By Hope Wilder
Each minute, 20 people[1] experience physical abuse by an intimate partner[2] in the United States.[3] Over one-third of women and near one-third of men have experienced physical violence, sexual violence, and/or stalking by an intimate partner.[4] Further, nearly 50% of women and men have experienced psychological aggression[5] at the hands of an intimate partner.[6]
Coercive control is the cyclical pattern of behavior that an abuser uses to control, threaten, oppress, or frighten their partner and limit their freedom and deprive them of their sense of self.[7] An abuser can demonstrate coercive control over their victim through isolation; stalking or monitoring their daily activity; humiliation, gaslighting, depriving them of basic needs; interrogation; threats of violence against their victim or even their pets; other threats including revenge porn and deportation; financial abuse; coercive behavior to get their victim to do something they don’t want to do, such as having sex; name-calling; making sexual decisions for the relationship; and any other psychologically controlling and manipulative behavior.[8]
Nearly half of the United States have currently enacted legislation pertaining to coercive control.[9] Hawaii is currently the only state that has criminalized coercive control; however, other states are attempting to create similar offenses.[10] Under Hawaii Revised Statute § 709-906, it is a petty misdemeanor for a person to “intentionally or knowingly strike, shove, kick, or otherwise touch a family or household member in an offensive manner; subject the family member or household member to offensive physical contact; or exercise coercive control.”[11] A person convicted of this statute can face imprisonment of up to thirty days or a fine.[12]
Some domestic violence advocates argue that adding coercive control into States’ respective criminal codes will have numerous benefits, especially to survivors.[13] Criminalizing coercive control would allow survivors to tell their whole story of their abuse, rather than just one incident.[14] The court, and jury if the case requires one, are likely to rationalize one isolated event of abuse rather than a pattern of abuse.[15] With one isolated event, the court or jury can consider if the abuser was acting in self-defense against an “out-of-control” partner or was intoxicated, and then justify that act of abuse.[16] If survivors are able to provide more information about the relationship itself, the court will have a better opportunity to determine who the “primary victim in the overall relationship [is] regardless of who used physical force on this particular occasion.”[17] Oftentimes the crime formally charged does not cover all of the painful abuse the survivor has endured.[18] By giving the survivor the full opportunity to recount her entire story, her lived experience can be further understood, and even validated.[19]
However, these benefits have drawbacks of their own. Because coercive control legislation is relatively new, many members of the public, including those who fill public service roles, are still unable to understand how coercive control works, and especially why it is so incredibly difficult for women to leave these relationships.[20] Community members and criminal justice personnel may struggle to see survivors as true victims of abuse if they are choosing to stay with their partner.[21] Further, understanding and managing coercive control requires more than just creating new legislation.[22] Police officers will need proper training on coercive control and tactics that abusers use, especially because officers are often one of the first people to talk with a victim.[23]
Further, criminalizing coercive control does not magically make survivors feel comfortable enough to go to the police with their stories of abuse.[24] Survivors are extremely hesitant to come forward, and the stigma surrounding domestic abuse only further discourages survivors to report.[25] Another drawback comes from the subjectiveness of coercive control statutes, which may be unable to effectively prosecute an abuser.[26] For example, Hawaii’s criminal coercive control statute includes financial control and abuse; but, families are unique in how they manage their home.[27] One man who controls all of the finances in his home might not understand how another man managing the finances in his home is being controlling.[28]
In addition to the drawbacks of implementing and enforcing coercive control legislation, there are various harms to survivors and communities if legislation is even considered. Coercive control laws would likely disproportionately affect people of color and low-income communities, as criminal laws historically have.[29] Law enforcement’s response to domestic violence could further marginalize and imprison communities that already experience injustices in the criminal justice system.[30] In particular, men of color have been subject to overcriminalization for social issues, such as domestic abuse.[31] For example, a study in Milwaukee County, Wisconsin reported that men of color represented 66% of defendants in domestic abuse cases, yet only made up 24% of the community.[32]
Coercive control legislation could also inadvertently affect victims of domestic abuse and “further minimize the justice response to [intimate partner violence].”[33] Prosecutors could use criminal coercive control statutes to charge the victims of intimate partner violence instead of their abusers.[34] The current coercive control laws are not drafted to ensure that criminal statutes are going to prosecute the true perpetrator.[35] A victim of domestic abuse may be fighting back her abuser, or may respond physically to a verbal threat.[36] She could even never physically touch her abuser, but if she says something that could technically fall under a coercive control statute, she could then be charged with this criminal statute that was initially created to protect her.[37] Because coercive control is not as easily recognized as physical forms of abuse, police officers responding to domestic abuse situations involving coercive control may not be able to identify the primary victim, so they instead arrest both the abuser and victim.[38]
The current legislation surrounding domestic violence also gives an abuser the possibility of weaponizing such laws against their victim by taking out false charges against her or threatening to do so.[39] A false domestic violence charge is when an individual, often the abuser, files a false claim of abuse, violence, or harassment in their domestic relationship, often as an attempt to accomplish a certain objective, such as getting revenge on their victim.[40] False claims of abuse can reach the most intimate parts of a survivor’s life, and they often face serious repercussions as a result of false claims, including losing custody of their children, their abuser filing a restraining order against them, and damage to their reputation among the community.[41]
Complications can also arise with no-drop policies, which is when the prosecutor solely decides whether to go through with charging the abuser after an arrest is made.[42] This could potentially go against a survivor’s wishes, thus putting her in further danger, especially if she is only reporting her abuser during the incident to get the abuse to stop at that moment rather than to end their relationship and proceed with formal charges.[43]
Coercive control statutes would also require more victim testimony to see the full picture of the pattern of abuse.[44] While law enforcement does provide a list including various sources of potential physical evidence that would be helpful in cases of coercive control, such as social media messages and phone records, these may not be sufficient for a conviction.[45] Requiring victim testimony would be especially hard on survivors, who would have to share their story repeatedly to criminal justice actors who may or may not be able to secure a conviction for her abuser.[46]
Due to the uncertainty surrounding coercive control law, an already dangerous situation could become even more so.[47] The abuser, especially if not convicted, could use litigation as steam against his victim and become further enraged, increasing his victim’s risk of violence.[48] And even if the abuser is convicted, this is not the end of the survivor’s story.[49] She must learn how to heal from her abuse, may need to find housing and a job, and might have children that she needs to care for.[50] Further, if the children are biological children of the abuser and victim, there are additional challenges a survivor will have to quickly learn how to navigate.[51]
There is also a huge concern of constitutionality for criminal coercive control statutes.[52] This legislation may violate the constitutional rights of abusers, namely the 1st Amendment’s freedom of speech protection and the 5th and 14th Amendment’s Due Process Clause.[53] By potentially criminalizing someone’s thoughts and non-physical actions, albeit abusive, this could create a slippery slope of turning non-criminal acts into crimes that could now be punishable by law.[54]
Criminalizing coercive control will only further endanger victims and negatively impact their healing. Issues among understanding coercive control need to be addressed within and beyond the criminal justice system. A survivor’s story is not over once she separates from her abuser. She must now learn how to reintegrate and live within her community.
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[1] Women are not the only people who can become victims of domestic violence. Any gender can experience domestic violence. For simplicity, throughout this paper when referring to victims of domestic violence, the term “women” will be used and when referring to perpetrators of domestic violence, the term “men” will be used. When providing hypothetical abusers and victims, gendered language may be used for simplicity. Further, the terms “victim” and “survivor” may be used interchangeably throughout this paper.
[2] An intimate partner can be a current or former romantic or sexual partner, and can include spouses, boyfriends, girlfriends, dating partners, and sexual partners. An intimate partnership, however, does not need to involve sexual intimacy. Ctrs. for Disease Control and Prevention, National Intimate Partner and Sexual Violence Survey: 2010-2012 State Report 117 (2022), https://www.cdc.gov/violenceprevention/pdf/NISVS-StateReportBook.pdf.
[3] National Statistics, Nat’l Coal. Against Domestic Violence, https://ncadv.org/STATISTICS (last visited Nov. 1, 2023).
[4] Ctrs. for Disease Control and Prevention, National Intimate Partner and Sexual Violence Survey: 2016/2017 Report on Intimate Partner Violence 4 (2022), https://www.cdc.gov/violenceprevention/pdf/nisvs/NISVSReportonIPV_2022.pdf.
[5] Psychological aggression is a form of “expressive aggression,” and includes humiliation, insults, coercive control, and entrapment. Ctrs. for Disease Control and Prevention, supra note 4, at 2.
[6] Ctrs. for Disease Control and Prevention, supra note 4, at 6.
[7] See Shelley Flannery, A Guide to Coercive Control, Domestic Shelters (Aug. 4, 2021), https://www.domesticshelters.org/articles/identifying-abuse/a-guide-to-coercive-control; see also Becca Schroeder, Coercive Control: Abuse Hidden in Plain Sight, Domestic Violence Network (Feb. 3, 2023), https://dvnconnect.org/coercive-control-dvn/.
[8] See Flannery, supra note 7; see also Schroeder, supra note 7.
[9] See Ark. Code. § 9-15-219 (2021); Cal. Fam. Code § 6320 (2022); Colo. Rev. Stat. § 14-10-116.5 (2021); H.B. 23-1178, 74th Gen. Assemb., Reg. Sess. (Colo. 2023); Conn. Gen. Stat. § 46b-1 (2022); Haw. Rev. Stat. § 586-1 (2020); Haw. Rev. Stat. § 709-906 (2023); Haw. Rev. Stat. § 706-663 (2016); Haw. Rev. Stat. § 706-640 (2000); Haw. Rev. Stat. § 432D-27(e)(5) (2020); Haw. Rev. Stat. § 432:2-103.5(e)(5) (2020); Haw. Rev. Stat. § 432:1-101.6(e)(5) (2020); Haw. Rev. Stat. § 431:10-217.5(e)(5) (2020); Md. Code, Fam. Law § 9-205 (2022); Md. Code, Fam. Law § 9-101.3(c)(6) (2022); Mass. Gen. Laws ch. 211B, § 9b (2014); Mass. Gen. Laws ch. 12, § 33 (2014); Mass. Gen. Laws ch. 6, § 116a (2020); Miss. Code § 93-21-125 (2020); Okla. Stat. tit. 43, § 43-109 (2016); Or. Rev. Stat. § 411.117 (1997); Philadelphia, Pa., Mun. Code §§ 9-3201, 9-3202 (2021); 16 R.I. Gen. Laws § 16-21-30 (2021); S.B. 722, 113th Gen. Assemb., Reg. Sess. I (Tenn. 2023); Wash. Rev. Code § 7.105.010 (2022); H.B. 1715, 68th Legis., Reg. Sess. (Wash. 2023); S.B. 5028, 68th Legis., Reg. Sess. (Wash. 2023).
[10] Haw. Rev. Stat. § 709-906 (2023); Haw. Rev. Stat. § 706-663 (2016); Haw. Rev. Stat. § 706-640 (2000); see H.B. 1397, 103rd Gen. Assemb., Reg. Sess. (Ill. 2023); A.B. 2707, 246th Legis. Sess., Reg. Sess. (N.Y. 2023); H.B. 3621, 124th Legis. Sess., Reg. Sess. I (S.C. 2021); H.B. 713, 2022 Gen. Assemb., Reg. Sess. (Va. 2022).
[11] Haw. Rev. Stat. § 709-906 (2023); Haw. Rev. Stat. § 706-663 (2016); Haw. Rev. Stat. § 706-640 (2000).
[12] Haw. Rev. Stat. § 709-906 (2023); Haw. Rev. Stat. § 706-663 (2016); Haw. Rev. Stat. § 706-640 (2000).
[13] Deborah Tuerkheimer, Recognizing and Remedying the Harm of Battering: A Call to Criminalize Domestic Violence, 94 J. of Crim. L. & Criminology 959, 959-1031 (2004), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=7169&context=jclc.
[14] See Vanessa Bettinson & Dr. Charlotte Bishop, Is the Creation of a Discrete Offence of Coercive Control Necessary to Combat Domestic Violence?, 66 N. Ir. Legal Q. 179, 191 (2015), https://nilq.qub.ac.uk/index.php/nilq/article/view/149/110; see also Tamara L. Kuennen, Analyzing the Impact of Coercion on Domestic Violence Victims: How Much is Too Much?, 22 Berkeley J. Gender L. & Just. 2, 2 (2007), https://digitalcommons.du.edu/cgi/viewcontent.cgi?article=1144&context=law_facpub.
[15] See Alafair Burke, Domestic Violence as a Crime of Pattern and Intent: An Alternative Reconceptualization, 75 Geo. Wash. L. Rev. 552, 573 (2007), https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1148&context=faculty_scholarship.
[16] See id. at 574.
[17] Julie R. Tolmie, Coercive Control: To Criminalize or Not to Criminalize?, 18 Sage Js. 50, 52 (2017), https://journals.sagepub.com/doi/pdf/10.1177/1748895817746712.
[18] See Tuerkheimer, supra note 13, at 1016.
[19] See id. at 1017.
[20] See Ciara Nugent, ‘Abuse Is a Pattern.’ Why These Nations Took the Lead in Criminalizing Controlling Behavior in Relationships, Time (June 21, 2019 5:00 AM), https://time.com/5610016/coercive-control-domestic-violence/.
[21] See Tolmie, supra note 17, at 53-59.
[22] See id.
[23] See Nugent, supra note 20.
[24] See Fadzai Mamvura & Ervin Hii, Coercive Control: Should it be Criminalized?, Corney & Lind Laws. (Feb. 25, 2021), https://www.corneyandlind.com.au/family-law/coercive-control-should-it-be-criminalized/.
[25] Stigma and Domestic Violence, Connections for Abused Women & their Children (Feb. 27, 2023), https://www.cawc.org/news/stigma-and-domestic-violence/#:~:text=In%20spite%20of%20the%20shocking,domestic%20violence%20cases%20go%20unreported.
[26] See, e.g., Haw. Rev. Stat. § 709-906 (2023); Haw. Rev. Stat. § 706-663 (2016); Haw. Rev. Stat. § 706-640 (2000).
[27] See, e.g., Haw. Rev. Stat. § 709-906 (2023); Haw. Rev. Stat. § 706-663 (2016); Haw. Rev. Stat. § 706-640 (2000).
[28] See, e.g., Haw. Rev. Stat. § 709-906 (2023); Haw. Rev. Stat. § 706-663 (2016); Haw. Rev. Stat. § 706-640 (2000).
[29] Matthew Clarke, U.S. DOJ Statistics on Race and Ethnicity of Violent Crime Perpetrators, Prison Legal News (June 1, 2021), https://www.prisonlegalnews.org/news/2021/jun/1/us-doj-statistics-race-and-ethnicity-violent-crime-perpetrators/.
[30] See Leigh Goodmark, Should Domestic Violence be Decriminalized?, 40 Harv. J.L. & Gender 53, 57 (2017), https://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=2601&context=fac_pubs.
[31] See id. at 70-71.
[32] See id. at 71.
[33] Tolmie, supra note 17, at 51, 59.
[34] See id. at 59-62.
[35] See id.
[36] See id.
[37] See id.
[38] See id.
[39] See Why Might Someone Weaponize False Domestic Violence Accusations?, L. Offices of Elling & Elling (Oct. 26, 2023), https://www.ellingandelling.com/blog/2023/10/why-might-someone-weaponize-false-domestic-violence-accusations/.
[40] See id.
[41] See id.
[42] See Goodmark, supra note 30, at 71-72.
[43] See Why Might Someone Weaponize False Domestic Violence Accusations?, supra note 39; see also Goodmark, supra note 30, at 71-72.
[44] See Tolmie, supra note 17, at 59-62.
[45] See Nugent, supra note 20.
[46] See Tolmie, supra note 17, at 59-62.
[47] See Mamvura & Hii, supra note 24.
[48] See id.
[49] Why It’s So Difficult To Leave, Women Against Abuse, https://www.womenagainstabuse.org/education-resources/learn-about-abuse/why-its-so-difficult-to-leave (last visited Nov. 29, 2023).
[50] Id.
[51] Id.
[52] See Courtney K. Cross, Coercive Control and the Limits of Criminal Law, 56 Univ. Cal. Davis L. Rev. 195, 237-238 (2022), https://lawreview.law.ucdavis.edu/issues/56/1/articles/files/56-1_Cross.pdf; see also Erin Sheley, Criminalizing Coercive Control Within the Limits of Due Process, 70 Duke L.J. 1321, 1338 (2021), https://lawreview.law.ucdavis.edu/issues/56/1/articles/files/56-1_Cross.pdf.
[53] See Cross, supra note 52, at 237-238; see also Sheley, supra note 52 at 1338.
[54] See Cross, supra note 52, at 237-238; see also Sheley, supra note 52 at 1338.