Tag: femicide

Identifying Coercive Control in the Courts

The BBC reported today that new research from Manchester Metropolitan University shows a strong link between coercive control and murder. This echoes the research done by Professor Jane Monckton-Smith in her book In Control: Dangerous Relationships and How They End in Murder. 

It is probably no surprise, at least to feminists who follow such research closely, that abusers sometimes escalate to femicide. 

The question is what can be done about it – and why legal remedies are struggling to improve the figure of roughly 100 women a year murdered by an abusive partner or ex partner. 

Both the criminal and family courts have found it difficult to draw a bright line between behaviour that is unpleasant or intolerable and behaviour that is coercive and controlling. 

As  Peter Jackson LJ commented in Re L (Relocation: Second Appeal) [2017] EWCA Civ 2121 at paragraph 61:

“Few relationships lack instances of bad behaviour on the part of one or both parties at some time and it is a rare family case that does not contain complaints by one party against the other, and often complaints are made by both. Yet not all such behaviour will amount to ‘domestic abuse’, where ‘coercive behaviour’ is defined as behaviour that is ‘used to harm, punish, or frighten the victim…’ and ‘controlling behaviour’ as behaviour ‘designed to make a person subordinate…’ 

This was the approach echoed by Hayden J in F v M [2021] EWFC 4 at para 4:

“…In the Family Court, that expression [‘coercive and controlling behaviour’] is given no legal definition. In my judgement, it requires none. The term is unambiguous and needs no embellishment. Understanding the scope and ambit of the behaviour however, requires a recognition that ‘coercion’ will usually involve a pattern of acts encompassing, for example, assault, intimidation, humiliation and threats. ‘Controlling behaviour’ really involves a range of acts designed to render an individual subordinate and to corrode their sense of personal autonomy. Key to both behaviours is an appreciation of a ‘pattern’ or ‘a series of acts’, the impact of which must be assessed cumulatively and rarely in isolation.”

In the criminal sphere, a similar description is offered to prosecutors in guidance. 

There is of course a definition of the offence, provided s.76 Serious Crime Act 2015. The CPS guidance explains that a person will be guilty of the offence of coercive control in the following circumstances:

An offence is committed by A if:

  • A repeatedly or continuously engages in behaviour towards another person, B, that is controlling or coercive; and
  • At time of the behaviour, A and B are personally connected; and
  • The behaviour has a serious effect on B; and
  • A knows or ought to know that the behaviour will have a serious effect on B.

A and B are ‘personally connected’ if:

  • they are in an intimate personal relationship; or
  • they live together and are either members of the same family; or
  • they live together and have previously been in an intimate personal relationship with each other.

There are two ways in which it can be proved that A’s behaviour has a ‘serious effect’ on B:

  • If it causes B to fear, on at least two occasions, that violence will be used against them – s.76 (4)(a); or
  • If it causes B serious alarm or distress which has a substantial adverse effect on their day-to-day activities – s.76 (4) (b).

The guidance goes on to say that “For the purposes of this offence, behaviour must be engaged in ‘repeatedly’ or ‘continuously’. Another, separate, element of the offence is that it must have a ‘serious effect’ on someone and one way of proving this is that it causes someone to fear, on at least two occasions, that violence will be used against them. There is no specific requirement in the Act that the activity should be of the same nature. The prosecution should be able to show that there was intent to control or coerce someone.”

In the criminal court, the offence must be proved beyond reasonable doubt. Where the allegation is made in a family court, the pattern of behaviour must be proved on the balance of probabilities. 

It is readily apparent that it will be difficult in very many cases to draw a line between “bad behaviour” and “coercive control.” 

One complicating factor could well be the expectations of the judge or jury as to the victim’s response. Some women will respond to controlling or coercive behaviour by becoming meek, withdrawn, and afraid – the “freeze” response. Others will respond to violence with retaliatory violence or angry outbursts – the “fight” response. Perpetrators may provoke such a reaction and then accuse their victims of being the ones engaging in coercive control, a pattern known as DARVO (Deny, Attack, Reverse Victim and Offender). The courts must be alive to unexpected reactions from victims: just because she has shouted at him to “fuck off” after months of belittlement or financial abuse doesn’t mean that “she gave as good as she got” and that her sense of autonomy must therefore be intact. 

There are no easy answers to how coercive control is identified, but early intervention would save lives. Education on identifying and preventing it, for prospective victims and prospective perpetrators, as well as those living in abusive homes, should begin in PHSE in adolescence rather than waiting for abuse to occur, when the post-mortem on events may tragically not be metaphorical.

Timothy Brehmer: from coercive control to loss of control

This week Timothy Brehmer was acquitted of the murder of Claire Parry. Brehmer, a former police officer, had not denied that his actions had killed her. Instead, he said that he had not intended to kill her. That he had intended only to shove her out of the car, and yet somehow, she had ended up dead. 

Women across the UK followed the case as Brehmer’s story changed. She had been breathing when he left the car, he said. He said she had tried to stab him. Or maybe not, maybe he had tried to stab himself. Her death must have been positional asphyxiation. Whatever, he hadn’t intended to kill or seriously harm her. Media reporting revealed descriptions of controlling coercive behaviour, and few had sympathy for the pity parade that constituted his reported evidence. 

The verdict, acquitting him of murder, was met with outrage from feminists. How could we reach a stage where a man strangles a woman for at least 10-30 seconds with enough force to break three bones in her neck, his evidence is a kaleidoscope of unlikelihood, and yet somehow he is not guilty of her murder?

The answer lies in the “loss of control” defence. Importantly, we will never know why it is that the jury came to the verdict which they did. They had two options to reach their conclusion. One was that Brehmer’s evidence was true – or at least, they had some doubt that it was lies – and that he hadn’t really intended to seriously hurt or kill her when he strangled her. The second was that he had intended to seriously hurt or kill her, but that his actions arose from a “loss of control.”

Although we will not find out which of the two were the basis for the jury’s decision, we do know that the judge sentenced on the basis of loss of control. Once the verdict is in, it is for the judge to decide which is more likely, and to sentence on that basis. 

The Bournemouth Echo, reporting the sentencing hearing, records that the judge said 

“This is a case where I should sentence you [on the basis] that you lost your self control following the message that was sent to your wife, rather than you unintentionally killing Mrs Parry. 

“I am sure that you did deliberately take Mrs Parry by the neck.” 

He went on to make findings that the “loss of control” trigger was “only just met” and that Brehmer’s actions bore high culpability within the sentencing guidelines.

So what is “loss of control,” and how does it fit within the legal framework?

Before 2010, the defence was one of “provocation.” It was up to the jury to decide whether a person had been provoked sufficiently to lose their control and thereby to benefit from the reduced sentence for manslaughter, not being guilty of murder. It produced some absolutely shocking results: Thomas Corlett, who got three years for killing his wife after she ‘provoked’ him by moving the mustard pot to the wrong side of the table, for example. It was referred to by campaign stalwarts Justice for Women as the “nagging and shagging” defence, because it enabled men to argue that their wife being unfaithful or arguing had reasonably provoked them to kill her. After some significant campaigning, law reform was finally proposed in 2008, slowly made its way into the Coroners and Justice Act 2009, which was enacted in 2010. The relevant provision is this:

What is this “qualifying trigger?” Nagging and shagging is explicitly excluded, or so the drafters hoped:

In plainer terms, the questions are these: under s.54, was there a loss of control? Was there a qualifying trigger? And might any other comparator in similar circumstances have behaved the same way?  If so, s.55 tells us what the qualifying triggers are – here, did the victim say something or do something ‘extremely grave’ and causing the defendant to have a ‘justifiable sense of being seriously wronged?’ 

“The fact that a thing done or said constituted sexual infidelity is to be disregarded” was intended to ensure that men who felt ‘provoked’ by their partner’s cheating (or alleged cheating) did not get away with murder. 

We should recall, a decade later, that there was considerable opposition to this from some quarters. Feminists were accused of “feminising the law.” Dominic Grieve objected that “the Government have decided that thousands of years of human history and experience should be jettisoned for a piece of political correctness and proclamation: a declaratory statement that sexual infidelity can never justify violent behaviour.”  Others pointed out that since men do kill in violent rage, it would be improper to prevent a jury from considering infidelity. 

There were also objections that the clause was poorly drafted. These, unfortunately, were rather better founded. What constitutes ‘sexual infidelity,’ how grave is extremely grave and how serious is a serious wrong? Most importantly, what happens if sexual infidelity is just part of a wider context of loss of control? These were the questions considered in R v Clinton, a case concerning three men, who in the span of three weeks had each killed their partner. The Lord Chief Justice, giving judgment, said that “The starting point is that it has been recognised for centuries that sexual infidelity may produce a loss of control in men, and, more recently in women as well as men who are confronted with sexual infidelity.”

The Court went on to take the view that while the new law meant that infidelity alone could not constitute a qualifying trigger, infidelity could still be considered if there was a wider context:  “In our judgment, where sexual infidelity is integral to and forms an essential part of the context in which to make a just evaluation whether a qualifying trigger properly falls within the ambit of subsections 55(3) and (4), the prohibition in section 55(6)(c) does not operate to exclude it.”

In Brehmer’s case, the trigger was not sexual infidelity, but the fear of her revealing the affair they were having, and so there was no prohibition on this being considered a ‘qualifying trigger.’ 

One question raised by all of this is where coercive control, not considered in 2008, would fit in. How should the law approach men who kill not because they lose control of themselves, but because they are losing control of their partner? Can or should statute try to draw the distinction? 

It leads us to a situation where the solution is, perhaps, not available in law. The 2009 changes sought to block one such avenue, but were rather defeated in Clinton. What the defence of “loss of control” really needs is social change whereby the question as to whether a man in the same circumstances, with a “normal degree of tolerance and self-restraint” might act the same way, is met with a jury which says “absolutely not.”