Emotional and coercive abuse in domestic relationships is a societal problem that needs serious attention, but a new United Kingdom law that criminalizes that behaviour may not be the right move, says Toronto family lawyer Brian Ludmer.
“As a society we have to give people in that situation a remedy,” Ludmer, principal of
LudmerLaw, tells AdvocateDaily.com. “But is it necessary to extend the criminal law into emotionally abusive relationships of dependency?”
As of Dec. 29, 2015, emotional abusers in the U.K. could face five years of prison time , a fine or both, even if the behaviour stops short of serious physical abuse.
Under s. 76 of the U.K.’s Serious Crimes Act, controlling or coercive behaviour is defined as causing someone to fear that violence will be used against them on at least two occasions, or generating serious alarm or distress that has a substantial effect on their usual day-to-day activities.
The law has been lauded by domestic violence advocates who say psychological abuse can have a more lasting impact than physical abuse, the Guardian reports.
“Coercive control is at the heart of domestic abuse,” Polly Neate, the chief executive of Women’s Aid, tells The Guardian.
But Ludmer, an expert in the area of parental alienation — when a child is pitted against a parent in a breakup — says there are serious ramifications on the other side of the equation.
“Have we really thought this through? Do you want to criminalize a verbal fight?” he asks.
“How many fights cross the line into criminality, and are people then going to be recording each other to save it for future use until they can accumulate five of these over a five-year period?”
Ludmer says the volume of false allegations between couples is already large. If something similar to the U.K.’s new law came to Canada, he believes it would be “almost impossible” to defend oneself.
“Is the criminal law the appropriate tool or are we opening up for all kinds of unintended consequences?” he asks. “The remedy could be worse than the disease.”
Ludmer says the law raises questions about how spouses would defend themselves against verbal insults. He says it would mean individuals would have to keep detailed records of every argument and whether they had made up.
The law could lead to situations in family break-ups where both spouses are pressing criminal charges after verbal altercations, Ludmer says. Chances of making amends after the police are called are highly unlikely, he adds.
“You’ll have police coming to your door and you’ve committed an emotional ke pouring fuel on dry kindling.”
Ludmer questions whether criminalizing psychological abuse is the right social policy, tool or remedy to help victims trapped in emotionally abusive relationships. He suggests counselling, mediation, education, clerical intervention and disengagement as preferable remedies for those suffering from coercive abuse.
He says the U.K. law could potentially be misused by someone who is calculating or defensive in the midst of a high-conflict divorce.
“People are going to make mistakes. People will say things in heat of the moment, and marriages and other relationships of long standing hit very rough spots,” he says.
“It seems to me the cure is worse than the mischief this law is attempting to address.”
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