Physically Invisible: Understanding Coercive Control as a Form of Domestic Violence — Part 2
Data
The recognition of coercive control as a form of domestic violence has slowly crept from the social science world and become visible in the media and the law. The CDC has published data that quantifies the impact that coercive control has on individuals compared to other forms of violence. According to the National Intimate Partner and Sexual Violence Survey published by the CDC, nearly 46% of women and 43% of men report experiencing coercive control at some point in their lifetimes. The survey demonstrated that “the most common forms of lifetime coercive control and entrapment by an intimate partner among women include an intimate partner keeping track of them by demanding to know where they were and what they were doing (28.6%), making decisions that should have been theirs to make (26.2%), destroying something important to them (25.4%), threatening to hurt themselves or to commit suicide because they were upset with them (21.4%) and trying to keep them from seeing or talking to family or friends (21.0%)”. However, as previously discussed, whether it is because the impact of coercive control is less visible to outsiders or because people do not understand coercive control as a form of violence, many victims and survivors are denied recognition, a remedy, and the platform and power to escape violent control.
Ultimately, each state’s statutory definition of domestic violence determines whether a victim in that state will be awarded protection — if the type of violence a survivor is experiencing does not fall within the state’s definition of domestic violence, then, in the eyes of the law, that person is not experiencing domestic violence. Therefore, without the state legislature’s understanding of the legitimacy and invasiveness of nonphysical violence, millions of victims are left powerless.
Fortunately, a greater understanding of nonphysical violence in recent years has brought amended criminal and civil state statutes that provide protections for victims. However, very few states across the U.S. have adopted such statutes and, importantly, they are not the same across the board. Therefore, it is important to see how the existing statutes differ before delving deeper into their practical function.
Hawaii
While all states impose criminal liability for domestic violence to the extent physical violence occurs, Hawaii is the only state with a criminal statute that allows a prosecutor to bring criminal charges for coercive control. The Hawaii statute, codified in 2021, makes it a petty misdemeanor to exercise coercive control over a family or household member and includes a provision requiring mandatory arrest and minimum sentencing guidelines.
In relevant part, Hawaii criminal code section 709–906 states that “…It shall be a petty misdemeanor for a person to intentionally or knowingly strike, shove, kick, or otherwise touch a family or household member in an offensive manner; subject the family member or household member to offensive physical contact; or exercise coercive control, as defined in section 586–1, over a family or household member and the person shall be sentenced as provided in sections 706–640 and 706–663.”
However, the supplemental commentary (included below the statutory language), describes the legislative intent for the 2021 amendment. The legislature stated that the amendment making coercive control a petty misdemeanor is temporary, and only part of a 5-year pilot program to combat domestic violence. While it seems discouraging that Hawaii’s criminalization of coercive control is so far only part of a temporary program the legislature cited social science research supporting the amendment. It described research showing that “coercive control is often part of the cycle of domestic violence and often carries a threat of violence or is a direct precursor to violence…the addition of coercive control between family or household members to the offense of abuse of family or household members as a petty misdemeanor would apply to many victims and would encourage them to come forward and seek a legal safety net for themselves and their loved ones.”
In that statement from the Hawaii legislature, I see them connecting the dots and truly attempting to understand why states have domestic violence protections in the first place. I see a thought process that, if adopted by all states, would legitimize and empower victims and create an actual impact in combating the cycle of violence.
In Hawaii, whether you are relying on the criminal statute for prosecution or the civil statute for a protection order, you will be looking at the same definition of coercive control:
“a pattern of threatening, humiliating, or intimidating actions, which may include assaults, or other abuse that is used to harm, punish, or frighten an individual. “Coercive control” includes a pattern of behavior that seeks to take away the individual’s liberty or freedom and strip away the individual’s sense of self, including bodily integrity and human rights, whereby the “coercive control” is designed to make an individual dependent by isolating them from support, exploiting them, depriving them of independence, and regulating their everyday behavior including:
(1) Isolating the individual from friends and family;
(2) Controlling how much money is accessible to the individual and how it is spent;
(3) Monitoring the individual’s activities, communications, and movements;
(4) Name-calling, degradation, and demeaning the individual frequently;
(5) Threatening to harm or kill the individual or a child or relative of the individual;
(6) Threatening to publish information or make reports to the police or the authorities;
(7) Damaging property or household goods; and
(8) Forcing the individual to take part in criminal activity or child abuse”
Importantly, the Hawaii statutory definition includes an exhaustive list of what qualifies as coercive control — if you cannot plead with particularity as to one of the circumstances listed above, you do not qualify for a protection order under the statute.
Additionally, under both statutes, the requirements for recovery are somewhat restrictive in that they cover abuse from “family or household members”. However, the statutory definition of household members includes “spouses or reciprocal beneficiaries, former spouses or former reciprocal beneficiaries, persons who have a child in common, parents, children, persons related by consanguinity, persons jointly residing or formerly residing in the same dwelling unit, and persons who have or have had a dating relationship.” Importantly, it does NOT include “those who are, or were, adult roommates or cohabitants only by virtue of an economic or contractual affiliation.”
While the inclusion of those in dating relationships is crucial in capturing the bulk of nonphysical violent circumstances, the statute excludes adult roommates from protection. In Beale v. Roos, a 2022 unpublished case, the Intermediate Court of Appeals of Hawaii determined that the Family Court abused its discretion in granting a 2-year protection order against the Petitioner’s adult roommate because their relationship did not fall within the statutory definition of “family or household member”. I think it is worth considering why adult roommates are explicitly left out and whether that exclusion impacts a significant population in the state of Hawaii.
Connecticut
Overall, the Connecticut civil statue that permits a victim to obtain a protection order is, to put it simply, very dense. Luckily, the beginning gives the reader a snapshot of who can obtain a protection order against whom and what general behaviors warrant an order. It states:
“(a) Any family or household member, as defined in section 46b-38a, who has been subjected to a continuous threat of present physical pain or physical injury, stalking or a pattern of threatening, including, but not limited to, a pattern of threatening, as described in section 53a-62, by another family or household member may make an application to the Superior Court for relief under this section. The court shall provide any person who applies for relief under this section with the information set forth in section 46b-15b.”
A 2021 bill nicknamed Jennifer’s Law was enacted as a Public Act. Jennifer’s law expanded the statutory definition of domestic violence to include coercive control. In relevant part, the Act defines domestic violence as:
“… coercive control of such family or household member, which is a pattern of behavior that in purpose or effect unreasonably interferes with a person’s free will and personal liberty. “Coercive control” includes, but is not limited to, unreasonably engaging in any of the following:
(A) Isolating the family or household member from friends, relatives or other sources of support; (B) Depriving the family or household member of basic necessities;
© Controlling, regulating or monitoring the family or household member’s movements, communications, daily behavior, finances, economic resources or access to services;
(D) Compelling the family or household member by force, threat or intimidation, including, but not limited to, threats based on actual or suspected immigration status, to (i) engage in conduct from which such family or household member has a right to abstain, or (ii) abstain from conduct that such family or household member has a right to pursue;
(E) Committing or threatening to commit cruelty to animals that intimidates the family or household member; or
(F) Forced sex acts, or threats of a sexual nature, including, but not limited to, threatened acts of sexual conduct, threats based on a person’s sexuality or threats to release sexual images”
Unlike the Hawaii statute, the Connecticut statute does NOT provide an exhaustive list of what qualifies as coercive control. Therefore, victims and their attorneys have more flexibility in arguing for a protection order and judges have more discretion. As a side note, whether increased judicial discretion is a good thing or a bad thing is a loaded question, one that I will not get too deep into here. However, I will say that while there may be judges who do not yet fully understand the nature of domestic violence, greater judicial discretion allows the domestic violence victim/survivor more space to advocate for themselves and obtain protection from a situation that the state legislature may not have thought of. Additionally, it provides greater space for attorneys to educate judges and other members of the legal community of the complexities of domestic violence and what role the legal system can and should play in protecting victims.
Like in Hawaii, while the Act specifies that coercive control must be from a “family or household member”, that does not necessarily mean that the victim needs to live with the abuser to “qualify” for protection. Looking to the broader statutory definitions, section 46b-38a defines “family or household member as any of the following persons, regardless of the age of such person:
(A) Spouses or former spouses;
(B) parents or their children;
© persons related by blood or marriage;
(D) persons other than those persons described in subparagraph © of this subdivision presently residing together or who have resided together;
(E) persons who have a child in common regardless of whether they are or have been married or have lived together at any time; and
(F) persons in, or who have recently been in, a dating relationship.
Washington
In Washington, the domestic violence statute contains 22 categories of protection. In relevant part, it grants the court discretion to “(a) Restrain the respondent from committing any of the following acts against the petitioner and other persons protected by the order: Domestic violence; nonconsensual sexual conduct or nonconsensual sexual penetration; sexual abuse; stalking; acts of abandonment, abuse, neglect, or financial exploitation against a vulnerable adult; and unlawful harassment;”
In July 2022, the statute was amended, and the definition of domestic violence was expanded to include coercive control. Coercive control is defined as:
“…a pattern of behavior that is used to cause another to suffer physical, emotional, or psychological harm, and in purpose or effect unreasonably interferes with a person’s free will and personal liberty. In determining whether the interference is unreasonable, the court shall consider the context and impact of the pattern of behavior from the perspective of a similarly situated person. Examples of coercive control include, but are not limited to, engaging in any of the following:…”
Not only does it include the “but are not limited to” language, the statute then lays out 18 examples of coercive control. In drafting the statute this way, the Legislature provided expansive guidance on how judges, attorneys, victims, and abusers ought to be thinking about coercive control while preserving judicial discretion and the space for advocacy from or on behalf of individual victims.
However, the Washington statute is still brand new. While coercive control has been brought up in a few recent cases involving domestic violence out of the Court of Appeals of Washington, there is little to no case law that interprets what constitutes coercive control and the weight it carries in the statute.
California
Admittedly, as a 3rd year law student, the California domestic violence statute was fairly difficult for me to find — it took changing my google search terms many times and referring to 2 legal databases to ensure I was in the right place. While that concerns me for a number of reasons, I eventually found what I was looking for.
In California, the civil statute defines domestic violence as “abuse perpetrated against any of the following persons: “(a) A spouse or former spouse; (b) A cohabitant or former cohabitant, as defined in Section 6209; © A person with whom the respondent is having or has had a dating or engagement relationship; (d) A person with whom the respondent has had a child, where the presumption applies that the male parent is the father of the child of the female parent under the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12); (e) A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected; (f) Any other person related by consanguinity or affinity within the second degree.”
The statute then defines “abuse” as: “(1) To intentionally or recklessly cause or attempt to cause bodily injury; (2) Sexual assault; (3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another; (4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320.” It then clarifies that “abuse is not limited to the actual infliction of physical injury or assault.”
Section 6320 sets out the parameters for an emergency ex parte protection order and defines coercive control as “a pattern of behavior that in purpose or effect unreasonably interferes with a person’s free will and personal liberty. Examples of coercive control include, but are not limited to, unreasonably engaging in any of the following:
(1) Isolating the other party from friends, relatives, or other sources of support.
(2) Depriving the other party of basic necessities.
(3) Controlling, regulating, or monitoring the other party’s movements, communications, daily behavior, finances, economic resources, or access to services.
(4) 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.
(5) Engaging in reproductive coercion, which consists of control over the reproductive autonomy of another through force, threat of force, or intimidation, and may include, but is not limited to, unreasonably pressuring the other party to become pregnant, deliberately interfering with contraception use or access to reproductive health information, or using coercive tactics to control, or attempt to control, pregnancy outcomes.”
In the Legislative Counsel’s Digest that was published with the 2014 bill, the legislature states that …”Domestic violence is not limited to actual and threatened physical acts of violence, but also includes sexual abuse, stalking, psychological and emotional abuse, financial control, property control, and other behaviors by the abuser that are designed to exert coercive control and power over the victim.
Interestingly, the term “coercive control” is not stated explicitly in the definition of abuse, nor is it included in the general statutory definitions. It becomes visible only after delving into the subsection regarding ex parte orders. My concern with the California statute is that it is inaccessible, and maybe increasingly overwhelming, to victims and other individuals who are not familiar with how to navigate state statutes. While California does provide civil protection for victims of coercive control and even provides a few examples of what it might entail, the fact that it took some effort to even locate the statute let alone the langue regarding coercive control may serve as a barrier for victims.
Conclusion
Overall, the way a statute is drafted, and later interpreted by courts will have a significant impact on how the law of coercive control is come to be understood and applied by judges and argued by lawyers. The challenge is whether statutory drafting and case law interpretation align with the social scientific understanding of how coercive control plays out for survivors and abusers.
