Introduction
Since the conception of Domestic Violence legislation in England and Wales (Domestic Violence and Matrimonial Proceedings Act 1976), the focus has been the prevention of physical harm to a victim. In the ground-breaking legislative shift, ‘matrimonial injunctions’ which could be applied for through civil means, were introduced. Sadly, power of arrest only became an added possibility if a judge was satisfied the other party had already committed the serious offence of actual bodily harm. Physical harm continued to be the focus of government policy and legislation throughout reform introduced through the Family Law Act 1996[1] and the Domestic Violence, Crime and Victims act 2004[2], which sought to clarify non-molestation orders and the list of those that could apply.
Pressure groups such as Paladin criticized this approach, believing that it neither provided adequate legal protection, nor did it reflect the true experience of victims.[3] Through case studies and data collection, academics began developing theories surrounding emotional abuse, with the most influential being Evan Stark, who used the term coercive control to describe behaviour between intimate partners that included humiliation, domination and Isolation.[4] In 2013, the Home Office adapted their ‘working definition’ of domestic abuse[5] as a response to the growing studies surrounding Coercive control and outcries from the Domestic Violence Reform Campaign (DVLRC).
However, the DVLRC sought dramatic changes, suggesting that existing legislation failed on three main points. Firstly, the focus on physical harm ignored the potentially greater effect of these coercive and controlling behaviours; secondly, it did not recognize the patterned nature of this abuse; and lastly, it did not recognize the gendered nature of domestic abuse.[6]
Finally, in 2015 the UK became the first country to make “coercive and controlling” behaviour a specific criminal offence.[7] This paper aims to investigate the effect of these changes and the criminalization of coercive control.
In 2015, the UK became the first country to make “coercive and controlling” behaviour a specific criminal offence
Coercive control legislation and criticism
The offence as defined in Section 76 (appendix 1) of the Serious Crimes Act 2015[18] consists of 4 key elements;
- Repeated ‘controlling or coercive’ behaviour.
- ‘Personal connection’ between a victim and perpetrator.
- The ‘serious effect’ of the behaviour on the victim.
- The perpetrator’s knowledge of this effect.
the legislation aimed to ‘close a gap in the law around patterns of controlling or coercive behaviour in an ongoing relationship between intimate partners or family members.’[19] It was seen as a positive step forward in the fight against domestic abuse as it addressed two points of concern from the DVLRC. Section 76 relies heavily on Stark’s work with one significant difference: there is no reference to gender. Stark, upon review, preferred the more recent Scottish legislation[20] which is paired with gendered policies and aims to work alongside existing offences. Alongside disapproval for the gender-neutral nature of s76, Stark also criticised its over-generalised wording. It is true that the powers of the criminal justice system have been broadened to encompass a wider range of behaviour, potentially increasing protection for victims, but it is not entirely clear where the boundaries lie.
Most issues arise from unclear or general language, including the phrase ‘behaviour that is coercive or controlling.’ As we have established there is no clear definition of coercive control and the only indication of behaviour that is covered by statute are the vague government guidelines.[21] This leaves far too much room for interpretation and potential misapplication.
Furthermore, the definition provided for ‘serious effect’[22] is based purely on victim experience. This presents such a broad spectrum of possibilities; it hardly has meaning at all. It may be a sensitive process as each person is different, however it seems a standard should be established to avoid needless intervention in the normal functions of intimate relationships, such as compromise and financial budgeting. Meanwhile, a perpetrator is held to a test that is a confusing mix of subjective and objective standards, both having to avoid what they know to be wrong and what they ought to know would cause distress or an effect on their partner’s day to day activities.
Literature Review
While the term coercive control appears to have been coined in the 1970s[8] the father of its modern adaptation is often considered to be Evan Stark. Stark’s has been an influential voice in the discussion around coercive control and much of his theory was considered when constructing s76. As such, his works provide an important base knowledge of coercive control and its implications. Stark recently reviewed the implementation of the new UK legislation in an issue of Violence Against Women [9] where he remains highly insistent that domestic abuse is a gendered issue and that coercive control is the abuse of traditional domestic stereotypes. While Stark’s work provides valuable insight into coercive control theory, his gender bias and focus on female narrative render experiences outside of his own construct almost completely invisible.
Further to Stark’s review, commentary on the introduction of coercive control laws has seen an increase in recent years (see inter alia Walklate and Fitzgibbon 2019, Weiner 2017 and Tolmie 2018), likely attributed to the time that has passed since implementation. Barlow et al, conducted a comprehensive study of one northern police force and their response to the offence of coercive control[10]. While it is acknowledged that there may be a great variance between regions, this study helped to paint a clear picture as to how this legislation is being used on the frontline, including its achievements and failures. Barlow et al’s study may be seen as a useful insight into police practice in this area. However, its focus on reported numbers ignores the widespread under-reporting of intimate partner violence.
What is coercive control
A 2013 government circular re-defined domestic abuse to include ‘controlling, coercive or threatening behaviour… between intimate partners or family members’,[11] commonly referred to as coercive control. The new definition sought to highlight the mental elements of domestic abuse. However, there is an ongoing debate as to the true nature of coercive control with Hamburger at al. listing up to 22 definitions.[12] Stark theorises that it is similar to the holding of a hostage, where the victim is trapped within an invisible cage built from an ongoing pattern of abusive behaviours.[13] However, Stark regularly fails to address the experiences of male victims and LGBTQ+ relationships focusing solely on the male/female relationship dynamic and the abuse of gender stereotypes. He frames the issue of coercive control as one of gender inequality that can only be experienced by women.[14] A concept that has been contested by academics[15] and further refuted by recent studies that found equal numbers of male and female victims have been in a coercive relationship[16].
The term coercive control has become a catch-all for a wide scope of behaviours from extreme to unpleasant. Home office guidance questions have been designed to help identify domestic abuse. These questions range from ‘Does your partner blame you for fights?’ to ‘Does your partner burn you or choke you?’[17] This attempt to highlight abuse that goes beyond the physical, has reduced coercive control to a list of behaviours that still fails to accurately reflect the environment created for a victim by their abuser. The dramatic spectrum is also worrying and presents the question: is the seriousness of extreme behaviour becoming watered down by these acts being viewed as equally harmful? It attempts to establish a clear line where natural relationship issues, compromise and abuse diverge is particularly complex, as each relationship and experience is different. However, this leaves a us with a definition that often hinders rather than helps our understanding.
The definition provided for ‘serious effect’ is based purely on victim experience
Implementation and Issues
Recorded coercive control offences have been steadily increasing year on year since the law came into force in December 2015, with 9,053 offences in the year ending March 2018 almost doubling to 17,616 in the year ending March 2019.[23] However, conviction rates are consistently low with only 235 successes between the introduction of the offence and the end of 2019.[24] A study of one northern police force showed that over 30% of reported offences were dropped due to lack of evidence.[25] One explanation for this may have been identified by Barlow et al. who found that a lack of physical marks led to offences not being fully investigated by the partner force, with at least one officer disregarding a victim’s complaint as ‘one word against the other.’[26] The study also showed that coercive control was often only identified after a victim had experienced injury.[27] In these cases, a separate charge seems rather unnecessary, as crimes resulting in physical harm were chargeable under existing legislature.
Conclusions
It is clear that the coercive control law goes some way to address the concerns raised by academics and activists. It is the first piece of legislation to acknowledge the patterned nature of domestic abuse, as well as recognising both physical and mental forms of harm. However, the debated definition of coercive control and the vague language used to accommodate this debate has left both the victim and perceived perpetrator at risk. Coercive control laws claim to fill a gap, but this is yet to be achieved, with low conviction rates and a lack of support from victims, who are faced with numerous barriers to the justice promised.[28]
Some leading academics are unconvinced by the implementation of s76[29] and the protection provided for victims,[30] while others direct criticism towards its poor construction. Stark is particularly discouraged by the lack of recognition for his theories around gender and coercive control.[31] On review, the introduction of coercive control to the Home office working definition may have highlighted the mental elements of domestic abuse, but s76 is not fit for purpose. A lack of clarity and acknowledgement of the true nature of victim experience indicate domestic abuse law in England and Wales is ripe for further reform.
Bibliography
Books
Stark, E Coercive Control: how men entrap women in personal life (1st edn, OUP 2007)
Government Documents & reports
Gov.uk ‘Domestic abuse how to get help’ https://www.gov.uk/guidance/domestic-abuse-how-to-get-help#more-support-materials
Home Office ‘Controlling or Coercive Behaviour in an Intimate or Family Relationship: Statutory Guidance Framework’ (gov.uk 2015) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/482528/Controlling_or_coercive_behaviour_-_statutory_guidance.pdf
Home office, New government domestic violence and abuse definition (Circular 003/2013)
Journals
Barlow et al. ‘Putting coercive control into practice: problems and possibilities’ (2019) British Journal of Criminology 60(1): 160
Hamberger, K., Larsen, S. E. and Lehrnerd, A. (2017), ‘Coercive Control in Intimate Partner Violence’, Aggression and Violent Behavior, 37, 1
Tolmie, J. R; ‘Coercive Control: To Criminalize or Not to Criminalize?’ (2018), Criminology & Criminal Justice, 18: 5
Walby, S. and Towers, J. ‘Untangling the Concept of Coercive Control: Theorizing Domestic Violent Crime’ (2018), Criminology & Criminal Justice, 18: 7
Walklate, S; Fitz-Gibbon, K. ‘The Criminalisation of coercive control: the pawer of the law?’ (2019) International Journal for Crime, Justice and Social Democracy 8(4): 94
Wiener, C; ‘Seeing What is ‘Invisible in Plain Sight’: Policing Coercive Control’ (2017) The Howard Journal of Crime and Justice 56(4): 500
Webpages
Charlton, S; Paladin and Women’s Aid ‘Domestic violence law reform campaign’ (Paladin NSAS, 2014) https://paladinservice.co.uk/wp-content/uploads/2014/03/Domestic-Violence-Campaign-March-2014.pdf
Cowling, P ‘Domestic abuse: Majority of controlling cases dropped’ BBC news (December 2018) https://www.bbc.co.uk/news/uk-46429520
IBB solicitors ‘Coercive and Controlling behaviour’ (IBB Law, November 2018) https://www.ibblaw.co.uk/service/family-matrimonial/coercive-and-controlling-behaviour
Richards, L ‘So what exactly is coercive control?’ (laurarichards.co.uk, 2018) https://www.laurarichards.co.uk/coercive-control/
Richards, L ‘We must get the law to reflect the reality of domestic abuse’ The Guardian https://www.theguardian.com/theobserver/2014/jan/05/letters-domestic-violence-law
Stark, E; Hester, M. “coercive control: update and review’ (2019) Violence Against Women Issue 25(1), 81
Endnotes
[1] Family Law Act 1996
[2] Domestic Violence, Crime and Victims Act 2004
[3]Laura Richards, ‘We must get the law to reflect the reality of domestic abuse’ The Guardian https://www.theguardian.com/theobserver/2014/jan/05/letters-domestic-violence-law (January 2014) Accessed: 5 March 2020
[4] Evan Stark Coercive Control: how men entrap women in personal life (1st edn, OUP 2007)
[5] Home office, New government domestic violence and abuse definition (Circular 003/2013)
[6] Sara Charlton, Paladin and Women’s Aid ‘Domestic violence law reform campaign’ (Paladin NSAS, 2014) https://paladinservice.co.uk/wp-content/uploads/2014/03/Domestic-Violence-Campaign-March-2014.pdf Accessed: 5 March 2020
[7] Serious Crime Act 2015
[8] Laura Richards, ‘So what exactly is coercive control?’ (laurarichards.co.uk, 2018) https://www.laurarichards.co.uk/coercive-control/ Accessed: 26 March 2020
[9] Stark, Evan; Hester, Marianne. “Coercive control: update and review’ (2019) Violence Against Women, Issue 25(1), 81
[10] Barlow et al. ‘Putting coercive control into practice: problems and possibilities’ (2019) British Journal of Criminology 60(1): 160
[11] Home office, New government domestic violence and abuse definition (Circular 003/2013)
[12] Hamberger, K., Larsen, S. E. and Lehrnerd, A. (2017), ‘Coercive Control in Intimate Partner Violence’, Aggression and Violent Behavior, 37, 1
[13] Evan Stark Coercive Control: how men entrap women in personal life (1st edn, OUP 2007)
[14] Evan Stark Coercive Control: how men entrap women in personal life (1st edn, OUP 2007)
[15] Walby, S. and Towers, J. (2018), ‘Untangling the Concept of Coercive Control: Theorizing Domestic Violent Crime’, Criminology & Criminal Justice, 18: 7–28.
[16] IBB solicitors ‘Coercive and Controlling behaviour’ (IBB Law, November 2018) https://www.ibblaw.co.uk/service/family-matrimonial/coercive-and-controlling-behaviour Accessed: 19 March 2020
[17] Gov.uk ‘Domestic abuse how to get help’ https://www.gov.uk/guidance/domestic-abuse-how-to-get-help#more-support-materials Accessed: 13 February 2020
[18] Serious Crime Act 2015 s76
[19] Home Office ‘Controlling or Coercive Behaviour in an Intimate or Family Relationship: Statutory Guidance Framework’ (gov.uk 2015) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/482528/Controlling_or_coercive_behaviour_-_statutory_guidance.pdf Accessed: 19 March 2020
[20] Domestic Abuse (Scotland) Act 2018
[21] Home Office ‘Controlling or Coercive Behaviour in an Intimate or Family Relationship: Statutory Guidance Framework’ (gov.uk 2015) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/482528/Controlling_or_coercive_behaviour_-_statutory_guidance.pdf Accessed: 19 March 2020
[22] Serious Crime Act 2015 s76 (4)
[23] ONS domestic violence report https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/bulletins/domesticabuseinenglandandwalesoverview/november2019
[24] Patrick Cowling, ‘Domestic abuse: Majority of controlling caes dropped’ BBC news (December 2018) https://www.bbc.co.uk/news/uk-46429520 Accessed: 26 March 2020
[25] Barlow et al. ‘Putting coercive control into practice: problems and possibilities’ (2019) British Journal of Criminology 60(1): 160
[26] Barlow et al. ‘Putting coercive control into practice: problems and possibilities’ (2019) British Journal of Criminology 60(1): 160
[27] Barlow et al. ‘Putting coercive control into practice: problems and possibilities’ (2019) British Journal of Criminology 60(1): 160
[28] Sandra Walklate; Kate Fitz-Gibbon. ‘The Criminalisation of coercive control: the pawer of the law?’ International Journal for Crime, Justice and Social Democracy 8(4): 94
[29] Barlow et al. ‘Putting coercive control into practice: problems and possibilities’ (2019) British Journal of Criminology 60(1): 160
[30] Sandra Walklate; Kate Fitz-Gibbon. ‘The Criminalisation of coercive control: the pawer of the law?’ International Journal for Crime, Justice and Social Democracy 8(4): 94
[31] Hanna C (2009) ‘The paradox of progress: Translating Evan Stark’s coercive control into legal doctrine for abused women.’ Violence against Women 15(12): 1458
[32] Sandra Walklate; Kate Fitz-Gibbon. ‘The Criminalisation of coercive control: the pawer of the law?’ International Journal for Crime, Justice and Social Democracy 8(4): 94
[33] Hanna C (2009) ‘The paradox of progress: Translating Evan Stark’s coercive control into legal doctrine for abused women.’ Violence against Women 15(12): 1458
[34] Barlow et al. ‘Putting coercive control into practice: problems and possibilities’ (2019) British Journal of Criminology 60(1): 160
[35] Sandra Walklate; Kate Fitz-Gibbon. ‘The Criminalisation of coercive control: the pawer of the law?’ International Journal for Crime, Justice and Social Democracy 8(4): 94
[36] Stark, Evan; Hester, Marianne. “coercive control: update and review’ (2019) Violence Against Women Issue 25(1), 81