Legal systems abuse and coercive control
| Author | Heather Douglas |
| DOI | 10.1177/1748895817728380 |
| Published date | 01 February 2018 |
| Date | 01 February 2018 |
| Subject Matter | Articles |
https://doi.org/10.1177/1748895817728380
Criminology & Criminal Justice
2018, Vol. 18(1) 84 –99
© The Author(s) 2017
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DOI: 10.1177/1748895817728380
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Legal systems abuse and
coercive control
Heather Douglas
University of Queensland, Australia
Abstract
This article considers how legal engagement can be an opportunity to exercise coercive control
over a former intimate partner. Drawing on interviews with 65 women who engaged with the
legal system as a result of violence in their intimate relationships, this article explores how
women’s engagement with the legal system is frequently experienced as an extension of an
intimate partner’s coercive control. It builds on existing research showing how legal processes
provide an opportunity for perpetrators to continue and even expand their repertoire of coercive
and controlling behaviours post-separation. I refer to this as legal systems abuse. This article
explores women’s reported experiences and considers how expectations of equality of access
to justice and fair hearing; concepts that underpin legal processes, can be reconciled with legal
engagements that seek to end coercive and controlling behaviours. The article concludes that
improved understanding of domestic and family violence as coercive control by legal actors may
help to circumvent the opportunities for legal systems abuse.
Keywords
Coercive control, domestic and family violence, legal systems abuse, post-separation abuse
Introduction
It is widely accepted that domestic and family violence (DFV) often does not end at sepa-
ration and indeed separation has been identified as a period of heightened risk of further
violence for women (Fleury et al., 2000; Kaye et al., 2003; Mahoney, 1991). However
once the parties have separated, many of the methods of abuse previously employed by
the abuser may no longer be available. The abuser may have reduced physical access to
the survivor and might look for other methods to continue to perpetuate abuse. At the
Corresponding author:
Heather Douglas, TC Beirne School of Law, University of Queensland, Sir Fred Schonell Drive, St Lucia,
Brisbane, 4072, Australia.
Email: h.douglas@law.uq.edu.au
728380CRJ0010.1177/1748895817728380Criminology & Criminal JusticeDouglas
research-article2017
Article
Douglas 85
point of separation, a woman who has been abused within the relationship may draw on
the law as a resource to protect her from further violence, to assist her to break ties with
the perpetrator and to determine issues that cannot be resolved without legal system inter-
vention (Lewis et al., 2001: 109). Such matters may include child contact and property
settlement (Elizabeth et al., 2012; Laing, 2016), there may be a need for a protection order
and sometimes there are criminal proceedings that take place after separation. Child pro-
tection authorities may also become involved as a result of the abuse (Neilson, 2015).
Indeed, both the parties may have important and legitimate reasons to engage with the
legal system post-separation.
The loss of opportunities for abuse that existed prior to separation and the engagement
in litigation that co-occur around the point of separation creates a kind of perfect storm.
While litigation may be an important part of women’s search for safety and relationship
closure, litigation can provide a new opportunity for perpetrators to continue to perpe-
trate abuse in a way that is apparently legally justified. Legislative definitions of DFV
usually provide examples of the kinds of behaviours that may be part of DFV, including,
for example: physical, sexual, financial and emotional abuse; stalking and isolation.
Unsurprisingly legislation does not explicitly identify legal system abuse as a form of
DFV. After all, engaging in the legal system is generally considered a right and legal
engagement may be understood as a tool rather than a behaviour. However, similar to
other forms of DFV, it is the context in which the behaviour takes place that provides its
meaning to the person who is the subject of the abuse (Goodmark, 2012: 46). Thus
engagement with the legal system may be experienced by one party as abuse at the same
time that the other party justifies their engagement as a right. Przekop (2011: 1056) has
acknowledged this tension between courts and judges needing to ensure that perpetra-
tors’ rights to access the courts are not obstructed, while at the same time controlling the
parties before them.
The idea that survivors may experience the legal process as a form of secondary vic-
timization as a result of inappropriate treatment and responses by legal actors, including
judges and lawyers, has been recognized by scholars (Busch et al., 1995; Gillis et al.,
2006; Hartman and Belknap, 2003; Herman, 1997, 2003; Hunter, 2006; Laing, 2016;
Ptacek, 1999). For example Sack (2004: 1680) has considered how the application of
processes by justice system actors such as police and judicial officers, including dual
arrests, coercion of survivors to participate in prosecution, ‘failure to protect’ children
charges and ‘aiding and abetting’ DFV charges, ‘can disempower, coerce and further
victimise battered women and negatively impact on their experiences of the justice sys-
tem’. The idea that engagement in litigation by the abuser may be a continuation of abuse
has received less attention, although it is of increasing interest to scholars. In the next
section of this article I consider the current research about DFV perpetrated through liti-
gation; I refer to this as legal systems abuse, but others have called it ‘paper abuse’
(Miller and Smolter, 2011) or ‘procedural stalking’ (Neilson, 2004: 419). I then draw on
interviews with 65 women who have engaged with the legal system in the context of
DFV to consider forms of legal systems abuse and the women’s experience of litigation
as abuse (the Using Law and Leaving Domestic Violence Study).1 In the final section, I
consider how expectations of equality of access to justice and fair hearing, that under-
pin legal processes, can be reconciled with legal engagements that seek to end DFV.
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