A bill making its way through the Washington state legislature would enable judges to cite ‘coercive control’ as a form of domestic violence that warrants a domestic violence protection order. Family law attorneys Lisa Scott (Bellevue) and Ashley Olson (Seattle) have serious concerns with the bill. This article lays out those concerns.
We urge readers to contact their legislators to oppose House Bill 1901.
See also our more recent post from February 23, 2021: Eleven 1-Minute Testimonies on Why Coercive Control Should Not Be Legally Equated to Domestic Violence
Summary
When judges decide rulings on granting domestic violence protection orders (DVPOs), existing law already allows them to consider allegations of the types of behaviors that fall under what is known as coercive control. We should not radically expand the definition of domestic violence to include a wide-ranging list of coercive control behaviors. This would enable courts to deprive people access to their homes and their children based on allegations of conduct that is neither violent nor threatens violence. DVPO hearings often last 30 minutes or less, and they severely lack due process, with minimal opportunities to defend oneself, and with the standard being only ‘a preponderance of the evidence’. HB 1901 would create new opportunities for people to abuse the already overburdened domestic violence courts. This bill should not become law.
This article reflects the views of Lisa Scott (family law attorney, Bellevue), Ashley Olson (family law attorney, Seattle), Greg Schmidt (retired police commander and victims advocate, Seattle), Ann Silvers (counselor and author, Gig Harbor), Stanley Green (advocate for survivors of domestic violence, Walla Walla), Phil Cook (author of Abused Men – The Hidden Side of Domestic Violence, Friday Harbor), and Kyle Paskewitz (founder of Parentalink and Family Court Reform USA, Tacoma).
A related article by the Coalition to End Domestic Violence offers six reasons why defining coercive control as domestic violence is harmful.
Bill Already Through the House
The House Civil Rights & Judiciary Committee passed the bill on January 28 by a vote of 12 to 5. Then on February 7 the bill passed the House with a vote of 71 to 25. Now the bill goes to the Senate Law & Justice Committee where it will almost certainly be brought up for a public hearing soon.
HB 1901’s prime sponsor is Representative Roger Goodman, and its co-sponsors are Representatives Lauren Davis, Jamila Taylor, and Shelley Kloba. All are Democrats. The companion version of the bill in the Senate is SB 5845. Its prime sponsor is Senator Manka Dhingra, and its co-sponsors are Senators Patty Kuderer, Liz Lovelett, John Lovick, and T’wina Nobles. All are Democrats.
Domestic Violence Protection Orders
What is the purpose of a domestic violence protection order?
A person can request a domestic violence protection order to gain immediate protection from an intimate partner or family member who is stalking, harassing, physically harming, or threatening to physically harm them.
What is the process for getting a domestic violence protection order?
At an initial hearing, where the accused party is not present, the petitioner files for a domestic violence protection order and requests an emergency temporary DVPO. A full hearing is set for two weeks later. The accused is served with the petition, notice of hearing, and a temporary DVPO. The temporary DVPO stays in effect until the court either issues a full protection order or denies the petition, terminating the case.
At the hearing, the parties present their sides of the case. Then the judge determines whether a full protection order should be granted, and, if so, what the specific terms of the order should be. Domestic violence protection orders typically last one year, and they can be renewed.
What are the biggest consequences of having a domestic violence protection order issued against you?
A person with a temporary DVPO against them is usually removed from their home, and they cannot see or contact their partner or children. Once a judge issues a full protection order, the parent is often subjected to restricted or supervised visitation and mandated domestic violence treatment. Also, the accused loses their right to possess a firearm. Full protection orders typically last for one year, and courts often renew them. A protection order is often used as the basis for the accusing parent to request full custody of the children.
Definition of Domestic Violence
The bill’s definition of coercive control includes a long list of relationship behaviors that are definitely toxic. However, it is wrong to legally define those behaviors as domestic violence, thereby enabling a court to deprive a person of their ability to stay in their home and see their children as a result of an allegation that they committed one or more of the behaviors. This would go far beyond the original purpose and intent of the statutes pertaining to domestic violence protection orders.
As it is now, the behaviors for which a judge can issue a DVPO — physical violence, harassment, and stalking — are all crimes in and of themselves, apart from any civil law proceeding about a protection order. If the behaviors under HB 1901’s proposed definition of coercive control are bad enough to warrant a domestic violence protection order, why aren’t lawmakers also adding them to the criminal code?
Coercive Control
What is coercive control? Quoting from the bill:
“Coercive control” means a pattern of behavior that is used to cause another to suffer physical, emotional, or psychological harm, and in purpose or effect unreasonably interferes with a person’s free will and personal liberty. In determining whether the interference is unreasonable, the court shall consider the context and impact of the pattern of behavior from the perspective of a similarly situated person. Examples of coercive control include, but are not limited to, engaging in any of the following:
Here is a partial list of the bill’s examples of coercive control.
- damaging, destroying, or threatening to damage or destroy goods, property, or items of special value
- using technology to threaten, humiliate, or exert undue influence over the other party
- driving recklessly with the other party or children in the vehicle
- threatening to harm the other party’s career
- exerting control over the other party’s identity documents
- making private information public, or threatening to do so
- causing dependence or confinement, or isolating the other party from sources of support
- engaging in psychological aggression, including inflicting fear, humiliating, degrading, or punishing the other party
Due Process
Are there serious due process concerns at play here?
Historically, judges have handed out domestic violence protection orders with little due process. DVPOs are issued in quick proceedings — sometimes 30 minutes or less. The standard of proof is ‘a preponderance of evidence,’ not ‘beyond any reasonable doubt’ as in criminal cases. Even when the accused person presents credible opposing or exculpatory evidence, judges often ignore it and issue an order anyway.
Coercive control would be difficult to actually prove, because these kinds of behaviors are far less likely to be backed up by any objective evidence. And coercive control would be almost impossible to disprove. Cases will devolve into “he said she said” disputes.
Gender Bias
Why is custodial interference not included in the bill’s definition of coercive control?
Among the long list of toxic behaviors in the bill’s definition of coercive control, ‘custodial interference’ — which is a crime in Washington — is not included. Neither is unreasonable withholding of or controlling access to the children (gate-keeping) and abusive use of conflict. These harmful behaviors are more often used by mothers to control and intimidate the children’s father. They are conspicuously absent from the bill.
Is there gender bias at play with this bill?
Men are disproportionately overlooked as victims of domestic violence and are disproportionately falsely accused of domestic violence. Did the drafters of HB 1901 consult with male domestic violence victims or advocates? The changes to the law that the bill would bring about largely target men, but women too can be falsely accused and subjected to unwarranted restrictions of their rights.
For someone who may be experiencing coercive control by their spouse or partner, what remedies do they currently have?
They can move out. They can file for divorce. They can file for a parenting plan. The matters can be handled in family law court rather than in a domestic violence protection order hearing.
Backlogged Courts
Could this change negatively impact victims of physical abuse?
This change to the law would result in a significant increase in filings for domestic violence protection orders. There will be more disputes and litigation in the already crowded DVPO courts, leaving less time for victims of physical violence who need immediate help. Coercive control types of issues should be handled in family law courts, not through the DVPO calendar.
Would this change to the definition of domestic violence pass the ‘ask ten people on the street’ test?
Ask ten people on the street if they think a court should be able to deprive someone of access to their home and children if there is strong evidence they have been violent with their partner. Most will say yes.
Then ask ten people if a court should be able to deprive someone of those things based on an allegation (remember, there is often little or no due process for domestic violence protection orders) that they were guilty of one or more of the many behaviors that this bill defines as coercive control. Most will say no.
Oppose HB 1901
Please stand up to oppose House Bill 1901 by contacting Washington state legislators about it. You may also call the Legislative Information Center at 1-800-562-6000 to leave a message for your legislators.