New Legislation: Defining Coercive Control in California's Domestic Violence Prevention Act
California's Domestic Violence Prevention Act: The Basics
California's Domestic Violence Prevention Act (DVPA) was passed in 1993. It provides domestic violence victims with immediate legal protection in the form of restraining orders and other injunctions against abusers.[i] Under the DVPA, the court may issue a domestic violence restraining order upon reasonable proof of one past act or multiple past acts of abuse.[ii]
While people of goodwill can certainly agree that domestic violence is a pervasive societal issue and that victims need protection, the exact way to effectuate this protection is always evolving.
On September 29, 2020 Governor Gavin Newsom signed SB 1141 into law. This new legislation added a definition of "coercive control" as a theory for relief under the DVPA.[iii] Whether SB 1141 is a positive or negative development for California family law and the DVPA is the subject of some debate.
California Law Recognizes That Domestic Violence Is Not Limited to “Violence” In The Traditional Sense
California law has long recognized that "domestic violence" is not limited to physical injury or assault. The DVPA is broad. Litigants can obtain domestic violence restraining orders based on non-physical conduct, including threats, harassment, stalking, surveillance, or disturbing the peace of the other party.[iv]
Thus, despite the plain meaning of the phrase, California law appreciates that "domestic violence" is not always domestic, nor is it necessarily “violence” in the traditional sense. The crux of domestic violence, no matter its form, is power and control.
Adding A Specific Definition of Coercive Control To The DVPA
SB 1141 adds a specific definition of coercive control to the DVPA.[v] It defines coercive control as "a pattern of behavior that in purpose or effect unreasonably interferes with a person’s free will and personal liberty.” [vi]
Examples cited in SB 1141 include unreasonably engaging in any of the following:
Isolating the other party from friends, relatives, or other sources of support.
Depriving the other party of basic necessities.
Controlling or monitoring the other party’s movements, communications, daily behavior, finances, economic resources, or access to services.
Forbidding or compelling conduct that the other party has a right to engage in or abstain from. [vii]
While this form of abuse was already illegal in some countries, including England and Wales, California and Hawaii are the first U.S. states to expressly define coercive control in the law.[viii] In England and Wales, coercive control is punishable by up to five years in jail.[ix] [x]
The Purpose Of SB 1141
The purpose of SB 1141 is simple: to provide more protection for victims.
Authored by California state senator Susan Rubio (D-Baldwin Park), herself a survivor of domestic violence, the goal is to draw attention to "subtler" forms of abuse that are not always easy to identify.[xi]
Senator Rubio has a strong history of domestic violence advocacy, having introduced the Phoenix Act in 2019, legislation that extends the statute of limitations for domestic violence felony crimes from 3 to 5 years in certain cases. The Phoenix Act also expands training requirements for police officers relating to domestic violence.[xii]
In its text, SB 1141 expressly references the nationwide increase in domestic violence during the Covid-19 pandemic, and the way in which "increased isolation of victims has created an environment where abuse, including coercive control, is more likely to go undetected and therefore unreported.”[xiii]
It is easier to recognize domestic violence in the forms of things like:
Evidence of physical violence,
Home security or public surveillance videos showing stalking,
Phone records and text messages showing hundreds, or even thousands, of calls or messages after being told the other party no longer wants contact.
It can be harder to recognize, and to prove, domestic violence in the form of psychological control and micromanagement:
Monitoring the victim's phone or device,
Withholding car keys, wallet, or access to funds,
Sabotaging birth control methods,
Making the victim quit his/her job,
Monitoring the victim's weight, exercise, dress, and speech,
Degrading the victim's parenting, turning children against a parent,
Threatening self-harm to manipulate the victim,
Sexual manipulation,
Convincing the victim that his/her family or friends have turned against them.
This type of manipulation and psychological control “trains” a victim to feel worthless and to behave in the specific way that the abuser wants. It is a sort of psychological hijacking. As described by Women’s Aid (UK), “Coercive control creates invisible chains and a sense of fear that pervades all elements of a victim’s life.” [xiv]
Identifying and defining this specific type of abuse in the Family Code creates awareness and provides judicial officers, family law attorneys, and parties with a succinct, workable definition to apply.[xv]
Criticisms Of SB 1141
Suffice to say, there is immense value in creating awareness and providing relief for this insidious type of abuse. The debate lies in whether SB 1141 is the best way, or even a good way, to handle this issue in the DVPA.
One potential criticism is that defining coercive control in the Family Code has the actual effect of muddying the waters, or even narrowing the victim's practical ability to obtain relief in court.[xvi]
Prior to the passage of SB 1141, the DVPA already authorized (and still authorizes) the family court to issue restraining orders based on the broad basis of "disturbing the peace of the other party." This is defined as conduct that destroys the mental or emotional calm of the other party. [xvii] Surely, this broad definition should already include coercive control.
For example, disturbing the peace of the other party already included conduct like:
Accessing, reading, and publicly disclosing a spouse's confidential texts and e-mails. [xviii]
Engaging in an e-mail campaign against a spouse directed to the spouse's employer and friends. [xix]
Consensual sex as part of the pattern of violence followed by attempted reconciliation.[xx]
See also, McCord v. Smith (2020) 51 Cal.App.5th 358, Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816. [xxi] [xxii]
In my own cases, the family court has granted domestic violence restraining orders for conduct like:
Threatening to claim that a marriage was fraudulent in order to instill fear about immigration status,
Using slurs and degrading language about one’s religion,
Repeatedly setting off the home security alarm (remotely) for no other reason than to disturb,
Making a spouse regularly weigh herself, micromanaging her weight, and degrading her.
This begs the question, to what extent does SB 1141 make a practical difference for victims of domestic violence? If disturbing the peace of the other party already functionally includes coercive control, then what does providing a more narrow definition in the Family Code actually achieve?
Though SB 1141 does not remove nor limit previously existing legal grounds for issuance of a restraining order, it defines coercive control as part of a pattern of behavior, whereas none of the other grounds (including disturbing the peace) require a showing of a pattern. Will this specific reference to a pattern have the practical effect of confusing family law practioners, judicial officers, and self-represented litigants? Will it inadvertently add new hurdles for victims?
While these good faith concerns are important to consider, it is more likely that clearly defining coercive control in the code will help victims.
Consider the case of Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816. In that case, the trial court did not consider coercive control to be disturbing the peace. When the victim sought to testify about mental abuse, the trial court stated, “There's a whole movement who believes mental abuse ought to be considered domestic violence. For whatever reason, the state has not adopted that in its domestic violence statute. So being unpleasant, generally not saying nice things, excluding you from friends and stuff, probably not, under all facts and circumstances, generally is not domestic violence."
Likewise, the court stated, "If you happen to be controlling, I don't think that's a good thing to do. It's unpleasant. But it's not something that this court is going to sanction." The court sustained the respondent’s objection to presentation of evidence relating to controlling behavior and denied the request for DVRO.
Though the appellate court reversed, finding that, “Mental abuse is relevant evidence in a DVPA proceeding,” and “the testimony that the trial court did permit revealed significant acts of emotional abuse…The acts of isolation, control, and threats were sufficient to demonstrate the destruction of Rodriguez's mental and emotional calm…this evidence demonstrated abuse,” the practical reality is that few litigants will pursue an appeal in the context of a DVRO if the trial court does not get it right. It is clearest, most efficient, and most practical to be able to point to the plain language of the code. This clarity will help domestic violence victims.
Another potential criticism is that the inclusion of coercive control in the DVPA broadens an already-too-broad statutory system. Critics may be concerned that SB 1141, coupled with an already-low burden of proof, encourages "creative" divorce attorneys to infuse divorces with domestic violence theories for wrongful tactical purposes.
Protecting victims of domestic violence must be the top priority; there will always be divorce litigants who try to misuse the system to gain an edge. A finding of domestic violence can have wide-ranging effects on child custody, spousal support, and property control, and rightfully so. A litigant can obtain a temporary restraining order-- without notice—which can suspend child visitation, require a person to vacate his or her home, and more. Again, rightfully so, but it is easy to see how a disgruntled ex-spouse may be tempted to misuse this system.
Potential misuse of the DVPA is an important consideration generally but it is misguided and shortsighted in this context. Though SB 1141 adds a definition to the code, it does not add a new legal basis for the issuance of a restraining order, it does not expand legal bases that were not already there. In my practice, it has been extremely rare for a client to suggest pursuit of a DVRO simply for a strategic edge, while it is quite common for a client to be a legitimate survivor of abuse, whether by coercive control or other methods.
It is up to family law attorneys to do their due diligence before taking cases and to refuse to take part in any misuse of the DVPA. Aside from our ethical responsibilities as lawyers, it is the least we can do to help preserve the credibility of survivors of abuse.
[i] Cal. Fam. Code § 6300 et seq
[ii] Cal. Fam. Code § 6300
[iii] SB 1141
[iv] Cal. Fam. Code § 6320
[v] Cal. Fam. Code § 6320
[vi] Cal. Fam. Code § 6320
[vii] Cal. Fam. Code § 6320
[viii] Carrie N. Baker, A New Frontier in Domestic Violence Prevention: Coercive Control Bans, Ms. Magazine, 11/11/2020
[ix] Ciara Nugent, “Abuse Is a Pattern.” Why These Nations Took the Lead in Criminalizing Controlling Behavior in Relationships, Time Magazine, 06/21/2019
[x] https://www.womensaid.org.uk/what-we-do/campaigning-and-influencing/campaign-with-us/16-days-2018/
[xi] Daniela Pardo, California Bill Aims to Change How Domestic Violence is Defined, Spectrum News 1, 09/26/2020
[xii] “Susan Rubio.” Wikipedia, Wikimedia Foundation, 12/09/2020, en.wikipedia.org/wiki/Susan_Rubio
[xiii] SB 1141
[xiv] “What is Coercive Control?” Women’s Aid, 2020, https://www.womensaid.org.uk/information-support/what-is-domestic-abuse/coercive-control
[xv] https://www.womensaid.org.uk/what-we-do/campaigning-and-influencing/campaign-with-us/16-days-2018/
[xvi] Lemon, Nancy K.D., Hernandez, Cory, “Coercive Control” Domestic Violence Bill: Well- Intentioned, But Needs to be Reworked, Daily Journal, 06/11/2020
[xvii] Burquet v Brumbaugh (2014) 223 CA4th 1140, 1142
[xviii] Marriage of Evilsizor & Sweeney (2015) 237 CA4th 1416, 1424; Marriage of Nadkarni (2009) 173 CA4th 1483, 1498
[xix] Altafulla v Ervin (2015) 238 CA4th 571
[xx]Marriage of Fregoso and Hernandez (2016) 5 CA5th 698, 703
[xxi] McCord v. Smith (2020) 51 Cal.App.5th 358,
[xxii] Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816
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