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Coercive Control and the Limits of Criminal Law

Courtney K. Cross

Vol. 56

November 2022

Page 195

Domestic violence does not always include physical violence. While abusive relationships may be punctuated with physical violence, it is the dynamic of control that constitutes the crux of the abuse. This dynamic is characterized by behaviors designed to dominate, degrade, and discipline, including emotional and financial abuse, isolation, rulemaking, and surveillance. These nonviolent forms of abuse are collectively referred to as “coercive control,” and their impact can be debilitating and devastating for survivors of domestic violence. Despite what we know about domestic violence, the criminal legal system focuses its efforts on discrete incidents or encounters between the abuser and the survivor — most commonly physical assaults. For years, domestic violence scholars and activists have advocated for the criminalization of coercive control in order to resolve this fundamental mismatch between the criminal legal system’s blunt tools and the highly-individualized nature of domestic violence. These arguments have been buoyed by the recent passage of coercive control prohibitions internationally, including in England, Scotland, and Ireland. In the United States, several state legislatures are currently considering similar measures.

This Article argues that criminalizing coercive control will do far more harm than good. Analyzing the domestic violence movement’s prior attempt to use criminal law to address coercive behavior — the adoption of mandatory arrest and no-drop prosecution policies — underscores how, yet again, the most vulnerable survivors and their families will bear the brunt of these new criminal laws. As with mandatory policies, coercive control criminal laws will be coopted by abusive partners and used against survivors. These effects will be most pronounced among survivors who do not embody the archetypal straight, white, scared, femme victim. The domestic violence movement must learn from our mistakes rather than double down on the same flawed logic. We must stop sacrificing survivors in the name of expanding the carceral state. View Full Article

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