PATERNAL FILICIDE AND COERCIVE CONTROL: REVIEWING THE EVIDENCE IN COTTON V BERRY.

• Author: Chambers, Lori
• Position: British Columbia

INTRODUCTION

On Christmas Day, 2017, the bodies of two small girls, Chloe and Aubrey Berry, ages 6 and 4, were found by police in a ground-floor apartment in Oak Bay, a municipality of Greater Victoria, British Columbia. (1) Found with them was an injured man--the girls' father. Upon his release from hospital, the father was charged with two counts of second-degree murder. (2)

These deaths, and other paternal filicides, are undeniably distressing for those involved and society as a whole. Surprisingly, however, limited research has been conducted on paternal filicide in Canada. (3) The public responds to such killings with disbelief. However, "these deaths are not inexplicable. Too often they occur in the context of the parents' separation and are linked to violence against the mother." (4) Ninety-five percent of those accused of murder-suicide in Canada are men. (5) Most often, the victim is his intimate partner; however, children are victims as well. (6) Evidence from the few retrospective reviews of paternal filicide suggests "[w]hile physical forms of violence are evident in many cases, it may be that controlling behavior is a particularly important feature of separation filicides." (7) Paternal filicides might be preventable with better education about "coercive control". "Coercive control" refers to the means by which some abusive men, often without using a great deal of daily violence, engage in "malevolent conduct... to dominate individual women by interweaving repeated physical abuse with three equally important tactics: intimidation, isolation, and control." (8)

If paternal filicides are potentially preventable, the deaths of these little girls raise serious questions about child-custody decisions in Canadian courts. How and why were these children allowed to be in the care of a man who demonstrated abusive and neglectful behaviour and who would eventually kill them? What can we learn from this case? How can future tragedies be prevented? When Ian Mulgrew dared to ask these questions in the Vancouver Sun, asserting that "[t]he child protection authorities once again failed miserably and so did the legal system", (9) he was rebuked by the Chief Justice of the Supreme Court of British Columbia, who suggested the "tragic aftermath" of the case was "unforeseen". (10) We disagree. The potential for violence in this case was foreseeable, and public criticism is not only justified, but required, to prevent such tragedies in the future. Significant evidence of coercive control--and, therefore, the risk of violence--was presented to the Court but was inadequately considered.

The discussion that follows is based on the written record of the custody hearing in Cotton v Berry. (11) We are highly critical of the Court, but this article is not intended as a personal indictment of Madam Justice Gray. She was not asked by Sarah Cotton or her counsel to cut off overnight access. (12) The Ministry of Children and Family Development had been involved with the family but did not seek emergency orders or to deny contact. Without court transcripts and the submissions of the parties, we do not know to what degree the risk was highlighted for Madam Justice Gray. Our point is that many lawyers and judges might have acted similarly. Instead of blaming individuals, we use this case to illustrate a systemic problem: lawyers, judges, and the public have a limited understanding of coercive control and risk. The underlying assumptions in Cotton v Berry--that controlling behaviour against women is insignificant to custody as long as children have not themselves been subjected to violence (13) and that contact with fathers is always in the best interests of children (14)--are widespread. Further, too many men, including Andrew Berry (the father of the murdered girls), use the court system as a means of asserting control over their ex-spouses.

This retrospective study contributes to the nascent literature on paternal filicide and illustrates the necessity that all participants in court proceedings regarding children understand the signs and risks associated with coercive control. As Gillian Calder and Susan Boyd asserted in a brief but insightful comment published in the Times Colonist, while this story may be "relatively isolated in its extreme consequence.... it makes visible systemic concerns that exist within our family-justice system." (15) To ignore such concerns is to endanger other children. We illustrate, as a great-uncle of the girls noted to the CBC, Andrew Berry "should never have been left alone with those children. Never.... My niece worried every time they left.... The proof was there." (16)

COERCIVE CONTROL

Evan Stark, the author who pioneered the concept of coercive control, asserts that "[l]ike assaults, coercive control undermines a victims physical and psychological integrity. But the main means used to establish control is the microregulation of everyday behaviors associated with stereotypic female roles, such as how women dress, cook, clean, socialize, care for their children, or perform sexually." (17) Judith Herman describes these behaviours as imposing "domestic captivity" on women. (18)

Controlling and coercive behaviours are too often minimized and misunderstood by society. It is, therefore, unsurprising they were invisible to the Court in this case. Stark argues police, child welfare officers, and courts fail to respond adequately to coercive control. (19) This is, in part, because violence against women is only understood as physical violence, but also because each battering or coercive incident is considered independently instead of as part of a larger pattern of controlling behaviour. (20) Behaviours that are intended to control women's actions and undermine their freedom and sense of self, but which are nonviolent or rely on the threat of violence, do not receive priority response and may not even be recognized as controlling by the courts. (21) These interactions may seem normal on the surface, as controllers have subtle and unique ways of threatening their partners; "[t]aken in isolation, a victim's response to a particular incident may seem disproportionate, even fabricated". (22) Further, male control of women and female subservience are normalized in our culture; "[m]asculinity in our society is identified even more closely with being 'in control' than it is with the use or capacity to use force." (23) Despite the fact that control factors are "more predictive of intimate homicide than the severity or frequency of... physical violence", (24) risk assessment for coercive control remains rare outside the context of domestic violence shelters. (25)

The failure to identify coercive control is "embedded in a dominant social discourse that is highly skeptical of women's allegations of violence in post-separation contexts." (26) In this context, a woman seeking to prevent or limit contact with an ex-partner is immediately positioned as obstructive and vindictive, rather than as seeking to ensure a child's safety. (27) A woman may face grave challenges and risk in articulating coercive control for the court, particularly if she is being interrogated by her former spouse. In her study of 22 women who had sought custody against abusive men, Lesley Laing discovered the women found it particularly difficult to be heard by the justice system with regard to "controlling behaviors". (28) They "experienced participating in the family law system as a process of re-victimization that exacerbated their traumatic responses" to violence and loss of autonomy. (29) Many stated they were explicitly discouraged from talking about violence in custody proceedings, even by their lawyers, and were warned judges would punish them "if they were seen to be challenging the inevitability of an ongoing relationship between ex-partners and children." (30) As one mother in the study noted, the women felt they had no way to adequately protect their children: "But then there's mothers that stand up to the 'nth degree' and they've ended up going to jail.... All they're trying to do is protect their children." (31) Mothers in a separate study also "repeatedly said that professionals did not take seriously enough the impact of the retention of children for short periods of time, nor did they appreciate the fears associated with threats of abduction." (32) Undoubtedly, Sarah Cotton would echo these findings.

When coercive control is not named or understood, child welfare agencies and child custody decisions fail to keep women and children safe. Child custody decisions embody two erroneous and interrelated assumptions: abuse of the mother is not believed to make men bad fathers, just bad partners; and contact with fathers, even abusive ones, is assumed to be in the best interests of children. Court proceedings themselves too often become yet another forum in which abusive men can control and harass their ex-partners. We must recognize--and court decisions must reflect--that coercive, controlling, and angry behaviour is not isolated, private, or simply between parents. Men who control and/or abuse their wives cannot be good parents and present a serious risk to their children.

ERRONEOUS ASSUMPTIONS IN CHILD-CUSTODY PROCEEDINGS

Too often, courts do not consider evidence of abuse or control of the mother as relevant to custody. While courts are urged to assess the risk of child abuse postseparation, they lack an understanding of coercive control and, therefore, rarely consider the possible lethality for children in the midst of high-conflict separations. This is related to the limited historical understanding of the risk of abuse to children. In 1960, new data documented physical assaults of children and shocked the western world. (33) Tragic cases of physical abuse riveted public attention and the reporting of child abuse was made mandatory in all provinces. (34) However, the deaths in these cases were largely the accidental...