Why Criminalise Coercive Control? The Complicity of the Criminal Law in Punishing Women Through Furthering the Power of the State

Sandra Walklate,Kate Fitz-Gibbon

doi:10.5204/ijcjsd.1829

Abstract

Moves to criminalise coercive and controlling behaviours are hotly debated. In jurisdictions where the legal response to domestic violence has incorporated coercive control, the efficacy of such interventions has yet to be established. Within this debate, limited attention has been paid to the extent to which such moves challenge or endorse legal understandings of the ‘responsible subject’ (Lacey 2016). This article will consider the failure of both the law in theory and the law in practice to address this feature in the debates surrounding coercive control. We suggest that this failure may result in the reassertion of traditional conceptions of responsibility. Or, as Naffine (1990) might say, a reconsideration of the unintended impacts of the prevailing influence of the rational, entrepreneurial, heterosexual, white man of law. Consequently, any law intended to offer an avenue for understanding women’s experiences of coercive control can reassert women as victims to be blamed for those same experiences and sustain the power of the patriarchal state in responding to such violence.

Highlights

Coercive and controlling behaviour has long been recognised as a problematic feature of some intimate partner relationships
Since the publication of Evan Stark’s book ‘Coercive Control: How Men Entrap Women in Personal Life’ (2007), in which he frames coercive control as a ‘liberty crime’, there has been an increasing momentum pressing for the criminalisation of coercive and controlling behaviour
Others have introduced specific criminal offences of coercive control

Summary

Introduction

Coercive and controlling behaviour has long been recognised as a problematic feature of some intimate partner relationships (see inter alia, Johnson 1995; Schechter 1982). When viewed historically, civil law has provided a significant and important avenue through which women living in violent relationships have been afforded legal support to improve their lives and secure their safety This has arguably been the case in England and Wales (Williams and Walklate 2020). It is important to note that this pre-eminence is arguably ‘peculiar’ to the Anglo-speaking world In this part of the world, policy responses to violence(s) against women have been influenced by North American work, characterised by what Goodmark (2015) has called ‘exporting without a licence’ (on the transfer of violence against women policies from the north to the south, see Walklate and Fitz-Gibbon 2018). As is argued in the conclusion to this article, our analysis points to the ways in which the move to criminalise coercive control fails to overcome the individualising consequence of the criminal justice process, in respect of victim-survivors

Why Criminalise Coercive Control?

The Criminalisation Thesis

Responsible Subjects and Blameless Victims