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Has the Criminalisation of Emotional Domestic Abuse Been Successful?

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About The Author

Angelina Nicolaou (Guest Contributor)

Angelina Nicolaou is a pupil barrister at One Pump Court, specialising in crime, immigration and prison law. A law graduate from the University of Manchester, Angelina is a coffee and chocolate enthusiast.

If we are to fight discrimination and injustice against women we must start from the home for if a woman cannot be safe in her own house then she cannot be expected to feel safe anywhere.

Aysha Taryam

The criminal law exists to protect individuals against harm. However, selecting the right approach with which do this can be difficult when that harm cannot easily be seen. Domestic violence laws have long sat at an uncomfortable interface between people’s private, intimate relationships on the one hand, the state’s wider obligations to protect individuals from harm on the other. This is a fine balancing act and can only be done through appropriate and robustly effected laws.

Society is developing a more sophisticated understanding of how domestic violence works and how perpetrators are able to reduce their victim into a state of vulnerability. Much of this is done through controlling or coercive behaviour. This type of behaviour can have a devastating emotional psychological impact on a victim: as the Suzy Lamplugh Trust report discovered, between 4 and 10 women suffering domestic abuse and coercive control will commit suicide every week.  Because of the lack of physical indicators, this type of abuse can be potentially hard to identify and therefore protect against. At a time where figures show that domestic abuse accounts for 11% of the crimes recorded by the police, it is more important than ever that when situations of controlling and coercive behaviour arise they are dealt with properly.

The Offence of ‘Controlling and Coercive Behaviour’

The Serious Crime Act 2015 (SCA 2015), which came into force in December 2015, introduced the new crime of “controlling or coercive behaviour in intimate or family relationships”. It was hoped that this new offence would account for, and protect against, the insidious nature of emotional domestic abuse; namely, abuse that – though it may not leave physical bruises or scars – nonetheless has a devastating and long-term psychological impact on victims.

Section 76 of the SCA 2015 provides that a person (A) commits an offence if they:

  • Repeatedly or continuously engage in behaviour towards another person (B) that is controlling or coercive;
  • At the time of the behaviour, A and B are personally connected;
  • The behaviour has a serious effect on B; and
  • A knows or ought to know that the behaviour will have a serious effect on B.

In many cases this type of behaviour may be self-evident. In other cases, it may be more subtle and need an examination into the types of behaviour being exhibited and the effect they have on an individual. To aid this inquiry, statutory guidance has defined 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.

It is clear from this definition that having control over a spouse’s finances, electronic devices, social life and communication with their friends and family could all fall within the definition of ‘controlling behaviour’.

Coercive behaviour on the other hand, is defined by the same statutory guidance as:

[A] continuing act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish or frighten their victim.

The last limb of the offence requires that defendants know or ought to know that such behaviour will have a ‘serious effect’ on their victims. When determining this, regard will be given to whether they have been caused to fear, on at least two occasions, that violence will be used against them, or alternatively, whether it causes them alarm or distress which has a substantial adverse effect on their day-to-day activities.

The seriousness of this offence cannot be understated. Controlling and coercive behaviour is of itself a destructive and oppressive pattern of conduct which can have a severe impact on the emotional well-being of a victim. Beyond that, such behaviour is often a precursor to more serious violence: as the authors of Suzy Lamplugh Trust report found, coercive control is nine times more effective in predicting homicide than threats and violence.

Two Years On: What Progress Has Been Made?

Since the offence under Section 76 of the SCA 2015 came into effect in December 2015, there has been slow progress in realising and translating the protective mechanisms found within the legislation into meaningful avenues of redress for victims. For example, the law-makers who first sought to criminalise the behaviour under the right of the new offence, as well as other stakeholders such as domestic violence charities, have expressed concerns that the legislation is not being used as robustly and effectively as it could.

Indeed, it appears that the rates of arrest, charge and prosecution are low. As The Guardian has reported, a Freedom of Information request revealed that revealed that just 532 charges have been brought under the new laws in the 29 forces that responded to the request. More troubling are statistics that show that six of those forces have brought five charges or fewer since the new offences were brought into force

One of the reasons cited for the lack of progress in properly investigating and prosecuting crimes of coercive and controlling behaviour has been due to the poor levels of training that police officers have received in relation to this offence. It is a complex offence to investigate evidentially, given the potential limitations in physical evidence to be gathered; it is not as straightforward as investigating physical injuries or reports of disturbances. It requires a sensitive but incisive examination into the dynamics of relationships, and an ability to properly engage with and elicit information from exceptionally vulnerable (and at times distrustful) victims.

To address this, the College of Policing has rolled out a training programme called ‘Domestic Abuse Matters’. The training focuses on improving the process of gathering evidence and understanding the nature of the offence to properly be able to investigate it and commence prosecution where appropriate. This training is designed to have sessions which are delivered by two trainers, one with a police backgrounds and another from a charity or voluntary organisation. It covers the identification of ‘risk factors’ such as multiple calls to police to report (apparently) ‘verbal only’ incidents, and the awareness that coercive behaviour can cause victims to minimise abuse and internalise blame.  

Unfortunately, this training has only been rolled out in eight police forces so far throughout England and Wales. There are currently plans to provide the training to two other forces in the near future. However, as The Guardian has reported, there is a real concern that the pace at which police officers are being trained is doing a real disservice to the estimated 1.2 million women and 713,000 men who have been victims of domestic abuse in the last year.

Evidential Challenges of These Offences

Officers investigating incidents which exhibit behaviour which may amount to controlling or coercive abuse, will be confronted with a number of practical difficulties. In many cases, victims may not identify as such or be aware of the legislative framework that exists to protect them. Inherent in domestic abuse is the effective manipulation and intimidation of the victim. That includes instilling fear within the victim that they will not be believed, will not be offered adequate protection and will not be able to seek redress.

Victims may not wish to cooperate with investigations or prosecutions, or they may change their minds. Police investigations, and the proceedings which may follow are lengthy and require a large amount of resolve to see through. A victim who may have been reduced to a state of low self-esteem may find it difficult to commit to this process without feelings of guilt and doubt. It is nothing short of an uncomfortable situation to have to provide private and at times intimate details about the inner workings of your relationship to strangers.

These issues are broadly symptomatic of domestic violence cases generally and in large part this is an area where the police and Crown Prosecution Service have become better equipped to deal with and provide support to victims. In recent years, the CPS has made decisions within trials to continue to pursue a prosecution notwithstanding the fact that a victim has sought to withdraw their statement or not attend court to give evidence.  

Another evidential challenge arises out of the need to establish a ‘pattern’ to show controlling behaviour. What amounts to a pattern will vary from case to case. It is not likely that there is an optimal number of incidents to suggest a pattern, though it is likely that the fewer the number of incidents documented, the harder it will be to establish a pattern. Given the fact that the law in this area came into force in 2015 and does not apply retroactively, it cannot encompass behaviour which pre-dates 29 December 2015. As such, it may be difficult to establish a pattern within the more restricted timeframe.

Investigators will also need to be sensitive to the different dynamics within a personal relationship. It is particularly difficult to decipher those dynamics and distinguish between a normal and a healthy relationship which may happen to have a more dominant partner, where compromises are likely to be made in relation to a variety of decisions, as compared to unhealthy relationships where the victim is clearly being isolated from his/her support network with a view to being subordinated and deprived of his/her independence. It is no doubt a complex area of abuse which requires its investigators to possess a high level of emotional intelligence and sensitivity.

Conclusion – Looking Ahead

It is likely that stakeholders will be pressing for more training to be provided by the College of Policing to facilitate an increase in arrests and prosecutions.

In a similar vein, there is an increasing desire for the raising of awareness regarding the offence of controlling and coercive behaviour among the general public. Individuals need to be aware that these offences exist so that they can properly report incidents to the police where they believe that someone they know may be a victim of these offences. Victims themselves need to know that there are protections available despite the fact that ‘abuse’ is capable of taking place in a subtle manner within the private confines of a personal relationship.

Much work remains to be done in order to protect those within vulnerable relationships, and the law needs to be applied and enforced more robustly in order to achieve that intended outcome.

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Tagged: Courts, Criminal Law

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