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Distinguishing Shades of Grey – Expert Opinion for Defence or Prosecution on Coercive or Controlling Behaviour in Intimate Relationships

Special Reports

“Not only is coercive control the most common context in which [women] are abused, it is also the most dangerous” Evan Stark (2007) Coercive Control. How Men Entrap Women in Personal Life.

 

If I am instructed as a Forensic Psychologist and Expert Witness in the Family Courts working on cases involving domestic violence and abuse, it is extremely
common for instructions to include conducting a psychological assessment, interviewing parties and commenting on presence or absence of risk factors for an alleged perpetrator, recommendations for possible treatment, harm experienced by an alleged victim, or offer opinion on the motivations of both parties.

In the criminal arena domestic violence prosecutions are often focussed exactly on that: violent offences of assault, or worse, with accompanying physical injuries, and consequent evidential aids such as medical records or observations by police officers or medical staff. It is fair to say that in criminal proceedings
experts have generally been restricted to offering opinion on matters of fact, and have not been called to give opinion on psychological state, other than the broad category of psychiatric comment on mental disorders.

In an attempt to take account of harm done that is not about physical violence, and that domestic abuse includes the psychological, physical, sexual, financial and emotional, the Serious Crime Act 2015 introduces introduces a specific offence aimed at cases when an individual is in a controlling and/or abusive relationship, but may not have been physically assaulted: evidential issues here are less straight-forward. The difficulty for the Courts in trying such cases is likely to be two-fold:

• In cases where the offending behaviour comes to the attention of the authorities, without evidence of physical injury, prosecutions will often come down to one word against another

• Although the Stark statement above seems quite definitive, contemporary research strongly suggests things are unlikely to be as clear-cut as suggested

In such cases, if the Government is responding to public concern by creating offences such as ‘coercive control’ which inherently centre on the ‘grey areas’ of the psychological and emotional, then the Court system must be prepared to admit Expert opinion which addresses or assesses the psyche of the offender behind the alleged crime, and potentially the harm done to the alleged victim. This could include Expert testimony on opinion of why victims of intimate partner violence and abuse will frequently continue to support their alleged victimisers.

What is coercive control?

The 2015 legislation does not define whether behaviour is controlling or coercive, leaving this to juries and Magistrates to decide as a matter of fact – and therein lie the grey areas. Three possible difficulties seem to present themselves with these kinds of nonphysical behaviour:

1) Deciding if the behaviour is intentional.

2) Deciding if it does harm.

3) Proving it was intentional even if it was.

1) Is it intentional?

Home Office guidance on the cross-Government definition of domestic violence and abuse outlines controlling or coercive behaviour as follows:

• Controlling behaviour is: “a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.”

• Coercive behaviour is: “a continuing act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim.”

Collectively, this is understood as a “purposeful pattern of behaviour which takes place over time in order for one individual to exert power, control or coercion over another”.

Note the flavour of the language: ‘designed’; ‘used’; ‘purposeful’; ‘in order to’. Behind this seems to be a sense that all people behaving abusively know what they are doing and do it deliberately – consciously and instrumentally, to gain a worked–out goal, much as an armed robber uses violence or the threat of it. The difficulty is that while some intimate partner violence and abuse is entirely calculated, and deserves the title of ‘coercive control’ or even ‘intimate terrorism’, research suggests this represents the smaller part of the spectrum.

The bigger picture

Over the last five years a major international research effort, the Partner Abuse State of Knowledge (PASK) project has studied over 12,000 recent papers and 17 areas of interest in intimate partner violence and abuse. These findings, starting from research and not ideology, suggest strongly that up to 60% of intimate
partner violence and abuse is not at this high end of worked out control, but is part of a wider pattern of bi-directional dysfunctional relationship behaviours that becomes normalised.

More disturbingly, the research suggests that the bestpredictors of a predisposition towards abusive behaviours in intimate relationships in adulthood, are previous traumatic experience and the presence or absence of particular personality characteristics and behaviours, in both men and women, at age 15, rather than their gender.

For example, one of my first Expert Witness cases for Family Court involved a couple where both had a history of being in care, previous abusive relationships,
substance use and so on. They had behaved violently and abusively towards one another, and each had tried to control the other. This behaviour did not happen by accident, but if it had been the subject of criminal action, was it fully intentional in the sense meant by the Act?

While just about all behaviour, abusive or not, has some degree of intentionality, some sense of goaldirectedness, this is not the same thing as a deliberate pattern of intentional behaviour.

These findings are counter to the received wisdom or stereotype that all domestic abuse is about one party dominating another, such as controlling finances or
deciding what clothes an individual should wear. For criminal cases, it seems important to be able to distinguish as effectively as possible, where this is the case,
and where it is not.

2) Does it do harm?

As a psychologist and psychotherapist, I would suggest that being involved in any kind of relationship where there is a serious degree of inequality, power-imbalance, or disrespect inevitably does do harm of varying sorts and levels.

However, the degree of harm is less easily argued. Was it sufficiently abusive or harmful to be likely to generate life-course consequences, particularly for children? Harm due to non-physical acts is inherently insubstantial – there are no cuts or bruises. Assessing the presence or absence or degree of emotional and
psychological harm is also a task that requires more that just clinical judgement; any such assessment needs reliable psychometric instruments.

The results of such psychometrics have been immensely valuable to me in compiling expert reports, because while they often support victim accounts, they have on occasions given results suggesting that the degree of victimisation is far less than that claimed. The relevance of this to proceedings is obvious.

An awareness of cultural norms is also important as behaviour which would be considered unduly controlling in one setting may not be considered soin another. A final complicating factor is that victims, however difficult their experience, are not simply ‘harmed’: how they understand and interpret their experience greatly influences the degree of ‘harm’ felt, as work with post traumatic experience demonstrates.

3) Proving behaviour was intentional

A key part of guidance on the offence of controlling and coercive behaviour is that for the Prosecution to prove guilt ‘beyond reasonable doubt’ they must demonstrate that “The Defendant knows or ought to know that the behaviour will have a serious effect on the other.”

Further, Section 76 (8) (a) of the Act states that in proceedings it is a defence for A to show that:

1) In engaging in the behaviour in question, A believed that he or she was acting in B’s best interests

2) The behaviour was in all the circumstances reasonable

This defence is not available for behaviour that causes B to fear violence will be used against them.

I’ve mentioned some of the issues with assessing a ‘serious effect’ on the alleged victim, but the bigger question is determining that the Defendant ‘knows or ought to know’, meaning that “a reasonable person in possession of the same information would know”.

The Partner Abuse State of Knowledge research suggests that many perpetrators of abusive behaviour in intimate relationships might not be ‘a reasonable person’, in the sense that their past experience and developmental history has led them to a somewhat skewed perspective on the world, without this being a ‘mental health’ question.

The point is that an individual who has had certain developmental or traumatic experiences, even when behaving in a manner that to an objective observer may appear controlling and abusive, really might not understand the behaviour in this way for themselves.

With both of the individuals in the couple mentioned above, whom I assessed for Family Court, neither had any internal model of what a ‘good’ relationship was – and neither understood their relationship as ‘abusive’, even while their behaviour was definitely ‘intentional’ to some degree.

At its most serious, offences committed by so-called ‘family annihilators’, where an individual will kill their family and themself, can be understood as an entirely
misguided and distorted attempt to protect, although clearly this is in the realm of post facto speculation.

Shades of grey

How will the burden of proof be served in prosecutions under the Act? In family cases the standard is of course the balance of probability but criminal courts answer to the higher standard of beyond reasonable doubt.

If research about a ‘stable abusive personality’ arising from personality characteristics and previous traumatic experience is taken seriously, then the question of intention becomes very problematic. Distinguishing between behaviour in a failing or dysfunctional relationship with one or two unhappy people, potentially trying to (non-physically) hurt one another deliberately, and ‘criminally’ coercive and controlling behaviour will require expert assessment. This is also likely to be the case where there is a seemingly clear ‘abuser’, given the defence of ‘best interests’ cited above.

With such a brief time having passed since the introduction of the Act, very few cases will as yet haveworked their way through the system, to Crown Court at least. The question facing criminal counsel, both defence and prosecution, may be who will be brave enough to argue for the commissioning of a psychological Expert to provide direct assessment and offer opinion, allowing the interests of Justice to be served in the way that has been familiar to the Family Court?

by Mr. Mark Farrall Chartered Psychologist, Forensic Psychologist & Psychotherapist BA, BSc, MSc, PhD, Dip. Psychodrama, CUEW (Civil) (Family), Cert. SAM
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Dr Mark Farrall is the founder and Director of ignition. He is a Chartered Psychologist and Forensic Psychologist, and a qualified psychotherapist.