The ‘controlling or coercive behaviour’ offence: a new narrative for victims of domestic violence?

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The introduction of the ‘controlling or coercive behaviour’ offence[1] represents an increase in ‘political enthusiasm’[2] to provide better legal responses to situations of domestic violence and abuse. Therefore, this essay seeks to critically discuss how introducing this offence has, to a large extent, remedied previously difficult applications of law within these situations.

This will be established by firstly, evaluating s76 of the Serious Crime Act 2015 and how it has remedied previously difficult applications of the law.[3] Secondly, by identifying problematic areas within the current legislation, this will help to identify areas for further development. Combining both these developments and recognising their current weaknesses will set the scope for future reform to ensure that the law continues to provide adequate protection for all victims of domestic violence and abuse.

Part I: Section 76 – a new narrative for victims

Pence identified coercion as a key feature of the ‘core tactics’[4] employed by abusers to maintain control.  Indeed, the Serious Crime Act 2015  appeared to recognise its prevalence in situations of abuse by making it an offence under s76.[5] However, it also portrays a more progressive approach to abuse, by developing away from the previous law of assault and thus recognising that abuse is not always manifested as an ‘isolated physical injury’[6] but as Dutton aptly summarised, ‘a continuing stage of siege’.[7] Therefore, this offence has remedied previous applications of this law by shifting focus away from the impairment of the ‘battered victim’ and onto the batterer’s ‘pattern of coercion and control’.[8]

The challenges of this previous focus can be seen in cases like Ahulwalia,where despite the abuser subjecting their spouse to years of abuse and violence, the focus on the victim and the lack of evidence supporting her impairment prevented her from relying on provocation as a defence for the murder of her abuser.[9] By providing clearer legislative guidance on prosecuting patterns of abusive and coercive behaviour, s76 [10] helps to prioritise the ‘real experiences of victims’ rather than just their impairment.[11] This is particularly clear in s4(a)[12] which regards how this behaviour may have a ‘serious effect’[13] on the victim and have an ‘adverse effect on their day-to-day activities’.[14] Legislating on these signs of non-physical abuse ensures the current law recognises how this harm can negate individual autonomy through years of verbal abuse, providing ‘systematic attacks of personality, accomplishment and values’.[15] The narrow focus of previous legislation on physical abuse is especially evident in Dhaliwal,where the abuser escaped liability for his wife’s suicide because the court would not recognise the years of verbal and non-physical abuse as being in correlation with the victim’s suicide.[16] The importance of being able to apply the law to these situations can be identified in Stark and Flitcraft’s study which found women subjected to this coercive behaviour were five times more likely to commit suicide.[17] By recognising the effects of long-term controlling and coercive behaviour, this new offence ensures the law no longer only protects victims of visible, physical abuse.

Part II: Current challenges with section 76

Despite s76[18] helping the law to better apply to situations of violence and abuse, two principal legislative areas still require further amendment; the ‘serious effect’ requirement[19] and ‘best interests’ defence.[20]

Although s76(1)(c)[21] accounts for the ‘serious effect’ that controlling and coercive behaviour can produce, this can be challenged by its ambiguity. Although Edwards outlines that this effect can be shown, using significant medical and psychological evidence,[22] Dhaliwal demonstrates the practical challenge for many victims who are required to provide evidence of this ‘serious effect’.[23] This criticism is supported by Bettinson who outlines the varying degrees of emotional and psychological damage and how they are dependent on the seriousness and frequency of coercive behaviour.[24] Therefore, in many cases, it can be very difficult to evidence a ‘serious effect’ when there are such great disparities in the harm sustained.

Furthermore, the ‘best interests’ defence has also been criticised for its challenging application, particularly its impact on disabled victims. Hague et al draw important attention to the impact of abuse on disabled women, who face increasing humiliation due to their impairment, yet remain dependent on their abuser.[25] Subsection 8of this offence provides a defence for controlling or coercive behaviour if the defendant believed they were acting in the victim’s ‘best interests’ and this was considered reasonable under the circumstances.[26]  Bettison criticises this defence for construing dominant and coercive behaviour as ‘paternalist and pastoral’, protecting ‘weak and vulnerable’ women and reinforcing ‘masculinist gendered tropes’.[27] Edwards supports this criticism and describes this defence as a loophole which may be ‘vigorously exploited’,reinforcing the need to further develop the application of this offence to better protect all victims of abuse.[28] 

Part III: Room for further reform?

As discussed, there is still scope to continue developing the application of this offence to a wide range of abusive situations. For instance, Edwards argues that despite introducing an objective test for the mens rea of the offence, it is inevitable that judges and the jury will revert back to their own views to determine what is ‘reasonable’,[29] particularly when deciding whether the defendant should have known the serious effects of their behaviour (s(1)(d)).[30] Therefore, implementing a programme which ‘trains statutory authorities and legal representatives’ to make fairer and less biased judgements could reduce the influence of stereotypes and judicial opinion that may be limiting protection for victims.[31] Furthermore, critical discussion of the ‘best interests defence’ reinforces how current law may not be applied to protect all victims of abuse.[32] Bettinson produces the favourable suggestion of limiting this defence to situations where prior medical advice has shown this seemingly controlling and coercive behaviour is needed in order to care for the victim, in their genuinebest interests.[33] The highly personalised nature of abuse and domestic violence means it cannot be limited to one piece of legislation. However, this discussion has outlined areas of development that could continue to reduce challenges in application that are limiting the protection of certain victims.

The future for ‘controlling and coercive behaviour’

To conclude, the introduction of the controlling and coercive behaviour offence appears to have removed difficulties in the applications of this law to situations of abuse to a significant extent. Producing clearer legislation that goes beyond the traditional, physical signs of assault has allowed the law to account for wider situations of domestic violence and abuse. However, critical evaluation of s76[34] has demonstrated that not all victims remain adequately protected by the law, with abusers of disabled women often escaping liability by applying the ‘best interests’[35] defence. Therefore, there needs to be continued discussion and progression to ensure the law can apply to all women facing abuse, in all their varying capacities and situations.

[1] Serious Crime Act 2015, s 76.

[2] Vanessa Bettinson, ‘Criminalising coercive control in domestic violence cases: should Scotland follow the path of England and Wales?’ (2016) 3 CLR 165, 166.

[3] Serious Crime Act (n 1), s 76.

[4] Susan Edwards, ‘Coercion and compulsion – re-imagining crimes and defences’ (2016) 12 CLR 876, 878

[5] Serious Crime Act (n 1), s 76.

[6] Susan Edwards (n 4), 878.

[7] M.A Dutton and L.A Goodman, ‘Coercion in Intimate Partner Violence: Towards a New Conceptualization’(2005) 52 Sex Roles 743.

[8] Susan Edwards (n 4), 880.

[9] R v Ahluwalia [1993] 96 Cr App R 133.

[10] Serious Crime Act (n 1), s 76.

[11] Susan Edwards (n 4), 882.

[12] Serious Crime Act (n 1), s 76(4)(a).

[13] ibid.

[14] ibid (4)(b).

[15] Vanessa Bettinson (n 2), 167.

[16] R v Dhaliwal [2006] EWCA Crim 1139.

[17] Vanessa Bettinson (n 2), 167.

[18] Serious Crime Act (n 1), s 76.

[19] ibid (1)(c).

[20] ibid (8)(a).

[21] ibid (1)(c).

[22] Susan Edwards (n 4), 880.

[23] Dhaliwal (n 16).

[24] Vanessa Bettinson (n 2), 168.

[25] ibid.

[26] Serious Crime Act (n 1), s 76(8).

[27] Susan Edwards (n 4), 882.

[28] ibid.

[29] Susan Edwards (n 4), 881.

[30] Serious Crime Act (n 1), s 76(1)(d).

[31] Susan Edwards (n 4), 878.

[32] Serious Crime Act (n 1), s 76(1)(c).

[33] Vanessa Bettinson (n 2), 171.

[34] Serious Crime Act (n 1), s 76.

[35] ibid (8)(a).

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