Renee (not her real name) does not look like an abused woman. She has no black eyes, no bruises, no broken bones. She goes to work every day as a nurse at the hospital in her community. She and her husband are both active in their children’s school and extra-curricular activities and the family’s religious institution. The family Is well liked in the community and is seen as happy and loving.
At home, behind closed doors, Renee is subjected to severe ongoing abuse by her husband, even though he has never been physically violent. Renee has no independent access to money; her pay cheque is automatically deposited into a bank account to which only her husband has access, and he provides her with a weekly allowance, contingent on her producing receipts to show how she spent the money.
He determines when Renee can see her family and friends, which is not very often. He monitors Renee’s eating to ensure her weight stays where he wants it. He tells her what to wear and lets her know when she puts on too much makeup. Although Renee has a driver’s licence, her husband drives her everywhere: to work, to the grocery store and to activities that he has given her permission to attend. He forces her to engage in sexual activity that pleases him.
Unknown to Renee, he has access to both her cell phone and her laptop, so is aware of all her communications. Her husband’s ongoing gaslighting has left Renee feeling crazy. She has lost much of her self-confidence and defers to her husband about everything. She is terrified of him all the time.
What does the law say?
Renee’s husband is engaging in what we now call coercive control, a term first coined by American sociologist, Evan Stark, to describe a pattern of behaviours that, taken together, result in the victim losing her autonomy and becoming, essentially, a hostage of the abuser.
Legally, coercive control is largely invisible, which has created challenges for women who turn to the law for assistance when they are its victims. However, creating a legal framework around coercive control creates challenges as well, as we are beginning to see.
Revisions to the Divorce Act and Ontario’s Children’s Law Reform Act, which came into effect in March 2021, included the term “a pattern of coercive and controlling behaviour” in the definition of family violence. So far, some judges interpret this term as it was intended and some do not. When it is not properly interpreted, it can lead to unsafe outcomes for women and children.
Fewer than 30% of women report intimate partner violence to the police, so for the other 70% it doesn’t really matter what’s considered to be a crime and what’s not. The 25 – 30% who do, understandably, want to see the kind of abuse they have been subjected to reflected in the law. In this respect, those whose partners have been coercively controlling are out of luck, and that’s not right.
I understand their frustration but, for at least two reasons, I am not convinced that criminalizing coercive control is the direction we should be going.
First, in the work to improve system responses to gender-based violence, there is a long history of well-meaning changes that have resulted in unintended negative consequences. Perhaps most notable is the mandatory charging policy that requires police to lay charges in IPV cases regardless of the wishes of the survivor. As I have written here before, there is more than ample information to show the many ways this policy has harmed women, especially those who are marginalized by reason of race, Indigeneity or culture.
Before we take any undoable steps to criminalize coercive control, we need to have a comprehensive discussion among all those affected – survivors, service providers, academics, lawyers, police, judges – that examines possible negative consequences for those it is intended to benefit.
As law professors Jennifer Koshan, Janet Mosher and Wanda Weigers note in their paper reviewing gender-based violence laws in Canada, any consideration of criminalizing coercive control must include an examination of its impact on women, especially those from marginalized communities, as well as on other laws and policies, including family law and child protection.
We also need to look at jurisdictions that have criminalized coercive control to see if it has proven helpful. So far, the reviews are less than impressive.
Second, rather than adding to the Criminal Code, we should think about whether we should continue to rely on the criminal law to respond to GBV at all. I often feel that I have spent the past 30 years trying to twist and turn women’s lived realities of GBV into round pegs so they will fit into the square holes that are the criminal law. It almost never works. Maybe the very nuanced realities of GBV are not meant to fit into a system that offers virtually no nuance.
Coercive control is an excellent example of this. Criminal law is about individual incidents: a bank robbery, an episode of driving while intoxicated, a break and enter. Coercive control is not, by definition, an individual incident. It is a pattern of behaviours with a cumulative impact of harm. It just won’t fit.
Sandra Walklate and Kate Fitz-Gibbon write:
Let’s not do that with coercive control. Instead, let’s try to imagine something completely new; something that takes us outside the traditional western criminal law system, something that can hold those who cause harm accountable and offer real safety for those who have been harmed.