An extraordinary English law came into effect this week that allows for five years imprisonment for spouses who inflict psychological cruelty on their other partners.Domestic abuse will now extend to “coercive and controlling behaviour.” The definition of the offense however is quite vague and the potential scope of criminalization is considerable. Indeed, a single episode of the Honeymooners would rack up a major case under the new Section 76 law from limiting funds to threatening language to controlling aspects of spouse’s life. (Frankly, I never understood why Alice Kramden stayed with Ralph Kramden).
Director of Public Prosecutions Alison Saunders captured just how broad this law may be applied: “Controlling or coercive behaviour can limit victims’ basic human rights, such as their freedom of movement and their independence. This behaviour can be incredibly harmful in an abusive relationship where one person holds more power than the other, even if on the face of it this behaviour might seem playful, innocuous or loving.”
It is a bit disconcerting if behavior that appears “playful, innocuous or loving” can land you in jail for five years.Some of the cited conduct included “preventing a partner from seeing family or friends, keeping them short of money, controlling their social media accounts, spying on their communications or determining aspects of their everyday life, such as when they eat, sleep or even go to the toilet.”
The proof can be circumstantial, including the use of emails and text messages, and bank statements that show an effort to control a victim financially.
A case will be actionable so long as the abusive spouse’s conduct had a “serious effort” on the victim, which is defined as causing “serious alarm or distress which has a substantial effect on their usual day-to-day activities.”
I do not question that there are form of non-physical abuse or that there are such marriages where spouses feel trapped or have been stripped of the ability financially to break away. However, the ambiguity of these terms allows for a disturbing level of discretion of prosecutors in picking marriages and relationships deemed coercive. Assuming that the victim was not physically prevented from leaving (since that is already a crime), the question is how to criminalize conduct that can be highly subjective or interpretive.
The law does require repetition but not much repetition to be chargeable. Controlling or coercive behaviour is defined under section 76 of the Serious Crime Act 2015 as causing someone to fear that violence will be used against them on at least two occasions, or generating serious alarm or distress that has a substantial effect on their usual day-to-day activities.
The question is how to draft such a law to get serious cases of psychological abuse while allowing sufficient flexibility for prosecutors.
Here is the full law:
Controlling or coercive behaviour in an intimate or family relationship
(1)A person (A) commits an offence if—
(a)A repeatedly or continuously engages in behaviour towards another person (B) that is controlling or coercive,
(b)at the time of the behaviour, A and B are personally connected,
(c)the behaviour has a serious effect on B, and
(d)A knows or ought to know that the behaviour will have a serious effect on B.
(2)A and B are “personally connected” if—
(a)A is in an intimate personal relationship with B, or
(b)A and B live together and—
(i)they are members of the same family, or
(ii)they have previously been in an intimate personal relationship with each other.
(3)But A does not commit an offence under this section if at the time of the behaviour in question—
(a)A has responsibility for B, for the purposes of Part 1 of the Children and Young Persons Act 1933 (see section 17 of that Act), and
(b)B is under 16.
(4)A’s behaviour has a “serious effect” on B if—
(a)it causes B to fear, on at least two occasions, that violence will be used against B, or
(b)it causes B serious alarm or distress which has a substantial adverse effect on B’s usual day-to-day activities.
(5)For the purposes of subsection (1)(d) A “ought to know” that which a reasonable person in possession of the same information would know.
(6)For the purposes of subsection (2)(b)(i) A and B are members of the same family if—
(a)they are, or have been, married to each other;
(b)they are, or have been, civil partners of each other;
(c)they are relatives;
(d)they have agreed to marry one another (whether or not the agreement has been terminated);
(e)they have entered into a civil partnership agreement (whether or not the agreement has been terminated);
(f)they are both parents of the same child;
(g)they have, or have had, parental responsibility for the same child.
(7)In subsection (6)—
“civil partnership agreement” has the meaning given by section 73 of the Civil Partnership Act 2004;
“child” means a person under the age of 18 years;
“parental responsibility” has the same meaning as in the Children Act 1989;
“relative” has the meaning given by section 63(1) of the Family Law Act 1996.
(8)In proceedings for an offence under this section it is a defence for A to show that—
(a)in engaging in the behaviour in question, A believed that he or she was acting in B’s best interests, and
(b)the behaviour was in all the circumstances reasonable.
(9)A is to be taken to have shown the facts mentioned in subsection (8) if—
(a)sufficient evidence of the facts is adduced to raise an issue with respect to them, and
(b)the contrary is not proved beyond reasonable doubt.
(10)The defence in subsection (8) is not available to A in relation to behaviour that causes B to fear that violence will be used against B.
(11)A person guilty of an offence under this section is liable—
(a)on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both;
(b)on summary conviction, to imprisonment for a term not exceeding 12 months, or a fine, or both.
What do you think?