Prosecuting controlling or coercive behaviour in England and Wales: Media reports of a novel offence

Abstract

The offence of controlling or coercive behaviour came into effect in England and Wales in December 2015, and related offences have since been enacted in Scotland and Ireland. To date, there has been almost no empirical evaluation of the operationalisation of the new English and Welsh offence. This article fills that gap by analysing media reports relating to 107 individuals convicted of controlling or coercive behaviour, providing a profile of offenders and victims (gender and age), the types of abusive behaviours offenders engaged in and how the cases progressed through the criminal justice system (manner of conviction, sentencing outcomes). Media reporting of these cases is also discussed. The results suggest that the offence is (appropriately) operationalised in a highly gendered manner, that it has captured a diverse range of behaviours that would not previously have been considered criminal, and that media reports of this form of domestic violence have not demonstrated the negativity towards victims identified in previous studies. Further research of primary data is required to confirm these findings.

Keywords

Controlling or coercive behaviour domestic violence family violence media analysis prosecutions section 76

Introduction

In December 2015, the offence of controlling or coercive behaviour in an intimate or family relationship came into effect in England and Wales (Serious Crime Act 2015 (UK) s 76). That offence uniquely criminalises the non-physical abuse that lies at the heart of most intimate partner violence. Since that offence came into effect, Ireland has also introduced an offence of ‘coercive control’ (Domestic Violence Act 2018 (IR) s 39) and Scotland has enacted the related offence of ‘domestic abuse’ (Domestic Abuse (Scotland) Act 2018 (Scot) s 1; Bettinson, 2016). One jurisdiction in Australia (Tasmania) had also preceded these laws by specifically and directly criminalising economic and emotional abuse of an intimate partner more than a decade earlier (Family Violence Act 2004 (Tas) ss 8–9; McMahon and McGorrery, 2016b).

A number of family violence and criminal law researchers have now begun evaluating the desirability and utility of these offences (Douglas, 2015, 2018a; McMahon and McGorrery, 2016a; Padfield, 2016; Tolmie, 2018; Walklate et al., 2018). To date, the arguments for and against introducing an offence of coercive control (or something similar) have occurred almost exclusively at an abstract level, devoid of any empirical data (contra Barlow et al., 2019). Researchers advocating for a new offence suggest that there is a gap in the law with a consequent failure to criminalise a significant harm, and that the traditional approach of only prosecuting non-physical abuse when it occurs in contravention of a court order not only misidentifies the real harm but also attracts inappropriately low penalties and leaves victims unprotected (Douglas, 2007, 2015: 438). Furthermore, they argue that prosecuting physical abuse through the lens of incident-based offences (i.e. assault) puts the victim in the untenable position of having to isolate and identify dates, times and locations of behaviours that often stretch across months or even years (Wiener, in press), despite memory research suggesting that victims of repeated crimes are far more likely to remember general experiences than they are to recall specific incidents (van Golde et al., 2018).

In contrast, critics have cautioned that there may be a number of specific, problematic features of such laws:

They may further disenfranchise women, rather than empower them, if controlling or abusive behaviour is normalised within traditional, gendered boundaries of interactions between intimate partners or if it cannot be distinguished from consensual, gendered decision-making (Tolmie, 2018: 7–8).

A new offence could be misused against victims rather than perpetrators, particularly if police misidentify the primary aggressor when responding to incidents involving intimate partner abuse (Tolmie, 2018; Walklate et al., 2018; Younger, 2018).

A new offence could increase demands on victims and widen levels of inequality, given that it is likely to require increased levels of cooperation with police, and the victims least likely to cooperate are those who have less socioeconomic means or who are racially or otherwise marginalised (Tolmie, 2018).

Police may find it difficult to identify, investigate and/or prove domestic abuse other than incident-based physical violence (Tolmie, 2018; Wiener, 2017).

Victims of family violence are particularly vulnerable when involved in the criminal justice process, as they may experience secondary victimisation (Roth, 2002), especially if the offender uses the process as a way to perpetuate the abuse (Douglas, 2018b).

A new offence might distract police from enforcing existing laws that already prohibit family violence (Tolmie, 2018), such as laws prohibiting assault, breaches of intervention orders (Douglas, 2007), stalking (contra McMahon et al., 2019) and false imprisonment (Ortiz, 2018).

These are persuasive and substantial arguments. Any measure introduced with the aim of reducing the effects of family violence should be eschewed if it would further victimise and marginalise victims. That said, none of these arguments, even taken collectively, necessarily require the dismissal of the new offences. Instead, the validity of the criticisms must be evaluated against an analysis of the offences and information about their practical operation.

To date, there has been little analysis of how any of these ground-breaking offences have been operationalised. There has been some analysis of the relevant provisions in Tasmania, Australia, which suggests that the offences of economic and emotional abuse are poorly drafted and have had little impact (Barwick et al., in press; McMahon and McGorrery, 2016b). The England and Wales offence is still quite nascent, though there has been considerable published research in a relatively short time frame, by both government agencies and academics. In the first year of the operation of the offence, 58 offenders were sentenced (Office for National Statistics (ONS), 2017). By March 2017, police had recorded 4236 incidents of coercive control (ONS, 2017) and the Crown Prosecution Service (2017b) had laid 309 charges that had reached first hearing. Researchers are exploring how the concept of coercive control is being operationalised in England and Wales (Robinson et al., 2018), with interviews being conducted with police and victims for the purpose of developing a working model of coercive control (Wiener, 2017). Recommendations have been made about how the presentation of evidence of coercive control in criminal proceedings could be improved, particularly so that proceedings could go forward without relying on victim involvement (Bishop and Bettinson, 2018). Furthermore, after we conducted the present analysis, the Ministry of Justice (ONS, 2018) reported that in the 2017 calendar year, 468 defendants were charged with controlling or coercive behaviour, of whom 454 were male (97%) and 235 were convicted (50%). They further reported that imprisonment was the most common sentencing outcome (54% of cases), with an average duration of 17 months. The Scottish and Irish offences are even more recent than the English and Welsh offence, though early figures in Scotland record over 400 incidents and 13 offenders convicted in just the first 3 months of operation (BBC News, 2019).

The aim of this article is to contribute to the ongoing discussion about the utility of an offence such as ‘controlling or coercive behaviour’ by adducing empirical evidence about its operation and impact in England and Wales. In the absence of detailed, comprehensive official criminological data on prosecutions and convictions, we analyse secondary sources (media reports) dealing with persons charged with and/or convicted of controlling or coercive behaviour (notably, Women’s Aid Ireland (2019) also recently published research that was based on an analysis of media reports of family violence cases before the criminal courts due to the ‘appalling lack of data in this area’). Simultaneously, we analyse the media reports to determine whether they exhibit the same characteristics identified in previous reporting of domestic violence.

Analysing media reports

Using online search engines, we searched for keywords relating to the new offence from 29 December 2015 to 30 April 2018 (the first 28 months of the offence being in operation) in order to find media reports of cases in which a defendant had been charged with, or convicted of, controlling or coercive behaviour. From this data source, we coded relevant stories using quantitative content analysis (Morgan, 1993) for key demographic (age, gender, etc.) and offence characteristics (charges, case outcome, sentence, etc.).

This approach required a close examination of sources. The information produced by media sources is the product of a complex interplay between journalists, police and prosecution services, interest groups, public commentators, victims and offenders (Henry, 1994). Researchers have identified that crime is essentially reported in print media in two main ways: as ‘sensational stories’ having extended coverage and a high level of detail or as ‘mundane stories’ with terse, brief reports of limited demographic and other material (Schlesinger et al., 1991: 411). Numerous distinctive features of crime reporting have also been identified, including the over-representation of violent crimes (Schlesinger et al., 1991), police success in solving crime (Marsh, 1991) and of members of minorities as offenders (Lotz, 1991: 114). In relation to media reports of domestic violence, features routinely identified include incident-based, individualised and victim-blaming reports (Berns, 2004; Bullock and Cubert, 2002; Taylor, 2009). However, these biases are neither historically nor culturally invariant (Morgan and Politoff, 2012: 63–66). Given that crime is central to news production (Landau, 2006: 20), that increasing attention has been directed to family violence in recent years and also given the novel focus of the controlling or coercive behaviour offence (accounting for non-physical abuse), we deemed it likely that cases involving the new domestic violence offence would frequently attract media attention and thus provide an adequate base on which to develop an initial profile of the offence and offenders, as well as the processing of these cases in the criminal justice system. The distinctive focus of the new offence also provided an opportunity to re-examine media reporting of domestic abuse and constructions of perpetrators and victims.

In total, 452 media stories were identified relating to 145 individuals charged with, or convicted of, controlling or coercive behaviour. There were multiple news stories published about most cases; for instance, at least 24 news articles were published about a single case in which a man stalked and controlled his wife on social media by pretending to be her ex-boyfriend (Case 65), and a great deal of sensationalist attention was directed to the first case in which a woman was convicted of the offence (Case 102). The existence of multiple reports on most cases (78 cases) allowed for some examination of the reliability of information. The source of the media reports ranged from more reputable national outlets (such as the BBC and The Guardian) to local news outlets (such as Kent Online, the Lancashire Telegraph and the Birmingham Mail) and, to a lesser extent, also included tabloid outlets (most notably, the Daily Mail). Where both tabloid and non-tabloid outlets reported on the same case (which was almost all cases covered by a tabloid outlet), reports by non-tabloid outlets were preferred for reliability.

Of the 145 unique individuals identified in the reports, there was insufficient detail to determine the outcome in 27 cases (usually because the media report preceded the finalisation of the proceedings); these cases were not further analysed. Data released by the Ministry of Justice (ONS, 2017, 2018) suggest that we obtained a reasonable sample of cases from the relevant period. Our dataset included 69 offenders who were sentenced in 2016 and 2017; Ministry of Justice data reveal that in those same 2 years, there were a total of 281 offenders sentenced for controlling or coercive behaviour, indicating that our cases constitute about a quarter of all cases in that period.

At the outset, two features of the data warrant express acknowledgement: first, the data analysed in this article are restricted to cases in which a prosecution was initiated and reported and therefore do not purport to be a full account of how police have operationalised the new offence; second, the data in this article rely on media reports, which may therefore be biased towards more serious and sensational cases (e.g. Crown Court cases rather than Magistrates’ Court cases) and also cases in which convictions were obtained.

Characteristics of perpetrators and victims

In the 118 cases analysed, 107 defendants were convicted and sentenced, and the other 11 were either acquitted or had the charge dismissed. This reflects a conviction rate of 91%. Most of the subsequent analysis is based on the 107 cases in which offenders were convicted and sentenced for the offence (including four cases in which the offender was convicted of two charges of controlling or coercive behaviour: Cases 15, 39, 52 and 57).

Gender of offenders and victims

Unsurprisingly, 106 of the 107 offenders sentenced for controlling or coercive behaviour were male. Also unsurprisingly, nearly all victims were female; there was only one male victim (and in this case, the offender was female). These results are predictable in the context of the gendered nature of domestic violence. Although the offence of controlling or coercive behaviour is legislatively expressed in gender neutral terms, it was introduced as part of the Violence Against Women and Girls Strategy (VAWG) with prosecutions taking place ‘within an overall framework of VAWG and human rights’ (Crown Prosecution Service, 2017b). Our results are also consistent with statistics recently released by the Ministry of Justice (ONS, 2018), which reported that 222 of the 223 offenders sentenced for the offence in 2017 were male. In addition to nearly all victims being female, it was also noteworthy that in seven cases, the victim was pregnant at the time of the offending; previous research has found that pregnant women are at particularly high risk of intimate partner abuse (Dahlen et al., 2018).

Although female victims tend to be over-represented in media reports of crime generally (Dowler et al., 2006), it is unlikely that male victims were under-represented in these specific reports, as male victims of coercive and controlling behaviour contravene both conventional expectations and theoretical understandings about male victimisation and female offending. Indeed, the only female offender identified (her victim was male) was the subject of many media reports (Case 102) and, consistent with previous research, those reports tended to be sensationalist (e.g. Morgan and Politoff, 2012: 41). The case involved a 22-year-old woman who was convicted of controlling or coercive behaviour after the court accepted evidence that over a period of 7 years, she had stabbed her boyfriend, scalded him with hot water, made him sleep on the floor for 9 months, controlled what he wore, isolated him from friends and family and controlled his Facebook account. It is also worth noting that the only two other cases in which women were charged with the offence (but not convicted) also happen to be the only two cases in which there was a co-defendant, and both co-defendants were male (Cases 108 and 135).

Age of offenders and victims

The average age of offenders whose age was identified in the reports (106 cases) was 35 years and ranged from 16 years (Case 1) to 89 years (Case 101). The average age of victims, in cases where their age was reported (33 cases) was 38 years, ranging from 18 years (Cases 85 and 94) to 85 years (Case 80). This does, however, include the ages of a number of victims who were either the mother (Cases 6, 12, 34, 35 and 80) or grandmother (Case 53) of the offender. The average age of victims who were a current or previous intimate partner of the offender was 32 years.

Types of relationship

The offence of controlling or coercive behaviour is limited to relationships where the perpetrator and victim are ‘personally connected’ (Serious Crime Act 2015 (UK) s 76(1)(b)), requiring that the parties were in a current relationship at the time of the offending or were living together at the time of the offending and are either members of the same family or were previously in an intimate relationship (Serious Crime Act 2015 (UK) s 76(2)). Ninety percent of the convicted defendants offended against an intimate partner, either a then-current partner (84%) or an ex-partner (6%). In the remaining cases, the relationship was either unspecified (5%) or the victim was the offender’s mother (Cases 6, 12, 34, 35 and 80) or grandmother (Case 53).

Prior family violence history

The most relevant factor in family violence risk assessments tends to be whether the offender has a history of family violence (Berk et al., 2016; Fitzgerald and Graham, 2016). More than 20% of convicted offenders (in 22 cases) were reported to have had prior convictions for family violence, usually against a different victim (14 cases). In one case, the offender had prior convictions involving five different ex-partners (Case 75).

Characteristics of the offending

For many years, police and criminal justice systems measured domestic abuse by the ‘number of hits’ the offender inflicted upon his partner (the ‘violent incident model’: Stark, 2012). However, feminist researchers and activists have provided a broader and more contextualised approach that emphasises power, coercion and control, and locates abusive relationships within gendered structural and cultural inequality (e.g. Dobash and Dobash, 1979: 15). This latter approach generated a notable shift in the conceptualisation of domestic abuse; it is increasingly being measured not by individual incidents of physical violence but by the presence of coercive control and the cumulative effect of both physical and non-physical abuse over the course of a relationship. Evan Stark, the contemporary theorist whose work underpins the new offence, describes controlling or coercive behaviour as comprising a number of consistent behaviour types, including intimidation, violence and degradation (coercion), as well as isolation and regulation (control) (Stark, 2007, 2012: 207–212). There is some overlap between these categories: destroying a partner’s mobile phone, for example, can constitute intimidation, isolation and regulation. Nevertheless, these five categories of behaviour offer a useful starting point in analysing the behaviours of offenders who have been sentenced for controlling or coercive behaviour. Utilising Stark’s (2012) five sub-categories, physical violence, intimidation, degradation, isolation and regulation, we conducted a thematic analysis of the identified media reports in order to understand the proven behaviours of offenders in successfully prosecuted cases (see, for example, Vaismoradi et al., 2016).

Physical violence

In 82 of the 107 successful prosecutions, the offender was reported to have engaged in some form of physical or sexual violence against the victim (Table 1). Most offenders engaged in more than one form of violence during the relationship, with the most common forms of reported violence being strangulation (in 27 cases) and punching (22 cases). The high incidence of strangulation, in particular, is consistent with recent recognition that this is a common behaviour of domestic abuse perpetrators (Stansfield and Williams, 2018; Douglas and Fitzgerald, 2014). Other forms of physical violence included headbutting, kicking, hair pulling and even waterboarding and attempted drowning. Of those 82 cases involving physical or sexual violence, 47 offenders appear to have been charged with a distinct offence for that violence (such as an assault offence), while in the other 35 cases, the violence appears to have instead contextualised the controlling or coercive behaviour without an additional offence being laid. In the remaining 25 cases in which media reports made no mention of actual physical violence, 14 involved threats of such violence. There were only four cases in which the media reports expressly indicated that the offender had not engaged in any form of actual or threatened physical or sexual violence (in seven cases, no relevant information was provided about the offender’s behaviour).

Table 1.

Controlling or coercive behaviours: violence.

Category of behaviour	Specific behaviour	n
Violence	Strangle	27
	Punch	22
	Use weapon	11
	Spit	11
	Kick	10
	Pull hair	10
	Sexual assault	8
	Suffocate/drown	8
	Pin against wall	8
	Slap	8
	Burn	5
	Bite	5
	Other/unspecified	33

Intimidation

Intimidating tactics include threatening violence towards the victim or people close to the victim (including self-harm by the offender), threatening to harm (or actually harming) a pet belonging to the victim and threatening to destroy (or actually destroying) property belonging to the victim or someone else. Of the 45 cases in which the offender threatened violence against the victim, 19 involved threats to kill the victim, while the other 26 threatened some other form of violence (Table 2). There was considerable diversity in the threats made. One offender threatened to cut off his wife’s fingers when he found her communicating with another man on social media (Case 76), two offenders threatened to throw their partners out of moving cars (Cases 16 and 106), four offenders threatened to set fire to the victim’s or someone else’s house (Cases 8, 19, 23 and 29) and 11 offenders threatened to, or actually did, commit self-harm, particularly when faced with the prospect of the victim ending the relationship. In the cases involving actual or threatened animal abuse, one offender threw his partner’s kitten against a wall (Case 17), another killed his partner’s cat by blunt force trauma to its abdomen (Case 46), one threw his partner’s kitten off of a balcony (Case 50) and a further offender killed multiple hamsters that his girlfriend successively brought home to test whether he was ready to have a baby (Case 30). The prevalence of animal abuse by offenders supports previous research that suggests that animal cruelty commonly co-occurs with family violence (Degue and Dilillo, 2009; Faver and Strand, 2003; Sentencing Advisory Council, 2019: 55) and is correlated with callousness in male perpetrators (Gupta, 2008).

Table 2.

Controlling or coercive behaviours: intimidation.

Category of behaviour	Specific behaviour	n
Intimidation	Threaten to harm or kill victim	45
	Threaten to harm or kill other	12
	Destroy property	10
	Animal abuse	6

Degradation

Degrading tactics include belittling and shaming the victim, particularly by exploiting the victim’s vulnerabilities. There were at least 30 cases in which the offender verbally abused their partner (Table 3). Consistent with the finding below that many offenders were insecure about their partner’s fidelity and regularly accused them of cheating, at least five offenders referred to their partner as a ‘slut’ or a ‘slag’. At least eight more offenders criticised the victim’s appearance, calling them ‘ugly’, ‘fat’ or similar and another nine offenders used other offensive or insulting language, such as racial slurs (Case 40) or calling the victim a ‘cripple’ (Case 58). In three cases, the offender threatened to expose sexually explicit images of the victim (Cases 2, 13 and 92). Other degrading acts offenders engaged in included urinating on the victim (Case 87), pouring a can of beer on her (Case 93), stripping her and throwing her clothes out the window (Case 78), forcing the victim to work at a strip club (Case 51) or attempting to force the victim to have sex with other men (Cases 13 and 77).

Table 3.

Controlling or coercive behaviours: degradation.

Category of behaviour	Specific behaviour	n
Degradation	Verbal abuse	30
	Threaten to expose private images	3
	Other	7

Isolation

Isolating tactics include preventing the victim from leaving the house, from working, from seeing friends or family or from communicating with friends and family via electronic means. In 34 cases, offenders attempted to stop the victim from seeing friends or family, thereby cutting them off from lines of support (Table 4). One offender, for example, threatened to break his partner’s legs after she organised a family meal without his permission (Case 15), and another prohibited his wife from making phone calls to family in private, thereby ensuring that he could monitor her communications (Case 90). In one extreme case of isolation (Case 52), the offender – who apparently was not physically abusive – would not allow his wife to use the Internet or phone unsupervised, unplugged all technology when he was not around and locked their bedroom door from the inside at night, sleeping with the key under the mattress. The victim only managed to escape by secretly establishing an Internet connection and seeking help via Facebook to let friends know she was being kept prisoner in her own home.

Table 4.

Controlling or coercive behaviours: isolation.

Category of behaviour	Specific behaviour	n
Isolation	Stop victim seeing family/friends	34
	Stop victim leaving house	20
	Destroy or confiscate phone	20
	Confiscate identity documents	2

In 20 cases, the offender prohibited the victim from leaving the house. Most of these offenders did so with the intention of preventing their partner from socialising, but some were trying to keep other people from seeing the bruises they had inflicted (Case 1). One offender threatened to hurt the next person he saw if his wife left the house (Case 91), another locked the doors from the inside and would not permit his wife to have house keys (Case 106) and a further offender prevented the victim from leaving the house to attend hospital appointments (Case 58). In another 10 cases, the offender forced the victim to stop working or at least threatened or attempted to get the victim fired. In Case 77, for example, the offender insisted that the victim give up her job so that she could beg with him on the streets, and in Case 99, the offender would hide the victim’s car keys so that she could not go to work.

In a further 20 cases, the offender destroyed or confiscated the victim’s phone. For example, in Case 85, the offender moved in with his partner at her student residence and forced her to get rid of her phone and computer and prohibited her from accessing her social media accounts. (Notably, these cases involving confiscation or destruction of a partner’s mobile phone are distinct from the 36 cases (discussed below as a form of regulation) in which the offender monitored or controlled the victim’s use of their phone and social media without destroying or confiscating it.).

Regulation

Regulating tactics include controlling what the victim does, where they go and what they can wear. This is perhaps the broadest category of behaviour, and in Stark’s theorising, it constitutes the ultimate goal of many of these offenders. The violence, intimidation, degradation and isolation are all generally geared towards the single aim of overriding the victim’s autonomy. In this research, we categorised regulation behaviours as either monitoring (oversight of the victim’s actions and interactions) or manipulation (requiring the victim to do, or refrain from doing, something) (Table 5). The most common form of monitoring behaviour was monitoring or controlling the victim’s social media or phone usage (36 cases). One offender, for example, prohibited the victim from having passwords on her phone (so that he could easily access its contents), suspended her mobile phone account and changed her Apple ID password (Case 57). In some cases, this monitoring was designed to perpetuate the victim’s isolation from friends and family, but more frequently it was to prevent the victim from communicating with other men. Five offenders, for example, prohibited their partners from having any male contacts in their phones or social media accounts (or even went through and deleted the contacts themselves). Indeed, extreme jealousy and insecurity seemed to manifest in many cases. Offenders frequently accused victims of infidelity (27 cases), with some offenders searching their partner’s homes because they believed other men might be there (Cases 25 and 32), examining their wife’s genitals to ‘check if she had been with other men’ (Case 44) and conducting body searches for marks of infidelity (Case 20).

Table 5.

Controlling or coercive behaviours: regulation.

Category of behaviour	Specific behaviour	n
Regulation	Monitor/control social media, phone	36
	Question fidelity	27
	Control finances/economic resources	26
	Impose rules	20
	Surveillance	17
	Control clothes, make-up	17
	Make victim sleep on floor	4
	Control diet	4
	Other	5

There were also 17 cases in which the offender engaged in some other form of surveillance. For example, one offender paid men to watch the victim at work to ensure she did not flirt with other men (Case 4), another followed his partner to and from work (Case 21), one put a tracker in his partner’s car and CCTV cameras in her home (Case 23) and yet another secretly recorded the victim’s conversations in her car and home (Case 27). In nine cases, the offender also demanded a report about, and/or evidence of, the victim’s activities while either he or she had been out of the house.

The most common form of manipulation was controlling, or at least demanding control of, the victim’s finances or other economic resources (26 cases). For example, offenders variously demanded that their victims give them money to buy drugs (Case 29), fund a gambling addiction (Case 40) or fly overseas to purchase camping equipment (Case 6). Demands were made to hand over inheritance money (Case 14) and money from a birthday gift (Case 30). A further three offenders caused the victim to incur substantial debt (Cases 29, 53 and 75), while another offender only permitted his partner a £10 allowance each week (Case 61).

In 20 cases, offenders regularly imposed rules on their partner. This included, for example, demanding that their partner do all the cooking and cleaning (Case 80) or that their partner answer the phone when he called, no matter what she was doing, even if she was on the toilet (Case 16). In one case, the offender imposed three rules just before he and the victim were married: that as his wife, she would obey him, that she would not fly alone except in an emergency and that she must listen to, and trust, him (Case 27). In addition to the general imposition of rules, there were 17 cases in which the offender dictated what clothing the victim was permitted to wear (or prohibited from wearing) and whether she was allowed to wear make-up. In a further four cases, the victim was made to sleep on the floor (or at least, not in their own bed), sometimes for one night (Cases 11 and 90) and in other cases, for months (Cases 43 and 102). In four cases, the offender controlled what the victim ate or drank (Cases 4, 52, 81 and 102), in one case, the offender made the victim engage in shoplifting (Case 73), and in two cases, the offender controlled when the victim slept (Case 81).

The criminal justice processing of these cases

Of the 107 cases that resulted in a conviction, 95 were finalised in the Crown Courts and the remaining 12 were finalised in the Magistrates’ Courts. This may indicate that most controlling or coercive behaviour prosecutions are determined in the Crown Court, though this could also be affected by other offences in the case having a higher maximum penalty or the possibility that the media are more likely to report proceedings in higher courts (given that the more serious, and therefore sensational, cases are likely to be sentenced in the higher courts).

The most common mechanism by which an offender was found guilty of controlling or coercive behaviour was via a plea of guilty (73% of cases). In most of the remaining cases, the offender was found guilty following either a jury trial or bench trial (21%), though there were also another seven cases in which the manner of conviction was not specified. In the 11 cases that resulted in the controlling or coercive behaviour offence being dismissed or acquitted, a jury found the defendant ‘not guilty’ in five cases; the charge was dropped because of a plea bargain in another four cases, and in the remaining two cases, the charge was dropped because the victim no longer wished to testify (Case 110) or the victim and the offender were found not to be in a relationship at the time of the offending (Case 113), thereby excluding the applicability of the offence, given they were also not living together (McGorrery and McMahon, 2019).

Sentencing outcomes

The most common sentencing outcome was a custodial sentence (75%), followed by a suspended sentence of imprisonment (16%), a community order (7%) or another type of sentence (3%). Other sentence types included a fine (Case 38), a 2-year training and detention order (Case 1) and 9 months of youth detention (Case 43). While this could suggest that there has been an increase in the rate of custodial sentences for the offence of controlling or coercive behaviour over the last couple of years, up from 48% in 2016 (ONS, 2017) to 76% in the present data, more recent ONS data suggest that the increase in custodial sentences has been more moderate (54% of offenders sentenced in 2017: ONS, 2018). In the cases where media reports identified the duration of the prison term for the controlling or coercive behaviour offence (46 cases), sentences ranged from 3 months of imprisonment (Case 98) to 4 years (Cases 21 and 61); the average sentence of imprisonment was 19 months (slightly higher than the average sentence of 17 months previously reported by the Ministry of Justice: ONS, 2017, 2018). The present research having identified both a higher likelihood of a custodial sentence and slightly longer average prison sentences supports the suggestion that the cases analysed in this article represent the more serious instances of the new offence, most likely due to the source of information about those cases (media reports).

The two offenders who received the longest sentences received what is currently the highest end of the sentencing range under the sentencing guidelines published by the Sentencing Council. Although not in effect at the time those two offenders were sentenced, the guidelines suggest that sentences in that range (4 years’ imprisonment) require high culpability, high harm and significant aggravating factors (Sentencing Council for England and Wales, 2018). One of these offenders appealed his sentence, but the appeal was dismissed on the basis that his offending represented ‘one of the more serious offences of this type’ (Dickson, 2018). Conversely, in the case in which the offender was sentenced to a £250 fine (Case 38), the sentencing judge explained that this was because the offending behaviour (using a number of devices to track and surveil his wife) had ended more than a year prior.

A large proportion of offenders was also reported to be subject to a restraining (intervention) order as an ancillary sentencing order, prohibiting them from contacting the victim or victim’s family (58% of cases, 62 offenders). There was also a limited number of cases in which, despite the successful prosecution, the victim specifically requested that the sentencing court not impose a restraining order. In two cases, the victim wanted to continue the relationship (Cases 69 and 95). In another two cases, the victims had attempted to withdraw their complaints and so a restraining order was deliberately not issued (Cases 81 and 93); in a further case, after the victim apologised to the perpetrator and shouted that she loved him as he was arrested, the court chose not to issue a restraining order (Case 88).

Limitations of the data

Before considering the implications of the findings, the limitations of the data must be acknowledged. Data derived from media reports have limitations, including variations in recording and interpreting key phenomena, which results in uncertainty about the consistency of the data, a matter which is compounded by selection bias in media reporting of criminal cases. However, there was a marked homogeneity in the reports, most likely a product of the key source from which the reports were derived: court proceedings. There were very few discursive, extended media reports of the offence and offender; most reports were brief, provided a description of the offending and the offender, had some reference to the impact on the victim and frequently quoted the presiding judge. Despite the nature of the shockingly abusive behaviours that were reported, the media reports were largely, in Schlesinger et al.’s (1991) terminology, ‘mundane’.

The remarkably successful prosecution rate of 91% may have been due to extreme diligence and/or caution by investigators and prosecutors during the early years of the offence being in operation, or it could be that the focus on convicted offenders necessarily attenuated the current research to a highly selective group of cases: those where a crime had been reported, recorded, investigated and a perpetrator charged and prosecuted. More recent statistics from the Ministry of Justice, for example, suggest a far lower conviction rate, with just half of the 468 offenders prosecuted in 2017 having been convicted (ONS, 2018), although it is not clear whether the remaining cases in that data were all dismissed or withdrawn or whether they also included cases that had not yet been finalised. A comprehensive understanding of the offence and offenders requires a broader context that frames these cases within situational and structural factors that contribute to the crimes and their processing in criminal justice systems, including the factors that influence charging decisions by police and those that cause offences to ‘drop off’ at various points in the criminal justice system. This understanding would counter the emphasis in media reports on character defects in individual offenders that occludes the structural and systemic factors that contribute to this offending (Taylor, 2009). It would also go some way to address the questions posed by Tolmie (2018) in relation to whether the offence is differentially prosecuted because of a reluctance of lower socioeconomic status victims to cooperate with police and whether these victims are especially vulnerable to being marginalised in these prosecutions. Given that the offence can be prosecuted without the cooperation of victims (and that this occurred in two cases in the current study), these issues are significant.

Nevertheless, these limited data constitute an original and reliable empirical contribution to a discussion, which thus far has been speculative, and contribute to the literature on media reporting of crime, providing insights into the reporting of forms of abuse that previous researchers have noted to be absent from most media stories concerning domestic violence (Sutherland et al., 2017: 22).

Discussion

These data do not support the fear that the new offence would be misused through female victims being mistakenly identified as perpetrators (Tolmie, 2018; Walklate et al., 2018). Instead, the data confirm that the offence is highly gendered: offenders were overwhelmingly male (>99%), and the majority of victims were current or previous female intimate partners (90%). Furthermore, in the sole case in which a woman was charged with controlling or coercive behaviour, features of the case – long duration, multiple abusive behaviours directed at her male partner, confirmatory evidence from independent witnesses (neighbours) – suggest that the charge and conviction were appropriate and were not the result of a misidentification of the perpetrator of controlling or coercive behaviour in the relationship. The near-exclusive prosecution of men for this offence is likely at least partly attributable to police and prosecutors having been sensitised by statutory guidance issued by the Home Office (2015), which draws attention to the gendered nature of intimate partner abuse. Data from both the Ministry of Justice (ONS, 2018) and Barlow et al.’s (2019) recent analysis of coercive control offences recorded by Merseyside Police support these results (respectively finding that 97% and 95% of recorded perpetrators were male) and further confirm that these results cannot be explained as a distortion resulting from female victims tending to be over-represented in media reports (Dowler et al., 2006). Instead, the existence of a male victim of this offence was sufficiently contrary to expectations that it garnered intense media interest (see Naylor, 2001: 182, Case 102).

There was also no evidence to support Tolmie’s (2018) fear that the operation of this new law might disenfranchise women, rather than empower them, because the criminal justice system might infer coercion (abuse) when the relevant behaviours fall within the boundaries of acceptable human interactions. Indeed, the evidence is very much to the contrary. The extremity of the behaviours that constituted the controlling or coercive behaviour in the cases analysed, with offenders keeping their partners under surveillance, forbidding them from being employed, taking their mobile phones, prohibiting or monitoring their use of social media and killing pet animals, suggests that police and/or the Crown Prosecution Service have adopted a high hurdle for determining what constitutes offending behaviour. This high standard for behaviour to qualify as controlling or coercive has minimised the risk of dispute about whether the relevant conduct could be said to fall within the boundaries of acceptable human interactions. To the contrary, it could suggest that the offence is being under-prosecuted. This would certainly seem to be collaterally supported by the high rate of guilty pleas (73%), notably higher than the rate at which all offenders tend to plead guilty in England and Wales (around 60%–62%: Ministry of Justice, 2018: 12), which could be attributable to a highly selective approach to prosecuting cases involving extreme behaviours, physical violence and/or considerable corroboratory evidence.

It is also significant that the controlling or coercive conduct in the vast majority of these cases was accompanied by numerous incidents of actual or threatened physical violence. These results are congruent with general research on domestic violence that reports that most victims experience both physical and psychological abuse, with only about 14% experiencing psychological abuse alone (Coker et al., 2000). This seems to suggest that the operationalisation of the new offence may have ended up reflecting the true nature of family violence – as commonly, but not inevitably, involving some form of physical violence – in spite of parliament’s stated understanding of it (confirming that criminalisation of conduct occurs in both formal and substantive ways: Lacey, 2009). In terms of whether the violence should be separately charged or contextualise the coercive control offence, the Crown Prosecution Service (2017a) recommends laying a separate charge ‘if the offence represented a particular aggravating aspect of the defendant’s conduct’ (see also McGorrery and McMahon, 2019).

The prevalence of violence in these cases raises a number of significant issues for consideration. First, what is the appropriate interplay between existing offences and the new offence (when should they be charged separately, and when should the violence instead constitute part of the alleged coercive control)? Second, which conceptualisation of coercive control does the offence represent: Stark’s (2012), whereby physical violence is a component of coercive control, or Parliament’s, whereby the offence was expressly intended to only capture non-physical abuse (Wiener, in press)? And third, what are we to make of the high rate of physical violence in these cases; are victims only reporting, or police only identifying, coercive control when there is violence of some sort, or is violence (as Stark suggests) a near-inescapable component of most controlling and coercive relationships?

The media reports generally were in the form of what Schlesinger et al. (1991) described as ‘mundane stories’, that is, brief reports limited to key factual details concerning the offender and the offence. Interestingly, reports of this offence did not appear to share the common, previously noted characteristic of blaming female victims for their victimisation (e.g. Berns, 2004; Bullock and Cubert, 2002; Taylor, 2009). In particular, it appears that media portrayals of victims were generally sympathetic. There was no evidence of the trivialisation of violence (Sutherland et al., 2017) or the negativism towards victims or victim-blaming reported by other researchers who have investigated media representations of domestic violence (e.g. Anastasio and Costa, 2004). These brief reports of cases appeared to instead focus predominantly on the offender’s behaviour. There were very few instances when an offender’s behaviour was explained as out-of-character or due to ‘losing control’, nor did the reports normalise the violence or suggest that the offender was not responsible by providing excusatory narratives identifying alcohol or other similar factors as contributing to the offending. Indeed, the reported sentencing remarks of judges clearly located responsibility for the offending with the offender, condemning convicted offenders as behaving like Jekyll and Hyde (Cases 16 and 56), as ‘cruel and contemptuous’ (Case 30), as causing their partner to experience ‘what must have been a living nightmare’ (Case 3) and as treating their victims like property so that they ‘could feel like a man’ (Case 8). The behaviour of other offenders was similarly described as ‘vicious’, ‘immature’, ‘cowardly’ and ‘bullying’ (e.g. Cases 8, 23, 31 and 55).

How to move forward? The next step in researching this phenomenon is the investigation of primary data (see, for example, Barlow et al., 2019). Only this level of analysis will give greater confidence in the conclusions offered herein and address some of the more uncertain aspects of the current study. In the interim, this review of media reports relating to individuals charged with and/or sentenced for controlling or coercive behaviour contrary to s 76 of the Serious Crime Act should hopefully assuage at least some of the concerns raised by those expressing caution. More importantly, it is hoped that these findings will prompt further research into the operationalisation of the various family violence offences in Tasmania, England and Wales, Scotland and Ireland.

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.

ORCID iD

Paul McGorrery

Author biographies

Paul McGorrery is a PhD candidate with Deakin Law School. His research focuses on how the criminal law responds to the wrongful infliction of psychological harm, particularly in the context of family violence.

Marilyn McMahon is a professor of Criminal Law and the Deputy Dean of Deakin Law School. Her research focuses primarily on criminal law, criminal procedure and evidence, particularly where issues arise in relation to the mental state of those charged with crimes.

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