Legislating private relationships

Some time ago, I was planning to have lunch with an ex-girlfriend. My then-girlfriend found out about this, got upset and tried to stop me going. I told her that she was being childish and to stop being stupid. We had a minor row. Then we got over it, forgot about it and moved on like adults. I’m sure anyone who has ever been in an intimate relationship can recognize an incident like the above.

Under Theresa May’s recent proposals to extend domestic violence to emotional abuse that is ‘cruel and controlling’ or ‘humiliating’, minor rows like that could become a criminal offense. Specifically, May mentioned attempting to prevent people from maintaining relationships with friends and family. In the situation I mention above, my language could easily have been construed as humiliating and cruel. Under no circumstances would either of us have considered this to have been an example of genuine abuse, and the idea that we, or couples like us should be criminally culpable for behaviour that is at worst immature is ridiculous, yet it could be construed as abuse punishable by law under these proposals.

It is easy to charge that I am being facetious. This law is not intended to criminalize petty rows, rather ongoing, serious cases of abuse that cause long term damage to people’s lives. But the test of good law is not just whether it would help solve a social ill, but whether it would be able to be easily definable, easily enforceable and be difficult to abuse. In all three categories, proposals to criminalize emotional abuse fail this definition.

There will be no way to craft a law against emotional abuse without it being broad enough to catch almost every intimate relationship, because human interactions are so complex and so dependent on context that what is genuinely abusive and hurtful in one context is a minor act of pettiness in another. If emotional cruelty or humiliation is made illegal, insulting someone’s appearance, such as telling them they look overweight or bad in particular clothing, cheating on a partner, shouting at someone or could be construed as criminal acts. These are of course, cruel acts that we should discourage as part of a healthy relationship. But relationships are where people demonstrate their best and their worst attributes, and every relationship in the world will include, however small, actions from both partners that are simply immoral or unkind actions. But this does not make these relationships by definition abusive; not does it mean that the state should have the sanction to decide which relationships are abusive and which are not.

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Before allowing the state to interfere in our intimate relationships, we should look at the history of the state determining what is moral or not in our private lives. In it we see some of the most shameful and oppressive legislation in our history such the criminalization of homosexuality, or extraordinarily harsh penalties for women who commit adultery.

This leads to another major problem with the proposals, which is their terrifying potential for abuse. The exact kind of person who is emotionally abusive in relationships is going to be the exact kind of person who will abuse these laws for their own ends. Most emotionally abusive partners themselves either think or pretend they are the victims of emotional abuse. Think of what an abusive partner could do, if they had the ability to use the threat of prosecution against their partner for their own ‘suffering.’ One common tactic that abusers will use is to convince the person they are abusing that THEY are the one who is crazy, who is at fault, who is screwing the kids up, who makes the relationship a living hell. Now imagine if they had the ability, as many charming psychopaths do, to construct a case for themselves being abused that was on the face of it compelling, even though it was based on nothing but air? This law would become a tool in the abusers arsenal of psychological control and torment.

Similarly, it gives anyone who is upset at the breakdown of a relationship a way to get revenge on a partner by making a complaint of emotional abuse. These complaints may not even be malicious, as the distress caused by the breakdown of a relationship could make people believe that someone genuinely has been abusive. That does not mean they will not be incredibly damaging all the same. And while the law is intended primarily to protect women, all genders will be able to exploit this to their own ends.

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Because ultimately, the biggest problem with this law is that it will be virtually impossible to prove. Police will (and should be) obliged to investigate any allegation of domestic abuse, and by its very nature, in the vast majority of cases it will come down to a single persons word against another’s, unless we go down the extremely morally dubious route of requiring children to testify against their own parents. This means that either there will be a vanishingly small number of convictions, which lowers public respect for the Justice system, or the burden of proof will have to be lowered making a worrying potential for miscarriages of justice and abuse of judicial process.

If you support these proposals, you must be prepared to look people in the eye and say, “I support the state being able to come into my personal intimate relationships and decide what is right and what is wrong.” This is a time when resources that those who are abused genuinely need – such as funding for women’s refuge, mental health support and legal aid – are being viciously cut. As such, this law is a way for the government to appear that it has victims best interests on side while continuing to deprive them of things that genuinely could help them improve their lives.

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