Coercive control in domestic violence restraining orders

Domestic abuse includes more than physical violence. While the term "domestic abuse" conjures up the terrible picture of one family member physically hitting another, it includes more than that under California law. The term also includes threats of violence, sexual assault, stalking, destroying property, and disturbing the peace of the other person.

As of Jan. 1, 2021, California law makes clear that domestic abuse also includes a category of conduct called "coercive control." Even a lay person would have no trouble identifying a physical assault involving family members - but what, exactly, is coercive control?

First, a little background on California's Domestic Violence Prevention Act. This is the statute that allows survivors of domestic abuse - persons who have suffered abuse at the hands of a spouse, romantic partner, parent, and certain other family members - to obtain a restraining order keeping the perpetrator away from them. If, for example, a husband physically attacks his wife during a domestic dispute, the wife may obtain a restraining order. So may a father who was credibly threatened with violence by his adult child, or a person stalked by a romantic partner.

One type of domestic abuse occurs when a family member or romantic partner "disturbs the peace" of the other party. The statute defines disturbing the peace as "conduct that, based on the totality of the circumstances, destroys the mental or emotional calm of the other party." For example, distributing explicit photographs of the other person without consent in order to humiliate that person could constitute disturbing the peace.

In an amendment to the Domestic Violence Prevention Act that became effective in January 2021, the Legislature added language making clear that "coercive control" is a form of disturbing the peace, and therefore a form of domestic abuse. The statute defines coercive control as a pattern of behavior that "unreasonably interferes with a person's free will and personal liberty."

That is a broad definition - so broad, in fact, that the statute tries to provide us with more clarity by listing some non-exhaustive examples of coercive control. These examples include "unreasonably engaging in" the following conduct: isolating the victim from friends and family, depriving the victim of basic necessities, controlling or monitoring the victim's communications, controlling or monitoring the victim's finances, forcing the victim to act by threats of force or intimidation, including based on immigration status. The statute, in a yet-more recent amendment, also gives the example of reproductive coercion, which includes unreasonably pressuring the other party to become pregnant or interfering with contraception. These are most, but not all, of the examples the statute provides.

As you can see by reading the law's language, coercive control takes some defining to find that line between ordinary disagreements and impermissible coercive control. Consider the fact patterns below. Are these examples of "coercive control?"

• A husband dislikes his wife's parents and considers them "toxic." He demands that she stop visiting them and gets into an argument with her every time he notices from the phone records that she made a phone call to them.

• A wife who is the higher wage earner sets a monthly budget for the household and reviews each credit card charge and bank withdrawal made by her husband. She questions the necessity of each charge in heated discussions with her husband and demands that he not exceed the monthly budget she has set.

• A husband wants children, but his wife is not ready. Every day, the husband brings up the issue, asking her over and over to agree to become pregnant.

• A wife tells her husband she is worried about his safety. She demands that he reassure her by sending her a text every time he leaves the house, with a picture to show where he is when he texts her.

To constitute abuse, the perpetrator's conduct must be a "pattern" of coercive control. The conduct also must be "unreasonable" - a requirement that does not provide bright line rules but requires a close examination of the facts of the particular case. The benefit of such a rule is that it is flexible and can be applied sensitively to each fact pattern. The challenge is that it is hard to define in advance what is or is not coercive control. Reasonable minds could differ.

There has been no published appellate case that applies the new coercive control language, and thus no binding guidance from the appellate courts. A few unpublished opinions - which do not have precedential value - do discuss the statute and work to identify whether conduct falls inside or outside the definition of coercive control.

For example, in In Re Marriage of Blake and Langer (March 30, 2023) 2023 WL 270599, a husband sought to reconcile with his wife after he had an affair. The husband agreed to many of the wife's conditions, including abstaining from sexual activity for six months, not making eye contact or having conversations with other women, and not watching media with suggestive sexual themes. The parties entered into a separation agreement giving the wife access (with limited exceptions) to the husband's electronic data and social media accounts, and a right to control the husband's bank account and deduct the husband's expenses. Eventually, the husband balked at the conditions. The Court of Appeal affirmed the trial court's ruling that the wife's conduct was not coercive control, reasoning that the husband agreed to the conditions, withdrew his agreement later, and that the wife's demands did not overcome his free will.

In B.M. v D.V. (January 4, 2023) 2023 WL 28729, a mother abducted her child in violation of the family court's custody order and kept him with her at a drug rehabilitation for three days. The Court of Appeal, like the trial court, rejected the mother's argument that this was a mere custody dispute. Both courts agreed that the three-day abduction was a form of coercive control by isolating the minor child from the father.

In In re Marriage of Francisca and Khan (October 10, 2022) 2022 WL 6354425, a wife left the marriage after 50 years and moved in with her son and son-in-law in an apartment she co-owned with her husband. Her husband sent her emails begging her to come home and threatening to give her cats to a shelter and to cut off her phone so she could not speak with family or attorneys. He also demanded entrance into the apartment where wife was staying. The trial court and the Court of Appeal rejected the claim that husband's actions constituted coercive control. The husband never carried through with his threats, had a right to go to the apartment that he owned, and did not know his wife was in the apartment.

In M.O. v. S.W. (October 6, 2022) 2022 WL 5240653, an estranged husband who had not communicated with his ex-wife for years left his daughter's phone bill on his ex-wife's windshield. The ex-wife testified that husband was unstable and had previously left threatening notes on the windshield. The trial court considered this domestic abuse, but the Court of Appeal reversed, saying that there was no evidence of "unreasonable" control or a pattern of behavior, as the statute required.

In Re Marriage of L.R. & K.A. (2021) was originally published at 66 Cal.App.5th 1130, but then depublished by the California Supreme Court. The Court of Appeal reversed a finding of coercive control where a mother, who had only supervised visits with the child, made a scene at urgent care after the child became ill. She berated the father, got in his face, and took the child home in violation of the custody order. The Court of Appeal reasoned that this did not meet the "guardrails" provided by the statutory language regarding coercive control, including the requirement of objective unreasonableness. Because the Supreme Court depublished the opinion, however, it has no precedential value.

The coercive control provisions of the statute provide important safeguards for victims of domestic abuse where the perpetrator's conduct does not neatly fall into the better-established categories of domestic abuse. The provisions also pose challenges for litigants and courts in trying to separate behavior that is merely unpleasant and uncivil from actionable abuse. Correctly identifying coercive control will depend on a sharp focus on the facts of each case in all their important, messy, and complex specificity.