Criminalizing coercive control: Part one via Law360 Canada

We’ve heard a lot about coercive control in the past few years. Its first big appearance in the legal world came with the 2021 revisions to the Divorce Act which included, among other changes, a definition of family violence that included the phrase “a pattern of coercive and controlling behaviour.”

Coercive control is a term that describes a pattern of behaviours, including psychological abuse — which itself can encompass such things as intimidation, demeaning and insulting treatment, verbal abuse, threats, gaslighting, surveilling and stalking — as well as social isolation and financial abuse. Physical violence may or may not be present, but the threat of it is often part of the coercive control.

It’s often invisible to anyone outside the relationship. Because it is a pattern of behaviours rather than a single incident, it’s difficult for many survivors, as well as those around them. to identify.

Over time, coercive control can result in the victim losing her autonomy and sense of self-worth, thinking she is crazy and becoming, essentially, a hostage of the abuser. Many of those subjected to coercive control live in a state of constant fear, always anticipating when the next abusive act is going to happen. It can have a profound impact on children who are exposed to it.

Over the past few years, in part because the rates of intimate partner violence (IPV) escalated significantly during the pandemic, but also due to the 2022 CKW inquest in Renfrew County and the work of the Nova Scotia Mass Casualty Commission, public awareness and understanding of the prevalence and seriousness of IPV – including coercive control — have increased considerably. Also in that time period, two private members bills and a report from the House of Commons Standing Committee on Justice and Human Rights have urged the government to amend the Criminal Code to include coercive control as an offence.

One of those bills, Bill C-332, introduced by NDP MP Laurel Collins, has passed second reading in the House of Commons and is now before the Justice Committee for further review and public hearings.

All of these initiatives are well intended. Kudos to those who have undertaken them for understanding the seriousness of coercive control and the need to do something about it.

I certainly understand the appeal of criminalization. I have represented and assisted many women whose partners have subjected them to coercive control and who have felt frustrated that there is no criminal consequence for this behaviour.

The insidiousness and seriousness of coercively controlling behaviour needs to be recognized and understood by the legal systems to which women turn for help.  Survivors need to be validated that what has been done to them is wrong.

However, many women report that they feel dismissed when they tell their family law lawyer, the police and others about their partner’s coercive control of them. Our society still thinks of intimate partner violence as physical, and this means we are ignoring the non-physical forms of abuse that, for some women, are far more serious. As more than one of our clients has said: “I wish he just would have hit me. Then, people would have believed me.”

There are a number of reasons to think that criminalizing coercive control could have positive outcomes. It will be empowering to some survivors by validating what has been done to them. Police intervention could mean future violence, including lethal violence, is prevented. It’s possible that criminalization will lead to increased public awareness, thus assisting future potential victims. Police officers, no doubt often frustrated that they have nothing to offer victims who report coercive control, will have a new tool to use in responding to intimate partner violence calls.

However, criminalizing coercive control also comes with some possible negative impacts, which I think outweigh the hoped-for benefits. Given overall low reporting rates of intimate partner violence, how likely is it that women will report coercive control to the police? By its nature, coercive control is hard to define, so how will police know when to lay charges? Because it can look different from one relationship to another, how will police determine the elements of the offence? What evidence will establish guilt beyond a reasonable doubt?

Criminal law has largely failed survivors of IPV in the past, so why would we create a new offence? Abusers have been very successful in using other legal and policy responses to IPV against their partners. Won’t we just see the same thing here? Criminalization will have an impact – potentially a negative one — on survivors’ family law cases.

I believe we need to look for more creative legal responses to coercive control than are offered by the criminal law, which I explore in part two of this article.

This article was originally published by LAW360 Canada.