Beyond criminal law

The concept of coercive control in situations of intimate partner violence (IPV) entered the legal realm a couple of years ago, when it was included in the definition of family violence that appears in the Divorce Act. Since then, there has been much discussion about whether it should become a criminal offence.

The federal justice department, working with its provincial and territorial partners, is presently holding online consultations to hear what survivors, frontline workers, academics, advocates and others have to say on the subject. I appeared at one of last week’s consultations. Here is what I said:

My perspective on this issue has been shaped by the almost 30 years of work I have done in this area; first, in private practice representing survivors of intimate partner violence, then, in my work with a wide range of feminist and violence against women/gender-based violence organizations across Canada, including those providing direct support on the frontlines to women fleeing abuse as well as those working on systemic law reform.

Based on what I have learned through this work, I do not support the criminalization of coercive control.

A failed system

Over the past 40 years, we have seen the many ways in which the criminal law has failed survivors of gender-based violence as well as those who cause the harm – particularly when those people come from marginalized communities. Despite a variety of criminal law interventions and initiatives — new laws, changes to old laws, new court processes and rules, education for those responsible for implementing and interpreting the law, different approaches to bail and to punishments for those found guilty – IPV, including lethal violence, remains a serious social problem in this country.

We need to look at system changes that focus on prevention rather than continuing to tinker with those that respond after the abuse has happened. This means we need to look beyond the criminal law at other approaches, as has been recommended in the Final Report of the Nova Scotia Mass Casualty Commission, which calls for, among other things, a society-wide response and a national, collaborative process bringing together all stakeholders “to develop a national framework for a women-centred approach to responding to intimate partner violence.”

Validating women’s experiences

The insidiousness and seriousness of coercively controlling behaviour need to be recognized and understood by the legal systems to which women turn for help. Unfortunately, many women report that they feel dismissed when they tell their family law lawyer, the police and others they encounter, about their partner’s coercive control of them. Our society still thinks of “real” IPV as physical, which means the non-physical forms of abuse that — for some women — are far more serious, get ignored.

As more than one of my clients has said to me:

“I wish he just would have hit me. Then, people would have believed me.”

The coercive control to which so many women are subjected needs to be validated, but criminal law is not the best way to do this.

What if we create a criminal offence of coercive control but the police don’t lay charges when women report it – maybe because they haven’t been properly trained, maybe because the evidence to support a charge is hard to find, maybe because they don’t take it seriously?

What if Crowns, who are under pressure to prosecute only cases with a very high likelihood to result in a conviction, don’t pursue the case because they believe it will be difficult to prove?

What if the case is prosecuted, but doesn’t end in a finding of guilt?

Worst of all, what if the survivor is inappropriately charged?

Where’s the validation in any of those outcomes? How would these outcomes lead survivors to have greater confidence in the criminal system or to be more likely to report abuse to the police?

Anticipating negative consequences

Mandatory charging — and the problems it led to for those it was intended to protect — is an excellent example of what can happen if we don’t take the time to anticipate potential negative consequences of law reform efforts, as well as how well those who engage in abusive behaviour can manipulate legal systems and processes.

We saw and continue to see the misapplication of mandatory charging policies such that women are inappropriately charged and convicted, and the devastating impacts that has on their lives; in particular, on their family law cases.

Abusers have been very successful in manipulating mandatory charging policies to their advantage, and there is every reason to think the same will be true if coercive control is criminalized.

As one frontline worker said to me:

“Criminalizing coercive control just puts another tool in the abuser’s toolbox to manipulate the law.”

Rather than creating new criminal laws, we should review those that exist as well as policies such as mandatory charging to determine their effectiveness, as recommended by both the CKW inquest and the Mass Casualty Commission.

Some ideas

Too often, when there is political enthusiasm to create new law or policy, promises are made that contextual pieces will be put in place later. I urge you, this time, to do it the other way around: put the infrastructure in place first, see how it works and then decide whether or not we need to criminalize coercive control.

Figuring out the best ways to respond to and, ultimately, prevent coercive control will take an all-of-society approach, which needs to include all levels of government, survivors, community-based experts, system professionals and other stakeholders.

I encourage you to:

• Create and support a criminal court support worker program so survivors have someone to assist them through the process
• Establish and fund free independent legal advice for survivors involved in criminal cases
• Explore transformative justice models to respond to gender-based violence, including coercive control
• Study the impact of criminal proceedings on survivors’ family court cases
• Implement new and mandatory training and education for all those in the criminal system from police to judges to ensure they understand the prevalence of IPV, including coercive control, and its particular impact on those from marginalized communities
• Create accountability measures so that those who have been trained/educated are evaluated regularly on whether they are applying what they should have learned.

Finally, and most importantly, I strongly encourage you to follow MCC recommendation V-12 to establish an expert advisory group drawing on the gender-based-violence advocacy and support sector to examine whether and how criminal law could better address the context of persistent patterns of controlling behaviour at the core of gender-based, intimate-partner and family violence.  

Nothing further should be done to develop a criminal offence of coercive control until such a group is established and, with appropriate resources, given the time to examine the question and provide recommendations.