Criminalizing coercive control may seem like a good idea, but could it further victimize women?

by Eden Hoffer and C. Nadine Wathen, The Conversation

Credit: Unsplash/CC0 Public Domain

As of June 2024, Bill C-332 is at its second reading in Canada's Senate, following its third reading in the House of Commons. Introduced by NDP MP Laurel Collins, Bill C-332 is an amendment to the Criminal Code that would criminalize coercive control in intimate relationships.

Coercive control involves a continuing yet often subtle and nuanced pattern of behavior by one partner through tactics of domination, isolation, manipulation, intimidation and fear. Many victims and survivors of coercive control have highlighted its insidious nature and how it's often invisible to those outside of the family.

Bill C-332 seeks to criminalize "using or attempting to use or threatening to use violence against certain persons, coercing or attempting to coerce the intimate partner to engage in sexual activity or engaging in other conduct that could reasonably be expected to believe that their safety, or the safety of a person known to them is threatened." The proposed legislation calls for a prison term of up to 10 years for anyone convicted of coercive control.

At first blush, the prospect of criminalizing coercive control seems positive. Through the creation and implementation of a uniform response, criminalization would indicate coercive control is being taken seriously by authorities. It signals to the public that coercive control is unacceptable and is being addressed by policymakers and the criminal justice system.

Mandatory charging

These arguments in favor of criminalization are familiar. They're similar to the arguments supporting the criminalization of intimate partner violence through mandatory charging policies that were implemented across Canada in the 1980s. These policies require police to lay charges in cases where there are reasonable grounds to believe that an assault has occurred at the scene of a domestic dispute.

Mandatory charging policies also had seemingly benevolent intentions aimed at acknowledging the severity of intimate partner violence and that it was no longer a private matter but, instead, a crime.

However, in some cases, mandatory charging policies have been harmful to the victim-survivors they were intended to protect, who are disproportionately women. Specifically, since the implementation of mandatory charging policies, there has been an increase in the number of victim-survivors who have been arrested—in tandem with their partner or solely. This criminalization primarily occurs as the result of women's defensive violence, which is often not recognized as defensive given the justice system's incident-based nature.

Additionally, mandatory charging policies have been exceptionally harmful for Black women, Indigenous women and migrant women. They often face additional barriers, including racism and discrimination from those working in the criminal justice system, fears of police, concerns regarding deportation or language barriers.

The criminalization of coercive control could face the same unanticipated outcomes.

Women who are victims or survivors of intimate partner violence have detailed how mandatory charging policies have been weaponized against them by their violent partners. Some women have described how their partners fabricated accounts of violence or lied to police in order to portray them as the aggressors, while other women have said their partners used their knowledge of how the justice system operates to convince investigators that she was the primary aggressor, resulting in criminal charges against her.

Systemic risk factors

There are multiple reasons why criminalizing coercive control could face the same challenges that have plagued mandatory charging policies for the past four decades. Here are three:

1. Patriarchal justice system. Like many other societal institutions and systems, our current criminal justice system is patriarchal in nature. This means that legislation and the judicial framework at large reflects patriarchal values and norms, upholding male dominance. As a result, women's needs and realities when they experience intimate partner violence will continue to be unconsidered, unacknowledged or distrusted.
2. Gender-neutral policies. Like mandatory charging policies, coercive control policies are gender-neutral, which obscures the ways it occurs within an often gendered pattern of violence. Gender neutrality also disregards the reality of intimate partner violence, where statistics indicate that women are disproportionately victims and suffer more severe consequences of violence.
3. Criminalized survivors. With mandatory charging policies, it became simple to blur the line between offenders and victims, and, given the tactics used by intimate partner violence perpetrators, they often found a way to turn this to their advantage. A significant concern regarding criminalizing coercive control is that women's protective behaviors—especially when it comes to their children—could be used against them by abusers, in concert with the patriarchal criminal justice system, to portray women as offenders. This can lead to "double victimization," resulting in serious impacts on women and their children across various systems, including criminal law, family law and child welfare. This is seen, for example, during custody hearings that delve into the discredited but still powerful and salient idea of "parental alienation."

The system is already failing women who have been affected by intimate partner violence, and as other gender-based violence experts have acknowledged, additional criminalization through criminalizing coercive control is not the solution.

In addressing intimate partner violence, scholars have suggested the implementation of trauma- and violence-informed care (TVIC), which acknowledges the ways that interpersonal violence, systemic violence and structural inequities intersect to impact an individual's life. TVIC would serve to address institutional and systemic violence, including policies like mandatory charging policies that perpetuate harm. TVIC also emphasizes the responsibilities of health and social service organizations so that people who require assistance can get the help that they need.

Coercive control is exceptionally difficult to identify, and as mandatory charging policies have shown, a solely criminal justice-based approach to intimate partner violence—without acknowledging the broader social context in which gender-based violence occurs—will likely continue to harm victim-survivors.

Provided by The Conversation 

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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