As I wrote here in February, the House of Commons is considering whether or not to criminalize coercively controlling behaviours. Coercive control is an umbrella term that describes a pattern of behaviours – including psychological, financial and other forms of non-physical abuse – perpetrated by someone against their intimate partner over time.
Its first appearance in Canadian law was in the Divorce Act, when it was revised a few years ago, where it appears in the definition of family violence. As public –and political – awareness of this particularly insidious form of intimate partner violence has increased, so has the call to make it a criminal offence.
I’m opposed to this, as is Luke’s Place and a number of other – but not all – violence against women organizations. My final appearance before a parliamentary committee in my role as the Luke’s Place Advocacy Director was to try to persuade the Standing Committee on Justice and Human Rights to consider a different approach than criminalization.
To say that my comments fell on deaf ears would be an understatement. The committee members were almost aggressive in their lack of interest in the position and arguments I put forward.
Back to the House
After hearing from witnesses and holding its own discussions, the committee made significant amendments to the bill and returned it to the House of Commons, where it will be added to the list of bills awaiting further debate and third reading.
The amendments made by the committee reflect and respond to many of the suggestions made during the hearings. In fact, as some disgruntled non-Liberal members of the committee said when debating the proposed changes, the bill is practically brand-new, so substantial are the changes. This is unusual – once a bill gets to committee, it’s rare for it to undergo a massive rewrite.
I’m sure many of my colleagues who support criminalization of coercive control are very happy, as would I be if only I didn’t think the whole concept is a mistake. I will admit that, if criminalization is going to happen, this law is a better one than the original Bill C-332.
Language matters
The original Bill contained a description of the kinds of relationships covered by the offence using language so convoluted as to be unintelligible. The amended bill simply uses the language of intimate partner, something that will be easily understood by most people who want to know who the law applies to.
While the original bill limited charges to people still in relationships or less than two years out of them, the revised bill imposes no such time limit. In other words, no matter how long people have been separated, it will still be a criminal offence for one to engage in coercively controlling behaviour towards the other. This is a very positive change.
Describing the offence
The original bill did not provide a clear description of the elements of the offence and required the conduct to have a significant impact on the victim.
The amended bill removes the requirement that the conduct have a significant impact on the victim. The offence is clearly described as a pattern of conduct consisting of a combination of acts or any repeated incidents of them, including:
- threatening to use violence against the intimate partner, their children, people known to them or their animals,
- sexual coercion
- controlling, attempting to control or monitoring the intimate partner’s actions, movements or social interactions
- controlling or attempting to control how the intimate partner cares for their children; their employment, education, finances or property; their expression of gender, physical appearance, manner of dress, diet, taking of medication or access to health services or to medication; their expression of their thoughts, opinions, religious, spiritual or other beliefs or their culture, including their use of language or their access to their linguistic, religious, spiritual or cultural community
- threatening to die by suicide or to self-harm
- any other conduct that could reasonably be expected to cause the intimate partner to believe that their safety or the safety of anyone known to them is threatened
This detailed and inclusive listing of what constitutes the offence will be very helpful to those vested with the responsibility of enforcing and interpreting it.
The committee’s revisions set out explicitly that safety includes psychological safety and increase the maximum penalty from five to 10 years.
Ongoing concerns
My underlying concerns about criminalization remain in place. I understand the appeal of criminalizing coercive control – especially in terms of validating the experiences of survivors – but continue to believe the possible negative consequences outweigh the potential benefits:
- The criminal law has largely failed survivors of gender-based violence in the past.
- Police reporting rates of IPV are low, so a new offence may affect only a small number of survivors.
- Abusers are sure to manipulate the law, as they have done in the past, to have their partner charged.
- There is likely to be a differential impact of criminalization on women from marginalized communities.
- Criminalization will have an impact on survivors’ family law cases: if the survivor is improperly charged, if the abuser is not charged or is charged but found not guilty.
- A carceral response to gender-based violence is expensive and does not offer either healing or voice to survivors or a meaningful opportunity for those who cause the harm to take responsibility, heal and learn new behaviours for moving forward.
Given the amount of business currently before both the House of Commons and the Senate, and the low priority generally given to private member’s bills, it’s possible this bill won’t make it through the legislative process before the next federal election in the fall of 2015. Should it move to the Senate, my colleagues and I will be there to raise our concerns one more time.