Historically the legislature, police, and courts have regarded domestic abuse as an incident-specific violence-based problem. This resulted in some legal protection being afforded to abuse victims under the common law (assault and battery offences) and statute (Offences Against the Person Act 1861), but only where there existed objective evidence that a violent attack - usually resulting in injury - had occurred. This approach radically misunderstood the nature of much of the domestic abuse perpetrated against women by their male intimate partners.
For some time, those working with domestic abuse victims and perpetrators had recognised that the spectrum of behaviours involved in abuse does not fit neatly into the incident-specific violence-based model. Most notably, the work of forensic social worker, Evan Stark, highlighted that many female victims of domestic abuse find that the defining feature of their abusive relationship is the coercion and control exerted over them by their abuser, rather than the occasional violence which they suffer.
Stark views coercive control as a human right’s violation in which the abuser restricts the victim’s liberties through the use of low-level violence, intimidation, isolation and control. Examples of coercive control include isolating the victim from their family, restricting the victim’s access to finances, forcing the victim to take part in criminal offending, and monitoring the victim’s daily activities.
Fortified by the growing body of research supporting this expanded understanding of domestic abuse, groups such as Women’s Aid have successfully campaigned for legislative change to criminalise coercive and controlling behaviour in England and Wales. This resulted in the introduction of the controlling or coercive behaviour in an intimate or family relationship offence under s76 of the Serious Crime Act 2015.
S76 Serious Crime Act 2015
The s76 offence is committed when there is a personal connection between the defendant and the victim, and the defendant engages in repeated or continuous behaviour which is controlling or coercive and has a serious effect on the victim. In this context, ‘personally connected’ includes intimate partners, former intimate partners, and family members. The defendant’s behaviour will have had a ‘serious effect’ on the victim when it causes the victim to fear on at least two occasions that violence will be used against them, or it causes the victim serious alarm or distress which has a substantial adverse effect on the victim’s usual day-to-day activities.
Benefits of the s76 offence
The introduction of the s76 offence has helped to shape society’s understanding of domestic abuse. It has also sent a clear message that controlling or coercive behaviour is unacceptable and can be dealt with severely. In fact, if found guilty on indictment the maximum sentence an abuser can receive is 5 years imprisonment.
The creation of the s76 offence has also helped to address the gap in the existing legal framework which overlooked the fact that domestic abuse is more often characterised by controlling and coercive behaviour as a course of conduct than it is by separate incidents of extreme violence.
Problems with s76 offence
Although the introduction of the s76 offence is a welcome addition to the criminal justice response to domestic abuse, its operationalisation has faced difficulties. Indeed, the Home Office review has acknowledged that police officers sometimes have difficulties recognising controlling or coercive behaviour and that this can lead to missed opportunities to record incidents of relevant offending.
The offence can also be evidentially difficult to establish, particularly in cases where the victim of the abuse withdraws their support for the prosecution. Even when cases do make it to the courtroom and the victim supports the prosecution, case attrition in this area is high because it is often difficult for the prosecution to prove the non-violent behaviours which are likely to lie at the heart of the defendant’s abusive conduct.