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| Allison Mahoney |
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| Lindsay Lieberman |
Until recently, law enforcement, courts and legislatures in the United States have largely overlooked this common form of intimate partner violence. Without visible broken bones or black eyes to prove guilt, the law could not protect people — usually women[1] — from invisible emotional wounds and psychological scars.
Advocates, recognizing that intimate partner violence often involves abusive patterns of controlling behavior, rather than single incidents of physical abuse, have been calling on states to reform their intimate partner violence laws. In response, a number of states are listening and adding a variety of coercive control provisions to their statutes.
Recognition of coercive control as a form of intimate partner violence is long overdue, and laws aimed at allowing victims to obtain orders of protection based on coercive control are necessary. Some states have gone further, making coercive control a crime. But whether those statutes will be effective, and ultimately curb abusive behaviors, has yet to be seen.
What Is Coercive Control?
Coercive control is at the very core of abusive relationships. This form of abuse involves ongoing controlling behaviors, in which the abuser employs varied tactics, such as violence, intimidation, degradation and isolation, to instill fear-based compliance in a victim.
The term was popularized by Evan Stark, a forensic social worker, professor emeritus at Rutgers University, and author of the 2007 book "Coercive Control: How Men Entrap Women in Personal Life." According to Stark, coercive control "is a strategic course of oppressive behavior designed to secure and expand gender-based privilege by depriving women of their rights and liberties and establishing a regime of domination in personal life."[2]
Stark estimates that a startling 60% to 80% of women in abusive relationships experience coercive control.[3] The long-term effects of such emotional abuse and manipulation are devastating to a person's emotional and physical well-being.
Stark notes that "the cumulative effect of repeated low-level assaults can be more devastating than injurious, but isolated attacks."[4] Often, relationships that begin with coercive controlling behavior evolve to include physical violence. By the time the physical assaults start, the victim may be so mentally, emotionally and psychologically injured that they are less likely to seek help or leave the relationship.
Many abusers engaged in coercive control gain access to their partner's bank accounts and online communications, and install GPS tracking in their cars. Abusers track victims' online and offline behaviors, where they spend money, and with whom they communicate.
Abusers may criticize victims incessantly and gaslight them into questioning their own reality.[5] Sometimes abusers blame family members and friends for marital or relationship problems to isolate the victims from those closest to them. Abusers may initiate arbitrary systems and protocols and regulate mundane day-to-day tasks, like how to empty the dishwasher and when to go to the bathroom.
Ultimately, coercive control involves holding hostage an intimate partner — controlling their whereabouts, limiting their freedom, preventing them from getting help or leaving the relationship.
States' Efforts to Address Coercive Control
Hawaii was the first state to sign a coercive control bill into law. In September 2020, Gov. David Ige signed H.B. 2425, which added coercive control to the definition of domestic abuse as it relates to insurance laws and domestic abuse protective order statutes.[6]
In Hawaii, coercive control is defined as a "pattern of threatening, humiliating, or intimidating actions, which may include assaults, or other abuse that is used to harm, punish, or frighten" another individual, and 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."[7]
The statute goes on to provide examples of coercive control, including "controlling how much money is accessible to the individual and how it is spent" and "name-calling, degradation, and demeaning the individual frequently."[8] Hawaii's law allows survivors of intimate partner violence to obtain orders of protection against their abusers based on behaviors such as controlling their finances, isolating them from friends and family, and threatening harm.
Soon after Hawaii passed its legislation, California also enacted a revision to its Family Code that allows coercive control to be used as evidence of intimate partner violence in family court.[9] Under this provision, a person can obtain an order of protection against an abuser based on coercive control behavior.[10]
The Legislature has placed coercive control under the umbrella of "disturbing the peace" as is laid out in Section 6320 of the Family Code.[11] The California statute describes coercive control as a "pattern of behavior that in purpose or effect unreasonably interferes with a person's free will and personal liberty."[12] It provides examples of coercive control including "[d]epriving the other party of basic necessities," and "[c]ontrolling, regulating, or monitoring the other party's movements, communications, daily behavior, finances, economic resources, or access to services."[13]
Hawaii and California were trailblazers in adding coercive control provisions to their laws that relate to orders of protection. Illinois, following their lead, is working on passing legislation on coercive control. Its bill will be similar to Hawaii's and California's in that it will give victims the right to obtain a restraining order because of it.
Illinois H.B. 1808, if passed, will amend the Illinois Domestic Violence Act to include coercive control in the definition of "abuse."[14]
This amendment will allow a victim to petition for a protective order against another person who has engaged in "coercive control behavior," which it defines as "a pattern of behavior that unreasonably interferes with a person's free will and personal liberty."[15] This includes, inter alia, isolating the victim, depriving the victim of basic necessities, and controlling or monitoring the victim's movements, communications, finances or access to services.[16]
Other states are trying to pass coercive control legislation,[17] and at least two are taking a more aggressive approach and criminalizing coercive control. Criminalizing coercive control would bring these cases into the jurisdiction of criminal courts as opposed to civil or family courts. Criminal cases require a higher burden of proof and carry much more serious penalties, including possible jail time.
New York and South Carolina are currently working on coercive control legislation that would criminalize the behavior.
In New York, S.B. 5650 seeks to amend Penal Law Section 135.80 and establish the crime of coercive control — a Class E felony. Under New York's proposed law, a person is guilty of coercive control "when he or she engages in a course of conduct against a member of his or her same family or household ... without the victim's consent, which results in limiting or restricting, in full or in part, the victim's behavior, movement, associations or access to or use of his or her own finances or financial information."[18]
Moreover, "lack of consent results from forcible compulsion ... or from fear that refusal to consent will result in further actions limiting or restricting the victim's behavior, movement, associations or access to or use of his or her own finances or financial information."[19] The bill was referred by the Assembly and Senate to committees in January and March 2021, respectively.
South Carolina's H.B. 5271, which was introduced in 2020, proposes to amend the existing domestic violence law and add the offense of coercive control over another person as a felony.
Under this proposed legislation:
It is unlawful for a person to repeatedly or continuously engage in a course of behavior towards another person that is coercive or controlling when both persons are personally connected and which results in a person causing the victim to fear, on at least two occasions, that violence will be used against the victim or which results in mental distress to the victim resulting in a substantial adverse effect on the victims' day-to-day activities.[20]
Coercive control may include isolating a person from the person's friends and family, depriving a person of basic needs, monitoring a person's time, monitoring a person via online communication tools or using spyware, taking control over aspects of a person's everyday life, repeatedly putting a person down, enforcing rules and activity that humiliate, degrade or dehumanize the person, threats to a child, or preventing a person from having access to transport or from working, among other things.
This bill is currently before the South Carolina House Judiciary Committee.
The Takeaway
It is up for debate whether expanding laws to criminalize coercive control, as proposed in New York and South Carolina, will be effective. Some argue that resources are better spent on preventative services or restorative justice practices, which focus on healing the injury caused by abusive behavior.[21] And others point out that adding more criminal codes to the books will only do more harm, including resulting in higher rates of incarceration.[22]
Moreover, coercive control may be challenging for prosecutors to prove, and unsuccessful prosecutions may retraumatize victims. If laws are passed that criminalize coercive control in the United States, their outcomes will need to be closely monitored to determine whether they protect victims and decrease instances of this form of intimate partner violence.
What is clear from the research, however, is that intimate partner violence is much more nuanced than many states' laws originally contemplated. We know now that abuse often occurs through a series of incidents, that when viewed separately may not arise to outdated definitions of wrongdoing, but when considered together have the ability to cause significant harm to a victim. It is therefore imperative that states allow victims to obtain orders of protection on the basis of coercive control.
Adding coercive control language to existing statutes and discussing the concept in state legislatures across the country sends an important message to survivors of abuse: This conduct is serious, it is not their fault, and they can get help.
Even when there is no physical harm, coercive control is still devastating. It is often difficult for survivors to leave abusers because of the traumatizing effects of coercive control tactics. Abusers may effectively convince survivors to stay in a dangerous relationship.
More legal recognition of these harms will help get individuals out to safety. Awareness campaigns will be critical, so victims and their support networks understand the legal protections that are available.
Passing legislation will likewise require law enforcement and the judiciary to learn about the complexities surrounding these issues, so they can recognize instances of coercive control and handle those cases appropriately. And, most importantly, bringing coercive control out of the shadows and into our laws will hopefully deter abusers from engaging in abusive behavior.
There is no better time to implement new laws that add coercive control as a basis for obtaining an order of protection. Indeed, the COVID-19 pandemic has isolated many victims with their abusers. As a result, over the past year, intimate partner violence rates have skyrocketed, and this devastating form of abuse must be addressed within our legal system.
Correction: A previous version of this article misstated the bill number and status of S.B. 5650. The error has been corrected.
Allison Mahoney is a senior attorney at A Better Childhood.
Lindsay Lieberman is a sexual privacy attorney and a former prosecutor in Kings County, New York.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] We recognize that all individuals can be victims of intimate partner violence regardless of gender, sex and/or identification. We use "they/them" throughout the article to refer to victims and abusers.
[2] New York State Office for the Prevention of Domestic Violence, Abusive Partners (Spring 2013), https://opdv.ny.gov/professionals/abusers/coercivecontrol.html; see also Patricia Fersch, Domestic Violence: Coercion And Control Equates To A Loss of Liberty, Sense Of Self And Dignity For Women, Forbes (Mar. 19, 2021), https://www.forbes.com/sites/patriciafersch/2021/03/19/domestic-violence-coercion-and-control-equates-to-a-loss-of-liberty-sense-of-self-and-dignity-for-women/?sh=35db0b275b65 (noting "Professor Evan Stark is the world's leading authority on coercive control .... His groundbreaking work on coercive control has had a major impact on approaches to domestic abuse around the world.").
[3] See New York State Office for the Prevention of Domestic Violence, Abusive Partners (Spring 2013), https://opdv.ny.gov/professionals/abusers/coercivecontrol.html; see also S.B 5306, 2019 Leg., Reg. Sess. (N.Y. 2019), available at https://www.nysenate.gov/legislation/bills/2019/s5306.
[4] Evan Stark & Marianne Hester, Violence Against Women, Coercive Control: Update and Review, 2019 Vol. 25(1) 81-104, available at https://journals.sagepub.com/doi/pdf/10.1177/1077801218816191 (last visited Mar. 13, 2021).
[5] See Paige L. Sweet, "The Sociology of Gaslighting," American Sociological Review. Vol. 84(5) 851-875, 852 (2019) (defining "gaslighting" as "a set of attempts to create a 'surreal' social environment by making the other in an intimate relationship seem or feel 'crazy' (internal citations omitted)).
[6] See H.B. 2425, 30th Leg., Reg. Sess. (Haw. 2020), available at https://www.capitol.hawaii.gov/session2020/bills/HB2425_.HTM.
[7] See id.
[8] See id. Other examples in the Hawaii statute defining coercive control include: "[i]solating the individual from friends and family;" "[m]onitoring the individual's activities, communications, and movements;" "[t]hreatening to harm or kill the individual or a child or relative of the individual;" "[t]hreatening to publish information or make reports to the police or the authorities;" "[d]amaging property or household goods;" and "[f]orcing the individual to take part in criminal activity or child abuse." Id.
[9] See Cal. Fam. Code § 6320 (2021).
[10] See id.
[11] See id.
[12] Id.
[13] Id.
[14] H.B. 1808, 102nd Gen. Assemb., Reg. Sess. (Ill. 2021), available at https://trackbill.com/bill/illinois-house-bill-1808-order-protect-coercive-control/2033093/.
[15] Id.
[16] See id.
[17] See H.B. 1352, 2020 Reg. Sess. (Md. 2020); S.B. 5306, 2019 Leg., Reg. Sess. (N.Y. 2019); H.B. 5721, 123rd Sess. (S.C. 2020); S.B. 1091, 2021 Reg. Sess. (CT. 2021).
[18] S.B 5650, 2021-22 Leg., Reg. Sess. (N.Y. 2021).
[19] Id.
[20] H.B. 5721, 123rd Sess. (S.C. 2020).
[21] See Marie Solia, Do 'Coercive Control' Laws Really Help Abuse Victims?, The Cut, available at https://www.thecut.com/2021/02/coercive-control-laws-domestic-abuse.html.
[22] See id.