Many people believe that domestic abuse is characterized by broken bones and physical injuries, but that is not always the case.
“It is often very subtle and is rooted in the power and control that one partner has over the other,” said Nanci Kreidman, executive director of Hawaii’s Domestic Violence Action Center.
The Hawaii Senate passed House Bill 566 this past week to add “coercive control” to the definition of domestic abuse that can be prosecuted as a petty misdemeanor.
Before the vote, the Senate Judiciary Committee added an amendment to address concerns that the definition was too broad by making the change part of a pilot program established last year aimed at reducing domestic violence through 2025.
Domestic violence has gone up during the pandemic, according to data from the Domestic Violence Action Center.
In December, the nonprofit experienced a nearly 65% increase in calls to its helpline compared with the same month the previous year. That month, the nonprofit staff created more than 3,100 safety plans for clients, more than twice the number created during December 2019.
HB 566 would make it easier to prosecute abuse known as “coercive control,” which is defined by the state as “a pattern of behavior that seeks to take away the individual’s liberty or freedom and strip away the individual’s sense of self, including bodily integrity and human rights.”
The pattern is “designed to make an individual dependent by isolating them from support, exploiting them, depriving them of independence, and regulating their everyday behavior.”
Last year, Hawaii added the same behavior to a list of reasons that someone could seek a protective order. HB 566 would take it a step further by allowing abusers to be prosecuted for coercive control and, under the state pilot program, required to take domestic violence prevention classes in lieu of jail time.
But the bill has received an avalanche of criticism from law enforcement agencies, including the Honolulu Prosecuting Attorney’s Office, the Office of the Public Defender, the Attorney General’s Office and the Honolulu Police Department.
The state’s definition includes a long list of examples such as isolating someone from their family and friends; controlling how much money they have, where they go and who they talk to; frequent name-calling and threatening to hurt someone or report them to the police.
“It would be too difficult for members of the public or even law enforcement to ascertain based on the definition what is criminal behavior versus non-criminal behavior,” deputy public defender Darcia Forester said in an interview.
She expressed concern that normal disputes between couples could be criminalized, citing for example arguments between a couple in which one person is angry that the other has a gambling problem.
“Is that person committing coercive control because they don’t want their partner to gamble away the rent money?” she said. “We just don’t see how law enforcement is going to be able to figure out when that line is crossed.”
Sen. Karl Rhoads, chair of the Judiciary Committee, acknowledged the definition is broad and it’s possible the law could be struck down in court. He said that’s partially why he amended the measure to add it to the pilot program that ends in 2025.
“It’s pushing the envelope,” he said of the bill. “There’s no question that this whole concept of coercive control is a real thing. I think it’s pushing the envelope in terms of what is possible, legally possible.”
On Wednesday, the House officially disagreed with Rhoads’ amendment, which could send the bill into end-of-session negotiations. But House Judiciary Chair Rep. Mark Nakashima told Civil Beat that the disagreement was just an automatic decision to give the House more time to review the bill. He actually thinks making the bill part of a pilot program is a good idea.
“As it goes through the pilot program (we can) watch how it is used and make a bigger determination if it works or if it’s necessary,” he said. “I’m thinking that we may move to agree (with the Senate) at some point but we’ll have to wait to finish the analysis.”
The fact that the bill has so much momentum is worrisome to its critics. Honolulu attorney Thomas Farrell sometimes represents people accused of domestic abuse and said he finds the definition of coercive control problematic.
Half of the examples listed under the definition are already illegal under different statutes, while the others are unnecessary, he said. He also believes that the law could be used against domestic violence victims and noted that legally, a pattern can be established once behavior occurs at least twice.
“This is just crazy,” he said of the proposal.
Kreidman disagrees with Farrell. She knows victims whose abusers control them by turning off the internet, demanding passwords, preventing them from communicating with family members and standing by while they communicate with others.
“It is a very, very big step for a person to seek help about their intimate partner relationship,” Kreidman said. “It seems impossible to me that somebody would be experiencing (only) one of these things and report their partner to law enforcement. People on the contrary tend to minimize or excuse behavior.”
Angelina Mercado, executive director of the Hawaii State Coalition Against Domestic Violence, acknowledged the bill might be tough to enforce but said the principle is important.
Enforcement “will require some creative thinking from all of our system partners,” she said.
House Majority Leader Della Au Belatti emphasized the purpose of the bill is not to send more people to jail — rather, under the state’s pilot program, ensure they get the help they need to correct their behaviors.
“We’re trying to clear the way to make sure that we can actually in fact make the pilot program a success,” she said. “We want to teach the families how to better handle all of these kinds of challenges.”
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