High Conflict

Ireland joined the United Kingdom and France extending the definition of domestic violence to include emotional abuse and coercive control. The definitions in these countries expand the basis for a protection order and criminalize coercive control. Washington State law is not quite as clear, but for non-criminal cases is consistent with these European jurisdictions. Understanding coercive control, or more importantly what drives the controlling behavior, and applying protections by judicial officers in rural communities is not easy.

On January 1, 2019, Ireland enacted the Domestic Violence Act 2018, http://www.irishstatutebook.ie/eli/2018/act/6/enacted/en/html.

Part 2 of the act enumerates a list of factors courts “shall have regard to”. Beyond the usual factors, such as fear for personal safety, history of violence, access to weapons, and substance abuse, they include:

• “any evidence of deterioration in the physical, psychological or emotional welfare of the applicant or a dependent person which is caused directly by fear of the behaviour of the respondent;”
• “whether the applicant is economically dependent on the respondent;”
• “the applicant’s perception of the risk to his or her own safety or welfare due to the behaviour of the respondent;”
• “any recent separation between the applicant and the respondent;”
• “any destruction or damage caused by the respondent to” the petitioner’s personal property or residence;”

The French Parliament “adopted Law 2010-769, of July 9, 2010, on Violence Against Women, Violence Between Spouses, and the Effects of These Types of Violence on Children * * * [which] contains several criminal provisions aimed at reinforcing the fight against familial violence, including psychological violence.” http://www.loc.gov/law/foreign-news/article/france-law-on-violence-against-women/.

In England, the offence of controlling or coercive behavior is defined in Section 76(1) of the Serious Crime Act 2015:

“A person (A) commits an offence if–
(a) A repeatedly or continuously engages in behaviour towards another person (B) that is controlling or coercive,
(b) at the time of the behaviour, A and B are personally connected,
(c) the behaviour has a serious effect on B, and
(d) A knows or ought to know that the behaivour will have a serious effect on B.”

Although not a law, a cross-government definition of domestic violence and abuse is provided in a Statutory Guidance Framework for Controlling or Coercive Behaviour in an Intimate or Family Relationship, by the Home Office:

“Controlling behaviour is: a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacties for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.

“Coercive behaviour is: a continuing act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim.”

In 2014, the European Union Agency for Fundamental rights (FRA) conducted a survey of violence against women by interviewing 42,000 women in EU member countries. Consistent with studies in other countries, violence against women is common.

“What emerges is a picture of extensive abuse that affects many women’s lives, but is systematically underreported to the authorities.”

FRA survey, at page 3.

“One in three women (32%) has experienced psychologically abusive behaviour by an intimate partner either by her current partner or previous partner. This includes behaviour such as belittling or humiliating the respondent in public or private; forbidding her to leave the house or locking her up; making her watch pornographic material against your wishes; scaring or intimidating her on purpose; and threatening her with violence were threatening to hurt someone else the respondent cares about.”

“Overall, 43% of women have experienced some form of psychological violence by an intimate partner, which includes other forms of abuse alongside psychologically abusive behavior. This may include psychologically abusive behavior and other forms of psychological violence such as controlling behavior (for example trying to keep the respondent from seeing her friends or visiting her family or relatives), economic violence (such as forbidding a woman to work outside the home) and blackmail.”

FRA survey at 71, from Main Findings of Psychological Partner Violence

The FRA survey broke down the results by country.

“In [the FRA] survey on violence against women, almost a third of Irish women (31%) said they had experienced psychological abuse by a partner. A further 23% of respondents said they had experienced controlling behavior, 24% said they had experienced abusive behavior, and 12% said they had experienced stalking (including online stalking).”

https://www.cnn.com/2019/01/02/health/ireland-coercive-control-domestic-abuse-intl/index.html

In Washington State (and presumably all U.S. states) coercive control behaviors are not a crime. However, the law, and the Washington Courts’ Domestic Violence Bench Guide for Judicial Officers (revised 2015), make it clear that protection orders can and should be issued based on this type of behavior. The Bench Guide defines domestic violence conduct in terms of both purely legal and also behavioral conduct. Behavioral domestic violence is defined as involving a pattern of assaultive and coercive behaviors including physical, sexual, and psychological attacks, as well as economic coercion. Bench Guide at 2-4.

“Using both the Washington behavioral and legal definitions of DV is critical for making the complex decisions facing judicial officers hearing these cases in criminal, family law, juvenile, dependency, or protection order courts.” Bench Guide at 2-5.

In rural Clallam County, it’s a mixed bag as far as judges being able to see coercive behaviors and being able or willing to do something about them. Judge Brent Basden, with a decade of experience in the family and dependency courts, has developed a keen sense for consistently sorting out false from true claims and being able to respectfully impose reasonable boundaries, structure and compassionate consequences in most cases. Judge Erik Rohrer has demonstrated difficulty seeing coercive behavior, doing anything about it, and in at least one case getting it backward by supporting coercive behavior and punishing the victim. Judge Brian Coughenour has demonstrated a reasonable ability to see coercive behavior, but not an ability to do anything about it, as demonstrated in a recent 4-day divorce trial. In that case, Judge Coughenour ruled the father had engaged in a pattern of domestic violence. Indeed the mother and her witnesses had proven substantial evidence of having suffered a decade of virtually all forms of physical abuse and coercively controlling behavior directed at her, in front of the children, and/or to the children. She testified that she continued to fear her husband and requested a protection order. However, Judge Coughenour declined to issue any protection order and granted the untreated father a substantial amount of parenting time.

Coercive control is a relatively new concept for the legal community, and it can be difficult for people to recognize. Most people, judges or not, need some education to learn how and what coercive control is, how it differs from traditional notions of domestic violence, how common the behavior patterns are, what are the associated personality and behavior patterns, what the patterns look like in practice, what the legal system can do to minimize the behaviors and protect victims, and importantly, its devastating long term psychological and somatic effects on victims and children.

By Mark Baumann, J.D.
Port Angeles, Washington

Please note: this article represents the opinion of Mark Baumann only. Please contact the editor if you would like to submit your own opinion article.