Coercive control and the problem of proof

Family Law|September 5th 2016

As any family lawyer will know, domestic abuse can encompass much more than just physical violence. It can be subtle and insidious, beginning with behaviour that might appear perfectly acceptable, such as a little over-protectiveness of one’s spouse, or being extra careful with money. Gradually, however, that over-protectiveness can lead to constant monitoring of the spouse’s whereabouts, or even restricting their movements. Being extra careful with money can morph into controlling the spouse’s spending and limiting their financial independence.

It is entirely welcome, therefore, that in recent times such coercive and controlling behaviour has been recognised as a form of domestic abuse, in the same way that physical violence has always been so recognised. This process of recognition of the issue culminated in the coming into force last December of section 76 of the Serious Crime Act 2015, which made coercive and controlling behaviour in an intimate or family relationship a criminal offence.

It was therefore disappointing to read this week that police forces across England and Wales have apparently been ‘neglecting’ section 76, using it just 62 times between its introduction and June this year. Eight forces did not even use it at all. These figures are particularly alarming when one considers that prior to the introduction of Section 76, Citizens Advice reported involvement in close to 4,000 cases of financial and emotional abuse per year.

So what is going wrong? Well, one issue may well be the problem of proving coercive control. The vast majority of domestic abuse takes place behind closed doors, without any independent witnesses (indeed, perpetrators often ensure that they appear perfectly reasonable to outsiders). Now, if there has been physical abuse then there is likely to be physical evidence in the form of injuries to the victim. However, as I said above, coercive control can be much more subtle, and therefore much harder to prove. With no other evidence, it can very often become a simple case of one party’s word against the other.

At this point, I will briefly explain the legalities of the issues of the ‘burden of proof’ and the ‘standard of proof’, for the benefit of non-lawyers. The ‘burden of proof’ is the hurdle that that anyone alleging a thing in court must get over in order to satisfy the court that that thing happened. There are two standards of proof: one for the civil courts, and one for the criminal courts. In the civil courts the standard is that the thing must be proved “on the balance of probabilities”, which means that the court must be satisfied that the thing in question is more likely than not to have happened. In the criminal courts the standard is higher: the thing (i.e. the commission of the offence) must be proved “beyond all reasonable doubt”.

Now, domestic abuse can be a matter for either the civil or the criminal courts. If the victim is seeking a domestic violence injunction in the family court then it is a civil matter. If the alleged perpetrator has been charged with an offence under section 76 then it is obviously a criminal matter.

As many family lawyers will attest, proving coercive control to the civil standard of proof can be difficult enough, but proving it to the criminal standard is obviously considerably more difficult. For a hard-pressed police force, putting together the evidence required to overcome the hurdle of the criminal standard in coercive control cases can be an onerous, and sometimes impossible, task. Frankly, it is no surprise that section 76 has been used less than had been hoped.

I would like to conclude this post with some sort of answer to the problem of proof in coercive control cases, but I’m not sure what the answer is, or even if there is an answer. It has been suggested that more specialist training for police officers on the issue of coercive control may be needed. Yes, perhaps that may help in spotting coercive control, but it won’t necessarily help in proving it. In the end it is up to the victims to provide the police with the proof they require, and that is easier said than done without independent evidence, and with perpetrators doing all they can to cover their tracks.

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Comments(12)

  1. WISEACRE says:

    So alongside police guidance and training there seems to be a need for the same for CABx and similar advisers and also some carefully drafted advice notes for victims [along the lines of your helpful, gentle posting above]. All of which would emphasise the importance of getting advice from a lawyer. This is not an area where one can expect a friend or McKenzie Friend to cope with the difficulties.[BTW I am not a lawyer so do not have a vested interest].

    • Stitchedup says:

      Completely disagree. If a,woman is not happy in the relationship she can leave.
      The statistics show that 68% of divorced are initiated by women, only 4% by men. The idea peddled by feminists that women are somehow trapped in relationships is complete tosh. 97% of women get custody of the children and will most likely get occupation of the family home as a result. They will also get child support payments for any children and will often get spousal support payments. It is men that are trapped in relationships because it’s men that will loose their children, home and ability to maintain a decent standard of living for themselves in the event of divorce/separation. The main reason domestic disputes happen behind closed doors has nothing to do with men trying to hoodwink people, it’s simply because most people in reasonable control of their behaviour tend not to air their dirty washing in public. Men that appear reasonable in public are most likely reasonable people. Just because their relationship is breaking down or has broken down doesn’t make them bad any more than it makes the other party bad. I’m sorry, but this BS about men pulling the wool over people’s eyes by being reasonable in public is just a feminist “catch all” attempt at convicting as many men as possible.

      • Protected Identity says:

        Clearly the above commenter thinks they know an awful lot about something they genuinely know nothing useful about at all. Application of statistics above is completely wrong – deducing that if women bring the vast majority of divorce proceedings then all women “must” be free to leave… what a load of complete self-righteous nonsense.
        In fact, similar statements were made by my abusive husbands’ incredibly nasty, intimidating & abusive (not physically mind – just verbally, emotionally & psychologically!) brother, in order to dismiss my “difficulties” (as a victim of his brothers’ long standing abuse). …Food for thought perhaps.

      • Kate says:

        It feels rather unorthodox to post as I am, but the above comments are narrow minded, outdated and ignorant. How dare you!!!!
        My husband, a medical professional, has an aura which instantly has people relaxed, never shouts…. Almost perfect! …. It took 6 years to show the nasty….
        I could shock J Kyle with the actions I have lived. The police were the only people who saw his calm nature, and warned me of his possible intentions …. I had no idea, but he was too calm apparently….. (They were right )
        Had he been shouting and swearing constantly, neighbours etc would understand why I had enough.
        But my husband is a different breed. Make hell, but quietly, I shout, he looks good I look crazy…Simple!!
        This is highly destructive and damaging, and nobody can comment negatively until your mother or daughter or you have lived it.
        He was having an affair and started to plant seeds to chosen friends (his) that it was me!!!! Months this was… After calling me another woman’s name he would sit with 3 mobile phones in jeans pockets ?… “My phones ha ha they don’t even have a SIM card “… Can you imagine ??…. No !!…… These spineless bullies walk freely, as people like you just see the amazing guy he is, then judge the crying depressed wreck he bullied as unstable……! When all along he has manipulated you ….. the other fool, that he laughs at even more….. The gullible toy.
        OH ….reality check…… I could not leave….. 150k he earns. 2 children no money. I coped so that my girls stay d happy at school no bruising so kids are first. His wage stops any benefit entitlement for me…..
        Horrific behaviour contact me. …..?
        You need to help vulnerable women, if not, join my ex. Oh he took the equity out of our home after not paying tax.
        CHILDREN…. The only ones at number 1…. Should be….
        . Not about who gets this and that….. Oh….. Another thing he bothers 4 days per month with them….. Tells all who listen like you….. I won’t let him see them any more than this…..so act human , we have reason ….. Use it

  2. Elena says:

    Your article is spot on: “the vast majority of domestic abuse takes place behind closed doors, without any independent witnesses (indeed, perpetrators often ensure that they appear perfectly reasonable to outsiders)”. It is disappointing for the victims that the burden to prove their abuse rest on their shoulders while the perpetrator will very often “charm” the professionals, friends and family (even of their spouse) to support them and to further their agenda.

    The saddest part of all, the perpetrators will use and manipulate the children to abuse the residential parent because they know that the easiest way to hurt the victim is through the children.

    The victims should be able to record the “verbal abuse behind closed doors” which should be admissible in Court. While perhaps emotional abuse is difficult to prove but hiding assets, “starving” the other spouse are all part of financial abuse.

  3. Andy says:

    Yes on both accounts..
    Trouble is we see all to often the stereo typical the female is the victim..Well how about this..What about the male as the victim..Yes it is happening and all to real..So would you react any differently if this was the case..probably not..
    Any divorce will create lies,abuse and accusations of all sorts.. in the comments made,all children are used as weapons against the sufferer..Yes all stories are created from the one who causes the domestic abuse and mental abuse…
    In this case as noted this needs sorting…

  4. Douglas Milnes says:

    One of the reasons why Section 76 is so under-used is because the social concentration and legal training has all been on the basis of enabling a partner to do what they want. Where this is spending their own money, or of joint funds for common purpose, then continual attempts to curb such expenditure is indeed a form of abuse.

    The other side of the issue – which is receiving far too little attention – is the controlling behaviour of a partner who overspends, or spend on frivilous or even illegal things. The much-quoted “4,000 cases a year” (clearly not ‘cases’ in the legal sense) reported by the CAB are one side of the story and will include partners grumbling about not being allowed to spend on things which would harm them (e.g. drugs, tobacco or alcohol) when food for children is considered a higher priority by their partner.

    It is this other side of domestic abuse which is often easier to prove: showing that spending happened can be easier than proving that it wanted to be spent but wasn’t. Many men, in particular, live in fear of their partner (both male and female) on having their earnings spent (women account for around 70% of all spending, regardless of whom earns the money). It is this side of domestic abuse that needs to be addressed more to stabilize families and help the children of such families.

  5. Dr Grumpy says:

    While we focus on this aspect more needs to be done about this in respect of children. Parent Alienation Syndrome has been recognised in the US for years but only now is emotional abuse being named as a form of child abuse.
    The difficulty is for the support services such as social services and the police in recognising it. Some parents are using it as a weapon against the other parent How can you tell when a parent isn’t ‘crying wolf’ in order to cause damage to the other one?
    How do you ask a child if they are subjected to emotional abuse? Would a child recognise that they are being subjected to emotional abuse?

  6. Luke says:

    ===
    “I would like to conclude this post with some sort of answer to the problem of proof in coercive control cases, but I’m not sure what the answer is, or even if there is an answer.”
    ===
    .
    There never was an answer and it’s embarrassing for you John that you don’t have the stones to just state that outright – one person’s coercive control is another person’s nagging, that person’s nagging is yet another person’s robust constructive advice. It’s often all a matter of opinion and there is generally no decent evidence anyway (and no, a woman crying is not decent evidence).
    .
    The problem for the feminist zealots who want to prosecute men (because in reality it is almost always going to be the man they are trying to prosecute) is that we have this annoying obstacle called due process.
    This doesn’t mean that there aren’t some coercive monsters out there – it means that anybody that actually thought the law could be used on a mass scale to work out beyond reasonable doubt who is a coercive monster and who isn’t when there is no physical injury cannot be too bright…

    • Dr Grumpy says:

      While it can be difficult to spot in adults think what it is like to try and spot it in children? Physical abuse can be difficult enough to spot but emotional abuse and parent alienation syndrome how do you spot that let alone alert the proper authorities?
      What can be done if you know your ex is controlling your child and forcing them to say things that are untrue?

  7. JamesB says:

    I did ask CAFCASS head of team where I am about PAS. I said have you heard of PAS, he said, he had heard of the terminology, I didn’t press the matter, but ended up walking out on them shortly after, useless bunch. Parliamentary ombudsman upheld my complaint that they were unable to communicate effectively and deal with my case reasonably as not having suitable language in which to converse with me.

    Essentially they spoke lawyer or bullshit of feminism and I spoke common sense and we were unable to communicate. So, they got reprimanded after the final hearing where I was stitched up and things which were untrue were found to be found true as there was no one representing anyone apart from expensive lawyers on her side and cafcass and dodgy Judge. Messed-up system.

    • Kate says:

      Well I hope this counts towards other proof I have against my husband as I am in a very small percentage of mummy’s being falsely and maliciously accused of emotionally abusing my children…. Because my ex will only see them every other weekend, they cry every time he brings them home and won’t let go of him as they know he’s staying away for 12 days….. He disturbingly turned this on me, rang SServices telling them he doesn’t know what I’m doing to his children but they are hysterical when he brings them home and he’s worried that they react this way towards being with me???!!!…. Obviously the case wa closed the same day as its sick accusations…… But, that’s it??? My barrister practically ignored this???? He doesn’t get wrists slapped??? No humiliation from even being told to apologise??? Like it never happened….. Obviously school were informed….. It’s me blackened, case closed or not….. This is pretty rare, he is Mr fantastic and so I’m tarnished ….. No smoke without fire they ll be saying….. No one will think it’s was him rang and did something so sick……

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