The propensity to control: Non-sexual violence as probative of sexual offending in the intimate partner context
| Published date | 01 January 2025 |
| DOI | http://doi.org/10.1177/13657127241237884 |
| Author | Caccia Armstrong,Anna High |
| Date | 01 January 2025 |
| Subject Matter | Articles |
The propensity to control:
Non-sexual violence as probative
of sexual offending in the intimate
partner context
Caccia Armstrong
University of Otago, Dunedin, New Zealand
Anna High
Otago Centre for Law and Society, University of Otago, Dunedin,
New Zealand
Abstract
This article explores, with reference to four recent New Zealand appellate court decisions, the
use of evidence of prior non-sexual offending by a defendant against the same complainant
offered to prove sexual offence charges. Such ‘relationship propensity evidence’can be particu-
larly crucial for explaining the defendant–complainant dynamic in cases involving intimate part-
ner violence. However, in some cases, courts have applied traditional common law ‘similar fact’
notions of linkage and coincidence to exclude evidence of non-sexual offending in relation to
sexual charges. We argue that this is an unsatisfactory outcome that is largely resultant from
the governing provision being designed to assess similar fact reasoning. Rather, we submit that
in the context of intimate partner violence, seemingly discrete and unrelated forms of violence
should be understood as potentially linked by the underpinning dynamic of coercive control.
This shift in characterisation of varying forms of violence—from discrete and dissimilar to con-
nected by a dynamic of coercive control—will result in a more flexible approach to the cross-
admissibility of relationship propensity evidence in appropriate cases, including when it comes
to offering evidence of physical violence as probative of sexual offending.
Keywords
character evidence, coercive control, domestic violence, dominance, intimate partner violence,
propensity evidence, sexual violence
Corresponding author:
Anna High, Faculty of Law, Otago Centre for Law and Society, University of Otago, Dunedin 9054, New Zealand.
Email: anna.high@otago.ac.nz
Article
The International Journal of
Evidence & Proof
2025, Vol. 29(1) 20–40
© The Author(s) 2024
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/13657127241237884
journals.sagepub.com/home/epj
Introduction
Intimate partner violence can take a range of forms, from physical and sexual to emotional and financial.
In some cases involving domestic abuse charges, it can be difficult for factfinders to understand the
complex nature and dynamics of a defendant–complainant relationship, particularly when a number of
separate incidents and charges are at play. As such, the cross-admissibility of seemingly disconnected
types of offending—for example, non-sexual and sexual assaults—can take on particular importance
when it comes to the prosecution of intimate partner violence.
Commonly referred to as ‘relationship propensity evidence’, evidence of separate and seemingly dis-
similar offending against the same complainant by the same defendant can be crucial for explaining the
dynamic of the defendant–complainant relationship,
1
rather than presenting an artificial and sanitised
picture. In this article, we explore, by way of reference to four recent New Zealand appellate decisions,
the admissibility of relationship propensity evidence in the context of intimate partner offending.
The analysis illustrates how in some cases, courts apply traditional ‘similar fact’notions of linkage and
coincidence, resulting in the exclusion of evidence of non-sexual offending in relation to sexual offend-
ing. We argue that such an approach represents a problematic and artificial delinking of sexual and non-
sexual violence, and reflects a flawed understanding of the complexity of intimate partner violence.
Rather, we submit that in the context of intimate partner violence, seemingly discrete and unrelated
forms of violence should be understood as potentially linked by the underpinning dynamic of coercive
control. This shift in characterisation of varying forms of violence—from discrete and dissimilar to con-
nected by a dynamic of coercive control—may impact the cross-admissibility of relationship propensity
evidence, including when it comes to offering evidence of physical violence as probative of sexual
offending.
We begin with an introduction to the admissibility rules governing propensity evidence in New
Zealand. These are set out in sections 40 to 43 of the Evidence Act 2006 (hereafter ‘the Act’), which
govern the admissibility of what was known at common law as ‘character evidence’. The application
of the Act’s propensity rules to relationship propensity evidence is somewhat muddled, as the propensity
rules were tailored to govern propensity evidence offered to support an orthodox ‘similar fact’argument
—that because the defendant has behaved similarly, in relation to a different complainant, on a different
occasion, they are more likely to be guilty of the current charges. Importantly, the courts have emphasised
that in assessing the probative value of relationship propensity evidence, it is crucial to identify ‘broad
similarity’between the propensity and index offending.
2
In the next section, we introduce Evan Stark’sinfluential theory of ‘coercive control’. The ‘coercive
control’framework conceptualises certain relationships as involving a pattern of coercive, controlling
behaviour, rather than a series of situational, unrelated violent incidents. Where a relationship is charac-
terised by coercive control, this has implications for the assessment of ‘similarity’. Viewed through a
coercive control lens, discrete and seemingly dissimilar incidents of violence are recast as similarly relat-
ing to the offender’s overarching objective of achieving dominance and control within the abusive
relationship.
1. We use the terms ‘defendant’and ‘complainant’throughout, consistent with terminology used in New Zealand court judgments;
for discussion of alternative terminology, including ‘victim’and ‘survivor’, see Best (1997: 13); Norgaard and Roebuck (2023:
309); Papendick and Bohner (2017: 2). We also generally refer to a male-defendant/female-complainant scenario, to reflect the
gendered nature of intimate partner violence, which is discussed further herein. See, generally, Johnson (2005). We acknowledge
that IPV is not limited to heterosexual relationships, and that there is emerging research and discourse on the dynamics of
LGBTQIA+relationships.
2. Campbell-Joyce vR[2016] NZCA 192 at [25].
Armstrong and High 21
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