Evidencing domestic violence*, including behaviour that falls under the new offence of ‘controlling or coercive behaviour’

Date01 January 2018
AuthorVanessa Bettinson,Charlotte Bishop
DOI10.1177/1365712717725535
Published date01 January 2018
Subject MatterArticles
Article
Evidencing domestic
violence*, including
behaviour that falls under the
new offence of ‘controlling or
coercive behaviour’
Charlotte Bishop
University of Exeter, Exeter, UK
Vanessa Bettinson
De Montfort University, Leicester, UK
Abstract
In 2015 an offence of ‘controlling or coercive behaviour’ was introduced under the
Serious Crime Act, criminalising for the first time the non-physical abuse which so often
occurs in the domestic context. This new offence implicitly recognises the psychological
and emotional harm which can result from an ongoing pattern of behaviour, and the need
to consider the controlling or coercive nature of this behaviour in the context of the
power dynamics of the relationship in question. Unique evidential difficulties are raised by
this offence, in part because of the ways in which gendered expectations can disguise the
controlling and coercive nature of certain behaviours. At the same time, to increase the
number of prosecutions for domestic violence offences, including under the new offence,
acknowledgement of the ongoing trauma often experienced by victims, and the ways in
which this may hinder their ability to safely and effectively participate in the criminal
justice process, is required. We will outline recommendations to enable this participation,
whilst also asserting the need for creative prosecution methods which allow these type
ofcasestobeprosecutedwithoutbeingsolely reliant upon the victim’s oral testimony
in court.
Keywords
coercive control, credibility, domestic violence and abuse, hearsay evidence, trauma
Corresponding author:
Charlotte Bishop, University of Exeter, Amory Building, Rennes Drive, Exeter EX4 4RJ, UK.
E-mail: C.P.Bishop@exeter.ac.uk
The International Journalof
Evidence & Proof
2018, Vol. 22(1) 3–29
ªThe Author(s) 2017
Reprints and permissions:
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DOI: 10.1177/1365712717725535
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Academic literature has previously highlighted concerns in the context of prosecuting perpetrators of
domestic violence-related offences.
1
One long-standing difficulty has been due to the inherent limita-
tions in the substantive criminal law itself, which predominantly focused on isolated incidents of
physical violence or criminal damage (Bettinson and Bishop, 2015). Consequently, evidence relating
to the context of the relationship or the serious psychological effect of ongoing and programmatic
abusive behaviour was legally irrelevant (Bettinson and Bishop, 2015; Bishop, 2016). The subsequent
failure of the criminal law to reflec t the real lived experiences of domesti c violence victims, who
typically suffer psychological harm (Tagg, 2011) and experience the abuse as a process in everyday
life (Robinson, 2014: 71), has contributed to a lack of victim-confidence in the criminal justice system
(Cretney and Davis, 1997; Robinson and Cook, 2006). Acknowledging these obstacles, the government
introduced, under s. 76 of the Serious Crime Act 2015, the offence of ‘controlling or coercive behaviour
within an intimate or family relationship’.
2
Building on previous work justifying the criminalisation of
this behaviour (Bettinson and Bishop, 2015), the authors will provide a deconstruction of the offence to
expose the evidential difficulties associated with this type of behaviour. The significance of this dis-
cussion is to highlight the unique nature of the offence in matters of evidence and proof, and to outline
ways in which the anticipated evidential barriers can be overcome, thus encouraging a greater number of
prosecutions for domestic violence offen ces overall, including under s. 76.
3
Ellison has previously
written that there has been ‘a lack of creativity in the prosecution of domestic violence offences in
England and Wales’ (Ellison, 2002: 839). We will therefore argue for increased innovative practices
borrowing from initiatives employed to assist in sexual offence cases. In particular, this will involve
measures enabling the complainant to participate safely and effectively in the criminal justice process,
whilst at the same time gathering a wide variety of evidence and thus reducing, where possible, reliance
on the testimony of complainants as the sole, or central, piece of evidence.
After outlining issues surrounding victim participation in the prosecution process in part one, part two
will examine the behaviours encapsulated under the new offence, and the ways in which gendered
expectations may make their controlling and coercive nature hard to recognise and discern by those
involved in the criminal justice process. Second, there will be an evaluation of the harm that typically
results from this type of abuse and why victims oftentimes experience even non-physical abuse as trau-
matic. The significance of this experiencefor victims may have profound implications for police and CPS
decision-making based upon perceptions of complainant-witness credibility. Part three then explores
aspects of evidential law and practice that can be used to enable the prosecution to build a case, based
upon recognition of the potential difficulties the specific behaviour and harm encapsulated by the new
offence present.It will be argued that normalisingapplications for special measuresin appropriate cases of
domestic violence-related offences to accommodatethe effects of the trauma experienced by many victims
is needed. It will be demonstrated how psychological injury caused by controlling or coercive behaviour
may create further difficulties in terms of prosecuting the new offence. Long-term psychological and
physiological effects of ongoing abuse will be shown to affect perceptions of witnesses as reliable and
1. Cretney and Davis (1997); Ellison (2002). These difficulties are found in same-sex as well as heterosexual partnerships (Hester,
2009) and the Home Office definition of domestic violence and abuse applies to those aged 16 or over who are, or have been,
intimate partners or family members regardless of gender or sexuality (https://www.gov.uk/guidance/domestic-violence-and-
abuse).
2. Section 76 of the Serious Crime Act 2015; Home Office, 2014.
3. A Freedom of Information request made by law firm Simpson Millar in August 2016 found that in the first six months of the
new offence being in force it had been used by police only 62 times, with 11 forces making no arrests at all (www.simpson
millar.co.uk/news/police-and-victims-urged-to-use-new-coercive-control-laws-3818, accessed 1 August 2017). This wide-
spread lack of awareness of when and how to use the new offence led the College of Policing to set up a new pilot in September
2016 aimed at helping to support officers to detect the signs that someone is being controlled by their partner (www.colle
ge.police.uk/News/College-news/Pages/Police-support-victims-of-coercive-control.aspx, accessed 1 August 2017) but eva-
luations of the impact of the training expose ongoing concerns (www.college.police.uk/News/College-news/Documents/
Domestic_Abuse_Matters.pdf, accessed 1 August 2017).
4The International Journal of Evidence & Proof 22(1)

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