Legal researchers say that's the wrong approach and won't keep women safe
A private member’s bill in the House of Commons is looking to add a new offence to the Criminal Code.
Laurel Collins, an NDP MP from British Columbia, introduced Bill C-332. An Act to amend the Criminal Code (controlling or coercive conduct) is undergoing second reading. When Collins stood up in the House to talk about the bill, she spoke about what it was like to watch her sister attempt to leave her partner – a partner who was exerting coercive control over her sister.
“Criminalizing coercive control means giving victims and survivors additional tools to leave abusive situations. We have a responsibility to give these victims more control, more autonomy and more power to escape dangerous situations, hopefully, to prevent the all-too-common escalation to violence,” she told the House.
Should the bill pass, Collin’s intentions, as noble as they are, may not have her desired effects. Opponents of the bill argue that criminalizing coercive conduct comes with the possibility of causing harm to victims.
“Without a clear and shared understanding of the meaning of coercive control, the offence proposed by Bill C-322 is likely to be misunderstood, misused, resisted, and/or applied differently by different judges, with negative results, especially for marginalized women.”
That statement comes from a submission to Justice Canada made by Shushanna Harris, Jennifer Koshan, Wanda Wiegers and Janet Mosher. Harris is a lawyer and doctoral candidate at Osgoode Hall Law School researching the experiences with the criminal law system of Black women survivors of intimate partner violence. Koshan, Wiegers and Mosher are all law professors teaching at the University of Calgary, the University of Saskatchewan and Osgoode Hall, respectively.
Mosher says she and her colleagues spend a lot of time thinking and writing about how the law responds to domestic violence, especially when viewed through an access to justice lens.
“For us, in writing the submission, we tried to think carefully about what are the measures that will actually make women safer,” explains Mosher. “I do worry that sometimes, it’s too simplistic of a solution to say ‘let’s just create another criminal offence when we know that the existing criminal offences – and the criminal law system – aren’t working very well to make women and children safer. So why add more of what we know isn’t working? Let’s look at other things that could work to make women and children safer.”
The submission points out several concerns about the bill, with the first being that there is no uniform definition of coercive control.
“If you look at the academic literature, there’s one review study that has found 22 different definitions. It’s not like everybody is crystal clear on what we mean by coercive control,” says Mosher.
For example, she explains that there is debate about whether or not some degree of violence is an inherent part of coercive control by definition. Even what constitutes violence isn’t clear. Would it be enough if a man punches a wall and follows up with a threat that the punch will land on his partner next time?
“Many, many women will say it’s not the physical violence that’s the most harmful. It’s all kinds of other things that are happening in the abusive relationship. It’s his threats to kill her favourite pet, or to take her children away from her, or to harm other family members. Or, in another context, in a same-sex relationship, it might be a threat to out somebody who isn’t out. It includes financial regulation, for example. These are all among the different kinds of tactics that have been identified for a long time: tactics of power and control,” says Mosher.
While anybody can be a victim of coercive control, Mosher explains that there are often gender-based performative elements imposed on the female victim, typically by men punishing women if they haven’t done household chores correctly or been a perfect wife and mother. Preventing a woman from working outside of the home or controlling her access to money is another way coercive control is exercised. Surveillance is also pretty common.
Gaslighting the victim, isolating her from her friends and family, and invalidating her point of view to the point where everything is seen through his eyes all fall into common ways coercive behaviour manifests itself, but it also can be seen as the start of a grand heterosexual romance.
“The vision we often have in Western culture of a romantic relationship is one where the guy pays her lots of attention. He tells her, ‘I’m really the only one who cares about you.’ He suggests she doesn’t spend time with her friends and family because she’s the most important person in the world to him: ‘I really want all your time.’ Early on, these kinds of relationships can look like and feel like a really romantic positive kind of relationship. And then, when things start to go a little bit south, I think women really question themselves: ‘Wait a minute, I thought the relationship was this really wonderful romantic relationship.’ And it can be a long, long time before she sees that this is a very destructive relationship.”
Outside of the problem of identifying what is and what isn’t coercive conduct – at least beyond agreeing it is a pattern of behaviour over time – Mosher said there is evidence treating it as a criminal offence doesn’t work. She cites the experience in England and Wales, where it has been deemed as such. Based on reviews of cases there, “six out of seven cases involving coercive control are dropped because of the challenges in bringing forward the necessary evidence, because proving this kind of offence is very, very different than trying to prove an assault happened.”
When the British cases got as far as a court hearing, researchers say the women suffered harm. In their submission, Mosher and her colleagues explain that “Others have underscored how heavily the England and Wales model for the offence of coercive control relies upon women’s testimony and survivor’s exposure to gruelling cross-examination. This concern is relevant to Bill C-332 as well, in light of the ‘significant impact’ component of the offence in s 264.01(1) and (2). There is an additional risk that a survivor’s testimony in the criminal context will be used to impeach their evidence in a family law proceeding.”
She says that in an ideal world, law enforcement officers and prosecutors would have all the time, training and resources necessary to investigate coercive control situations, understand what is going on, and gather all the evidence needed to prove what happened. But that’s not the law enforcement system we have today, and even if it were, sending men to jail in these kinds of situations may not be what the woman wants or would even be to her benefit.
This is especially true in the cases of immigrants who don’t have citizenship or racialized women. When the man is the sole means of income, incarcerating him puts the woman (and any children) in an especially precarious position.
Abusive men who use coercive control techniques are well-practised manipulators, so it’s common for them to try to manipulate the legal system as well, explains Mosher.
“We do have this concern that has been around for now quite some time about women who are inappropriately charged in relation to domestic violence situations,” she says. “It’s not at all uncommon for coercive controllers to say that they’re the real victim.”
Such a claim could stem from a woman trying to get out from under a controlling relationship and resorting to something Mosher says is called resistive violence. “You might use violence at some point to try to break free or defend yourself when you’re being attacked.”
She says the Nova Scotia Mass Casualty Commission touches upon this in its final report. Mosher explains that since the killer had a history of exploiting low-income Black women, the commission spent a lot of time researching domestic and intimate partner violence. In its report, the commission suggests that a defence be created for the use of resistive violence.
Rather than tackling coercive control with a criminal justice solution, Mosher said she and her colleagues would like to see more resources devoted to providing women trying to leave controlling relationships with a safe place to live. They also believe the women would benefit from support as they try to navigate intersecting legal issues that could include divorce or separation agreements, child custody arrangements, immigration or refugee law, as well as the criminal justice system.
While Mosher’s preference is not to create an amendment to the Criminal Code for coercive behaviour, she says some people concerned with women’s safety see the need for a middle ground between Bill C-332 and the non-criminalization approach. This would involve conducting a significant amount of developmental and foundational work before creating a new offence, including coming to a consensus regarding how to define coercive behaviour.
