With the enactment of the Domestic Violence Act 2018 came many positive and significant changes expanding the remit of previous domestic violence legislation. One of the most relevant changes in this legislation is the creation of the new offence of coercive control under s.39 which came into effect after January 1st 2019.
What is coercive control?
Under s.39 of the 2018 Act the only definition offered is ‘knowingly and persistently engages in behaviour that is controlling or coercive.’ So what kind of behaviour may amount to this? Fundamentally, coercive control covers any kind of abuse that is manipulative, psychological or controlling in nature
It is helpful to consider the first action taken under this section, a case from late last year which saw the first s.39 conviction. In this case, a man was charged with coercive control after the jury heard evidence of behaviour such as limiting his partner’s social interaction, smashing her phone, withholding her finances and other forms of mental and physical abuse.
What is the test for coercive control?
Under s.39 we see that the test for determining coercive control is an objective one. In s.39(1)(c) we have reference to a ‘reasonable person’ this tells us that it is not the victims’ subjective experience that determines coercive control but rather what an ordinary person would consider based on the facts before them.
We also see in s.39(4)(b) that relevant person is not confined to a spouse, civil partner, or relation of the accused. Relevant person also applies to someone who is or was in an intimate relationship with the accused. This ‘is or was’ is crucial to note as it broadens the scope by which the legislation can apply. Through this sub-section, the victim who may now have escaped control will still have access to justice through the courts.
It is also important to note that ‘intimate partner’ does not necessarily mean a sexual relationship is in question. It simply refers to having an intimate bond or close connection on a level apart from that of platonic or casual.
Why is this so important?
The creation of this new offence is a huge modernisation in domestic violence legislation. In the 21st century and particularly during lockdown, it has been shown that traditional domestic violence is oftentimes accompanied by some form of coercive control or manipulation. Prior to the 2018 Act, there was no recourse for this kind of behaviour, an actual assault or trauma had to be proven which made it incredibly difficult to raise a successful case for domestic violence.
With this new offence comes a recognition of the situation that victims are more likely to find themselves in, a form of persistent manipulation and control which causes fear of violence and has an adverse impact on day to day life. This is a very positive step for domestic violence legislation in Ireland, the finding of the first jury trial hopefully setting a positive precedent for s.39 cases in the future.
If affected by any of the issues raised in this piece, please find some helpful resources below:
Louise Kennedy – Law Columnist