UK Law

Resource: Invisible Bars: Adapting the Crime of False Imprisonment to Better Address Coercive Control and Domestic Violence in Tennessee

We are excited to share this important legal resource, created by recent Vanderbilt Law School graduate Alexandra Michelle Ortiz. Invisible Bars: Adapting the Crime of False Imprisonment to Better Address Coercive Control and Domestic Violence in Tennessee was published in Vanderbilt Law Review and outlines a proposed adaptation to the preexisting law of false imprisonment to create a comprehensive coercive control statute in the United States. The Note examines what advocates can learn from the UK Law and why the United States Constitution requires American advocates take a different approach.

The abstract states: 

On average, three or more women are murdered by their intimate partners in the United States every day. Despite the now well-known correlation between coercive control—the strategic use of oppressive behavior to control primarily female partners—and intimate partner homicide, most states continue to focus their criminal domestic violence laws solely on physical violence. As a result, state laws often fail to protect victims from future and escalating violence. Focusing on Tennessee law and drawing from the work of Evan Stark as well as the United Kingdom’s Serious Crime Act of 2015, this Note proposes adapting the preexisting crime of false imprisonment to create the first comprehensive criminal coercive control statute in the United States.

This is an important resource for anyone interested in exploring possible legal remedies to better protect victims of coercive control in the United States. While it focuses primarily on coercive control in intimate relationships, it is a helpful place to start that could also impact victims of coercive control in other types of relationships (gangs, human trafficking, political and religious cults, etc.).

Written by Abigail Hazlett

Resource: UK Sentencing Guidelines

Two weeks ago, the UK released sentencing guidelines for "intimidatory offenses" including those convicted under the 2015 law criminalizing controlling or coercive behavior in an intimate or family relationship. The press release announcing the new guidelines indicates they were created after a public consultation and intended to "provide judges and magistrates in England and Wales with consistent and comprehensive guidance when sentencing these related offences." The guidelines provide direction on analyzing the seriousness of the offense committed and consideration for aggravating factors.

The Sally Challen Case

In 2011, Sally Challen was sentenced to 22 years in prison for the murder of her husband, Richard. Her case has drawn a lot of attention in the United Kingdom over the past few weeks because she was recently granted the right to appeal the court's decision. Why? Challen's lawyers claim there is new evidence that suggests Sally's husband was abusive to her, and under the 2015 law outlawing coercive and controlling behavior, her lawyers are arguing that she was the victim in the case and Richard's death was an act of self-protection.

David Challen, Sally's son, has spoken out publicly in support of his mother, requesting her conviction be reduced to manslaughter and that she be released with eight years already served. He was joined by many advocates in the UK who launched a campaign in support. Challen's legal team reportedly plans to introduce new evidence that shows extreme coercive and controlling behavior, including evidence that "Richard humiliated her, isolated her, lied to her about his affairs with other women, controlled her finances, and raped her, after she kissed one of his friends on the cheek." [1]

This particular case is important to watch for many, including those interested in how implementation of a coercive control law could play out in the U.S., but even more importantly for victims in the U.K., as the reality of living under a regime of coercive control and the lasting damage it causes is now receiving national attention.

Eva Wiseman recently wrote about how this case changes things for victims in The Guardian:

"Sally Challen’s case has the potential to change, if not the world, where men will surely continue to abuse women until what it means to be a man changes completely, then the way we look at the world, and in turn, the women suffering inside it. This case has comprehensively laid out the ways in which women are crushed by their abusers. It’s shown the depth of violence women suffer in these relationships, the lack of control they have, whether of their bank accounts or how regularly they’re allowed to go to the toilet, and so in turn, explains how difficult it can be to leave this house, this double-glazed prison.

"We know the role that children play in these stories, we’ve seen how mothers will put themselves at risk to protect them. If Sally’s appeal is successful, as her son David (who has been campaigning steadily for her release, calmly answering questions about his father’s death on Good Morning, and calling for mental abuse to be taken more seriously in this country) is hoping, then thousands of women living in similar small hells, could be freed too."

This is certainly a case we will keep an eye on. For more on this case:

Written by Abigail Hazlett

[1] https://www.theguardian.com/lifeandstyle/2018/mar/11/this-domestic-abuse-case-might-change-the-way-women-live

More on the UK Law Criminalizing "Coercive, Controlling" Behavior

We highlighted the 2015 UK law criminalizing "coercive, controlling" behavior last week. Thankfully, because legal documents pertaining to the law are all in English (as opposed to the law in France), we have been able to access some of the information that's been utilized to assist victims, direct service providers, police officers, hospital staff and legal professionals navigate cases where coercive control may be utilized by an abuser.

We have found the legal guidance, as well as the guidelines for police investigation, to have very useful and practical information as to how the coercive control pattern is translated into tangible pieces to use as evidence in an investigation. Additionally, those tangible parts (text messages, bank statements, etc.) may be practices or investigative methods that could be utilized to strengthen current policies and practices in the United States, regardless of the lack of a law that explicitly criminalizes coercive control.

Below are guidelines created by the College of Policing to teach officers how to investigate domestic violence cases with the new law in place, encouraging officers to "focus on identifying a pattern of behaviour across different types of evidence. Much of it will be evidence of the victim and perpetrator’s day to day living and their interaction."

[Note: we have included hyperlinks to those UK gov pages in the titles of the sections below.]

COLLECTING EVIDENCE

Examples of evidence utilized in successful cases include:

-  Records of communication between the victim and perpetrator (emails, phone records, text messages, social media)
-  Audio or visual recordings of interaction between the victim and perpetrator, demonstrating body language and tone (including 999 recordings, which is the UK equivalent of a 911 call in the United States, Closed Circuit TV, Body Worn Video footage)
-  Local inquiries (neighbors, regular deliveries, postal services, window cleaner)
-  Witness testimony (from family and friends, as to observed behavior by both parties and its effect and impact)
-  Diaries kept by the victim and/or children
-  Records of lifestyle and household, including photographic evidence of the scene
-  Evidence of isolation (lack of contact with family and friends, withdrawal from social activities and clubs)
-  Records of interaction with services which show the perpetrator adopting a dominant role (always accompanying the victim to banking or medical appointments)
-  Bank records showing financial control
-  Medical records
-  GPS tracking devices installed on mobile phones, tablets, vehicles
-  Care plan, where the perpetrator has caring responsibilities

The guidelines indicate this list is not exhaustive and any evidence which shows a pattern of control or coercion is relevant and to be recorded.

See Home Office (2015) Statutory Guidance Framework and Crown Prosecution Service (2015) Controlling or Coercive Behaviour in an Intimate or Family Relationship for further information.

CONDUCTING THE VICTIM INTERVIEW

When interviewing victims, investigators are instructed to elicit information on the current event to which they are present, general information about the victim and their families, as well as relationship context, depending on the individual circumstances of each case. Related specifically to the presence of coercive or controlling behavior, investigators are tasked with determining the following:

-  Victim’s view of how they feel the suspect controls their life and, if so, how (this can be difficult to explain and describe to an outsider as the small controlling behaviors on their own can sound trivial)
-  Victim’s views on the rules or expected behaviors set by the suspect in the relationship (what the victim must and must not do)
-  Victim’s account of any threats used to maintain control (to ‘out’ their sexual orientation, medical condition, immigration status, other personal information or criminal activity, or to use intimate photos on social media to cause upset and risk of exclusion or dishonor from wider family members or community)
-  Victim’s account of the use of threats relating to children (to limit child contact, to take the children, or to have them taken away)
-  Whether other persons are involved in planning and/or executing the abuse

Any of this activity that came before the law was enacted (December 29th, 2015) may not be used as evidence, but some forms of it may be able to be used as evidence of “bad character evidence” as explained here.

Hopefully, you found this information helpful. There are several resource available online that provide direction for those wanting to understand how the UK law is being implemented, some of which we have made available on our Take Action page. If you have any resources you'd like to share with us, please feel free to leave any in the comments.

Written by Abigail Hazlett & Chelsea Brass

U.S. Advocates Have a Lot to Learn from French & UK Laws

One of the primary goals of this website is to advocate for policy change in the United States that recognizes the harms of coercive control. Currently, only physical violence against a victim is recognized as a crime, meaning that until bodily harm or injury occurs, victims have no legal protection. In fact, Dr. Evan Stark, whose book Coercive Control introduced the concept, argued "the primary outcome of coercive control is a condition of entrapment that can be hostage-like in the harms it inflicts on dignity, liberty, autonomy and personhood as well as to physical and psychological integrity." In short, Stark argued coercive control represents a human rights violation and a "liberty crime" against the victim. Other countries have created laws intended to protect victims from not just the physical harm they may (or may not) experience, but the emotional and psychological patterns of abuse utilized by many abusers.

A January 2018 article in the Huffington Post provides an overview of places where psychological abuse is outlawed. We think of psychological abuse as a prime tactic used in any coercive control pattern and are excited to see how laws meant to address this form of abuse are utilized in court systems. While there may be limitations to a bill that explicitly addresses coercive control, the implementation of these laws may be very informative as we work to strengthen current policy here in the United States. Below, we have included an introduction to relevant legislation in both France and the United Kingdom. We will continue to review the framework, implementation and analyses of these laws, which we hope to share with you in the near future.

FRANCE

In 2010, France banned “psychological violence within marriage”, becoming the first country to officially criminalize psychological abuse. The Library of Congress summarizes the Law on Violence Against Women, which among other protections for victims, includes psychological violence: 

“The Law also contains several criminal provisions aimed at reinforcing the fight against familial violence, including psychological violence. Harassing one's spouse, partner, or co-habitant by repeated acts that “degrade one's quality of life and cause a change in one's physical or mental state of health” is punishable by a maximum penalty of three years in prison and a €45,000 fine (about US$57,000), if that harassment resulted in an incapacity to work for eight days or less or does not result in any work incapacity. The penalty is increased to five years and a fine of €75,000 (about US$95,000) if the resulting incapacity to work is over eight days.”

At its introduction, an NPR story reported critics viewed the legislation as unnecessary and “would allow couples to be hauled in for having an argument.” One of the bill’s creators, Martine Billard, disagreed, arguing the law addressed a legitimate concern and would require a victim to prove “that the abuse is repeated and done with the intention of destroying the victim's dignity.”

Additional articles on the introduction of the French law:
French Bid to Ban Marital Abuse That's Psychological in Time Magazine
France Makes ‘Psychological Violence’ a Crime in The New York Times

UNITED KINGDOM

In 2017, the United Kingdom passed The Serious Crime Act 2015, criminalizing the use of controlling or coercive behavior in intimate or familial relationships. Carol A Lambert, MSW, reports in the Huffington Post that “the UK’s new law recognized a gap in the existing law and now includes patterns of coercive control by an intimate partner while still living together that can carry a maximum sentence of five years of imprisonment or a fine, or both.”

The UK's Independent highlighted changes to the law in a December 2015 article, shortly after the bill was passed. The article provides specific examples of behavior classified as "controlling, coercive" and an explanation that the law is only applicable in circumstances in which repeated, continuous and ongoing treatment produces a "serious effect" on the victim. Additionally, it lays out some of the initial responses to the law by those working with victims:

In opposition, Sandra Horley, the chief executive of Refuge, said she did not believe that criminalizing coercive control was the right solution. “We already have enough laws – the problem is that they are not being implemented properly,” she said. “The police don’t even arrest when there is evidence of serious physical violence, so how are police and juries ever going to understand complex concepts like coercive control?
“Controlling behaviour can be incredibly subtle, and isn’t always coercive. Extreme jealousy and possessiveness, for example, can be dressed up to look like care or concern. Providing evidence of such behaviours to satisfy criminal standards is likely to be extremely difficult.” 

However, Polly Neate, of Women’s Aid, strongly supported the new criminal offense, saying it was a significant step in protecting women experiencing domestic violence: “We welcome the home secretary’s announcement that the government will criminalise the patterns of coercive, controlling and psychologically abusive behaviour which lie at the heart of the abuse so many women experience,” she said. “We hope this new law will lead to a real culture change, so that every woman experiencing control can get the support she needs to break free safely.”

The implementation of these laws are an exciting development and represent an opportunity for advocates in the United States to learn how to be most effective in meeting victim's needs and best practices for direct service providers, police officers, hospital staff and legal professionals.

Written by Abigail Hazlett & Chelsea Brass