Not All Bills are Created Equal: A Review of Coercive Control Legislation
Mis à jour : 13 nov. 2020
Several countries and a few individual states within the United States have recently enacted Laws and or added to existing Domestic Violence Laws to include a specific type of non-physical abuse - coercive control. The overarching framework for these crimes includes controlling or coercive behavior and other prosecutions related to domestic abuse. The patterns and dynamics of these actions need to be understood to provide an appropriate and effective response. Each policy is gender-neutral, however, they vary in many ways from how a crime is established, what evidence is needed, and how the victim can be protected by the law. One thing is certain, all victims should receive the same access to protection and legal redress. However, not all laws are created equal, some well-intentioned laws are not all-inclusive as others. In this article, we will review the way some of the new laws and how they have aligned while addressing where they deviate from one another, how they are enforced, and who is protected.
In the United States, there are no federal laws that cover coercive control, though several states have taken action to illegalize coercive control, California and Hawaii have signed laws into the books. Maryland and South Carolina are both working on bills, amendments, and laws. Looking abroad, Scotland, France, the UK, Wales, and Ireland have established laws universally for their countries. Australia had a bill in progress but was recently halted to be taken up after the pandemic. The state of New York has a bill that has passed both chambers and is awaiting the Governor’s signature to enact it into law. Although the pandemic put a greater emphasis on the need for these protections to be in place, it has in some cases curtailed the momentum in progress.
Since Professor Evan Stark published his ground-breaking book ‘Coercive Control: How Men Entrap Women in Personal Life’ in 2007, there has been a steady growth on the necessity for broader public understanding and recognition of coercive control as an insidious form of domestic abuse.
Studies have shown that these patterns of abuse are often done behind closed doors, without witnesses and evidence is often dangerous to collect. These controlling environments are often created by perpetrators who carefully monitor their victims' behavior and actions, often the ability to document the abuse is difficult and almost all of the laws, including this one in France, would require “evidence documented over time”.
In Hawaii, the bills that have been passed are following the blueprint of the laws in Scotland which are the highest and most intensive laws on the books. Hawaii Bill (HB2425) was passed in September 2020, so there are no extensive records on how the bill is holding up and where it is falling short, if at all. Much like the other States in the North America region, time will ultimately tell since there will be much more extensive records being kept.
In California, the existing law establishes the Domestic Violence Prevention Act to prevent acts of domestic violence, abuse, and sexual abuse. The DVPA also provides for a separation of the persons involved in the domestic violence for a period sufficient to enable those persons to seek a resolution of the causes of the violence.
Existing California law authorizes a court to issue an ex parte order enjoining a party from engaging in specified acts against another party. This law was written to cover threatening, harassing, or disturbing the peace of another party. At the discretion of the court, against other named family or household members. A violation of this order puts the perpetrator in contempt of court.
By expanding the definition of abuse under California law, SB 1141 is intended to give victims of abuse another tool to escape their abusers. In SB 1141, the current Family Code applies with conditions. In California, victims of abuse only need to prove a single act of abuse to receive a restraining order. If SB 1141 is signed into law, future victims will need to prove a pattern of abuse. They will also need to prove the abuser’s intent to cause harm and the unreasonable nature of the actions the abuser took.
This is a much higher standard than current Family Code standards of abuse. While the bill is well-intended, it poses some risks for people who are trying to exit a dangerous relationship or protect children from abuse. California SB 1141 is designed to expand California’s Family Code. It would specifically name “coercive control” as one of the types of abuse that California recognizes as a reason to give someone a domestic violence restraining order against another person. The bill defines coercive control as “a pattern of behavior that unreasonably interferes with a person’s free will and personal liberty and includes, among other things, unreasonably isolating a victim from friends, relatives, or other sources of support.”
While the Family Code does specify that “abuse is not limited to the actual infliction of physical injury or assault,” coercion or controlling behavior is not currently mentioned. Using the words Coercive Control universally will help survivors and would encourage law enforcement to become more aware of this specific issue. This alone proves there is extensive work that needs to be done to protect children living in these conditions and the trauma that can follow throughout life if not properly addressed.
In South Carolina the legislature opted to amend the current Domestic Violence law to include Coercive Control, stating “it is unlawful for a person to repeatedly or continuously engage in a course of behavior towards another person that is coercive or controlling when both persons are personally connected and which results in a person causing the victim to fear, on at least two occasions, that violence will be used against the victim or which results in mental distress to the victim resulting in a substantial adverse effect on the victims' day-to-day activity," and goes on to say that "a person who violates the provisions of this section is guilty of the felony of coercive control of another person and, upon conviction, must be fined not more than ten thousand dollars or imprisoned not more than ten years, or both.” Again, we note there are some limitations, such as the action needing to be done on “at least two occasions” and how they would like a victim to report under such circumstances.
Maryland bill, HB1352, and Illinois Domestic Violence Act authorizes a victim to petition for a peace order or protective order against another person whom the petitioner alleges has engaged in certain behavior toward the petitioner that is controlling or coercive is the only protection in place to date. We look forward to seeing the abuse, or Coercive Control as a criminal and chargeable offense soon. At this time, neither deem coercive control alone as a criminal act.
Looking across the world, in Scotland, laws have been enacted which raised the bar, making it’s Coercive Control protections meeting the highest standards for victims' rights. What many refer to as the “Benchmark Bill for Coercive Control Protections”. You will see that Domestic Abuse is defined as "Any incident or pattern of incidents of controlling, coercive or threatening behavior, violence or abuse between those aged 16 or over who are or have been intimate partners or family members, regardless of gender or sexuality. This can encompass, but is not limited to, the following types of abuse: psychological, physical, sexual, financial, and emotional."
The Government definition also outlines the following:
Coercive behavior is an act or a pattern of acts of assault, threats, humiliation, and intimidation, or other abuse that is used to harm, punish, or frighten their victim
Controlling behavior is a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance, and escape, and regulating their everyday behavior
The Office for National Statistics showed offenses recorded by police related to the new laws have increased. Data from The Ministry of Justice for 2016 and 2017 shows the average custodial sentence for those sent to prison under the new law was 17 months, with the average victims’ compensation paid was at £413 (approx. $540/USD).
When reflecting on the ways children are being underrepresented in these bills.
Scotland amended its original legislation to include information on the number of cases in which the court imposes a non-harassment order, both to protect the primary victim and to protect children who reside with the victim. In New York, the law is written to specifically address the “COURSE OF CONDUCT AGAINST A MEMBER OF HIS OR HER SAME FAMILY OR HOUSE”, and the only mention of child welfare is the following one mentioned underlined below “THIS SECTION SHALL NOT APPLY TO ACTIONS TAKEN PURSUANT TO A LEGAL ARRANGEMENT GRANTING ONE PERSON POWER OR AUTHORITY OVER ANOTHER PERSON, INCLUDING, BUT NOT LIMITED TO PARENTAL CONTROL OF A MINOR CHILD.”
Early on in 2010, France banned “psychological violence within marriage”, becoming the first country to officially criminalize psychological abuse. This was a bold step, but it was specifically designed for couples who were married, this is where the original bill fell short. Over the years, France has adopted a much more comprehensive bill by writing it to include several criminal provisions aimed at reinforcing the fight against familial psychological violence outside of marriage. Defining a victim as “a spouse, partner, or cohabitant” and the abuse is defined as “repeated acts that degrade one's quality of life and cause a change in one's physical or mental state of health”. This is a huge improvement from the first bill in 2010, and it carries a maximum penalty of up to five years in prison, and a fine of €45k (Approx. USD 57k). The one caveat would be the victims need to prove “that the abuse is repeated and done to destroy the victim's dignity.”
In the new Domestic Abuse Bill 2020 from the UK and Wales, it introduces the new Statutory Definition of domestic abuse. The definition now includes economic abuse and introduces a new, improved definition of ‘personally connected’ by which defines who can be charged with these offenses. No longer do the victim and perpetrator need to be currently in a relationship or residing together to report abuse. This opens a door for people who ‘are or have been, in an intimate personal relationship with each other’ to report. Bringing the post-separation abuse experienced by many women within the right to report an offense for the first time. These steps allow the police to intervene early, and to prevent violence from escalating at a later stage.
There are various ways to define this specific abuse but the findings are clear, there is an urgent need for this legislation everywhere by the number of reported crimes we are seeing where it is illegal. The New South Wales Labor opposition has proposed a bill to criminalize coercive control, with a ten-year maximum penalty, which is higher than the sentences in many of the other bills. These changes can be attributed to the increased awareness and recent advocacy after two high profile murders with long documented elements of psychological trauma became front-page news all over Europe.
Currently, the bill in Australia is being written. A study there found that in a survey of nearly 15,000 women, 5.8 % had experienced coercive control from a current or former partner in the early part of 2020 when the Covid-19 crisis hit. Of that group, 1 in 5 of the women said that this happened for the first time during this intense and uncertain time. Along with all other reports of domestic violence going up, this is the time when resources are needed the most.
In Australia, outside the specialist family violence sector, there is limited understanding of what coercive control is and how best to respond to it. The current lawmakers believe that a successful law reform would rely on victims’ willingness and ability to involve the police. The delays in enacting bills are fears that many people just do not report abuse to the police and the misguided notion that coercive control focusing on a “pattern of abusive behavior” leaves too much room for misinterpretation. Australian officials argued that “undermining relationships with family and friends or monitoring spending — when viewed in isolation, are not criminal and rarely leave physical evidence. The behaviors may also not have been witnessed by any third party who can corroborate their occurrence”.
The ACECC is looking forward to seeing these bills close their gaps in enacting and enforcing the laws protecting victims of coercive control. With time, we also hope that there’s heightened awareness on this form of domestic abuse. The ACECC bill tracker will be regularly updated to keep you informed and if your state is not listed, then it’s time to act.
Follow proposed and emerging coercive control bills on the ACECC Bill Tracker.
About the author.
Dee-Dee Kanhai is a Freelance Copywriter and Lifestyle Blogger in the New York City area. Dee-Dee has shared her journey and experiences as a young wife and mother who is now an empty nester, working towards location independence through her passion for writing.
Follow her journey at www.lovetheundoing.com