Life, Liberty and the Pursuit of Peace: Coercive Control and the Domestic Violence Prevention Act
By Pallavi Dhawan
Most organizations recognize that domestic violence is a “systematic pattern of power and control perpetrated by one intimate partner against another.”1 However, the law has been slower to align with the literature and has mostly defined domestic violence according to physical injury. One notable exception in California is Family Code section 6203(b), which contains specific language noting that domestic abuse is not limited to the infliction of physical injury or assault.2 Section 6320 goes further in listing behaviors a court may enjoin through a domestic violence restraining order, including disturbing the peace of the protected party.3 Disturbing the peace, however, is not defined in the statute. In criminal law, disturbing the peace is a public disruption, such as an unlawful fight in a public place or the malicious and willful disturbance of another through loud and unreasonable noise.4 In contrast, disturbing the peace has historically been defined in the Family Code as conduct that disturbs the mental or emotional calm of another party.5
II. COERCIVE CONTROL
Coercive control is a gendered pattern of behavior used mostly by men to dominate women in personal life through the deprivation of rights and resources.6 Coercive control is highly correlated with lethality.7 The particular harm of coercive control lies in its constant and repetitive infliction of liberty deprivations that work together to isolate the victim and deprive her of connections to resources, friends, family, and other sources of support.8 Parallel deprivations occur in the crime of human trafficking, defined as the deprivation or violation of the personal liberty of another with the intent to obtain forced labor or services or to commit an enumerated sex offense.9 In a few countries, coercive control is a crime.10 In the U.S., coercive control has historically been omitted from statutory law. In January 2021, however, coercive control will become part of the state’s Family Code definition of disturbing the peace. Senate Bill 1141 introduced coercive control into the Family Code, an important step towards redressing harm by first naming it.11 The bill amends Family Code section 6320(c) to define “disturbing the peace of the other party” as conduct that, “based on the totality of the circumstances, destroys the mental or emotional calm of the other party.” Such conduct “includes, but is not limited to, coercive control, which is a pattern of behavior that in purpose or effect unreasonably interferes with a person’s free will and personal liberty.” The law further provides a non-exhaustive list of examples of coercive control:
- Isolating the other party from friends, relatives, or other sources of support.
- Depriving the other party of basic necessities.
- Controlling, regulating or monitoring the other party’s person’s movements, communications, daily behavior, finances, economic resources, or access to services.
- Compelling the other party by force, threat of force, or intimidation, including threats based on actual or suspected immigration status, to engage in conduct from which the other party has a right to abstain or to abstain from conduct in which the other party has a right to engage.
The language of the law is narrowly crafted to cover only unreasonable deprivations of liberty and only patterns of behavior, not isolated instances of conduct. The list of examples is meant to elucidate the specific and most common and detrimental manifestations of coercive control, not to designate behavior for automatic qualification as such.
III. COERCIVE CONTROL AND CHILD CUSTODY
The greatest loss of power for an abuser is at the time the victim decides to leave the relationship. This is also the most dangerous time for the victim.12 There are many ways for an abuser to reassert control, but most relevant for this discussion is the abuse of the legal system to interfere with the victim’s autonomy; the abuser unwilling to accept the end of the relationship will often use the family court as the site of continued domination and control.13 Unfortunately, the presence of children provides abusers further opportunity to exert control over the primary victim. This control may begin even before dissolution of the relationship if, for example, the abuser threatens to harm or take away the children if the victim leaves. Coercion at the end of the relationship includes:
- Demanding custody simply for the sake of staying involved in the victim’s life
- Forcing the victim to return to court dozens of times to prolong contact
- Using court-mandated visitation or custody as an opportunity to commit physical violence against the victim
- Intimidating the victim into conceding joint custody during coercive mediation sessions
- Refusing to pay child support to force the victim back into court.14
The coercively controlling parent is not generally concerned about the best interests of the child, but is rather using the award of parenting time to further control the victim.15 Family Code section 3044 creates a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child. Under the new law, the rebuttable presumption of section 3044 will reflect that an award of child custody to a party who has engaged in coercive control is detrimental to the child’s best interests, as the updated definition of disturbing the peace carries over via section 6320 to section 3044. Compelling the victim to stay in the relationship or enter into a custody decision during a coercive mediation session both fall under the fourth example of coercive control provided in the new law.
The new law is a necessary but not sufficient condition for reform. Abusers are creative and are constantly finding new ways to control their victims. Courts should be mindful of how abusers exert coercive control, including the use of mediation and litigation as mechanisms of wielding power over the victim post-separation.16 Equipped with the new language of coercive control, family courts will hopefully craft orders that prioritize the safety of abuse victims and their children.
Pallavi Dhawan is the Director of Domestic Violence Policy for the Los Angeles City Attorney’s Office. Her office sponsored California Senate Bill 1141, legislation that adds coercive control to the definition of domestic violence within the Family Code. She is a Fulbright Specialist in domestic violence and child abuse and a 2019 recipient of the Los Angeles County Bar Association’s award for Prosecutor of the Year.
1 Alexandra Michelle Ortiz, Invisible Bars: Adapting the Crime of False Imprisonment to Better Address Coercive Control and Domestic Violence in Tennessee, 71 Vanderbilt Law Review 681, 687 (2019). 2 Cal. fam. code § 6203(b). 3 Cal. Fam. Code § 6320(a). 4 Cal. Pen. Code § 415. 5 In re Marriage of Nadkarni, 173 Cal. App. 4th 1483, 1497 (2009). McCord v. Smith, 51 Cal. App. 5th 358, (2020) 6 See Evan Stark, Coercive Control: How Men Entrap Women in Personal Life (2007). 7 Id. at 276-277. 8 Id. at 171-197. 9 Cal. Pen. Code § 236.1. 10 Serious Crime Act 2015, § 76 https://www.legislation.gov.uk/ukpga/2015/9/part/5/crossheading/domestic-abuse/enacted (last visited Nov. 24, 2020); Domestic Abuse (Scotland) Act 2018, https://www.legislation.gov.uk/asp/2018/5/contents/enacted (last visited Nov. 24, 2020). 11 2020 Cal. Stats. Ch. 248 (to be codified at Cal. Fam. Code § 6320). 12 Emmaline Campbell, How Domestic Violence Batterers Use Custody Proceedings in Family Courts to Abuse Victims, and How Courts Can Put a Stop to It, 24 Ucla Women’s L.j. 41, 42 (2017). 13 Id. 14 Id. 15 Debra Pogrund Stark, Jessica M. Choplin, Ph.D., Sarah Elizabeth Weller, Article: Properly Accounting for Domestic Violence in Child Custody Cases: An Evidence-Based Analysis and Reform Proposal, 26 Mich. J. Gender & L. 1, 43-44 (2019). 16 Id. at 63-64.