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DOMESTIC VIOLENCE REPORT

Vol. 26, No. 4

ISSN 1086-1270 Pages 49 – 64

April/May 2021

Coercive Control Is Finally Taking Root in American Law
by Julie Saffren, J.D.

Coercive control is an important feature of domestic violence. The concept was introduced in 2007 through the work of Dr. Evan Stark, author of Coercive Control: The Entrapment of Women in Personal Life (Oxford, 2007). Since then, Dr. Stark’s groundbreaking contribution to the social science of interpersonal violence has influenced law and policy across the world in both the criminal and civil law contexts.

France led the way by criminalizing “psychological abuse in a marriage” more than a decade ago. That reform was followed by legislation in the United Kingdom and Wales including coercive control as an offense in the Serious Crime Act of 2015. Ireland and Scotland enacted criminal prohibitions in 2018. Scotland has the most comprehensive laws criminalizing coercive control. Canada recognizes coercive control as part of its federal law regarding intimate partner violence. The first provincial codification came from the province of Ontario. Royal assent was obtained in 2020 for enacting major changes to Ontario’s Children’s Law and Family Law Acts. This reform reflected a shift away from the criminalization approach taken by other countries and, instead, engrained coercive control in the family and juvenile court settings.

As international momentum continued to build, Dr. Stark’s influence extended to legal policy reform in the United States. Hawaii became the first state to criminalize coercive control in September 2020. Two weeks later, California revised its definition of abuse to include coercive control in the California Family Code (described in more detail below). Meanwhile, bills on coercive control are pending in New York, Maryland, [Connecticut] and South Carolina and reflect a mix of criminal law and civil law approaches.

In 2020, California’s courts and legislature confronted the concept of coercive control. California’s reforms reflect the comprehensive and complementary blending of statute and case precedent, designed to provide expanded forms of civil relief for vic- tims of domestic violence who are subject to this form of abusive conduct.

In the October/November 2020 issue of DVR (Vol. 26, No. 1, p. 9), we described California’s two parallel efforts. The first occurred in the aftermath of McCord v. Smith, 264 Cal. Rptr. 3d 270 (Cal. Ct. App. 2020). In this published case, coercive control was found to be clearly within the ambit of “disturbing the peace” under the Family Code’s definition of abuse. The appellate court upheld the issuance of a restraining order where the perpetra- tor’s actions were a means to exercise control and dominion over his victim. With the publication of McCord, any applicant for a civil domestic violence restraining order under the Domestic Violence Prevention Act would be able to seek relief for being victimized through the many forms that coercive control may take. The second effort happened nearly simultaneously in the California legislature.

 

Senator Susan Rubio's SB 1141 as written established the need for a higher showing of abuse than what the DVPA currently required. Early iterations of Senator Rubio’s bill contained an intent element, required conduct to be “objectively unreasonable,” and required a showing that the victim in fact suffered severe emotional distress. FVAP urged substantial amendments, contending California Family Code § 6320) recognizes that “disturbing the peace of the other party” refers to conduct that, based on the totality of the circumstances, destroys the mental or emotional calm of the other party. (This language is a helpful codification of the holding from my appellate case, In re Marriage of Nadkarni, 93 Cal. Rptr. 3d 723 (Cal. App. 2009)). It was important to place coercive control within the ambit of disturbing the peace under the Family Code, as the McCord Court did in 2020, because coercive control can take so many different forms. The conduct is not always assaultive in nature and when looked at individually, may not even appear abusive. Family Code § 6320(c) now explicitly defines coercive control as “a pattern of behavior that in purpose or effect unreasonably interferes with a person’s free will and personal liberty.” Id. (emphasis added).This revised definition, with its call to seeing the totality of circumstances and patterns in behavior, now enables a victim to present her story of abuse to the courts in a broader context.

To further assist the court, § 6320(c) of the Family Code includes specific examples of coercive control, such as:

1. Isolating the other party from friends, relatives, or other sources of support.

2. Depriving the other party of basic necessities.

Bills on coercive control are pending in New York, Maryland, [Connecticut] and South Carolina and reflect a mix of criminal law and civil law approaches, while California and Hawaii have already enacted such laws.

Rubio, herself a victim of domestic violence, pushed to codify coercive control as a recognized form of abuse under California law in her bill SB 1141. Senator Rubio’s bill was initially met with opposition from the Family Violence Appellate Project (FVAP). (FVAP is the nonprofit organization that helped secure publication of McCord.) FVAP attorneys opposed early versions of SB 1141 because of legitimate concerns that, in light of the McCord decision, Rubio’s well- meaning legislation actually muddied the waters for victims seeking restraining order relief. They argued that SB that these “new hurdles” would make it even harder for victims to obtain restraining order protection.

With these concerns in mind, California lawmakers substantially revised SB 1141. The final result was signed into law by Governor Gavin Newsom this past fall. California again leads the nation in progressive domestic violence legislation as victims seeking civil relief are able to introduce evidence of the subtle and nuanced controlling behaviors that abusers often employ as a way to maintain power and control.

  1. Controlling, regulating, or monitoring the other party’s movements, communications, daily behavior, finances, economic resources, or access to services.

  2. Compelling the other party by force, threat of force, or intimidation, including threats based on actual or suspected immigration status, to engage in conduct from which the other party has a right to abstain or to abstain from conduct in which the other party has a right to engage

This new definition of abuse now works in complete alignment with the case precedent of McCord when determining whether to grant or deny restraining order relief based on allegations of coercive controlling conduct. Courts will now evaluate the many different forms of conduct perpetrated by those persons seeking to exercise dominion and control over another. Courts will hear and be required to consider evidence of the myriad ways victims of coercive con- trol are isolated and deprived of their agency and autonomy.

 

Taken together, Family Code § 6320 and McCord enable courts to obtain the most accurate picture possible of the harm that DV victims routinely experience. California civil courts are the venue where the majority of DV victims seek legal relief. Now, the trial courts will be able to more uniformly respond to survivors’ needs with appropriate remedies.

California’s Domestic Violence Prevention Act (Family Code § 6200 et seq) is a mature statutory scheme that has only been becoming more comprehensive since the early 1990s as our knowledge of domestic violence has dramatically increased. One recent example is the way online forms of harassment were readily incorporated through both case law and statutory modification.

I speculate that implementation of the new legal remedy of coercive control will happen smoothly and will resemble other expansions that have occurred in California law. Implementation will depend on some known factors; chief among them are such personnel as judges, lawyers, DV advocates, and Family Court-centered mental health professionals. As these professionals become accustomed to the ongoing development of Califor- nia’s DV law, understanding the new case precedent and the expanded statutory definition of abuse will not be overly challenging to the way they already think. Indeed, as California domestic violence attorney Jessica Dayton commented in her blog, “the new California law simply codifies what victims and experts already knew that coercive control is domestic parent, if a finding of abuse is made after evidence of coercive control is presented, that DV finding will trigger the protective custody presumption in Family Code § 3044, which is important for victims and children. For these reasons, I have confidence in California’s ability to implement new protections for victims of coercive control. As more countries explore how best to enact improved policy on coercive control, Dr. Stark’s influence continues to expand. His influence was reflected recently in

 

Because California already has a custody presumption that favors the non-violent parent, if a finding of abuse is made after evidence of coercive control is presented, that DV finding will trigger the protective custody presumption in Family Code § 3044, which is important for victims and children of Domestic violence.”

 

See https://www.adzlaw. com/victim-advocacy/2020/10/06/new- ca-bill-to-codify-what-victims-and-experts- know-coercive-control-is-domestic-violence/. Various resources make the petition- ing process more clear, such as California’s restraining order self-help materials and court forms, especially for the many self-represented litigants who seek relief annually. The fair administration of justice in civil DV matters means that everyone must understand the legal requirements to obtain civil relief. Judicial training will need to specify that courts must take a totality-of-the- circumstances view when they hear DV matters involving coercive control allegations (as many in Family Court DV matters already do). Everyone will know that evidence and testimony may be offered to show the patterns coercive controlling behavior may create. Family Code § 6320’s clear and helpful examples of the types of coercive conduct that can now be pro- scribed will greatly assist litigants seeking protection. And finally, because California already has a custody presumption that favors the non-violent.

A virtual conference on Coercive Control, featuring him as the key note speaker, that occurred in January 2021. The Americas Conference to End Coercive Control (ACECC), the first conference in the Americas focused on ending coercive control, was founded by advocates who desired to expand the education, research, and legislative initiatives of trauma and coercive control. At the Conference, Dr. Stark made clear his aims to educate the community on how coercive control is deployed; what are its harms; how it can be rec- ognized and what is needed to support victims.

Meanwhile, law reform continues not only worldwide but also domestically. While the type of legal relief to ensue from these efforts may differ from state to state, coercive control is here to stay. We can expect to see many more states adopt law reform in this realm in the future.

*Julie Saffren, J.D., is a lecturer at Santa Clara University School of Law and Associate Editor of DVR. Email:julie@saffren.com

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