Sticks and stones…

Domestic violence is now widely understood to encompass more than punches, and to affect both men and women. Since 2013 the cross-government definition of domestic violence encompasses physical, financial, sexual, emotional and psychological abuse and coercive and controlling behaviour. it is this definition which is replicated in the practice directions to the FPR 2010. As noted in the Family Court Practice 2015, coercive control fits quite comfortably within the range of behaviours which can properly be injuncted by a non-molestation order made by the Family Court.

But coercive control has not to date been a criminal offence (save where it is also a breach of a non-molestation order).

Section 76 of the Serious Crime Act 2015 will change that. It has not yet been implemented but is likely to be brought into force in the next few months.

I spoke at a conference on Coercive Control in Bury St Edmunds this week and as a result BBC Radio Suffolk ran a piece about coercive control, asking Marilyn Stowe for comment. I did not hear the radio show but I have read Marilyn’s subsequent blogpost in which she sets out her views, and whilst I agree with some of it (Marilyn usually talks a lot of sense) there are some points I disagree with. You can read it here : Section 76 and the Serious Crime Act on Radio Suffolk.

At the conference I talked about coercive control in the Family Courts. I won’t bore you with what I said, but what I noticed was this : Although most attendees and speakers were female victims or worked with female victims, and as such had experience primarily of domestic violence as it affects women rather than men, all the speakers I saw (I had to leave before the end) acknowledged (rather self-consciously) that abusive behaviour including coercive control could affect men as well as women. One talked about how debate around domestic violence is very polarised – feminist versus men’s rights. And that of course is exactly how it is, and it’s a shame that is so. It does not help anybody. We should be able to talk about the gendered nature of domestic violence without being accused of suggesting it does not affect all genders and sexualities. Debate can become stale and formulaic in this environment, replicating the gendered interactions in an intimate relationship – an abusive relationship on a population size scale, played out in public as we call each other feminazis or father’s rights nutters (or whatever). We shouldn’t have to fit in one or other box to have a voice.

Marilyn’s blog expresses some worries about this new offence of coercive control and how it will work in practice. I have some concerns also, but they are not the same as Marilyn’s. I recognise that coercive control is “a thing” (and a serious one) but as the convoluted crafting of the legislation demonstrates, on the margins there is an element of subjectivity about what it actually is – a punch is a punch but one person’s “regularly being a bit of an arse” is another’s coercive control. But that is not to say we should hold up our hands in despair and do nothing. I worry though that it is an offence which is likely to be very hard to successfully prosecute and that either there will be a low rate of prosecutions or a high rate of failed prosecutions (or both). That is because this offence has several components each of which will need to be proved beyond reasonable doubt. Marilyn says

…good intentions are one thing, effective intervention in the intricacies of human behaviour another. How do you enforce such a law? What corroboration will be judged sufficient to found a prosecution? Will it ultimately boil down to her word against his and therefore a question of which one of the two parties you believe?

Well probably not Marilyn, no. I imagine in most cases in order to secure a prosecution there will need to be some third party or independent evidence of the behaviour in question. The prosecution must satisfy the high standard of proof – that is a significant safeguard for defendants.

Marilyn goes on to say this :

A defence is set out in Section 76 (8). It requires the defendant to demonstrate the behaviour was reasonable. But what if the infringing behaviour was exaggerated or worse, never happened at all? Could it come down to which party is the more skilled actor?

In other words, is the person claiming to be the victim really as innocent as they claim? A seriously- held assumption behind such initiatives is almost always ‘women are the victims, and men are the guilty parties’, but the uncomfortable truth is that I have encountered more than one case in which the woman, skilfully playing the victim for all its worth, turned out to be the aggressor or abuser. Such women are readily believed when they claim that their partner is “very controlling” and the men targeted are left to struggle against an immediate gender prejudice and assumptions of guilt.

I have some difficulties with this. Firstly, the description of the defence is inaccurate. The defence is available only in cases where an alleged victim is caused serious alarm and distress but not where the alleged victim is made repeatedly to fear violence. The defence is available where the defendant is able to produce “prima facie” evidence that s/he believed themselves to be acting in the alleged victim’s best interests, AND the behaviour was in all the circumstances reasonable. It is NOT simply a question of the defence showing the behaviour was reasonable. Furthermore, once the defence have done enough to legitimately raise the defence the burden of proof shifts back to the prosecution to prove the defence does not apply to the criminal standard. This is really important. The defendant may say (to use an example drawn from my professional experience) “well I withheld her prescription drugs because she was addicted to them. I did it for her own good”. Fair enough. Now the defence have to prove that ain’t so. That is likely to be quite tricky. And don’t forget, regardless of the defence, the prosecution still have to prove beyond reasonable doubt that the alleged behaviour took place at all – on multiple occasions.

If, as Marilyn suggests, the infringing behaviour was exaggerated or entirely fabricated (which I acknowledge is not unheard of in Family Court cases) – it is highly unlikely that the prosecution will be able to satisfactorily prove the “substantial adverse effect on [the alleged victim’s] usual day-to-day activities” that is part of the offence in “alarm and distress” cases. There of course is a risk of malicious fabrication, but this is true of many offences – the presumption of innocence and the high standard of proof are the means by which the criminal justice system protects defendants against such scenarios. As with domestic violence or rape cases, if there is a context of Family Court dispute and relationship breakdown that might give some motivation to a false allegation that is something I would expect the defence to explore – and the CPS to bear in mind when making charging decisions.

But that is not all I disagree with. Marilyn complains that the assumption behind this initiative is that women are the victims and men are the guilty parties. From where I’m standing the only one making gender based assumptions is Marilyn, where she criticises women (not men you will note) for playing the victim and claiming they have been overborne by controlling partners. In my experience it cuts both ways – I’ve seen plenty of men and women claiming to be victims of violence or abuse – and a fair few of each gender where I have wondered if they are revelling too much in their status as victim rather too much, and where in taking on the role of victim they are able to control both court process and their “abusive” ex. The variety is infinite. I’ve seen cases where there is “mutual volatility”. I’ve seen cases where men are or claim to be victims of violence from mentally ill or alcoholic women (in my experience this is quite a common trope that is gendered – but that’s anecdotal) – and it is very hard to see whether the mental ill health / alcoholism is a) real and b) whether it is chicken or egg (cause or effect). I’ve seen cases where father’s appear to manipulate their status as a victim of gender prejudice to good effect too. It’s not my role as counsel to judge who is telling the truth (we pass that buck to the judge), although sometimes a hunch is inevitable – but some of these cases are more plausible than others, and some involve two parties who have each obviously experienced their role as one of victim – without being able to see their own abusive role in a mutually destructive relationship. The fact that one partner is abusive does not necessarily mean the other is not. So yes, I agree human relationships involve two agents and they are complicated and messy and difficult to capture in legislation – and I also agree that patterns of abusive behaviour are often gendered. But I don’t think that this legislation is gendered. If potential defendants are at risk of malicious allegations that will be as much a risk for female defendants.

It goes on…

Why would women behave in such a way? Perhaps it goes way back in their relationship. Perhaps their husband left them for somebody else or she fell out with them for some other transgression. A woman in such circumstances, if eaten up with anger or bitterness, may find herself very tempted to try and make life as difficult as possible for her ex, possibly using their children as a weapon and making allegations against him. She may even seriously believe the allegations she makes by the time they come to trial. A lie can be embellished and embroidered whilst the truth is lost in the mists of time.

This all happens. I’ve seen it a hundred times before. But about fifty of those times it was the other way around. Mums and dads use the kids as weapons ALL THE TIME.

I think it is worth saying that in my experience it is jolly hard to get findings of coercive control in the Family Court, even with the lower standard of proof and evidential flexibility of the Family Court. There are no doubt multilayered reasons for that, which I won’t go into here, but it does suggest that concern about the risk to poor maligned innocent husbands by their bitter witchy exes may be rather over-blown.

If a parent wishes to manipulate the system by making false or exaggerated allegations of domestic violence simply in order to secure legal aid (a perverse incentive of the legal aid cuts that I acknowledge) they have little need to put themselves through a criminal trial in order to do so. A non-molestation order will do the job – and the standard of proof is only the balance of probabilities. There is limited evidence to prove the hypothesis that the legal aid cuts have led to a surge in fabrication (stats showing an increase in non-mols merely show that more people are raising their DV – but it doesn’t show that the allegations they raise are necessarily fabricated).

Call me a feminazi if you like (for sure somebody will), but Marilyn does women a disservice in implying that they are the sole or primary perpetrators of abuse by means of malicious allegations – even if she does specifically acknowledge that most people tell the truth. This stereotypical spiteful ex-wife does exist – I’ve represented her, I’ve been on the other side. But the use of this gender stereotype in isolation in order to illustrate the discriminatory nature of a piece of legislation is beyond ironic.

Men and women are equally capable, in my experience, of being utterly vile, selfish and abusive – and they lie and manipulate in equal measure. The different genders may tend to exercise control in different ways – but I prefer to judge individuals on their actual behaviour not their gender. And I prefer to judge this law on the basis of our prejudices but on its performance when in force.

12 thoughts on “Sticks and stones…

  1. “And I prefer to judge this law on the basis of our prejudices but on it’s performance when in force.”

    The Apostrophe Police will be dropping by. I would rather you corrected the error and moderated this out!

  2. A really good, fair and well reasoned piece. It will be interesting to see what kind of training the police, CPS and judiciary will get, and I hope they do, in order to be able to identify this.

    Coercive Control is not really as complicated as it seems but it does require a completely new way of thinking which is going to take some time to adapt to.

    This new thinking is most probably why the law was drafted in the way that it has been, to allow for the peculiarities of identifying this insidious and relationship specific form of abuse. What do I mean by that? What passes as controlling and coercive in one relationship does not make it so in another. It is about trying to control by restricting a person’s personal freedom and there will be different ways of achieving that.

    Revenge is not coercive control. Revenge is spite. A vengeful person may well claim this, in order to gain an unfair advantage in family proceedings but the evidence would simply not be there to support the allegation.

    Simply put, coercive controllers reel in their chosen target by making themselves out to be the perfect partner. The relationship will progress very quickly, it will be a whirlwind. It will feel heady. In a way it needs to be because the controlling partner can not sustain that level of ‘ perfect soulmateness’ for too long so speed is of the essence.

    Once the partner is committed to the relationship- often when they start living together, get married, woman falls pregnant- the perfect mask can slip as the controlling partner knows they are ‘ invested’ in the relationship and won’t get away too quickly.

    It starts off small- maybe a flash of temper, some comment about make up, weight. There is a profuse apology. You give the benefit of the doubt but the seed has been sown. Further controlling acts can be seen as caring, you may have doubts but you’re not sure. You start to become confused. If you’re unlucky, your coercive and controlling partner will wake you up several times in the night. You are exhausted, you become disoriented. This is deliberate. You are easier to control this way. You are too exhausted to see the abuse for what it is and blame yourself. This is especially true if one of the tactics being used is ‘gaslighting’

    You want it to be how it was at the beginning so you change your behaviour. Maybe it was something I did? Maybe if I change it will go back to how it was?

    And this is how it starts.

    Somewhere down the line, the controlling and coercive behaviour intensifies until, worst case scenario, you feel trapped and imprisoned.

    I have rushed this part as I don’t want to post something too long ( too late?) but I wanted to show just how a wife hell bent on revenge is not going to successfully claim coercive control because the classic hallmarks- the isolating, dominating, freedom- curtailing aspects just won’t be there.

    If there has been adequate training.

    • So coercive control is “a flash of temper”, “comments about make-up, weight”, “a profuse apology”, “caring”, your partner will “wake you up several times in the night” (snoring perhaps?), “‘gaslighting’”.

      Then you switch to “isolating, dominating, freedom- curtailing”, but give no examples. Would that be stopping you seeing friends and family, particularly your children? What if a mother does that to a father, is that coercive control?

      I’d like to know how the police and other services will be trained to recognise this if nobody can clearly define what it is. It’s a bit like “molest” and “harass”, they’re terms which have no proper definition.

      Can we have some clear examples of what acts constitute coercive control? Teresa May has suggested that a husband saying her wife is “fat” could be considered coercive control, if part of a pattern of “abusive behaviour”. What if a wife called her husband “fat”, does that count as coercive control?

      Is it the frequency these terms are used, is it the absence of any complimentary terms – sorry that falls into the category of “caring” which is also coercive control. Is there a pattern of behaviour which could not possibly be interpreted by the victim as coercive control or is it just up to the victim what they think is coercive control?

      Would threatening to “take you for every penny you have” count or saying “you’ll never see the kids again” or perhaps “I’ll have an abortion”, would those count as coercive control?

      • The answer is in the legislation Brian (link in the main post). In a nutshell – the behaviour has to be repeated, it has to be controlling or coercive – and it has to have a “serious effect” – that is it must either repeatedly cause a fear of violence OR cause serious alarm and distress that is so debilitating that it has a substantial effect on the ability to carry out day to day activities. Potentially the behaviour you describe could fall within the definition, but would not necessarily do so.
        The legislation is not gender specific.

        • You spoke at a conference on Coercive Control in Bury St Edmunds. You talked about coercive control in the Family Courts. Presumably you have some experience you can share to inform us what would be a typical pattern of behaviour.

          The answer is not in the legislation, that is too vague and concentrates of the effect. You say getting findings of coercive control is difficult in the family courts, so you must have some experience of the type of behaviour that would constitute a finding of coercive control.

          Please enlighten us with some examples.

          • No such thing as typical. Sure you are capable of thinking of examples. I am afraid I am a bit busy today and not in the mood to be cross examined.

  3. “…lower standard of proof in the Family Court?”

    It would be a great starting point if judges didn’t ignore completely practice directions and began insisting on at least some kind of basic evidence to back up allegations of domestic abuse from either sex.

    Whilst we’re still analysing the NMO application stats gathered from the MoJ via an FOI request, there is a suspicion that judges who have been inclined to give the nod to unevidenced ex-parte NMOs are being tracked on the Midlands circuits by a small number of large law firms who are availing themselves of the opportunity to fast-track to legal aid.

    • Which practice directions do you think are ignored David? In my experience the Family Court is pretty good at adopting an evidence based approach – not perfect, but not as you describe either. I also have some NMO stats that were sent to me – but have yet to have time to analyse them properly. My understanding is that generally the trend is upwards since LASPO.

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