Contemporary Issues in Law - Volume 14 - Issue 2
Theme - Coercive Control
EDITOR'S INTRODUCTION: COERCIVE CONTROL: IN THE COMMISSION OF SEXUAL VIOLENCE AND DOMESTIC VIOLENCE
Vanessa Bettinson Reader in Criminal Law and Criminal Justice, De Montfort University
This editorial reflects upon the current interest in criminalising psychological harm and the progress of ratification of the Council of Europe Convention on Preventing and Combatting Violence against Women and Domestic Violence 2011 in the United Kingdom. Delays in the ratification process have occurred as a result of concerns regarding the compatibility of legal measures throughout the United Kingdom’s jurisdiction. Bettinson considers the limitations of the Preventing and Combatting Violence against Women and Domestic Violence (Ratification of the Convention) Act 2017. Despite the shortcomings identified, there has been renewed interest in creating new criminal offences throughout the legal jurisdictions in the United Kingdom, and Bettinson outlines some of these developments. Of particular interest is the introduction of the coercive or controlling behaviour offence introduced in England and Wales by section 76 Serious Crime Act 2015 and the proposed domestic abuse offence in the Domestic Abuse (Scotland) Bill 2017. It is the focus on behaviour that amounts to coercive control that lends itself to the theme of this special issue and conference that brought this volume’s contributors together.
EXPOSING COERCIVE CONTROL IN THE COMMISSION OF FORCED MARRIAGE: A CAMBODIAN CASE STUDY
Rachel Killean Lecturer, Queen's University Belfast
This article discusses the processes through which practices of coercive control in the commission of sexualised and gender-based violence (SGBV) can be rendered visible through victim participation in criminal justice processes. In particular, it analyses how the crime of forced marriage came to be included in the indictment against two former senior leaders of the Khmer Rouge regime, currently on trial at the Extraordinary Chambers in the Courts of Cambodia (ECCC). This article also demonstrates the ways in which the ECCC’s victim participation mechanism has allowed for the Khmer Rouge’s coercive marital practices to be uncovered.
Despite overlooking SGBV in its initial investigation phase, in September 2010 the ECCC’s co-investigating judges released an indictment against four senior leaders of the Khmer Rouge regime, charging them with forced marriage and rape within forced marriage, which the judges classified as crimes against humanity. The inclusion of these charges can be directly attributed to the advocacy efforts of victims, their legal representatives and associated civil society organisations. This article argues that the inclusion of these charges demonstrates the important contribution that victim participation within international criminal justice processes can make, to international criminal law, to historical narratives, and to our understanding of coercive SGBV practices during periods of conflict. However, this article argues that the court is at risk of failing to fully reflect the complex harms that the victims are attempting to render visible, through its focus on forced marriage as a predominantly sexualised crime, and through its exclusion of other sexualised and gender-based violence. A number of scholars have explored the complex nature of the harm caused by forced marriage. Drawing on victim testimony, the article will explore victims’ experiences of the coercive marital practices pursued by the Khmer Rouge. In particular, it will highlight the complex victim and perpetrator identities exposed within the victims’ testimony, as well as the multifaceted harms which resulted from this crime.
DECEPTIVE CONDUCT: RECOGNISING A FURTHER TYPOLOGY OF ABUSE UNDER SECTION 76
Omar Madhloom Senior Lecturer in Law, De Montfort University
This article argues that deception and lying, although legally and philosophically distinct concepts, are capable of being classed as controlling behaviour in an intimate or family relationship, under section 76 of the Serious Crime Act 2015. Lying and deceiving has a serious effect upon the victim’s autonomy by limiting his/her freedom to make choices according to standards which he/she sets for his- or herself. Such conduct allows the perpetrator to manipulate the victim to his advantage, by restricting her freedom of choice. A moral framework using Kantian ethics will be applied to show that lying and deceiving negatively impacts upon the victim’s autonomy. The advantage of using Kantian ethics is that it imposes a duty of care and trust between individuals. It also requires those in an intimate relationship to promote their partner’s autonomy and dignity. In addition, Kantian ethics imposes an obligation on the state to ensure that autonomy is protected in an intimate relationship. Thus, using a Kantian framework creates responsibilities on individuals and the state to protect autonomy.
FROM LUBANGA TO BEMBA: TOWARDS THE RECOGNITION OF SEXUAL VIOLENCE AND GENDERED HARMS AT THE INTERNATIONAL CRIMINAL COURT?
Diana Sankey Senior Lecturer in Law, De Montfort University
This article analyses the jurisprudence of the International Criminal Court with a specific focus on Prosecutor v Jean-Pierre Bemba Gombo(Trial Chamber Judgment pursuant to Article 74 of the Statute, ICC-01/05-01/08, 21 March 2016). The case concerned frequent attacks on civilians carried out by Mouvement de libération du Congo(MLC) soldiers in the Central African Republic (CAR) between 2002 and 2003. Jean-Pierre Bemba Gombo, the President of the MLC and Commander-in-Chief of the Armée de Libération du Congo (‘ALC’), was found guilty, on the basis of command responsibility, of the crimes against humanity of murder and rape, and of the war crimes of murder, rape and pillage. The article argues that whilst this successful recognition of conflict-related sexual violence at the International Criminal Court is significant, the focus on prosecuting a particular individual for specific crimes in a particular time period silences the broader contexts of violence at stake. Narrow understandings of the harms involved and only limited information about victims’ experiences are conveyed by the international judicial processes. For example, there was evidence that MLC soldiers subjected victims to forced nudity and sexual assault and yet only charges for rape were pursued. Coercive and controlling behaviour in the commission of sexual violence therefore remains invisible unless culminating in the penetrative act of rape, and the gendered nature of the harms are barely acknowledged by the ICC. The article concludes that whilst the Bembacase marks an important progressive moment in the jurisprudence of the ICC, it fails to raise the visibility of the real experiences and suffering of victims of sexual violence that occur at times of armed conflict.