Coercive control: To criminalize or not to criminalize?

Date01 February 2018
DOI10.1177/1748895817746712
Published date01 February 2018
Subject MatterArticles
https://doi.org/10.1177/1748895817746712
Criminology & Criminal Justice
2018, Vol. 18(1) 50 –66
© The Author(s) 2017
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DOI: 10.1177/1748895817746712
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Coercive control: To
criminalize or not to
criminalize?
Julia R Tolmie
University of Auckland, New Zealand
Abstract
Criminalizing coercive or controlling behaviour in an intimate relationship, as has been done in
England and Wales and is proposed in Scotland, has the advantage of offering an offence structure
to match the operation and wrong of intimate partner violence. This article raises the question
as to whether other jurisdictions should follow suit. It argues that the successful implementation
of such an offence may require a complexity of analysis that the criminal justice system is not
currently equipped to provide and will require significant reforms in practice and thinking. If
it is not successful such an offence could conceivably operate to minimize the criminal justice
response to intimate partner violence and be used to charge primary victims.
Keywords
Coercive control, crime, intimate partner violence
Introduction
In 2015 England and Wales took the bold move of enacting an offence that criminalizes
controlling or coercive behaviour within an intimate relationship.1 In 2017 Scotland pro-
posed a specific offence of domestic abuse, intended to capture the patterns of harm that
constitute intimate partner violence (IPV), including behaviours that fall within existing
interpersonal violence offences and those that do not.2
This is not the first time that attempts have been made to address patterns of harm, as
opposed to one-off events, in the legal response to IPV (Douglas, 2015). Civil protection
orders, for example, were developed for this purpose and were also designed to cover
abusive behaviours that are not limited to physical violence. The criminal law has also
Corresponding author:
Julia R Tolmie, Faculty of Law, University of Auckland, Private Bag 92019, Auckland 1142, New Zealand.
Email: j.tolmie@auckland.ac.nz
746712CRJ0010.1177/1748895817746712Criminology & Criminal JusticeTolmie
research-article2017
Article
Tolmie 51
been moving towards criminalizing ‘courses of conduct’ that encompass a broader range
of behaviours than physical violence. For example, the UK3 and all Australian jurisdic-
tions have offences of stalking,4 New Zealand has the offence of criminal harassment,5
while Tasmania introduced the summary offences of emotional and economic abuse in
20046 (Douglas, 2015: 456–457). The English and Welsh and the Scottish reforms are a
step further in this direction and raise the question as to whether other countries should
follow suit.7 In New Zealand the decision has been made not to (Office of the Minister
of Justice NZ, 2016: [26]–[29]) and this article attempts to engage with this broader
question, rather than the specifics of any particular reforms or reform proposals.
The potential benefits of criminalizing coercive control have been canvassed else-
where (Tuerkheimer, 2004) and are summarized next. Essentially such a reform offers an
offence structure designed to match the operation and wrong of intimate partner
violence.
In this article I sound a note of caution. The criminal justice system was not designed
to address IPV and the problems that it presents in this context are deeper and more
extensive than simply the fragmentation of long-standing patterns of harm into individ-
ual transactions. In the third section of this article I suggest that prosecuting coercive
control successfully will necessitate a greater reliance on victim testimony and may
require a breadth of evidence and complexity of factual analysis that the criminal justice
system is not currently well equipped to provide. Such an offence may therefore be
unlikely to deliver in practice on the many benefits that it theoretically promises. In the
fourth section I raise the possibility of a worse scenario – that enacting such an offence
could operate to further minimize the justice response to IPV, invalidate the experiences
of primary victims and form the basis of charges against them. I have based the analysis
in this article on the most common manifestation of IPV – in which the predominant
aggressor is male and the primary victim is female (FVDRC, 2017).
The aim of this article is to point out the complexity of the issues involved when
attempting to respond to the ‘wicked’ problem that is IPV within a complex system like
the criminal justice system. A complex system is an unpredictable space in which reforms
frequently have disappointing and/or unexpected outcomes (Morcol, 2012; Snowden
and Boone, 2007). Reforms must also be systemic – addressing multiple layers and
aspects of system functioning – and participatory (FVDRC, 2016). This is not a domain
in which legislative reform alone will provide any kind of panacea.
The Potential Benefits of an Offence of Coercive Control
Interpersonal violence offences are constructed primarily in terms of incidents. As a
result the criminal justice system fragments long-standing patterns of IPV into separate
offences (Bettinson and Bishop, 2015; Hanna, 2009: 1461). Each incident is taken out of
the pattern in which it occurs and proven and responded to in isolation. A corollary of this
point is that the criminal offences are primarily constructed in terms of the use of physi-
cal violence. This means that IPV is also stripped of much of its overall architecture –
those aspects of the pattern of abuse that are psychological and financial, for example,
along with the motivations of the abuser and the cumulative effect on the victim. As a
consequence, the totality and meaning of the perpetrator’s behaviour, the continuing risk

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