As of the 29th December 2015, the Serious Crime Act 2015 brings into force the new offence of ‘controlling or coercive behaviour in an intimate or family relationship’ (section 76). Offences can be tried in either the Magistrates or the Crown Court, and carries a maximum sentence of five years imprisonment, a fine, or both.
The offence has been introduced to close a loophole in current legislation where no offence exists if a person behaves in a controlling or coercive manner towards a family member or intimate partner, thus perpetrating emotional abuse but does not commit an act of violence against them.
What constitutes the offence is neatly summarised by the ‘Controlling or Coercive Behaviour in an Intimate or Family Relationship Statutory Guidance Framework (December 2015; paragraph 3):
‘This offence is constituted by behaviour on the part of the perpetrator which takes place “repeatedly or continuously”.
The victim and alleged perpetrator must be “personally connected” at the time the behaviour takes place.
The behaviour must have had a “serious effect” on the victim, meaning that it has caused the victim to fear violence will be used against them on “at least two occasions”, or it has had a “substantial adverse effect on the victims’ day to day activities”.
The alleged perpetrator must have known that their behaviour would have a serious effect on the victim, or the behaviour must have been such that he or she “ought to have known” it would have that effect.’
The term ‘personally connected’ limits the offence to those who are: currently in an intimate relationship with each other; living together and are family members (including those who have a child together, who have or have had parental responsibility for a child together, are or have been engaged, are married or civil partners, or are relatives); or are living together and have previously had an intimate relationship.
R v Curtis  3 All ER 849 and R v Widdows  EWCA Crim 1500 suggest that the law of harassment and stalking cannot be applied to coercion and control in a current intimate relationship. Therefore the new legislation addresses that issue. The offence does not apply to those who have previously been in an intimate relationship and are no longer living together, therefore in such cases the current law of harassment and stalking should be used, notably the Protection from Harassment Act 1997.
The Guidance Framework sets out the rationale for the offence, making clear that coercion and control can constitute a serious offence, particularly given the breach of trust in the relationship, and recognises the serious harm that can be caused to the victim, highlighting that the cumulative impact of coercion and control may be more harmful than a single act of violence.
The Guidance Framework defines controlling and coercive behaviour as:
‘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.’ (paragraph 12)
Examples of where the new offence may apply are: isolating a person from their friends or family; monitoring their time; monitoring a person through online communication tools; taking control over aspects of their everyday life, such as where they can go, who they can see, what to wear and when they can sleep; repeatedly putting them down; financial abuse; or restricting access to transport. This list is not exhaustive and further examples can be found in the Guidance Framework (page 4).
Although the media has portrayed the new law as an offence to target abuse via social media, for example Sky News’ headline ‘Social Media Domestic Abusers Face Jail’, the offence is far more encompassing than this. Undoubtedly social media is a mechanism through which the offence could be committed, but it is drafted to address a much broader spectrum of abusive behaviour.
Credit must be given for drafting and enacting a law that takes account of the new ways in which coercion and control can be exerted through new technology. Recognising the power of social media as an important component of everyday life and source of information, particularly with regard to how people manage friendships and socialising, is essential if new mechanisms for abuse are to be effectively identified.
In addition to the creation of the new offence, greater investment has been announce in an attempt to educate young people and inform them as to what is and is not appropriate in a relationship.
Announcing the £3.85 million investment programme, the Minister for Preventing Abuse and Exploitation, Karen Bradley, explained the measure will focus on teenagers and young adults to “make sure young people do understand what they can expect from a normal, loving relationship - and that they don't have to do things they don't want to do.”
The Chief Executive of Women’s Aid has argued that given the range and influence of other factors young people face regarding relationships, the investment may not be enough. However, an educational approach is not to be dismissed, as with any form of education in modern society, getting the attention of young people and promoting your message over others is not easy; that does not mean it is not worthwhile. To ensure this message penetrates the other factors influencing young people’s behaviour, reason and explanations, as to why certain behaviour is unacceptable, must be employed.
The recent developments outlined above are an indication that the Government has acknowledged coercion and control, and abusive relationships in general, as problems that must be addressed with a proactive response. Closing the legislative loophole that allowed abusers to control those closest to them without consequence, and educating young people about appropriate behaviour and what they should expect of others are steps in the right direction, in identifying abusive behaviour and punishing it. However, the harm caused by abusive relationships must not be ignored and appropriate attention must also be given to providing necessary support to the victims.