In 2011 the supreme court confirmed a broad definition of domestic violence. ‘Domestic violence includes physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly may give rise to the risk of harm (Baroness Hale). This definition lacked in an insufficient amount of detail and did not recognise that there are many more forms of domestic violence that also need to be confronted. This was addressed and in March 2013 the Home Office expanded the definition to include younger victims and coercive and controlling behaviour. The cross-government definition of domestic violence and abuse is: any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of their gender or sexuality. The abuse can encompass, but is not limited to: psychological, physical, sexual, financial and emotional. This more adequate explanation of domestic abuse makes it clear exactly what counts as abuse and also raises awareness that domestic abuse is not just about the physical injuries and scars we see in a victim but also the psychological scars imprinted on them too. “These changes are about government taking a lead to help expose the true face of domestic violence, which is much more complex and much more widespread than people often realise” (Nick Clegg). The law is beginning to recognise that there needs to be a lot more done in order to better protect against domestic abuse. Starting with identifying and recognising the patterns and offences leading up to it. The new definition recognises that a pattern of behaviours and separate incidents of control and coercion add up to abuse. This was one of the most significant improvements in the legal system in relation to domestic violence to better protect women against abuse.
1.2. What does controlling and coercive mean in terms of domestic violence?
The cross government definition of domestic violence and abuse defines controlling behaviour as ‘a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour’. Coercive behaviour is defined as, ‘ a continuing act or pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish or frighten their victim.
These types of behaviour do not occur in a single incident; it has to be recognised as a pattern of incidents which takes place over a period of time for the victim to be actually identified as a victim of coercive control.
1.3. History
In June 2014 the House of Lords discussed the ‘Serious Crime Bill’ which included a collection of new offences focused on computer fraud and child protection. During this discussion Lord Paddick asked why the Government have not taken the opportunity in this Bill to address what many women’s groups believe to be a legislative gap in domestic violence law to deal with psychological abuse and coercive control. Indeed, psychological abuse and coercive control, not individual incidents of physical violence, are the essence of domestic violence.
In response to these concerns the Home Office carried out a consultation about the criminal law’s response to domestic violence, it specifically focused on whether a specific offence should be created that captures patterns of coercive and controlling behaviour in intimate relationships’. However, in their findings the Home Office recognised that a new offence may be seen as duplicating existing legislation for example stalking or harassment (Protection from Harassment Act 1997).
It observed:
there is no need for greater clarity around violent behaviours, which are effectively criminalised through existing offences. However non-violent behaviours are criminalised through legislation that is not explicitly applicable to intimate relationships.
In response to its consultation, the Home Office received 757 submissions and 85 per cent were in favour of ‘strengthening’ the law on domestic violence.
One submission commented:
Current legislation is not sufficient; it largely reinforces an approach based on single physical incidents, rather than capturing the patterns of power and coercive control within an ongoing relationship … These failings mean that the police do not have all the tools that they need and that Criminal Justice System cannot effectively intervene, nor translate and consequently penalise the crime before the abuse has escalated. For many this is too late.
In January 2015 a member of the House of Lords announced that amendments in committee to the Serious Crime Bill would ‘provide an additional charging option where there is a pattern of non-violent controlling conduct, the cumulative impact of which can be no less traumatic for the victim’. Subsequently an amendment to the Serious Crime Bill was moved on 20 January 2015, with the Solicitor-General stating:
We must bring domestic abuse out into the open if we are to end it. The first step is to call it what it is: a crime of the worst kind … We must create a new offence that makes it crystal clear that a pattern of coercion is as serious within a relationship as it is outside one. In many ways it is worse, because it plays on the trust and affection of the victim. That is why we need a new offence … The new offence seeks to address repeated or continuous behaviour in relationships where incidents viewed in isolation might appear unexceptional but have a significant cumulative impact on the victim’s everyday life, causing them fear, alarm or distress.
A new law was important in sparking a public discussion about domestic abuse and the social changes around it. The more information and discussion there is, the better people would understand and become more aware of the seriousness of domestic violence. This leaves a greater chance to reduce incidents of domestic abuse.
1.4. Introduction of Section 76 to the Serious Crime Act 2015
The Serious Crime Act (SCA) 2015 received royal assent on 3rd March 2015. The Act introduced Section 76 which created a new offence of controlling and coercive behavior in an intimate or family relationship. Prior to the introduction of this offence, case law indicated the difficulty in being able to prove a pattern of behavior leading up to this type of offence (R v. Curtis [2010]). The introduction of section 76 intended to close a gap in the law around being able to prove patterns of controlling and coercive behavior. However it still only provides guidance to certain extent to what the court should be looking for and it can still be difficult for the prosecution to prove the offence. Under section 76 A person (A) commits an offence if A repeatedly or continuously engages in behavior towards another person (B) that is controlling or coercive. A single incident of abuse is not ‘continuous’ or ‘repeatedly’, therefore the defendant cannot be charged under this offence but could be charged under another offence in a different area of the law depending on the nature of the incident. For example it is an offence under the Protection of Harassment Act 1997 to follow a person or monitoring the use by a person of the internet, email or any other form of electronic communication this could be via social media. In a controlling relationship a partner may be following therefore stalking their partner to monitor their activities, the defendant could be charged with stalking under this Act if the court has not been able to identify any other pattern of abuse in the relationship. A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 51 weeks, or a fine not exceeding level 5 on the standard scale, or both. However under Section 76 of the SCA 2015, coercive and controlling behaviour does not relate to a single incident. It is a purposeful pattern of incidents that occur overtime in order for a partner to exert power, control or coerce their partner. Some of the behaviours such as monitoring their partners whereabouts may be constituted as a single criminal offence. The court has to recognise a pattern of incidents over a period of time and not just one or two incidents which have occurred and do not establish a pattern. Under section76 it states that the victim must have feared that violence will be used against them at least twice during the ‘relationship’, however the act does not state a time frame. This should be a reform which should be amended into the section otherwise it is indistinctive how a court should be able to recognise a pattern of coercive control if the incidents do not happen immediately after one another. For example, if a couple have been in a long term relationship and two abusive incidents have made the victim fear for their life on both of these occasion (meeting one of the provisions of the act) but the incidents were three years apart, is this recognisable as a ‘pattern’ of coercive control? It is unlikely that a case of this nature will be considered as domestic abuse under the provisions of section 76.R v Curtis, for example, involved a number of incidents of harassment perpetrated over a long period of time. The Court of Appeal found that the trial judge should have stopped the case at the close of the prosecution:
we cannot conclude that, in this volatile relationship, the six incidents over a nine-month period amounted to a course of conduct amounting to harassment within the meaning of the statute. The spontaneous outbursts of ill-temper and bad behaviour, with aggression on both sides, which are the hallmarks of the present case, interspersed as those outbursts were with considerable periods of affectionate life, cannot be described as such a course of conduct.
It has been acknowledged that many relationships that include domestic violence include periods of violence interspersed with periods of non-violence and that periods of non-violence may also be part of a controlling pattern. Therefore, a period of affection may not necessarily signal a break in a course of conduct, i.e. an offence of domestic violence.
Given that the new provision is a course of conduct offence, it is likely that some offences will be based on actions that took place over months or years, thus it is sensible that there appears to be no time limit on prosecution. Some may argue that there should be a time limit provided in order to be able be able to prove and evident a pattern of abuse and the number of offences that have been committed in that period. However, it must be considered that a series of smaller incidents that took place over a longer period of time may overpower the seriousness of a bigger incident because of the harm or distress it may have caused on the victim, not just physically but emotionally too.
There may still be an offence if looked at as singular incidents of abuse. For example an offence under the Protection of Harassment Act 1997 such as stalking. There may also be charges of assault if any physical abuse had been incurred by the victim. For example Grievous Bodily Harm (S.18) or Battery (S.20) of the Offences Against the Persons Act 1861.
Prior to the introduction of section 76 in the SCA 2015, case law indicated the difficulty in proving a pattern of behaviour amounting to harassment within an intimate relationship (R v Curtis). Further in the case of R v Widdows, the Court of Appeal, Criminal Division held that the judge was unable to direct the jury to the offence of harassment under the Protection from Harassment Act 1997 section 4, they were unable to criminalise the offences. They found that it was not appropriate due to the defendants and victims on and off again long term affectionate relationship in which both parties wanted to continue the relationship. The case shows that the court was unable to identify a pattern of controlling or coercive behaviour in order to be able to convict an abuser, this was due to the on and off relationship between the two parties therefore they were unable to recognise a pattern. However the court should have been able to identify that the victim may have been coerced back into the relationship and was not allowed to leave the relationship by choice. Regardless of an on again off again relationship, the complete time that a couple have been together should be looked at as a whole time period as the victim may have suffered serious harm or distress over the time. Getting back into a relationship should not mean that a refresh button has been hit and all the previous offences committed should not be taken into account.
Controlling and coercive behaviour can also be in conjunction with a range of other offences such as under the Malicious Communications Act 1998, Sexual Offences Act 2003 and Offences against the Person Act 1861. Offences could include posting private pictures electronically via social media, giving a victim a black eye, beating the victim leaving various injuries or raping the victim.
Other elements of the provision makes it an offence if the behavior has a serious effect on B the ‘serious effect’ on B is to be proven by the guidance of the provision where it states that the offenders behavior has caused B to fear on at least two occasions that violence would be used against them and for it to have caused serious alarm or distress which has a serious adverse effect on B’s day to day activities. This may include a change of behavior that has impacted negatively and is noticeable to other family members. For example, the victim may not be as socially involved and more reserved than usual. The victim may stop or reduce the amount of family gatherings or going out with friends. There might have also been occasions where the victim has not gone to work or has been made to leave work which may be a irregular characteristically for the victim which has now become noticeable to family and friends.
1.5. Section 76 Controlling or Coercive Behaviour in an Intimate or Family Relationship
Since 2013, the definition of domestic violence in English and Welsh government departments encompasses controlling and coercive behaviour. In terms of ‘course of conduct’ offences, England and Wales already have stalking and harassment offences. These could potentially be applied in cases where the domestic violence is non-physical and controlling and coercive, however this form of domestic violence is not explicitly recognised in these offences. This is because coercive and controlling behaviour is not widely known or understood as being associated with domestic violence. Depending on the level of coercion and control in a relationship, it may be misconceived as loyal behaviour to those who don’t fully understand the concept of coercive control.
The Law Commission also identified a separate question of whether a broader offence of domestic violence was needed that covered a more comprehensive range of behaviour such as coercive control or ‘keeping a person short of money’.
It has not yet been thoroughly discussed and identified what constitutes serious alarm or distress and how ‘adverse effect’ on day-to-day activities is to be determined, this depends on a judges own understanding and conception as what day to day activities include. In a recent explanatory note on this aspect of the provision the need for a ‘substantial adverse effect’ on daily activities was suggested.
Subsection 5 identifies an objective test of knowledge and explains that ‘A “ought to know” that which a reasonable person in possession of the same information would know’. This would mean that the abuser would have to have the understanding of a ‘reasonable’ person and foresee the harm he would cause as a result of his ongoing abuse and violence to the victim. If the abuser does not construe that what he is doing is wrong, then there would be an underlying problem with the abusers’ mental health being questionable.
In relation to the requirement of ‘repeatedly or continuously’ engaging in the relevant behaviour and the objective test as to knowledge, the Solicitor-General commented:
We recognise the importance of ensuring that the new offence does not impact on non-abusive relationships that might be more volatile than others. As such, the repeated or continuous nature of the behaviour and the ability of a reasonable person, whether part of or external to the relationship, to appreciate that their behaviour will have a serious effect on the victim, are key elements of the new offence.
The myths and confusions surrounding ‘ordinary’ people’s understanding of the effects of domestic violence have been identified by many.For example a provision in Victoria’s criminal law statute allows for experts to give evidence about how individuals may be affected by domestic violence, reflecting the view that ordinary people may not understand its impacts. While an objective test assumes that expertise will not be needed to make an assessment about whether certain behaviour will have serious effects, it may still be difficult for prosecution officers to prove to magistrates and juries.
Subsection 8 provides for a reverse onus defence where A can show that she or he ‘believed’ they were acting in the ‘best interests’ of B and that their behaviour was reasonable. It would have to be carefully considered as to what counts as ‘reasonable’ enough for the abuser to have committed the offence. The Solicitor-General commented that the test ‘is not an easy test to meet’ and it ‘cannot be used as a “get out of jail free” card’. A member of the House of Commons also questioned the use of the word ‘reasonable’ suggesting ‘justified’ may be more appropriate.However the Solicitor-General defended the wording and explained that the burden was ‘evidential rather than legal’ and that the word reasonable created an objective test. The reverse defence ‘acting in the best interest’ has become increasingly popular as a defence. However the offence of domestic violence cannot go unpunishable as a serious crime has still been committed which resulted in a victim of domestic abuse. The victim may be left traumatised and physically or emotionally scarred because of the prolonged abuse. There is a lack of justice in this defence and where does that leave the victim, would that leave them unprotected for the abuser to continue to act in what they regard to be ‘in the best interest’. Courts should not identify with this type of defence as there is no justifiable reason to the offence of domestic abuse. It causes enough emotional distress without women now thinking their abusers will get away with the way they are being treated and therefore just suffer in silence.
In another debate about the provision, the Solicitor-General pointed out that there was deliberately no reference to domestic violence or domestic abuse in the provision. He suggested the focus was on the specific behaviour which is controlling and coercive. He commented: ‘We do not want duplication or confusion; we want an extra element that closes a loophole’. Speaking in favour of the new provision and to its communicative function, Mr Llwyd observed: ‘tougher domestic violence laws are obviously needed to combat the lack of awareness and possible lack of confidence in our justice system to punish the behaviour and protect the victims’. These comments point to both the generality of the new provision but at the same time the aspiration of the legislators to respond specifically to domestic violence. However, given the ‘personally connected’ requirement of the offence, a person successfully prosecuted under this provision will be identifiable as either a family member or a former or current intimate partner of the victim, for example in their criminal record.
The explanatory notes on House of Commons amendments identify that the estimated annual cost to the police from ‘additional investigations would be £2.2 million and to other criminal justice agencies arising from additional proceedings would be £11.6 million’.Further it is speculated that the amendments may reduce the prevalence of domestic violence by 0.1 per cent leading to some of the costs of the reform being recuperated. Therefore it would be strongly recommended that these costs and expenses should be made in order to reduce the amount of domestic violence cases. At any means tougher laws should be made to protect women from abuse that happens unknowingly everyday.