Prosecuting controlling or coercive behaviour in England and Wales: Media reports of a novel offence
| Date | 01 September 2021 |
| Author | Marilyn McMahon,Paul McGorrery |
| DOI | 10.1177/1748895819880947 |
| Published date | 01 September 2021 |
| Subject Matter | Articles |
https://doi.org/10.1177/1748895819880947
Criminology & Criminal Justice
2021, Vol. 21(4) 566 –584
© The Author(s) 2019
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DOI: 10.1177/1748895819880947
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Prosecuting controlling or
coercive behaviour in
England and Wales: Media
reports of a novel offence
Paul McGorrery
Marilyn McMahon
Deakin University, Australia
Abstract
The offence of controlling or coercive behaviour came into effect in England and Wales in December
2015, and related offences have since been enacted in Scotland and Ireland. To date, there has
been almost no empirical evaluation of the operationalisation of the new English and Welsh
offence. This article fills that gap by analysing media reports relating to 107 individuals convicted
of controlling or coercive behaviour, providing a profile of offenders and victims (gender and age),
the types of abusive behaviours offenders engaged in and how the cases progressed through the
criminal justice system (manner of conviction, sentencing outcomes). Media reporting of these
cases is also discussed. The results suggest that the offence is (appropriately) operationalised
in a highly gendered manner, that it has captured a diverse range of behaviours that would
not previously have been considered criminal, and that media reports of this form of domestic
violence have not demonstrated the negativity towards victims identified in previous studies.
Further research of primary data is required to confirm these findings.
Keywords
Controlling or coercive behaviour, domestic violence, family violence, media analysis,
prosecutions, section 76
Introduction
In December 2015, the offence of controlling or coercive behaviour in an intimate or
family relationship came into effect in England and Wales (Serious Crime Act 2015
(UK) s 76). That offence uniquely criminalises the non-physical abuse that lies at the
Corresponding author:
Paul McGorrery, School of Law, Deakin University, 221 Burwood Highway, Burwood, VIC 3125, Australia.
Email: pmcgorre@deakin.edu.au
880947CRJ0010.1177/1748895819880947Criminology & Criminal JusticeMcGorrery and McMahon
research-article2019
Article
McGorrery and McMahon 567
heart of most intimate partner violence. Since that offence came into effect, Ireland has
also introduced an offence of ‘coercive control’ (Domestic Violence Act 2018 (IR) s 39)
and Scotland has enacted the related offence of ‘domestic abuse’ (Domestic Abuse
(Scotland) Act 2018 (Scot) s 1; Bettinson, 2016). One jurisdiction in Australia
(Tasmania) had also preceded these laws by specifically and directly criminalising
economic and emotional abuse of an intimate partner more than a decade earlier
(Family Violence Act 2004 (Tas) ss 8–9; McMahon and McGorrery, 2016b).
A number of family violence and criminal law researchers have now begun evaluat-
ing the desirability and utility of these offences (Douglas, 2015, 2018a; McMahon and
McGorrery, 2016a; Padfield, 2016; Tolmie, 2018; Walklate et al., 2018). To date, the
arguments for and against introducing an offence of coercive control (or something
similar) have occurred almost exclusively at an abstract level, devoid of any empirical
data (contra Barlow et al., 2019). Researchers advocating for a new offence suggest that
there is a gap in the law with a consequent failure to criminalise a significant harm, and
that the traditional approach of only prosecuting non-physical abuse when it occurs in
contravention of a court order not only misidentifies the real harm but also attracts inap-
propriately low penalties and leaves victims unprotected (Douglas, 2007, 2015: 438).
Furthermore, they argue that prosecuting physical abuse through the lens of incident-
based offences (i.e. assault) puts the victim in the untenable position of having to isolate
and identify dates, times and locations of behaviours that often stretch across months or
even years (Wiener, in press), despite memory research suggesting that victims of
repeated crimes are far more likely to remember general experiences than they are to
recall specific incidents (van Golde et al., 2018).
In contrast, critics have cautioned that there may be a number of specific, problematic
features of such laws:
1. They may further disenfranchise women, rather than empower them, if control-
ling or abusive behaviour is normalised within traditional, gendered boundaries
of interactions between intimate partners or if it cannot be distinguished from
consensual, gendered decision-making (Tolmie, 2018: 7–8).
2. A new offence could be misused against victims rather than perpetrators, particu-
larly if police misidentify the primary aggressor when responding to incidents
involving intimate partner abuse (Tolmie, 2018; Walklate et al., 2018; Younger,
2018).
3. A new offence could increase demands on victims and widen levels of inequality,
given that it is likely to require increased levels of cooperation with police, and
the victims least likely to cooperate are those who have less socioeconomic
means or who are racially or otherwise marginalised (Tolmie, 2018).
4. Police may find it difficult to identify, investigate and/or prove domestic abuse
other than incident-based physical violence (Tolmie, 2018; Wiener, 2017).
5. Victims of family violence are particularly vulnerable when involved in the crim-
inal justice process, as they may experience secondary victimisation (Roth,
2002), especially if the offender uses the process as a way to perpetuate the abuse
(Douglas, 2018b).
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