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incapacitation, BETTER protection tovictimsexperiencingrepeatedorcontinuousabuse

(indiv)By adding coercive control to its criminal law, the UK is adopting an

international best practice. In doing so it is shifting the emphasis from single


incidents of physical or psychological violence to patterns of conduct that are
more typical of domestic violence. Although many domestic violence laws
currently criminalize non-violent offenses such as psychological or economic
abuse, those definitions are usually vague, causing problems for both the victim
and the government. Abusers often manipulate these laws, claiming that the
victim psychologically abused them by doing things like name-calling or nagging,
thus provoking the abuser to use physical violence. Even if psychological abuse
laws are used to protectnot targetvictims, these violations are hard to
prosecute because of their broad and ambiguous definitions.
By focusing on a pattern of domination instead of individual acts of psychological
violence, the concept of coercive control is designed to avoid turning the law
against the victim and treats the assault on the victims autonomy with the
seriousness it deserves. Identifying coercive control as domestic violence
validates the experiences of many victims, some of whom report that the
cumulative impact of controlling behavior is more harmful than isolated incidents
of physical violence. Criminalizing coercive control provides a tool to redress the
experiences of many victims of domestic abuse,

1. deterrence send out message that cannot violate trust in the


relationship (public) stop short
2.

will raise awareness about the many types of domestic


abuse that can ruin lives and encourage more people to
seek help.

To close a gap in the law resulting from a non-comprehensive


definition of domestic violence, the Government has created a new
offence of coercive or controlling behaviour.
The purpose of the new 2015 Act is to ___. The reasons for
criminalisation of such an offence can be categorised into the ______
and ______. The prosecution of perpetrators will not only protect
current victims, but potential ones too. It also serves as a form of
punishment to the perpetrator. It is also a form of deterrence as the
codification of the new offence sends a message that it is wrong to
violate the trust of those closest to you and inflict emotional and
controlling abuse.

Victims who would otherwise be subjected to sustained patterns of


domestic abuse will be better protected under a new offence,
The governments new coercive or controlling behaviour offencewill
mean victims who experience the type of behaviour that stops short
of serious physical violence, but amounts to extreme psychological
and emotional abuse, can bring their perpetrators to justice

Minister for Preventing Abuse and Exploitation Karen Bradley said:


(https://www.goxev.uk/government/news/coercive-or-controllingbehaviour-now-a-crime)
No one should live in fear of domestic abuse, which is why this
government has made ending violence against women and girls a
priority.

Reasons for victims not stepping out:


- Fear of retaliation
- some victims do not think that what is happening to them is
wrong.
Past:
The United Kingdom previously expanded its cross-governmental
definition of domestic violence to include coercive control. The
cross-governmental
definition
was
used
by
government
departments to target support services but was not a legal definition
or part of the criminal laws definition of domestic abuse.
http://globalrightsforwomen.org/2015/02/06/targetingdomestic-abuse-in-the-united-kingdom/
Government adopted a new definition of domestic violence in March
2013, it was not yet a statutory definition, meaning that until this
Bill Committee there were gaps in the law whereby individuals could
perpetrate domestic violence and abuse and could not be arrested
for that behaviour.
not effective
so SCA
Aim: The new offence aims to close a gap in the law around
patterns of coercive and controlling behaviour during a relationship
between intimate partners, former partners who still live together,
or family members.

Purpose of SCA:
- Encourage people to come forward,
- (Currently:) Low % of issues 6% of issues reported to police
end up in conviction
- (consequentalist) INCAPACITATION + PUNISHMENT: will protect
victims who would otherwise be subjected to sustained
patterns of abuse that can lead to total control of their lives by
the perpetrator.
- FORM OF DETERRENCE sends a clear message that it is wrong
to violate the trust of those closest to you and that emotional
and controlling abuse will not be tolerated.
- providing better protection to victims experiencing continuous
abuse and allowing for earlier identification, intervention and
prevention.
- statistics consistently show that women and girls are
disproportionately affected by crimes of domestic violence
and abuse. 21. In 2014/15, 92.4% of defendants in domestic
abuse flagged cases were male. Where recorded, the
proportion of female victims has remained steady at 84%,
since 2010-11 (CPS Violence Against Women and Girls Crime
Report 2014/15). 22. Controlling or coercive behaviour is
primarily a form of violence against women and girls and is
underpinned by wider societal gender inequality. This can
contribute to the ability of the offender to retain power and
control, and ultimately the ability of the victim to access
support and leave safely. It is, therefore, important to consider
the role of gender in the context of power and control within a
relationship when identifying controlling or coercive behaviour
in heterosexual relationships. (stat guidelines)
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 Solicitor-General:
Limitations of SCA:
- But there are still important gaps in the application and
criminalization of domestic violence
Problems that are foreseeable:
Referrals, prosecutions and the volume of convictions for domestic
violence and abuse have risen to their highest ever levels.
Soln: The government is committed to supporting the police to bring
offenders to justice and to ensure victims have the support they
need to rebuild their lives.
Many fall through the system

(1st problem) Focus on isolated events A hit B but


domestic abuse is a continuous process happens over a
long period has cumulative effect petty incidents look
in the historical context, can see the patterns of abusive
behavior
(2nd problem) law of assault emphasise physical violence,
victims report non-physical sometimes much more
damaging emotional, psychological (withholding food,
money, isolating tactics-cannot see family and friends,
humilaiation)

refuge
uk
stats
from
http://www.stopvaw.org/uploads/evan_stark_article_final_100812.pdf
?
Specifically targeting domestic sphere family relationships
cohabit
Make up for the fact that other laws never provide for
domestic scenes + psychological/fear aspect
Sub-issue 1:
Should you prosecute?
[after saying the offence] -> public interest -> Prosecutors need to
be aware that certain actions, such as the complainant supporting a
prosecution, may place the complainant and/or any children, or
other family members at increased risk.
Careful consideration should be given to public interest factors,
including the interests and safety of the complainant, other family
members and any children or other dependants.
-children living in an abusive household
impact on children? must consider cos it may increase the
seriousness of the offence, and the final charging decision
-if she got inform other agencies or organisations (such as
support and voluntary organisations, Children's Services,
schools etc) may have been made aware of the abuse, or other
proceedings such as family proceedings may be taking place as a
result prosecutors should ask the police to seek such information
to help inform the final charging decision
When considering policy reasons of the 2015 Act,
-

factors may also be useful when considering the public


interest:
(https://www.cps.gov.uk/publications/code_for_crown_prosecut
ors/codetest.html)

evidential + policy reasons stage

the seriousness of the offence:


the more serious the offence, the more likely it is that a
prosecution is required;
whether the offence is likely to be repeated;

o
o

When deciding the level of seriousness should include the suspect's culpability
and the harm to the victim by asking themselves the questions at b) and c).

the culpability of the defendant:

the suspect's level of involvement;

the extent to which the offending was pre-meditated;


whether any threats were made before or after the

o
o

attack;

whether the defendant has any previous convictions or


out of court disposals, or record of any other offending whilst
on bail or whilst subject to a court order;
o
whether the offending was or is likely to be continued,
repeated or escalated;
o
the suspect's age or level of maturity; (below 18)
o
whether the suspect was suffering from any mental or
physical ill health before, or at the time of the offence taking
place;

the circumstances of and the harm caused to the


complainant:
o

The greater the vulnerability of the victim, the more likely it is that a prosecution is
required. This includes where a position of trust or authority exists between the
suspect and victim. Sole financial source + main carer + live together +
relationship sufficient to prove a trust established between the suspect and
victim offence is even worse if this trust has been breached

complainant's injuries - whether physical or


psychological;
whether a weapon was used(a weapon should be
considered as anything which could inflict physical harm, or
threats to harm, such as ordinary household items/objects, as
well as knives, guns etc);
whether the offence was motivated by any form of
discrimination against the complainant's ethnicity, gender
identity or sexual orientation, mental or physical capacity, age,
religion, immigration status, employment status, social
background etc; motivated by discrimination against her
mental and physical capacity (anorexia, anxiety, and a new
depression)

o
o

In deciding whether a prosecution is required in the public interest, prosecutors


should take into account the views expressed by the victim about the impact that
the offence has had. have to consider the case from Talias viewpoint

Prosecutors also need to consider if a prosecution is likely to have an adverse effect


on the victim's physical or mental health, always bearing in mind the seriousness
of the offence. If there is evidence that prosecution is likely to have an adverse
impact on the victims health it may make a prosecution less likely, taking into
account the victim's views. physically (anorexia) footnote and mentally

(depression and anxiety) footnote diminished inaccurate this must be taken


into consideration

o
o

if there were any children or other vulnerable


dependants (incident took place in the presence of
children) living in the household;
whether the offence took place in the presence of, or
near a child;
any continuing threat to the health and safety of the
complainant(despite irrespective of the relationship status), or
anyone else who is, or may become involved;
the history of the relationship, particularly if there has
been any violence in the past;

What is the impact on the community?


The greater the impact of the offending on the community, the more likely it is that a
prosecution is required. In considering this question, prosecutors should have regard to
how community is an inclusive term and is not restricted to communities defined by
location.

(IF GOT WORDS) Do sources of information require


protecting?
In cases where public interest immunity does not apply, special care should be taken when
proceeding with a prosecution where details may need to be made public that could harm
sources of information, international relations or national security. It is essential that such
cases are kept under continuing review.

Complainants' safety needs will have usually been identified through


risk assessments; any subsequent assessment will assist in
determining whether further offending has taken place since the
incident in question and/or whether the complainant needs further
support.
Identification of the triggers for abuse will assist in
understanding the context of the offending. These issues
should be considered as risk factors, rather than as causal links to
the offending behaviour, and will assist prosecutors in their
consideration of the public interest. consider that there is third
party involved
- changes in a relationship third party Frances
- mental/physical incapacitation; depression+anxiety
these circumstances contribute to a pattern of abuse or violent
behaviour against a complainant. these factors contribute to
Jeromes violence

//(Is the creation of a discrete offence of coercive control ...)


gap in the law:

legislative gap in terms of the criminal justice protection currently available

for victims of domestic violence and/or abuse results from the misconception that the harm
of domestic violence primarily results from the infliction of physical harm, thus leaving many
victims who experience coercive control and emotional and psychological abuse outside of the
laws protection.

incident-based approach towards non-fatal offences + focus


on physical violence in limited circumstances results in the
separation of individual incidents of violence from the context
in which they occur decontextualize the acts of atomistic
individuals means that the focus will be on the indivi incident
the D is being charged with (need to look at the bigger
picture) only when the context of ongoing coercive control
is taken into account that seemingly small and trivial incidents
can be seen to have a detrimental effect on the victim! as a
result of removing the individual from the context in which
the crime occurs, the criminal justice system abstracts the
criminal incident from the rest of the defendants pattern of
behaviour and actions.
Why context impt? where physical and non-physical forms
of violence and/or abuse occur within a relationship, context is
crucial.
Tuerkheimer: law needs to be capable of considering the
relationship as a whole enable courts to see that the
coercive and controlling behavior connects seemingly
unrelated events.22 23
Criminalization legal clarity provides the opportunity to
promote a clearer understanding of the lived experience of
domestic violence and/or abuse that many victims suffer
encourage victims to seek support from the criminal justice
system or alternative agencies.13
criminal law is limited in what it can achieve in terms of
combatting domestic violence. As Hanna succinctly explains:
Although the legal system alone cannot end violence against
women, its role in providing remedies to victims and deterring
abusers is central to the greater social struggle. 15
new discrete offence nonetheless could support change and
clarify the behaviour and harm of domestic violence and/or

abuse and, as Tadros emphasises, sends a symbolic message,


as well as providing practical means for change.16
cannotbejustforsymbolicpurposes!alsofordeterrenceThe importance

of prosecuting domestic violence and/or abuse for the public


interest, and not solely the individual victim, is further
emphasised by Dempsey. Concerned with the philosophical
arguments for the prosecution of domestic violence, she
argues that it is insufficient to just criminalise the wrong for
symbolic reasons. Any criminalisation that seeks to achieve
condemnation of the wrong must be habituated within the
system and consistently applied, rather than being merely a
series of random condemnatory incidents. For this habituation
to occur, a successful prosecution system must exist that
promotes the freedom of future victims.19 The criminal
justice system is unable to achieve this with a focus on
physical harm rather than restraints on a persons capacity to
exercise their freedom fully.
criminal justice system has tended to focus on incident-based,
physical forms of violence28
The implication being that whether these threats are coercive
or not cannot be judged objectively; they depend upon the
social context of the relationship and whether the victim has
reason to believe the threats can and will be carried out. 41
Why SCA more appropriate than OAPA
non-fatal offences are focused on single isolated incidents,
thus not capturing the ongoing nature of domestic violence
and/or abuse. The non-fatal offences have been construed
narrowly where the victim experiences non-physical harm
within the context of an intimate or family relationship.
he primary legislation used to prosecute perpetrators of
domestic violence and/or abuse remains the Offences Against
the Person Act 1861 and the common law offences of assault
and battery.47 Analysing the theoretical underpinnings and
practical application of these offences reveals that the courts
conceptualise and measure harm without reference to context
or the presence of coercive control. These offences are thus
premised upon physically violent acts which cause
predominantly physical injury with their place on the
spectrum of harm being determined according to an objective
standard of outcome. In this way, the law creates a hierarchy

of harm that does not always correspond to the injury


experienced by the victim from a pattern of coercive or
controlling behaviour which may or may not involve physically
violent acts.48

(Is the creation of a discrete offence of coercive control ...) //


Strengthening the Law on Domestic Abuse Consultation Summary of
Responses 5, Home Office (Dec. 2014), available
athttps://www.gov.uk/government/uploads/system/uploads/attachment_data/file/3
89002/StrengtheningLawDomesticAbuseResponses.pdf.
Evan Stark, Re-presenting Woman Battering: From Battered Woman Syndrome
to Coercive Control, 58 Alb. L. Rev. 973 (1995).
Evan Stark, Re-presenting Battered Women: Coercive Control and the Defense
of Liberty, Les Presses de lUniversite de Quebec (2012)
Definition of Domestic Violence, UN
Women,http://www.endvawnow.org/en/articles/398-definition-of-domesticviolence.html.
Dutton et al., Development and Validation of a Coercive Control Measure for
Intimate Partner Violence: Final Technical Report, National Institute of Justice
(2006).

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