Is the creation of a discrete offence of coercive control necessary to combat domestic violence?
Year: 2018
Type: article
Abstract: NILQ 66(2): 179-97 T here is currently significant political interest in strengthening the criminal justice response to domestic violence and/or abuse.To this end the Serious Crime Act 2015, s 76, includes a new offence of controlling or coercive behaviour in an intimate or family relationship.2 The motivation for this offence partially derives from Her Majesty's Inspectorate of Constabulary (HMIC), Everyone's Business: Improving the Police Response to Domestic Abuse, which highlighted that, although there were pockets of good police practice in this area, too many forces were responding in an overtly inadequate manner.The report found a lack of understanding of what domestic violence and/or abuse entailed.3 Evidence suggests that the police are not unusual in this, with many people associating domestic violence and/or abuse with physical forms of violence.4 That the report has been the impetus to reflect on how domestic violence and/or abuse is criminalised in England and Wales is further confirmed by the Law Commission's acknowledgment of 'the continuing concern about the policing of domestic violence'.5 Historically, such prosecutions for crimes occurring within the context of domestic violence and/or abuse have been NILQ summer 2015 1 The difficulty in defining this term is discussed within the article itself. 2 Also see Serious Crime HC Bill (2014-2015) [160], cl 73.Originally the proposed offences included the offence of coercive control in a domestic setting and domestic violence in Serious Crime Bill 2014-2015, Notices of Amendment 7 January 2015.Following Home Office, Strengthening the Law on Domestic Abuse Consultation -Summary of Responses (December 2014); Home Office, Strengthening the Law on Domestic Abuse -A Consultation (August 2014); In addition, reflection on reforming domestic violence and/or abuse are included in the Law Commission, Reform of Offences Against the Person: A Scoping Consultation Paper (Law Commission Consultation Paper No 217, November 2014).3 HMIC, Everyone's Business: Improving the Police Response to Domestic Abuse (HMIC 2014); A Musgrove and N Groves, 'The Domestic Violence, Crime and Victims Act 2004: Relevant or "Removed" Legislation?' (2008) 29 (3-4) Journal of Social Welfare Law 233, 240, found that 'police responses have, in some cases, moved well beyond the stereotyped image of their past indifference'.4 S Walby and J Allen, Home Office Research Study 276 Domestic Violence, Sexual Assault and Stalking: Findings from the British Crime Survey (Home Office Research, Development and Statistics Directorate March 2004).Walby andAllen found that victims of domestic violence and/or abuse were more likely to seek help where the violence was physical or if they were severely injured and those who named incidents as domestic violence were more likely to seek help than those who did not.5 Law Commission (n 2) s 144. 1 hampered by several factors including police responses to these offences 6 and the high level of retraction by victims themselves.7 There have been significant advances in prosecutorial practices and data collection has also been introduced.8 There remains, however, an inability by the substantive criminal law to capture the distinctive nature of coercive control that is, arguably, a defining feature of many cases of domestic violence and/or abuse.9 Empirical research in this area suggests that domestic violence and/or abuse is systemic within society and, where coercive conduct is used, it is programmatic in nature.10 Due to the focus on single incidents of violence within the legal framework, there was a failure to take into account the actual harm experienced by many victims of domestic violence and/or abuse which occurs through coercive behaviours of the perpetrator.11 The new offence centres on coercive and controlling behaviour, seeking to capture the parameters of an intimate relationship, and expressly includes non-physical forms of coercive behaviour.This article seeks to assess the potential application of the new offence of controlling or coercive behaviour in an intimate or family relationship.In this endeavour a discussion of the evolving understandings of domestic violence and/or abuse will be undertaken to show the difficulty in defining offences in this area and the importance of doing so.This will provide the context for the argument that both physical and non-physical forms of coercive control in a domestic relationship should be criminalised.Judicial interpretation of related offences and a preoccupation with an incident-based approach has meant that the reality of domestic violence and/or abuse experienced by victims is, in practice, not criminalised.This stands in contradiction to the Home Office's non-statutory definition of domestic violence and/or abuse.12 Criminalisation provides the opportunity to a discrete offence of coercive control for domestic violence 18113 Such agencies include charitable support groups for domestic abuse victims, families and perpetrators seeking to address their behaviours.14 C Hanna, ( 2009) 'The Paradox of Progress: Translating E Stark's Coercive Control into Legal Doctrine for Abused Women' 15(12) Violence Against Women 1460.15
Source: Northern Ireland Legal Quarterly
Authors: Vanessa Bettinson, Charlotte Bishop
Institutions: De Montfort University, University of Exeter
Language: English
Subfield: Health
Field: Social Sciences
Domain: Social Sciences
Open Access status: diamond
OpenAlex ID: W2339245420