It is not surprising then that there are already calls within England for repeated denial of contact by one parent, usually understood to be the mother, to be treated as coercive or controlling behaviour in relation to the other parent (Insideman, 2014; Woodall, 2016). Such measures, however, cannot currently satisfy the elements of section 76 of the Serious Crime Act 2015 once the parties have separated and are no longer living together because of the manner in which the requirement that the parties be ‘personally connected’ is defined in that section. This does, however, raise the concern that an offence of coercive control will be applied to primary victims in the criminal justice context and will thus backfire on victims in a very direct fashion.

Women self-report in population based studies that they use low and moderate levels of physical violence in intimate partnership at the same rate as men, but overwhelmingly women show up in homicide and hospital statistics as victims rather than perpetrators (Tolmie, 2015: 652). While the manner in which gender shapes the use of violence in intimate relationships is contested (Dobash and Dobash, 2004), international literature suggests that women’s use of violence in intimate partnerships does not simply mirror men’s but is frequently part of their ongoing victimization. In other words, women can use force to react to, attempt to stop or escape from their male partner’s violence (Miller and Meloy, 2006; Swan and Snow, 2006). Much of this, including expressions of frustration about a situation that they are powerless to change and attempts to equalize power in the relationship, is appropriately understood as ‘resistance’ to their experiences of abuse even when it does not satisfy the legal requirements of self-defence. On the other hand, Stark (2007: 105) says that, while women can and do use physical violence against their male partners, they ‘rarely’ use coercive control because of an ‘asymmetry in sexual power’. Despite this, primary victims who use violent resistance are vulnerable to being understood within the criminal justice system as ‘mutual aggressors’.¹²

Dual arrest policies are another example where the dynamics of IPV are ‘mutualized’. Such policies can result in both parties being arrested if they have used physical force on a particular occasion, without determining who is the aggressor in the overall relationship. This approach can close down help seeking by primary victims who have used violence to resist their abuse (FVDRC, 2014: 75). It is worth noting that IPV offenders can be highly manipulative; minimizing their actions and recasting themselves as the victim of the abuse that they themselves are perpetrating.

The risk that a victim’s resistance to abuse will be read as abuse is arguably greater when the criminalization of IPV is uncoupled from the need to establish physical violence. It will be particularly strong if the concept of coercive control (and the manner in which it employs traditional gender roles) is not properly understood but the concept is instead loosely equated with ‘psychological abuse’. Stark (2007: 26), on the other hand, is clear that it is psychological abuse in the context of coercive control that is devastating ‘because the woman cannot respond or walk away without putting herself at risk’, not psychological abuse per se.

The danger in enacting a gender-neutral offence of coercive control which is untethered from the need to prove physical violence is that it will be applied to primary victims. This danger is exacerbated when decision makers lack a sophisticated understanding of the manner in which gender roles, expectations of male entitlement, disparate physical strength and disparate resources can create power imbalances in heterosexual relationships.

Conclusion

It is impossible to determine in advance the benefits of any reform within a complex system and it is still too early to know how section 76 of the Serious Crime Act 2015 will be applied in practice. While acknowledging the potential benefits of criminalizing coercive control, I have sounded a note of caution in this article. Applying the concept of coercive control to particular sets of facts may require a breadth of evidence and complexity of analysis that the criminal justice system is not currently well equipped to provide. Some of the risks involved in enacting an offence of coercive control are that it could be used in a manner that minimizes IPV, invalidates the victim’s experiences or, worst of all, recasts their resistance to abuse as abuse.

Even if an offence of coercive control is enacted, the traditional incident based violence offences are likely to continue to operate alongside this offence in the IPV context. This is because, for cases involving very serious levels of violence (e.g. repeated rapes and assaults with weapons) an offence along the lines of section 76 of the Serious Crime Act 2015 would be a significant downgrade in the criminal justice response that might be expected. In other cases, the difficulties presented in prosecuting an offence of coercive control might necessitate continued reliance on crimes of assault. This may be less so under the Scottish approach, which allows the prosecution under the proposed domestic abuse offence (which also has significantly higher maximum penalties than the English offence) of behaviour that would currently satisfy one of the interpersonal violence offences.

What this means, however, is that enacting an offence of coercive control cannot be understood as the complete solution to the problem of fragmentation in the criminal justice response to IPV. It also, somewhat paradoxically, means that many of the conceptual and evidentiary challenges presented by the concept of coercive control should be addressed in respect of all IPV offending. This means that traditional interpersonal violence offending in the context of IPV must be understood in the context of the wider patterns of harm in which it occurs and evidence on such patterns should be routinely presented at trial.¹³ It also means that if we are concerned about victim safety then all sentencing responses to IPV offending, including traditional offending, should take into account the perpetrator’s pattern of harm. Without reform, sentences will continue to be a limited reaction to those aspects of the abuse that have been cordoned into the particular offence under consideration.

Footnotes

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

Author biography

Julia R Tolmie teaches Criminal Law and Women and the Law at The University of Auckland. She served as chair of the New Zealand Family Violence Death Review Committee from December 2011–2016, and as a member of the New Zealand Government’s Expert Advisory Group on Family Violence in 2013.

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