Coercive Control: What Should a Good Lawyer Do?

• Author: Deanne Sowter
• Date: Friday December 27, 2019

I am currently conducting research to determine whether coercive control can be considered psychological harm for the purpose of the future harm exception to confidentiality and solicitor-client privilege.[1] My research is supported by the OBA Fellowship in Legal Ethics and Professionalism Studies. In that research I’m determining whether a lawyer can disclose, but doing that research has provoked me to wonder whether a lawyer should disclose.

In December 2017, Andrew Berry murdered his children, six-year-old Chloe and four-year-old Aubrey. Berry was convicted of second degree murder. Sarah Cotton, the girls’ mother, feared Berry, claiming that he had made threats in the past, had physically assaulted her, and had failed to protect their children (he took their 2 year old boating without a life jacket, left his 6-month old alone in a stroller, and drove erratically with the children in the car).[2] Ms. Cotton’s lawyer did not ask the court to stop allowing overnights. Ms. Cotton’s only request was that overnights not occur consecutively so she could address medical needs and care of the children when they returned. The Ministry of Children and Family Development were involved, but did not seek emergency orders. The court ordered overnight access allowing Mr. Berry unsupervised time with his children. It was during one of those visits that he killed both girls.

The Cotton v Berry case provoked criticism about judicial competence for handling cases involving family violence, particularly coercive control. The President of the Law Society of BC defended Justice Gray, saying she “applied the law based on the evidence before her”.[3] In contrast, in a thorough review of the decision, Lori Chambers, Deb Zweep and Nadia Verrelli criticized the court, arguing that the court did have enough information to see the pattern of coercive control.[4] Justice Gray erred on the side of hope that Mr. Berry would change, instead of recognizing the signs and erring on the side of caution. Gillian Calder and Susan Boyd also wrote an op-ed criticizing the court’s failure to recognize the seriousness of coercive control.[5] The National Judicial Institute has launched training in family violence for federally appointed judges.

Mr. Berry was not represented in the family law matter creating additional challenges. Self-representation where there is family violence means the victim’s lawyer is tasked with negotiating directly with her client’s abuser. Indeed, self-representation can be another form of abuse. If the parties litigate, the abuser may even cross-examine his spouse (a practice that is prohibited in some jurisdictions. i.e. the UK, and Australia).

I raise Cotton v Berry in order to illustrate the complexity of coercive control, the lack of understanding about it, and the difficulty in identifying it.

Coercive Control

There are no universally shared definitions of family violence, domestic violence, intimate partner violence, or coercive control. One definition of coercive control is that it is “an ongoing pattern of domination by which male abusive partners primarily interweave repeated physical and sexual violence with intimidation, sexual degradation...