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.