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.

Exploring Definitions and Prevalence of Verbal Sexual Coercion and Its Relationship to Consent to Unwanted Sex: Implications for Affirmative Consent Standards on College Campuses

“…If there is a concerted effort to protect women’s autonomy, then instances in which they consent to sex that is unwanted as a result of VSC should be considered as not freely given consent and perpetrators should be held accountable [ 46 , 186 ]. Other countries have begun to focus their response to violence against women in light of protecting women’s sexual autonomy and freedom from violence [ 187 ]. In order to do this, this would mean taking into account the circumstances in which she “consented” including examining the perpetrators behavior [ 94 , 169 , 183 , 184 ].…”

The ‘Coercive Control Framework’: Making Law Work for Women

“…Perhaps most confounding are cases where high levels of fear appear to have been evoked in victims by offender behaviours other than violence. Tolmie (2018) and Walklate et al (2017) have warned that, regardless of what definitions police are given, the narrow purview of a justice system attuned to physically violent incidents will constrain its response in these cases to extreme violence and thereby perpetuate the false impression that coercive control is rare. This is not, however, what has happened in England thus far.…”

“…Although the larger role of law enforcement is much debated in Scotland, the view of coercive control as a bespoke offence against women's rights is shared across a broad spectrum of actors. This view is not universally shared in England, Australia or America, however, not even among feminists (for example, see Walklate et al 2017;Tolmie 2018).…”

“…As our critics rightly suspect (Walby and Towers 2017;Walklate et al 2017;Tolmie 2018), expanding the definition from domestic violence to coercive control shifts the level of behaviour on which the law focuses, not merely its empirical content. From the incident to historical abuse or the pattern or course of conduct; from violence to other 'bad' acts, some of which are already criminal, some of which are only crimes now when committed by strangers and some of which become elements of a criminal pattern only in combination with other 'bad' acts; from injury and the intent to harm to a range of less tangible outcomes, including a 'reasonable probability' of causing fear.…”

The Criminalisation of Coercive Control: The Power of Law?

“…In particular, the creation of a new offence does not deal with any of the well-documented concerns women have for not engaging with the criminal justice process and, as Douglas (2018) has observed, may also create new opportunities for what she has termed 'legal systems abuse': perpetrators using the legal system to further assert control over their partners (see, e.g., research on protection orders and the criminalisation of women victims: Douglas and Fitzgerald 2018;Douglas and Nancarrow 2014). Additionally, such abuse can also contribute to the criminalisation of women, adding to their concerns about engagement with legal processes at all (see further Tolmie 2018).…”