Physically Invisible: Understanding Coercive Control as a Form of Domestic Violence — Part 3
Physically Invisible: Understanding Coercive Control as a Form of Domestic Violence — Part 3
I have spent much of my personal, educational, and professional life attempting to understand what makes people act in the way that they do. What I have learned is that one’s actions are largely intertwined in their perception of the world and the level of empathy they exercise. As individuals, our perceptions of what is just are shaped by our life experiences, relationships, and the political and legal system that serves as the structure for our social lives (and whether we are disproportionately disadvantaged by that system). In my view, our ability to empathize comes from how our experiences compare to others’. Thus, understanding exactly why someone made a particular decision (outside of speculation) may be too burdensome. However, it is a lot easier to promote informed decision making — decision making that is based on not just one’s own perceptions and level of empathy but rather a deeper understanding of how certain behaviors that may appear socially acceptable or unimpactful to one may have a vastly different significance to another.
In this post, I will discuss how law enforcement, attorneys, and judges, can and should approach coercive control as a form of domestic violence and how the fact that the approaches can differ is both important and problematic.
Law Enforcement
While coercive control is not recognized as a crime in the U.S. (except in Hawaii), there are a variety of reasons why it is still important for law enforcement to understand it.
Let’s say that, hypothetically, coercive control was a crime that law enforcement was charged with preventing and enforcing everywhere. It is much simpler to investigate a crime when there is evidence that directly implicates a suspect. However, unlike with physical violence, coercive control is an invisible crime. Even though there can be evidence of coercion such as in text messages, from the perception of a police officer, it can be impossible to view a pattern of coercion unless they are looking closely into the victim and abuser’s relationship. Even then, the officer may not believe the behavior is coercive or controlling.
If we step out of the hypothetical, we know that in the vast majority of jurisdictions, victims of coercive control have only a civil remedy available. Given the barriers to identification and enforcement, why is it still so important that police officers recognize coercive control?
First, research has demonstrated that victims of coercive control are more likely to experience as well as engage in physical abuse.
Additionally, as addressed at length in previous posts, coercive control is a form of violence that warrants protection, and there is a public safety interest in protecting victims from violence.
Due to the lack of data on policing coercive control in the U.S., the below information is based on a metanalysis conducted in England.
In 2015, England and Wales enacted S. 76 of the Serious Crimes Act, which criminalized “coercive or controlling behavior” that has a “serious effect” on the victim. In the metanalysis on the implementation of S. 76, “Seeing what is ‘Invisible in Plain Sight’: Policing Coercive Control”, researchers point out that the understanding of what is a “serious effect” is commonly understood by police officers due to the similarities to anti-harassment legislation. However, “coercive and controlling behavior” is not as widely grasped. The researchers suggest that understanding coercive control will help police officers “make more informed decisions about risk, helping them to keep victims safe… [and] better understand the challenges that survivors face as they try to engage with the criminal justice process”.
So, how can police officers better understand coercive control? According to the metanalysis, when officers look at each incident as an isolated event, they may all appear to be “low risk” incidents. However, viewing every incident together can demonstrate the larger “high risk” situation of coercive control. Taking the big picture approach is clearly easier said than done. Therefore, it may prove more effective to move away from the “risk assessment” model all together and towards the coercive control model. In the coercive control model, police are charged with understanding the intersection of the dimensions of coercive control: grooming, coercive behavior, and victim’s response.
The “grooming” component suggests that victims are vulnerable because they have been groomed through courtship, fear, emotional abuse, and isolation, not due to weakness, mental illness, or character deficiencies. Then, coercive behavior surfaces through demands, credible threats, and surveillance. Lastly, regarding victim’s response, the researchers suggest that “police who meet the victim for the first time as she reaches out for help are not in a position to judge personality change. But assessing fear levels and instability, and recognizing that there might, in fact, be significant personality change, are all very helpful in terms of addressing some of the hurdles [of police response and intervention].”
In sum, viewing coercive control on a macro level will improve law enforcement’s ability to support victims and investigate crimes, such as physical violence, that are within their enforcement power.
Attorneys
As an attorney practicing family law and/or domestic violence law, you may be representing a victim of coercive control or an abuser who is engaging in coercive control. Either way, it is crucial to be prepared to respond and to understand what a protection order actually does in such cases.
As an attorney representing the victim of physical abuse, it is common (and important) to create a safety plan. The safety plan is a way for the attorney to assist the client in safely exiting the relationship because that is when the victim is at the greatest risk of harm (abuse that occurs because the victim attempts to leave is called separation violence). The plan should detail a list of people whom the victim could stay with who the abuser may not know or would not think to ask about the victim’s location. It should also include a list of items that the victim may need to take from the home including passports, money, clothing, etc., as well as how they will access those items. Most importantly, the plan should be specifically tailored to the victim’s life and account for where they work, go to school, and any medical needs.
However, when the victim is experiencing nonphysical abuse, is a safety plan still the best response? If so, does it look different than a safety plan for a victim of physical abuse?
To give every attorney’s favorite answer: it depends on the victim. In advising a client who is experiencing coercive control, the attorney should engage in a process that is like that explained above regarding law enforcement. She should consider the totality of the circumstances surrounding the abusive relationship and evaluate the methods of coercive control the abuser is engaging in. For example, not all victims experience financial abuse, but those who do will need a safety plan involving how to safely exit the relationship when they do not have access to their own finances. Understanding the client’s risk of different types of abuse is how an attorney can help the victim proceed safely and effectively.
Importantly, something else to consider when creating a safety plan is that coercive control often leads to physical violence — once the abuser no longer has control over the victim’s life, physical violence is their only option. Therefore, even if the abuse thus far has been nonphysical, the safety plan should account for that possibility.
A major aspect of coercive control is the lack of free agency that the victim has over their life. Therefore, after ensuring their client is safe, the attorney’s focus should be on how to regain that agency. One way we can use the law to help the victim regain agency is by obtaining a protection order. However, what does a protection order actually do? Do the protections it provides match coercive control as a form of domestic violence?
Looking at the Washington protection order, the judge may order the following in granting a protection order:
No Harm: Do not cause any physical harm, bodily injury, assault, nonconsensual sexual conduct or nonconsensual sexual penetration, and do not harass, threaten, or stalk
No Contact: Do not attempt or have any contact, including nonphysical contact, directly, indirectly, or through third parties, regardless of whether those third parties know of the order, except for service of court documents with
Exclude and Stay Away: Do not enter, return to, knowingly come within, or knowingly remain within 1,000 feet or other distance
Vacate shared residence: The protected person has exclusive right to the residence that the protected person and restrained person share (as listed in the Law Enforcement and Confidential Information form, PO 003). The restrained person must immediately vacate the residence.
Stalking Behavior: Do not harass, follow, monitor, keep under physical or electronic surveillance, cyber harass (as defined in RCW 9A.90.120), or use phone, video, audio or other electronic means to record, photograph, or track locations or communication, including digital, wire, or electronic communication, of
Intimate Images: Do not possess or distribute intimate images of a protected person, as defined in RCW 9A.86.010. The restrained person must take down and delete all intimate images and recordings of a protected person in the restrained person’s possession or control and cease any and all disclosure of those intimate images.
Electronic Monitoring: You must submit to electronic monitoring. (Restrained person must be age 18 or older.)
Evaluation: The restrained person shall get an evaluation for: [ ] mental health
[ ] chemical dependency (drugs)
Treatment: The restrained person shall participate in state-certified treatment as follows:
[ ] domestic violence perpetrator treatment program approved under RCW 43.20A.735
[ ] sex offender treatment program approved under RCW 18.155.070 at:
[ ] other:
Personal Belongings: The protected person shall have possession of essential personal belongings, including the following:
Assets: Do not transfer jointly owned assets.
Finances: The following financial relief is ordered:
Vehicle: The protected person shall have use of the following vehicle:
Restrict Abusive Litigation: Comply with the Order on Motion to Restrict Abusive Litigation (FL All Family 155), filed separately.
Pay Fees and Costs: The protected person is granted judgment against the restrained person as provided in the Judgment (PO 005), filed separately. The court finds that the restrained person is not under active duty in military or SCRA has been complied with. 50 USC § 3931.
The question becomes: is a piece of paper that is intended to provide these protections enough to heal a victim who had their sense of agency taken away from them? If the judge grants the protection order and restricts the abuser from contacting the victim, orders him to vacate the shared residence, refrain from transferring joint assets, restrict abusive litigation, etc., is the victim who has spent possibly years of her life under the control of the abuser going to have the ability and resources to enforce the order? Is she all of the sudden immune from coercive control?
The protection order might stop the abuser from constantly monitoring the victim and controlling how she spends her money, but it does not get her job back after the abuser got her fired or mend her relationships with friends and family who the abuser isolated her from.
In my opinion, while a protection order may be a win for the victim, it is not necessarily the tool that rebuilds agency. The protection order stops the bleeding and (hopefully) gives the victim the breathing room to take control, but it is what comes after the issuance of the protection order that matters the most.
However, what often happens after the protection order is issued? The attorney’s job is over, and the victim is on her own. The victim must then rely on the advice they received when they were represented and try to navigate whatever plan was put in place in order to regain control of her life. A lack of free will is not easy to overcome, and attorneys who practice in this area should consider the manner and timing of which they withdraw from a case.
Judges
A Judges perspective is drastically different from both law enforcement and attorneys: judges hear both sides of the story after the events occurred and, therefore, have a unique window into the lives of the parties involved that is outside of the purview of law enforcement or counsel. However, judges are also more restricted in their view in that they only hear what the parties decide to share and are limited by their ethical duties.
Judges have their own code of conduct that requires them to avoid impropriety and maintain impartiality. Their role is to hear arguments from both sides, evaluate the record, and issue an unbiased ruling.
However, as discussed above, nonphysical violence often comes with no evidence, and culpability turns on the victim’s word against the abuser’s. As you can probably imagine, this fuels the power dynamic that exists in many abusive relationships.
That said, some forms of coercive control may come through in the legal proceedings themselves. If an abuser engages in abusive litigation, the judge has the opportunity to view the abuse firsthand.
Abusive litigation may include filing frivolous motions to increase costs and drag out litigation, threats to involve CPS or to seek full custody of children, lying or distorting information in court, and painting the victim as the abuser by attempting to admit falsified or exaggerated evidence. On top of the psychological impact and financial strain of litigation that is present for most parties regardless of whether the case involves domestic violence, abusive litigation creates a fear that any action by the victim to free themselves from violence will lead to retaliation.
Although the victim can ask the court in their petition to restrict the abuser from engaging in abusive litigation, it is not an easy claim to succeed on. Something to note about protection orders is that the judge will not grant relief that you do not ask for. Therefore, if you want the judge to restrict the abuser from abusive litigation, you must ask for it when filling out the petition. While it may seem like a good idea to check all the boxes and see what sticks, there is a risk to petition for relief for something that has not yet been experienced and that there is no evidence of — the victim does not want to damage their own credibility. But, if the parties have not been involved in any other legal matters together, how do they predict whether abusive litigation will occur?
Admittedly, I do not have an answer to this question. My goal, however, is to encourage judges to consider, and empathize with, the petitioner’s position in these matters more deeply.
Lastly, I would like to address the issue of implicit bias among judges. Data has demonstrated that most judges view themselves as completely objective fact finders. That same set of data has also demonstrated that judges do in fact carry significant implicit biases that impact their decision making and ability to be truly impartial in the courtroom.
In an interview with Professor Deirdre Bowen from Seattle University School of Law, she discussed a recent study conducted regarding racial bias among judges in domestic violence cases. According to Professor Bowen, early data may suggest that when a petitioner checks “unknown” in response to the question of whether the respondent possesses firearms, the judge is more likely to issue an order to surrender weapons against respondents of color compared to white respondents.
What this suggests is that judges need to be more thoughtful in evaluating credibility and who they tend to give the benefit of the doubt. The racial disparity in the data is evidence that judges are not effectively objective, which creates dangers for both petitioners and respondents in domestic violence cases.
It is impractical to expect anyone to completely rid themselves of their personal biases, but in a profession that is based almost solely on one’s ability to be impartial, there is a duty to recognize what those biases are and whether they are impacting decisions in the courtroom.
