RESEARCH PAPER Understanding coercive control in the context of intimate partner violence in Canada: How to address the issue through the criminal justice system?
By : Carmen Gill, Ph.D., Professor, Department of Sociology, University of New Brunswick Mary Aspinall, Ph.D. candidate, Department of Sociology, University of New Brunswick
Submitted to: Office of the Federal Ombudsman for Victims of Crime, Department of Justice Canada 20 April 2020
When we started working on this research paper early in January, we were not aware of what would be happening in Canada and worldwide just a few weeks later…
We consider it important to illustrate how coercive control is part of intimate partner violence dynamics and that it needs to be addressed through the criminal justice system in Canada. We fully affirm our convictions in this paper.
However, after a month of social distancing and isolation, we now fear for all women and their children living in abusive relationships. Coercive controlling behaviours can clearly intensify, and being isolated in their homes results in even fewer opportunities for others to notice and provide assistance. We have to be cognizant of the danger faced by those in abusive relationships and find ways and tools to support them.
The direction being considered in this work is one important and critical way to make a better society.
Carmen and Mary
Table of Contents
- Conceptualization of Coercive Control within Intimate Partner Violence Situations
- Criminal Justice System Response to Intimate Partner Violence in Canada
- Criminal Laws on Coercive Control in England and Wales, Ireland, and Scotland
- Coercive Control in Northern Ireland, State of New York, and France
- Criminalization of Coercive Control
- Policing Coercive Control
- Importance of Addressing Coercive Control through the Criminal Justice System
In December 2019, the authors accepted an offer by the Federal Ombudsman for Victims of Crime (Department of Justice Canada) to write a research paper examining the issue of coercive control and the desirability for Canadian legislation to criminalize this form of psychological violence in intimate partner relationships.
From a criminal justice perspective, as it stands, it is difficult to recognize certain behaviours as being part of an intimate partner violence dynamic. This is the case with coercive control that does not necessarily involve physical violence or a single incident but a repeated or continuous pattern of behaviour that occurs over a period of time. Given that coercive control is not an offence in the Criminal Code of Canada, there is an important gap that impedes our ability to address the harm it causes to victims of intimate partner violence.
This paper summarizes the literature of the current research on coercive and controlling behaviour and how other countries, such as England and Wales, Ireland and Scotland have responded in terms of legislative frameworks. The limitations of the criminal justice system response are addressed throughout the paper, including police limitations to recognize the issue of coercive controlling behaviours in intimate partner violence situations.
The remedy to improve the criminal justice system response to intimate partner violence leads to the recognition of coercive control as an offence in the Criminal Code of Canada as well as to better address the dynamic of intimate partner violence from a justice perspective.
Intimate partner violence is a widespread societal issue around the world encompassing physical violence, sexual violence, emotional abuse and controlling behaviours as part of the dynamic of abuse (WHO, 2014). From a criminal justice perspective, it is difficult to recognize certain behaviours as being part of an intimate partner violence dynamic. This is the case with coercive control that does not necessarily involve physical violence or a single incident but a repeated or continuous pattern of behaviour that occurs over a period of time. In 2015, England and Wales introduced the first coercive control criminal offence in the world making it illegal (Home Office, 2015; Barlow et al., 2019). In Canada, coercive control is not captured within the Criminal Code making this type of behaviour completely hidden from a justice system response. Intimate partner violence is multidimensional in nature, encompasses numerous forms of violence and can involve subtle forms of violence such as coercion and threats, economic or emotional abuse, intimidation, or isolation. Coercive control refers to behaviours that manipulate, intimidate and instill fear in an intimate partner.
In this paper we will discuss the limitations of the Canadian criminal justice system (CCJS) in addressing coercive control. We will first provide an overview of coercive control using the theoretical approach developed by Evan Stark (2007). We will then explain how intimate partner violence is perceived within the criminal justice system to illustrate the lack of recognition of coercive control. Before exposing further limitations of the criminal justice system in addressing coercive control, we will present the development of offences regarding coercive control in other countries as it demonstrates the feasibility of approaching intimate partner violence as a pattern instead of an incident-based issue by justice. This section will be followed by the limitations of the CCJS to address coercive control, including the nature of harm. We also touch on the impact of those limitations on the police response to intimate partner violence situations. Finally, we will discuss the desirability of addressing coercive control through the criminal justice system and offer recommendations to achieve incremental steps in this direction.
Currently, the CCJS treats intimate partner violence as an episodic or one-time event, failing to address additional and repetitive tactics used by abusers that include exploitation, manipulation, intimidation, isolation, and micro-regulation of daily life, otherwise known as coercive control. The incident approach also influenced intervention strategies and risk assessments frequently utilized by law enforcement. The criminal justice system primarily places emphasis on the evidence of physical violence. Consequently, there is a neglect to question the context of the abuse and the harm caused within these dynamics, which results in coercive control being unaddressed or dismissed.
Violence that is coercive and controlling is the use of different physical or non-physical tactics, more frequently deployed by men against women in the context of intimate partner relationships (Dawson et al., 2019; Stark, 2007). This description emphasizes the multidimensionality of oppression that continues to be faced by women and negates the classic understanding that intimate partner violence only consists of evidence of physical violence (Stark, 2007). Coercive control encompasses acts of both coercion and control through the use of force and/or deprivation to produce a victim’s obedience, ultimately eliminating their sense of freedom in the relationship, or what Stark refers to as “entrapment” (Stark & Hester, 2019). This type of violence is continuous and the resulting harms are cumulative over time; therefore, this cannot be explained by a singular event (Stark, 2007). The use of coercive control may incorporate a range of economic, cultural, societal and individual factors (Dutton & Goodman, 2005) with the intention to remove the victim’s sense of individuality and prevent them from believing they have the ability to make their own decisions (Arnold, 2009). Stark (2007) suggests that this points to the presence of a “liberty” crime against women as they are trapped in their personal life.
Coercive control takes shape around the prevalence of male dominance and their superior positions relative to women, with tactics often reflective of historical gender norms; therefore, women are at far greater risk of victimization when compared to men (Stark, 2007). As women have gained more autonomy in the past few decades, the deployment of coercive control tactics serve as a response to the increase of women’s agency (Stark, 2007). Due to this increase in autonomy, male perpetrated physical violence alone is becoming a less effective means of control; therefore, strategies to supplement the use of violence with other more discrete tactics were planned by men to maintain their dominance and protect their societal privileges (Anderson, 2009; Arnold, 2009; Stark, 2007). Stark refers to coercive control as a “liberty” crime as these tactics reach into all the domains in which women have gained more freedom, such as the economic, political and social spheres; affecting the victim’s education, their work, and their social presence (Stark, 2007).
Within the private sphere, gender roles are utilized as ways to regulate day-to-day activities, with women stereotypically associated with withdrawing from the workforce to raise children and having a greater responsibility for maintaining personal appearance, cooking, cleaning and socializing (Anderson, 2009; Arnold, 2009; Myhill, 2015; Stark, 2007). As the traditional roles of masculinity involve domination and control, as well as conventional relationship rituals that emphasize male responsibility for seeking out and pursuing a female partner; these are reasons why many often do not recognize the presence of coercive control because it involves behaviours that are mistakenly viewed as normal (Anderson, 2009). Additionally, traditional female roles are typically understood to be more submissive and dependent towards a dominant male; therefore, the micro-regulation of day-to-day activities is more socially acceptable for men whereas it would be considered an exceptional circumstance for a woman to achieve (Myhill, 2015).
Even though women’s autonomy has improved, economic inequalities still exist in the larger public sphere with limited opportunities for professional advancement and the persisting wage gap, elements which continue to make it difficult for women to easily leave an abusive relationship (Arnold, 2009). Therefore, women who experience coercive control may resort to their own use of violence, with studies indicating that experiences of increased fear and isolation may result in using violence as a last-resort strategy for attempted safety and survival (Dichter et al., 2018). It is imperative to look at the context of the relationship to understand possible reasons for the perpetrator’s behaviours as well as the victim’s responses to it, rather than focusing solely on incident-specific events of physical violence (Dutton & Goodman, 2005; Williamson, 2010).
There are four common domains of coercive controlling behaviours, which include controlling/proprietary behaviours, psychological abuse, sexual jealousy, and stalking (Dawson et al., 2019: 47). Perpetrators may make implicit or explicit threats, use physical or sexual violence, destroy the victim’s personal property, and isolate or intimidate the victim by closely monitoring their behaviours and interactions with other people (Crossman & Hardesty, 2017; Hamberger et al., 2017). Arnold (2009) suggests that the relationship between physical violence and coercive control may occur on a continuum, with levels of physical violence fluctuating between incident-specific events at one end, and total domination over a partner at the other. When physical violence is used, it is often coupled with other forms of violence such as psychological, sexual, emotional and financial abuse aimed at isolating and causing fear to the victim by surveilling their actions, micromanaging their activities, or humiliating them in front of family and friends (Arnold, 2009; Dawson et al., 2019; Stark, 2007). Men who use such tactics often discover they do not need to resort to physical violence to control their partner, as the threat of possible violence is enough to maintain the victim’s compliance (Dawson et al., 2019). Arnold (2009) noted that “[…] even if abusers who use coercive control tactics have not seriously injured their victims, they can be as explosively violent when their control is challenged as are those men who use physical assaults alone” (1438).
Coercive control also frequently extends to the economic domain including: denying the victim access to or limiting transportation; denying access to household utilities such as heat and water; controlling food consumption; making the victim request or beg for money; disconnecting phone lines or breaking cellphones; preventing attendance at work or school; or sending inappropriate images or messages to employers to encourage their dismissal (Sharp-Jeffs, 2017, para. 4). The Canadian Femicide Observatory for Justice and Accountability undertook a review of femicide case studies in Canada,identifying the presence of a number of coercive control tactics, such as multiple calls to the victim over the course of only one day; not allowing the victims to have male friends or speak with family through social media; denying access to personal travel documents; denying access to a cell phone; and demanding to know the victim’s whereabouts at all times (Dawson et al., 2019). None of these activities by themselves are recognized by the CCJS as problematic, yet the presence of ongoing surveillance and the use of various tactics that include humiliation, dominance, isolation and exploitation result in coercive control being comparable to other capture crimes, such as kidnapping (Stark, 2007). Continued elaboration of coercive control tactics are also discussed in the subsequent section entitled: The nature of harm in coercive control situations.
Coercive control has the potential to impact all aspects of a victim’s life, including but not limited to their daily activities; personal appearance and health; relationships with family and friends; opportunities and attendance at work or school; access to economic resources; and legal domains including immigration and child custody (Dutton & Goodman, 2005; Hamberger et al., 2017). Victims report a continuous feeling of fear, constantly checking and modifying their own behaviours to try and appease their partner (Wiener, 2017). This lasting effect results in victims learning to blame themselves for the abuse they endure and “lose confidence in their ability to make decisions about their own and their children’s lives” (Wiener, 2017: 511)
In Canada, the government is recognizing coercive control as part of the dynamic of intimate partner violence (Department of Justice, 2015). However, this is not translated into specific offences of intimate partner violence or domestic violence in the Criminal Code. The Federal legislation addressing the issue of intimate partner violence under the CCJS refers to a number of offences relevant to the issue but not coercive control per se. It can include offences of physical and sexual violence or offences related to the administration of justice, psychological or emotional abuse, and financial abuse. Within the CCJS, intimate partner violence is approached as an incident-based problem. It is not taking into account the dynamic of violence experienced over time. It is difficult to assess a dynamic and the seriousness of it if only one specific incident is examined.
Despite a number of offences (Department of Justice, 2019a) related to psychological and emotional abuse such as criminal harassment (s.264); uttering threats (s. 264.1); making indecent and harassing phone calls (s. 372); trespassing at night (s. 177); mischief (s. 430); there is no offence capturing coercive control. Coercive controlling behaviours are repeated behaviours that aim to isolate and intimidate an intimate partner. Coercive control is partially covered by Criminal Harassment (s.264) as it involves a pattern of repeat behaviour but it is not clearly emphasizing the realm of coercive control.
The conduct mentioned in subsection (1) consists of:
- repeatedly following from place to place the other person or anyone known to them;
- repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;
- besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or
- engaging in threatening conduct directed at the other person or any member of their family. (Canada: Criminal Code [Canada], C-46, 1985, available at: https://www.refworld.org/docid/4cf52bb32.html [accessed 15 February 2020])
Examining all possible offences available under the Criminal Code of Canada related to intimate partner violence, physical and sexual violence are dominating. They are more commonly presenting evidence of physical altercation when first responders are on scene and are easier to document as a single incident. However, non-physical violence can be equally harmful and have serious consequences if not recognized as such. The lack of corresponding offences to the dynamic of intimate partner violence, including repeat behaviour to control an intimate partner makes it extremely difficult for law enforcement to intervene adequately on scene. Coercive control does not relate to a single incident but to a pattern of behaviours that take place over time that is repeated and continuous. Police officers are the first responders from law enforcement to make a determination if an intimate partner violence situation is criminal as per the available offences within the Criminal Code of Canada. Without a clear recognition of coercive control as criminal behaviour, the opportunity to be addressed within the criminal justice system is limited. We will discuss this issue further under the section entitled: Policing coercive control.
Some provincial and territorial governments have developed laws and implemented them in their specific jurisdiction. Seven provinces (Alberta, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador and Saskatchewan) and three territories have specific legislations on family violence, domestic violence, and intimate partner violence. All these legislations are complementing protections offered in the Criminal Code by offering other protections to victims. Protection orders are comprised of emergency protection orders allowing victims, for instance, the right to stay in their home and use the family vehicle. Other dispositions may also restrain the abuser from having any direct contact with the victim, children or other family members. Yet, the focus on victim protection is not tackling the actual issue of intimate partner violence. It is an important support to victims but it is not fully addressing the problem. (Department of Justice (2019a).
Finally, Bill C-78 (Department of Justice, 2019b) to amend Canada’s federal family laws related to divorce, parenting and enforcement of family obligations clearly addresses coercive control in family violence. With the suggested amendments, the Divorce Act would take into consideration a pattern of coercive and controlling behaviour in custody dispute situations when evaluating the best interest of the child. The majority of the amendments of the Divorce Act will come into effect July 1st 2020. This initiative is an important step in recognizing the pattern of domination where tactics of control are used over time in intimate relationships. However, this is not tied down to changes within the Criminal Code of Canada and still needs to be brought forward for consideration.
Coercive controlling behaviour as a criminal offence is very recent. In fact, few countries in the world have developed and adopted new offences regarding coercive control. The recognition of such criminal behavior is the direct response to the Istanbul Convention: Combatting violence against women. Article 33 Psychological Violence stipulates that: “Parties shall take the necessary legislative or other measures to ensure that the intentional conduct of seriously impairing a person’s psychological integrity through coercion or threats is criminalized” (Council of Europe, 2011).
To date, three countries have adopted new offences related to coercive control behaviour: England and Wales, Ireland, and Scotland. It is in England and Wales, in 2015, that the first offence of coercive control was adopted and implemented under Section 76 of the Serious Crime Act 2015.
Controlling or coercive behaviour in an intimate or family relationship
A person (A) commits an offence if—
- A repeatedly or continuously engages in behaviour towards another person (B) that is controlling or coercive,
- at the time of the behaviour, A and B are personally connected,
- the behaviour has a serious effect on B, and
- A knows or ought to know that the behaviour will have a serious effect on B.
(2)A and B are “personally connected” if—
- A is in an intimate personal relationship with B, or
- A and B live together and—
- they are members of the same family, or
- they have previously been in an intimate personal relationship with each other
Coercive control under Section 76 of the Serious Crime Act 2015 applies to both intimate partner or family relationships.
The Home Office Statutory Guidance Framework have identified a list of seventeen behaviours that could be included in coercive controlling behaviours such as:
- isolating a person from their friends and family;
- depriving them of their basic needs;
- monitoring their time;
- monitoring a person via online communication tools or using spyware;
- taking control over aspects of their everyday life, such as where they can go, who they can see, what to wear and when they can sleep;
- depriving them of access to support services, such as specialist support or medical services;
- repeatedly putting them down such as telling them they are worthless;
- enforcing rules and activity which humiliate, degrade or dehumanise the victim;
- forcing the victim to take part in criminal activity such as shoplifting, neglect or abuse of children to encourage self-blame and prevent disclosure to authorities;
- financial abuse including control of finances, such as only allowing a person a punitive allowance;
- threats to hurt or kill;
- threats to a child;
- threats to reveal or publish private information (e.g. threatening to ‘out’ someone).
- criminal damage (such as destruction of household goods);
- preventing a person from having access to transport or from working. (Home Office, 2015: 3)
There are four main components where an offence of coercive control may apply: the repetitive and continuous (on-going) behaviour; the impact of the behaviour on the victim; the intent (motive) of the perpetrator towards the victim and; both perpetrator and victim have to have a personal connection (actual partners or ex-partners). The legislation emphasizes the harm caused by coercive controlling behaviour by a partner or ex-partner on the abused person. In other words, the pattern of behaviour has to have a serious impact on the victim, causing fear of future violence or causing distress to the victim.
The Crown Prosecutor Services, UK (2015) has also developed legal guidance and provides further examples of coercive controlling behaviours. This new offence is closing a gap not covered by the offence of criminal harassment as it is emphasizing a pattern of harm against the victim in a repetitive and continuous way. There is no specific timeframe regarding the different coercive controlling behaviour displayed. It does not need to take place in “immediate succession”. However, if too much time has separated two incidents of coercive controlling behaviours, it will unlikely be sufficient to be considered repetitive and continuous.
Statistics from England and Wales reported that by the year end 2018, there were 9,053 recorded offences of coercive control and as of March 2019, “[…] 17,616 offences of coercive control were recorded by the police” (Office of National Statistics: 2019: 13). By the end of year 2018: “There were 308 offenders convicted of and sentenced for controlling or coercive behaviour. […] The majority of defendants prosecuted for controlling or coercive behaviour were male (97%), and the average custodial sentence given was 20 months.” (Office of National Statistics: 2019b: 26).
In January 2019, coercive control became a criminal offence in Ireland.
Section 39 of the new Domestic Violence Act 2018 sets out that:
39. (1) A person commits an offence where he or she knowingly and persistently engages in behaviour that—
- is controlling or coercive,
- has a serious effect on a relevant person, and
- a reasonable person would consider likely to have a serious effect on a relevant person.
(2) For the purposes of subsection (1), a person’s behaviour has a serious effect on a relevant person if the behaviour causes the relevant person—
- to fear that violence will be used against him or her, or
- serious alarm or distress that has a substantial adverse impact on his or her usual day-to-day activities.
This new law makes coercive control more serious precisely because it relates to tactics used by an intimate partner – a spouse, ex-spouse or civil partner – now or in the past.
The Irish offence is comparable to the coercive control offence adopted in England and Wales. They both recognize the repetitive and continuous pattern of control in intimate partner relationships and emphasize the harm and seriousness of coercive control on the victim. The Irish offence is directed towards partner or ex-partner relationships while the offence in England and Wales refers to a current or ex-intimate partner or family relationship. The first conviction for coercive control in Ireland was handed down at a circuit court in Donegal on February 11, 2020 (The Journal. ie, February 2020). The abuser received a jail sentence of 21 months.
In April 2019, Scotland implemented a new offence of “domestic abuse”. It is a broad offence encompassing all forms of abusive behaviour towards a partner or ex-partner, including emotional and psychological abuse. Under the Domestic Abuse Act 2018 the term “abusive behaviour” has been privileged to “coercive control”. What constitutes abusive behaviour refers to:
- threatening or intimidating,
- making partner or ex-partner dependent on, or subordinate to,
- isolating partner or ex-partner from friends, relatives or other sources of support,
- controlling, regulating or monitoring partner or ex-partner’s day-to-day activities,
- depriving partner or ex-partner of, or restricting partner or ex-partner’s, freedom of action,
- frightening, humiliating, degrading or punishing partner or ex-partner.
(Scottish Government. 2018: 2)
The offence is aggravated if any of the behaviour is directed at a child or witnessed by them. The new offence intends to reflect on the impact of abusive behaviour on the victim (Domestic Abuse (Scotland) Act 2018). While the introduction of a coercive control offence in England and Wales was to grasp behaviour not covered by criminal offences already in place, Scotland chose to create an offence of domestic abuse “[…] intended to capture a range of behaviour which is already criminal as well as that which might not be captured by existing laws within a single offence” (Burman & Brooks-Hay, 2018: 73). This particular domestic abuse offence applies only to a current partner or ex-partner. This is similar to the approach adopted by Ireland.
Northern Ireland is the only jurisdiction in the UK that has not yet criminalized coercive control. In 2017, the Minister of Justice announced the intention of the government to develop a new offence. There were ongoing discussions with England and Wales to extend the legislation to Northern Ireland. As of January 2020, the Minister of Justice was evaluating the best route to implement a legislation of domestic abuse inclusive of coercive control.
To date, the State of New York is the only jurisdiction in North America, to our knowledge, that has engaged in discussion about an offence of coercive control related to intimate partner violence. In April 2019, Senator Parker introduced an act to amend the penal law in relation to establish the crime of coercive control. It is proposing to amend the penal law by adding a new section: 135.80 Coercive control. In December 2019, the act to amend the penal law was introduced by M. of A. Hevesi, read once and referred to the Committee on Codes. The new section 135.80 Coercive control is as follows:
A person is guilty of coercive control when he or she engages in a course of conduct against a member of his or her same family or household, without the victim's consent, which results in limiting or restricting, in full or in part, the victim's behavior, movement, associations or access to or use of his or her own finances or financial information; and provides that coercive control is a class E felony1. (State of New York, In Assembly, 2019: 8904)
Since July 2010, the French penal code recognizes psychological violence (Code pénal, Art. 222-14-3). However, there are new developments in regards to coercive control. In a discourse on November 25 2019, the Prime Minister Edouard Philippe announced a plan to fight against conjugal violence. While using the term “psychological violence”, he elaborated on the notion of emprise manifeste in French, which refers to coercive control and translates to: being under the influence/the power of (Darsonville, 2020). The French government will examine the possibility to introduce the emprise manifeste in the civil and penal laws. This is timely in France as the Department of Justice released a report on conjugal homicide (October 2019) showing that a number of women were killed by their partner even though no previous physical violence occurred. There is clearly a movement world-wide to address coercive control through the criminal justice system.
Throughout the world, judicial responses to intimate partner violence or domestic violence focus mainly on physical violence (assault or threats). However, “physical violence may not be the most significant factor” (Kuennen, 2007: 2) regarding intimate partner violence. Offences related to intimate partner violence are designed to capture individual incidents. Therefore, the pattern of intimate partner violence is broken down into separate offences through the criminal justice system. Intervention focuses on evidence of physical acts, the potential reoccurrence of physical violence, the safety of the victim at the time of incident and the possible remedies available (arrest, charge, etc.). This vision of the issue offers limited understanding of an ongoing pattern involving power and control causing harm beyond a one-time incident of physical violence. Intimate partner violence is a dynamic encompassing various forms of violence. However, the criminal justice system is not well designed to address patterns of coercive control
Using the growing body of research on the criminalization of coercive control, the discussion will address the limitations of the incident-based model in place, for instance in Canada, and to capture the nature of harm in coercive control situations (Bettinson, 2016; Stark, 2012; Tolmie, 2018). Introducing coercive control as a criminal behaviour is a major paradigm shift (Hanna, 2009) regarding intimate partner violence within the criminal justice system. The adoption of coercive control offences in other countries provides an opportunity to examine the benefits of its implementation and challenges encountered.
Stark (2007) describes coercive control as a pattern of intimate partner violence referring to non-physical behaviour. He explains that coercive control encompasses various tactics to “hurt, humiliate, intimidate, exploit, isolate, and dominate their victims” (2007: 5). His conceptualization of intimate partner violence is crucial in understanding the argument for criminalizing coercive control. He considers that many women living in abusive relationships are caught in dynamics of violence that are not coming to the attention of the criminal justice system. Stark and Hester (2019) describe the symptomatic revolving door of victims calling the police repeatedly but who are not seen as being abused: “[…] when the same women sought help multiple times over many years for assaults, sexual attacks, and other coercive or oppressive acts that were not, in themselves, sufficiently grave or injurious to merit a serious crime charge or conviction under the existing approach” (84). In this perspective, coercive controlling behaviours are overlooked by the criminal justice system.
Contrary to physical assaults perpetrated by strangers (mainly once and incident-based situations) that are not taking place in diverse circumstances, violence initiated by an intimate partner/dating partner (actual or former) occurs in a different context and encompasses a wide range of abusive behaviours (Burke, 2007; Hanna, 2009). Redefining intimate partner violence as coercive control has the potential to improve focus on the reality of victim’s experiences, to allow space for the victim’s story to be exposed, to put into context the dynamic at play in a relationship (Tuerkheimer, 2007), and to address the cumulative impact of coercive controlling behaviours on a daily basis (Walklate & Fitz-Gibbon, 2019). The question is how to translate a behaviour as criminal while it is complex, and to determine the pattern of harm as opposed to a one-time incident (Tolmie, 2018). It is also important to have a better understanding of when control becomes coercive (Walklate & Fitz-Gibbon, 2019). Crossman and Hardesty (2017) pointed out that: “[…] coercive control is often focused on as a context for physical violence and has rarely been placed at the center of analysis to examine its unique dynamics and consequences whether or not physical violence is present” (196). Therefore, the comprehension of power and control is associated with the presence or not of physical violence. Coercive control involves a range of behaviours used over a period of time compromising the victim’s autonomy, liberty and capacity to make decisions for themselves (Bettinson, 2016). In this perspective, the operationalization of coercive control as a criminal offence beyond physical violence is a challenge.
The evidence of an incident of violence between intimate partners is the central focus of prosecution of intimate partner violence. There is limited room to introduce an understanding of the complexity of the dynamic in court where the context of certain behaviours are tactics used to cause harm towards the victim. It is a display of entrenched power and control over time and can occur without physical violence.
Sheehy (2018) has shown the difficulty in using the argument of coercive control in a trial of an abused woman accused of first-degree murder in Canada. In this particular case (R v Craig, 2011), the defence used the coercive control theory to demonstrate that the abused woman was trapped in her relationship and had limited alternatives to leaving her abuser. Despite evidence of controlling behaviour by an abusive partner, it did not reverse the charge. It was the first case in Canada, using the coercive control theory to explain a pattern of violence in a relationship. There was no threat of physical violence specifically but bullying, controlling of his spouse and the use of regulating tactics, such as controlling where the victim was going or doing, and what she was wearing (McGorrery & McMahon, 2019).
The Cotton v Berry (2017 BCSC 907) case related to a custody dispute clearly illustrates that the presence of coercive control in intimate relationships can be completely ignored by the judicial system. In this custody dispute, Cotton alleged that manifestation of coercive controlling behaviours (Kane, 2018; Sowter, 2019; 2017 BCSC 907) occurred over time: threats to burn down the house, throwing clothes at her, pinned her to the bed, humiliating her, and minimizing her concerns about his behaviour with their children. Despite those allegations not supported by a criminal case, the judge did not consider any of the dynamics of abuse important in giving parenting rights to the father. In December 2017, the father killed both his daughters. Domestic homicide is not always preceded by physical violence and in cases like Cotton, the serious physical violence was the killing of children. Minimizing the danger of harm of coercive controlling behaviours has a dramatic ending in domestic homicide. Not all murders are evidence of physical violence. The Canadian Femicide Observatory for Justice and Accountability highlights that many instances of femicide have histories of coercive controlling behaviours that have gone unnoticed as warning signs or “red flags” in the relationship (Dawson et al., 2019: 47). Johnson et al. (2019) also showed that coercive control was part of the abusive dynamic for men, incarcerated in Australia, who killed their spouses. Another study examining 358 cases of homicides in the United Kingdom, found that that control was present in 92 per cent of domestic killings; coercive control and stalking were more often simultaneously present where there has been an intimate partner relationship (Monckton Smith et al. (2017: 4).
Coercive control has a serious effect on victims. The case of Sally Challen (R v Challen, 2019 EWCA Crim 916) in the United Kingdom, who was convicted and sentenced for the murder of her husband demonstrates how justice can be blind to years of deprivation by coercive controlling behaviour, not recognizing intimate partner violence victimization. Challen was convicted of murder on 23 June 2011 and sentenced to imprisonment for life with a minimum term of 22 years on 26 June 2011. On 24 November 2011 the court reduced the minimum term from 22 years to 18 years. In the Appeal, in June 2019, a plea of guilty to manslaughter was accepted by the Crown and Sally Challen was sentenced to 9 years and 4 months. Since she had already served the time, she was released immediately.
It is imperative for prosecution to be able to demonstrate that abuse occurred in order to recognize that an abuser has committed a crime. If the incident is not eloquent enough for the demonstration, withdrawal of the charges will follow. The likelihood of situating charges laid in the context of a broader scope of intimate partner violence is almost impossible as offences are constructed on the principle that it will be a one-time incident. It is then impossible to recognize harmful patterns of violence but only how harmful an incident is (Bishop & Bettinson, 2018). The approach of the criminal justice system does not “capture the real nature of harm” (Bettinson, 2016:169) caused in coercive controlling situations. Since the emphasis is on physical violence, the entire context leading to an incident is not taken into consideration despite the importance of the general dynamic of control in a violent relationship. The aim of intimidating, isolating or degrading is to ultimately control the victim’s autonomy. This is well-recognized in the way policy makers, professionals and researchers define coercive control. It is the inability of the criminal justice system to address coercive control adequately that is problematic. This is not to say coercive control is not recalled in criminal cases but it is generally accompanied by serious physical violence.
The main issue from a criminal justice perspective is the measurement of coercive control as an operational crime. Where and when do we draw the line between offering an opinion to a spouse, to imposing and determining someone else’s life? Tolmie (2018) pointed out that there is a fine line between criminal and non-criminal behaviour. In her perspective there are behaviours, as we have highlighted previously, seen as a norm in society or viewed as such: a male partner controlling “[…] couple’s finances, to hold joint property in their name, to make major life decisions on behalf of both […]” (Tolmie, 2018: 56). This example reflects the normativity of gender roles in society and the emphasis of gender inequality. Walklate et al. (2018) are questioning how it is possible to translate coercive control into a criminal behaviour and to provide evidence of coercion in an intimate partner violence situation. The difficulty in their perspective comes from the complainant themselves: what is a normal behaviour and where does a particular behaviour become coercive? The paradigm shift in approaching intimate partner violence as coercive control forces researchers, professionals and policy makers to completely change the way a behaviour is criminalized as it is focusing on the recognition of harm “[…] that can result from this form of abuse, thus challenging the hierarchy of harm which privileges physical violence” (Burman & Brooks-Hay, 2018: 77). When there is no direct physical violence, the situation is considered “[…] less serious, or not ‘high risk’ enough to warrant intervention” (Bishop, 2016: 60). This reality can definitely be challenged and revisited to adequately address intimate partner violence situations from the criminal justice system.
Both men and women can be victims of intimate partner violence. However, it is well documented that women are more likely to be subjected to violence and repeated victimization (Scott, 2016). Coercive control stems from gender inequality and the perpetuation of gender norms demonstrated by male dominating attitudes towards women (Bishop, 2016). Stark (2007) explains that the use of coercive control deprives women of their right to freedom and when women’s rights are denied, it is an obstruction to their liberty. Therefore, he considers that the criminal justice system would better address intimate partner violence by recognizing it as a liberty crime. The Charter of Rights and Freedoms. Section 7 stipulates that: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice” (Department of Justice, 2019c). Taking the approach of a liberty crime involves an understanding of intimate partner violence beyond the idea that it is mainly physical assault to encompass all forms of harms causing the deprivation of right to freedom.
The evidence of harm is key in the recognition of an act of intimate partner violence within the criminal justice system. Considering that coercive control can involve violence that may not be physical, the recognition of harm in a specific situation might be hazardous. Burke (2007) suggests that frequency and duration of intimate partner violence leads to highlight a “qualitative distinction” (568) compared to other forms of violent crimes. She refers to the dynamic of power and control over abused women to explain the coercive nature of the violence. Intimate partner violence is about an abuser gaining control over their spouse as demonstrated in the power and control wheel (Domestic Abuse Intervention Project, 2017).
Recognizing behaviour causing harm to abused women entails a clear understanding of the complexity of intimate partner violence dynamics involving diverse coercive controlling tactics. The nature of harm does not involve physical contact but can translate into a “[…] state of fear, again reinforced by past experiences, the victim is kept in a constant state of disempowerment” (Bishop, 2016: 67). There may not be physical contact but the promise that it could be used any time. The victim is neutralized and can only make decisions in a structure controlled by the perpetrator. The victim is literally on an invisible leash. It makes it hard to escape the abuse.
Surveillance is a tactic by which an abuser maintains power and control over an intimate partner. With the recent developments of technology, an abusive partner can utilize such methods to monitor and continue to abuse. Dragiewicz et al. (2018) highlighted “technology facilitated coercive control” (610) which includes behaviours such as social media harassment, stalking using GPS data, making or distributing audio or video recordings, sending threats through text messages, hacking email accounts, impersonating the victim, or distributing private information or sexual content about the victim online. Oftentimes such surveillance tactics are performed without the victim’s knowledge; therefore, such ability to continue monitoring means that victims are unable to escape the abuse even from locations where they may otherwise feel safe such as at school, work, church, or with family (Stark, 2007). These technological advancements have allowed perpetrators to increase their level of control even when they are not physically together, as well as continue their surveillance and harassment post-separation (Dragiewicz et al., 2018).
There may not be any visible form of physical violence or threat of physical violence but the fear for the victim is real. Examining an incident out of the context in which it took place may seem insignificant and harmless. However, giving consideration to the context of the dynamic of intimate partner violence can lead to viewing the situation in a completely different perspective. The experiences of the victim can shed light and more depth into the reality of intimate partner violence. Redefining intimate partner violence as coercive control “[…] fulfills the desire to have the law more fully reflect the realities of women’s lives”. (Hanna, 2009: 1463)
Police officers have an important role in determining if a situation will be considered as intimate partner violence and potentially be criminalized. The perception of what constitutes intimate partner violence for frontline police officers and the limitations of specific risk assessment tools can influence the action that will be taken (Gill et al., 2019). The emphasis of risk assessment tools on physical violence and injuries leads to the minimization of non-physical violence. Are police officers well equipped to assess intimate partner violence situations that do not present physical violence when they arrive on scene? Do they have enough understanding of the dynamic to see if they are in the presence of a potentially harmful situation? As highlighted earlier, approaching intimate partner violence as coercive control is a paradigm shift (Hanna, 2009) for law enforcement. It requires reframing police intervention and responses to the issue taking into consideration the dynamic of violence that takes place over time beyond the incident they respond to. As Stark (2012) indicates “Putting the abusive incident in its historical context changes how police respond to victims” (214). It brings context and understanding of the importance of one action in the relationship. It is the case in England and Wales as the implementation of the coercive control offence, led to reframe the “[…] officer’s typical approach from responding and taking stock of crime ‘incidents’ as isolated events towards looking to a series of interrelated events and the harm that follows from these” (Barlow et al. 2019: 4).
Research with police officers have shown the presence of various attitudes that can be grouped into either a “traditional/conservative” view of intimate partner violence, or a “progressive” view (DeJong et al., 2008; Gill et al., 2019). Police officers exhibiting traditional/conservative views on intimate partner violence tend to focus on the presence of physical violence as a determination of intimate partner violence, lack understanding of the complexity of intimate partner violence situations, and may blame victims for the violence they experience. Alternatively, police officers exhibiting progressive views do understand the complexity of intimate partner violence, acknowledge barriers to victims leaving or escaping abuse, and believe that intimate partner violence incidents are serious matters that are worthy of police intervention.
Considering the offences related to intimate partner violence within the Criminal Code of Canada, many police officers may confirm the presence of intimate partner violence only if it meets the legal descriptions, which often emphasize the presence of physical violence or injury to determine a perpetrator’s guilt (DeJong et al., 2008; Gill et al., 2019; Myhill, 2015). Myhill’s (2015) study with police officers in the United Kingdom found that all incidents that involved physical abuse were followed-up with arrest whereas incidents with no physical injury, even if there was information that suggested harassment and threats were present, were not resolved with arrest.
Focusing on a specific incident allows for the dismissal of potentially escalating patterns of violence, complex dynamics of the relationship, and understandings about barriers that might encourage victims to remain with their abusive partner (DeJong et al., 2017; Gill et al., 2019). A number of police officers have endorsed the belief that women commit violence against their partners at rates that are equal to men (Gill et al., 2019: 2; McPhedron et al., 2017; Ward-Lasher et al., 2017), even though national statistics in Canada indicate that 8 in 10 victims (79%) of intimate partner violence are female (Buryczcka et al. 2018: 22). Police officers have also reported beliefs that remaining in an abusive relationship is more dangerous than leaving, and that a victim’s decision to leave a relationship should be a simple one to make (DeJong et al., 2008; McPhedron et al., 2017; Ward-Lasher et al., 2017). DeJong et al.’s (2008) findings went further to suggest that such a view resulted in police officers feeling that parties involved in such disputes were “childish” (688) and they should be able to resolve disputes themselves rather than involving the police. Police officers sharing a traditional/conservative perspective of intimate partner violence considered that repeat calls for assistance were problematic and limits should be placed on how often police respond to the same couple, indicative that police officers may believe that “true” intimate partner violence incidents are isolated events rather than continuous or persistent (McPhedron et al., 2017; Ward-Lasher et al., 2017).
As knowledge about the dynamics of intimate partner violence and police training practices are improving, other police officers are actively having a more “progressive” understanding of intimate partner violence. In a survey conducted with police officers, Gill et al., (2019) noted that some of the respondents were able to describe instances of intimate partner violence that went beyond legal definitions and included vocabulary such as coercion, oppression and jealousy. In their respective studies, DeJong et al. (2008) and Robinson, Pinchevsky & Guthrie (2018) found that police officers, within both the United Kingdom and United States, verbalized that it is important to consider the context of the relationship and the abuse that took place, which can result in some difficulty in determining the most appropriate response.
In North America, and within Member States of the European Union, police are adopting a “risk-led” approach to intimate partner violence. Benefits to this type of response are considered to include ongoing cooperation between police agencies, victims, and community agencies as well as to allow collection of more information, advanced skills and knowledge for police officers, and a greater level of protection and needs for victims (The European Union for Gender Equality, 2019b). Risk assessment tools were developed more frequently during the 1990s to identify which female victims were at a higher risk for more serious assaults (Medina Ariza et al., 2016). A number of risk assessment tools have been developed (Northcott, 2012) and implemented as part of frontline responses to domestic dispute calls to assess risk involving intimate partner violence situations. The goals of risk assessments used by police officers are to prevent future risk of lethality and re-offending against an intimate partner, hold offenders accountable for their behaviours, and help with decision-making regarding the victim’s safety as well as the offenders arrest and release considerations when intervening in intimate partner violence situations (Hart, 2010; Northcott, 2012; Robinson et al., 2018).
Considering police practices specifically, many of the risk assessments do not gather enough information about the context of the relationship to highlight the use of coercive control while assessing a situation. Wiener (2017) studied policing coercive control, conducting interviews with police officers and survivors. Using the case of a woman killed by her partner, Wiener showed that the situation was assessed as low risk because it was viewed as an individual incident despite police being called to the same address a number of times previously. For a number of police agencies, the use of a risk assessment tool is part of the routine when investigating intimate partner violence; however, assessing risk is not performed at each domestic dispute call, especially if there is absence of physical violence or threat of physical violence. The evidence of intimate partner violence, which commonly means evidence of physical violence, injuries or damages in an isolated incident does not capture an ongoing pattern of violent behaviour. Peterson and Bialo-Padin (2012) highlighted from various studies the most important evidence to collect in order to move forward with prosecution, especially when victims are reluctant to testify against their abusers, was physical evidence “[…] most commonly photos of the victim and/or defendant” (107). This means the existence of some form of physical violence. It is unlikely that coercive control will appear or show on photographs.
Findings of high risk have also predicted the level of risk management to follow, with more recommendations being made for support and safety when risk is deemed high (Belfrage et al., 2012). Emphasizing physical violence may result in coercive control tactics being dismissed; thereby, resulting in cases being considered as low risk and eliminating potential supports for victims. Risk assessments have been utilized as a way to streamline police responses in order to effectively provide additional services and resources to cases that are considered high risk; however, police officers participating in Wiener’s (2017) study identified that domestic homicide cases at the onset are almost always initially analyzed to be low-risk. Klein’s (2012) study with police officers in the United States also identified that stalking behaviours were rarely captured because the behaviours were described more frequently as non-violent and ultimately considered non-lethal.
Risk assessments used by police officers are informing their perceptions of intimate partner violence (Ballucci et al. 2017; Robinson et al. 2018). It is fundamental for police officers to clearly understand the complexity of the issue (Eigenberg et al., 2012) in order to exercise their judgment appropriately. Response is dictated by attitudes, perceptions and understanding of the complexity of the issue and the tools available to police officers to adequately assess a situation. Blaney (2010) described that Canadian police officers recognized the importance of utilizing risk assessments when responding to intimate partner violence calls; however, reported a lack of understanding as to the theory behind them which limited their overall effectiveness when used in the field.
The focus of risk assessment tools on specific forms of violence can prevent police officers from identifying hidden patterns of violence. Therefore, there are situations where police officers are not performing any assessment of intimate partner violence situations because of the absence of physical, or threat of, physical violence. Including criteria assessing the prevalence of coercive control is anticipated to assist police officers in stepping away from the incident-specific approach, physical violence and threat of physical violence alone and recognize risk factors that may indicate future harm, such as separation (Myhill & Hohl, 2019).
Studies carried out in the European Union determined that a woman’s perception of her own risk was better than the predictions given by formal risk assessment tools, so recommendations were made that such instruments should be used in combination with women’s own perceptions (The European Union for Gender Equality, 2019a). Police officers often must conduct risk assessments on-site at the time of the call, with either the victim or the perpetrator. A number of risk assessment tools are used to assess intimate partner violence (Nicholls et al., 2013). We highlight four risk assessment tools that have been used by frontline police officers in North America: the Danger Assessment (DA), the Spousal Assault Risk Assessment (SARA), the Brief Spousal Assault Form for the Evaluation of Risk (B-SAFER), and the Ontario Domestic Assault Risk Assessment (ODARA), none of which focus on the presence of coercive control.
There are three different approaches to developing risk assessment tools: unstructured judgments, actuarial assessment, and structured professional judgment. The four risk assessment tools highlighted in this section contain all of these approaches. The unstructured judgement assessments are based entirely on the opinion of the professional, and do not include any specific guidelines or measurement criteria (Kropp & Hart, 2004; Nicholls et al., 2013). In their review of intimate partner violence risk assessment tools, Nicholls et al. (2013: 129) classifies the DA as belonging to both “unstructured and structured” formats. Within section one of this assessment, the victims are asked to self-report their degree of victimization over the past twelve months, but this information is not bound by strict guidelines and practitioners can use this subjective information to assess overall degree of risk alongside the structured checklist in section two (Campbell, Webster & Glass, 2009). While this may affect the validity as there is not necessarily consistency between practitioners, these assessments may also be context-specific and are evaluated base on the training and expertise of the evaluator (Kropp & Hart, 2004; Nicholls et al., 2013). On the contrary, actuarial assessments, such as the ODARA, eliminate the discretion of the practitioner, and predict level of risk by totaling a number of pre-determined factors to get an overall score (Kropp & Hart, 2004; Nicholls et al., 2013). Structured professional judgement assessments, such as the SARA and the B-SAFER, blend the two approaches by providing the practitioner with some guidelines and risk factors to consider, but also allows for flexibility in their decision about the degree of risk based on the context that is presented (Kropp & Hart, 2004; Nicholls et al., 2013).
Identifying the presence or risk of future physical violence is emphasized in risk assessment tools. When conducting the DA, the first portion of the assessment evaluates severity and frequency of violence by concentrating on events in the past 12 months that included slapping, kicking or punching, for example (Campbell et al., 2009). Kropp et al. (2005) used the definition of “actual, attempted or threatened physical harm of a current or former partner” (1) to refer to spousal assault which is applicable to both the SARA and the B-SAFER. The ODARA also defines violence by referencing the Conflict Tactics Scale physical violence subscale and includes criteria such as grab, twist, push, slap, choke, slam, burn and kick, as evidence that can be used to assess if physical violence has occurred (Mental Health Centre Penetanguishene, 2005: 8).
Risk factors frequently found in all four risk assessments that concentrate on physical violence include: prior intimate partner violence; prior non-intimate partner violence; perpetrators use of or access to weapons; and threats the kill the victim and/or children (Belfrage et al., 2012; Kebbell, 2019; Kropp et al., 2005; Messing & Campbell, 2016; Millar et al., 2013; Nicholls et al., 2013). Other risk factors are also included in risk assessments, such as the presence of children in the home and/or children from a previous relationship. Certain risk assessments also capture information related to the perpetrator’s unemployment, mental health issues; substance abuse issues and breach of a previous conditional release order (Belfrage et al., 2012; Kebbell, 2019; Kropp et al., 2005; Messing & Campbell, 2016; Millar et al., 2013; Nicholls et al., 2013). While these non-physical factors highlight other areas of concern, there is no focus on coercive controlling behaviours and the impact and harm they may cause to the victim.
To effectively identify and recognize the presence of coercive controlling behaviours, risk assessment tools should include factors such as psychological, emotional and verbal abuse, control of daily activities, extreme jealousy, limited access to transportation and communications, isolation from family and friends, sexual coercion, destruction of property, and control over economic resources such as money and access to employment (The European Union of Gender Equality 2019a; 2019b). Such factors are often missing in many of the formal standardized risk assessments tools currently in circulation (The European Union for Gender Equality, 2019a).
Tactics of coercive control are countless, as emphasized in the Checklist of Coercive Controlling Behaviours, an 84-item instrument based on theory as well as clinical and professional observations (Lehmann et al., 2012). Ten subscales of physical abuse, sexual abuse, male privilege, isolation, minimizing and denying, blaming, intimidation, threats, emotional abuse, and economic abuse highlight the various regions of a victim’s life that coercive control can intrude (Lehmann et al., 2012: 915). This checklist is not used by the judicial system but instead recommended for use in clinical practices such as mental health agencies or shelters and is more suitable for research purposes (Lehmann et al., 2012).
The Domestic Abuse, Stalking and Honour Based Violence Risk Identification, Assessment and Management Model(DASH) is a potential exception to many of the tools that currently exist that lack the inclusion of coercive control factors. Research considers the DASH, a structured professional judgement tool, useful for police officers to identify coercive control, as well as to identify and manage current and future risk of harm to victims (Medina Ariza et al., 2016; Myhill & Hohl, 2019; Robinson et al., 2016).
A group directed by the Association of Chief Police Officers in the United Kingdom developed the DASH, which is currently limited to use within England and Wales (Kebbell, 2019; Medina Ariza et al., 2016; Myhill & Hohl, 2019). As of 2009, all police officers in the United Kingdom are directed to use the DASH when responding to intimate partner violence calls (Robinson et al., 2018). A total of 27 risk factors are scored by police officers by asking the victim questions about the perpetrator, usually while at the scene, and assessing the level of risk as “standard”, “medium” or “high” (Kebbell, 2019; Medina Ariza et al., 2016; Myhill & Hohl, 2019; Robinson et al., 2016). The DASH assessment is divided in four sections consisting of the current situation, children/dependents, domestic violence history, and information regarding the perpetrator (Almond et al., 2017). As well as recording whether each risk factor is present, police officers are expected to record any relevant contextual data in the empty text boxes located beneath each question (Robinson et al., 2016).
Regarding coercive control specifically, the DASH assessment incorporates seven factors including isolation from family and friends, controlling everything the victim does, displaying excessive jealousy, threats to kill the victim, threats to kill children, constant texting or stalking, sexual abuse or humiliation, and threats by the perpetrator to commit suicide (Myhill & Hohl, 2019). A study assessing the prediction of risk factors between perpetrators who continued to offend versus those who did not, found that the six DASH items regarding criminal history, separation, problems with alcohol, victim’s reported fear, stalking/harassment, and suicidality of the perpetrator were more frequently associated with increased risk of recidivism (Almond et al., 2017). While DASH is considerably longer compared to other measures in circulation, it emphasizes the understanding of the context of the abuse that is occurring. However, the DASH assessment tool is not currently available in the North American context.
Review of the utility of DASH in police forces throughout England and Wales has also uncovered some challenges in its implementation. Almond et al. (2017) discovered discrepancies between police officers regarding how many risk factors constitute a high-risk designation, if and when risk factors should be weighted, and when police officers should use their own professional judgements. Robinson et al. (2017) also discovered that police officers asked the questions in different manners with some following the guide exactly, and others weaving the questions into a general conversation. Police officers also showed some support for having a shorter risk assessment tool, and that there was limited training and guidelines available for using risk assessments tools in intimate partner violence situations (Robinson et al., 2017).
Research has been limited to analyze and better understand law enforcements desion-making process in preventing and reducing intimate partner violence crimes. The intervention provided by police officers is crucial and must rely on a clear understanding of the issue (Gill et al. 2019; Myhill, 2018; Perez Trullio, 2008; Robinson et al. 2018). Decisions made at the scene are based on how police officers are understanding intimate partner violence, what provisions are offered in the Criminal Code of Canada and other resources available.
Since police officers have firsthand knowledge about the issues they are dealing with, they have the capability to determine that intimate partner violence is at play in situations where physical violence is not evident at the scene. However, understanding the complexity of intimate partner violence dynamics is necessary. The tools offered to police officers are providing guidelines for intervention and without an emphasis on coercive control factors, it is difficult to help recognize the pattern in Canada. It is obvious that risk assessment tools are offering a limited understanding of the issue especially when risk assessment tools are used only when there is evidence of physical violence or threat of physical violence. This can leave many harmful situations out of screening.
A better understanding of coercive control in intimate partner violence dynamics can serve to improve the criminal justice system response to the issue. Currently, the incident-based approach used to determine the presence of intimate partner violence, the seriousness of the problem and the harm a situation may represent is dictating a narrow vision of a pattern of behaviour occurring over time.
Little is known about the nature and consequences of coercive controlling behaviours on victims: how victims can become entrapped in a relationship and be prevented from leaving an abusive partner (Anderson & Saunders, 2003; Pitman, 2017) or how coercive control impacts victims psychologically (Dichter et al., 2018; Stark, 2007). Victims seeking help and reporting to the criminal justice system for intimate partner violence situations are facing stereotypical and victim-blaming attitudes (Leisenring, 2011). Research shows that victims are contacting the police when they perceive the situation is escalating and life threatening (Meyer, 2011). However, sometimes what is perceived to be life-threatening by the victim is perceived as minor in the eyes of frontline police officers (Wiener, 2017; Crossman et al., 2016; Bishop & Bettinson, 2018).
Responses to coercive control and intimate partner violence can be influenced by various perceptions and understandings of police and social service professionals. Physical violence remains a core feature of intimate partner violence, for many practitioners working in the field and policy regulation, risk assessment strategies and organizational practices are governed by this feature (Brennan et al., 2019). Using assessment criteria that emphasizes risk of fatality frequently results in non-physical violence often being screened out (Brennan et al., 2019). Additionally, for women who present with substance use issues or histories of their own use of violence, the impact that experiencing coercive control may have on their choice of survival strategies may be dismissed (Williamson, 2010). When there is a lack of understanding or interpretation of the dynamics of coercive control during the initial response, police officers may set the stage for the availability (or not) of subsequent support responses. Brennan et al. (2019) explored service providers understanding of intimate partner violence and its severity. They found that despite the understanding and recognition of coercive control, physical violence is a central feature of the assessment of the issue by practitioners: “If they get it wrong at that first point of contact then you’re sending the wrong resource or you’re not sending another resource at all, you’re not correctly identifying the risk, whether that’s risk to the victim or to children” (Brennan et al., 2019: 647).
Recent research has shown that intimate partner homicide occurs following an escalation of violence. The literature is also showing that intimate partner homicide is not always preceded by any physical violence, but that non-physical abuse and coercive control may have been present. The recent report on femicide in Canada (Dawson et al., 2019) indicates the presence of coercive controlling behaviours as a motive leading to the killing of women. Similarly, Monckton Smith et al. (2017) have reviewed 358 cases of criminal homicide in the UK and found that “[…] obsession and fixation should be identified and responded to at the earliest possible stage, along with any surveillance activities” (9). Johnson et al. (2019) also found the presence of coercive controlling behaviours in cases of men convicted of killing their intimate partner in Australia. Intimate partner homicide is the most serious form of intimate partner violence but in many cases there was no previous violence detected. The study conducted by Emerson Dobash & Dobash (2011) on casefiles of 104 men who killed their female partner are showing that “authority and control” (123) over an intimate partner was central of the dynamic of violence that led to homicide.
Research points out that the measurement of physically violent acts alone will not necessarily indicate a dynamic of violence in a relationship (Dutton & Goodman, 2005). Police officers have a responsibility for assessing and managing risks posed by perpetrators (Belfrage et al. 2012; Campbell et al. 2018) and depending on the risk assessment tool used, police officers may not identify an intimate partner violence situation. As Stark (2012) demonstrates, a number of coercive controlling tactics used in coercive control by abusers are “never targeted by police or the court” (p. 201). Johnson et al. (2019) also highlight the importance “[…] to remain critical of risk assessments and policies built and defended on the basis of narrow typifications” (4). Since the focus is on a single incident when responding to domestic dispute calls it is unlikely that coercive controlling behaviours will be captured. The limitations of evidence for non-physical violence clearly prevents the Canadian criminal justice system to fully address issues of intimate partner violence. Addressing the issue of coercive control would compel better action from the CCJS by providing support to victims and recognizing the patterns of behaviour that remain hidden from criminalization.
This research paper offers insights on the criminalization of coercive control in Canada. In this section, we are proposing recommendations that will help in developing a strategy for the recognition of coercive control and the implementation of an offence in the Criminal Code of Canada. It is important to keep in mind that the creation of an offence of coercive control is not the end solution to improve the criminal justice response in intimate partner violence situations. As Burman & Brooks-Hay (2018) conclude: “Whatever laws we have will be only as effective laws those who enforce, prosecute and apply them” (2018: 78).
A strategy beyond the creation of a new offence has to be in place for an effective response. This is confirmed as well by various stakeholders we have had the opportunity to be in discussion with about the criminalization of coercive control. Changes are necessary, but they need to involve the judicial system at all levels. The justice personnel from police officers, prosecutors, defence lawyers and judges will have to demonstrate willingness to recognize coercive control as a pattern of abuse beyond the incident-based approach. These recommendations will challenge the status quo in the justice system response to intimate partner violence.
- Creation of new offence of coercive control
Change the Criminal Code of Canada to address coercive control as a criminal offence. As presented earlier in this paper, two possible avenues are already in place in the world: a. creating a coercive control offence or b. creating a domestic violence offence. Following the review of documentation about coercive control and domestic violence offences, it is our contention that a coercive control offence would fill the gap within the Criminal Code of Canada and would allow the recognition of a pattern of violence in intimate relationships. This new offence would expand the understanding of the issue beyond that of the incident-based approach. In comparison, a domestic violence offence would lead to the use of already existing offences under one umbrella without changing or adding to the complexity to process the issue through the criminal justice system. However, we also recommend considering the identification of domestic violence within the Criminal Code of Canada. An examination of the Scottish legislation would be appropriate in our perspective.
Changes within the Criminal Code would also mean the involvement of the judiciary. We recommend the creation of a task force or committee comprised of the judicial system from all levels (Police officers, prosecutors, defence lawyer, judges) as well as experts on coercive controlling behaviours and IPV and representatives of victim services, to lay the groundwork of the changes to be made.
- Legal test to coercive control
Given that coercive control does not exist in the Criminal Code of Canada, we recommend the use of the description of coercive control adopted by the Home Office in the United Kingdom as a starting point for a legal test. The statutory guidance framework (2015) offers a rationale for the offence as well as a broad description of what encompasses coercive controlling behaviour. We elaborated on the description on pages 11-13.
- Police agencies
To efficiently address coercive control from the justice system, first responders from law enforcement have an important role in identifying the issue. To date there is no mechanisms in place to flag coercive controlling behaviours for police officers in Canada. Risk assessments currently in use are not covering coercive control. The creation of a coercive control offence needs to be developed in conjunction with the development of a risk assessment and training for frontline police officers who have the responsibility to make the determination of intimate partner violence when entering in the criminal justice system. We recommend the establishment of a new risk assessment tool focusing on coercive control and non-physical violence. It would be worth reviewing, as a starting point, the DASH assessment tool. As it stands now risk assessment tools are not always used when there is absence of physical violence; therefore, the creation of coercive control as an offence in the Criminal Code of Canada would mean the assessment of all intimate partner violence calls even when there is no evidence or suspicion of physical violence.
- Federal/Provincial/Territorial working group to review legislation, policies pertaining to intimate partner violence
At this time, it is a challenge to address the complexity of intimate partner violence in the criminal justice system. Recognizing coercive control as a criminal offence clearly leads to imagine justice differently in a sense that the judicial system response to intimate partner violence has to reflect upon the pattern of violence, beyond the one incident offence. Therefore, collaboration from Ministers Responsible for Justice and Public Safety at the Federal/Provincial/Territorial is necessary. The Criminal Code of Canada is our guide across the country and its application should be the same everywhere. The creation of a new offence related to intimate partner violence will have policing and justice implications in all jurisdictions coast to coast to coast.
- Stakeholders consultation
A consultation be established regarding the current criminal law related to intimate partner violence with stakeholders to identify gaps in the Criminal Code of Canada. Stakeholders should include professionals working with victims and abusers as well as police officers, Crown prosecutors, defence lawyers and judges.
We would contend that coercive control is the underpinning dynamic in the vast majority of intimate partner violence relationships. In this research paper, we considered the importance of addressing coercive controlling behaviour from the perspective of the criminal justice system in Canada. After providing an overview of coercive control using the theoretical approach developed by Evan Stark (2007), we explained how intimate partner violence is perceived within the criminal justice system to illustrate the lack of recognition of coercive control. We demonstrated that the incident-based approach to intimate partner violence in the criminal justice system allows limited understanding of coercive control as a pattern, and therefore, an ineffective response to intimate partner violence overall. The introduction of coercive control as a criminal behaviour is a major paradigm shift regarding intimate partner violence within the criminal justice system.
We presented the development of offences regarding coercive control in other countries as it illustrated the feasibility of approaching intimate partner violence as a pattern instead of an incident-based issue by justice. We subsequently discussed the limitations of the criminal justice system to address coercive control and the nature of harm of coercive control over time. We described the various offences from the Criminal Code of Canada that are related to intimate partner violence, illustrating the absence of coercive control. We also stressed the fact that police response to intimate partner violence situations in regards to coercive control is key in recognizing and identifying situations. Unless coercive control is an offence in the Criminal Code of Canada, police officers will not be able to address fully the issue nor would they be able to assess coercive control situations. Research examined in the course of this research paper are leading to support the desirability of addressing coercive control through the criminal justice system.
We are concluding that to better address the issue of intimate partner violence in the criminal justice system there is a need to imagine justice differently, to recognize the harm of ongoing violence beyond the one-time incident. Our recommendations offer a framework to begin that reimagining.
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