Criminalizing coercive control: Part two via Law360 Canada

Over the past 40 years, we have seen the many ways in which the criminal law has failed survivors of IPV. Criminal law interventions and initiatives – new laws, changes to laws, new court processes, education for those who implement and interpret the law, different approaches to bail and to punishments for those found guilty – have failed to make significant inroads on the rates of IPV and, in some cases, have made things worse for those subjected to it.

We have seen the impact of mandatory charging policies, with women criminalized when mislabelled as the primary aggressor. Abusers know how to manipulate the system and present themselves as the victim rather than the aggressor when police are called. Making coercive control a criminal offence presents the same possibility.

I am especially concerned about the potential negative impacts of criminalizing coercive control on survivors’ family law cases. We know that, in cases involving family violence, the intersection between family and criminal law is so deep that it is not possible to make changes to one system without impacting the other.

There are already many challenges for women involved in both criminal and family court, which adding another criminal offence will not address. Rather, it has the potential to increase the difficulties.

In cases of IPV, the lack of criminal charges and convictions often becomes a focal point of the evidence in family court, relied on by abusers to support their claim that the violence did not occur. If a woman has not reported coercive control to the police or the police have not laid charges or the abuser was not found guilty, her claims in family court may not be believed.

The other side of this coin is what will happen if, as has happened under mandatory charging policies, women are improperly charged with coercive control. They will find themselves at a significant disadvantage in family court with respect to their credibility and the strength of their case. Abusers will use the existence of a charge or of a guilty verdict to gain a tactical advantage, giving them another way to exert power and control over their former partner. Children will be left in an unsafe situation, where they risk further trauma, fear and confusion. They may be denied contact with their mother, who has been their primary caregiver.

Given the potential for negative consequences, I think it’s too early to create a new criminal offence of coercive control. Figuring out the best ways to respond to and, ultimately, prevent coercive control will take an all of society approach, which needs to include all levels of government, survivors, community-based experts and other stakeholders.

This approach could include a wide range of strategies. Step one might be the creation of an expert advisory group, as recommended by the Mass Casualty Commission, that draws on the gender-based-violence advocacy and support sector to examine whether and how criminal law could better address the context of persistent patterns of controlling behaviour at the core of gender-based, intimate-partner and family violence. 

We need new and mandatory training and education for everyone in the criminal system who would enforce, prosecute or hear an offence of coercive control. That training and education needs to include accountability measures.

Survivors of IPV who are considering engaging with the criminal system should have access to free independent legal advice, and there should be a criminal court support worker program (similar to Ontario’s Family Court Support Worker Program) for those who do.

We should also be looking at the appropriate use of restorative and transformative justice models as a response to IPV in addition to the existing criminal system.

If we don’t take these steps before creating a new criminal offence, we run the risk identified by one of my colleagues who, when discussing the pros and cons of criminalizing coercive control, said:

It seems to me that the pros are best case scenarios that we hope for, but the cons are what is most likely to happen.

This article was originally published by LAW360 Canada.