RECONCEIVING COERCION-BASED CRIMINAL DEFENSES.

• Author: Galoob, Stephen R.

INTRODUCTION 267 I. THE COERCIVENESS OF COERCIVE CONTROL: A GENERAL OVERVIEW 272 A. Coercive Control Defined 272 B. Coercive Control as Criminal Offense 274 C. Human Trafficking as Coercive Control 275 II. COERCIVE CONTROL AND COERCION-BASED 278 AFFIRMATIVE DEFENSES A. Duress and Coercive Control 278 B. Human Trafficking Affirmative Defenses 284 III. COERCION-BASED DEFENSES AND THE WRONGFUL 288 PRESSURE APPROACH TO COERCION A. The Wrongful Pressure Approach to Coercion 288 B. Problems with the Wrongful Pressure Approach 296 to Coercion IV. COERCION-BASED DEFENSES: AN ALTERNATIVE 301 APPROACH A. The Enforcement Approach and Coercion 302 B. The Enforcement Approach and Coercion-Based 308 Defenses V. THE ENFORCEMENT APPROACH: IMPLICATIONS 314 FOR COERCION-BASED DEFENSES A. A Model Affirmative Defense for Coercive Control 314 B. Distinguishing Coercive Control from Other 321 Coercion-Based Defenses CONCLUSION 326 INTRODUCTION

"G.M." met "D.S." in 1989 while visiting New York from her native Dominican Republic. (1) Hoping to make enough money to send back to her children, she stayed in the United States and married D.S. in 1994. (2) After they married, D.S. undertook a pattern of physical, emotional, and financial abuse that led G.M. to return to the Dominican Republic. D.S. coaxed G.M.'s her return with promises of helping her find work and changing her immigration status. (3) Hoping to provide a better life for her children, G.M. relented. (4)

The life she returned to was hell. D.S. beat G.M. so badly that she was scarred and disfigured. (5) D.S. raped G.M. and imprisoned her for weekends at a time. (6) In the words of a New York criminal court, D.S. "exercised complete control over [G.M.], physically and psychologically," tracking her every move and preventing her from leaving the room or the apartment without him. (7) D.S. would drop G.M. off and pick her up from work, waiting in the car outside to make certain she did not elude him. (8) At one point, G.M. escaped from D.S. and returned to the Dominican Republic with her children. (9) After D.S. tracked her down yet again, he threatened to harm a close family friend if she did not return to New York. (10) According to G.M., she "just went back to the nightmare [she] was living. The beatings were even worse because [D.S.] was angry that [she] went to the Dominican Republic." (11)

G.M. was undeniably wronged and harmed by D.S and by the state's failure to intervene in this pattern of abuse. Yet G.M. (rather than D.S.) was the defendant in the criminal proceedings from which these details arise. At D.S.'s command, G.M. engaged in illegal activities including sex work and purchasing crack cocaine for D.S. to minimize his risk of arrest. (12) Police arrested G.M. six times between 1997 and 1998: twice for prostitution, twice for criminal trespass, and twice for criminal possession of a controlled substance. (13) Ultimately, she pleaded guilty to all charges and received "two non-criminal convictions for disorderly conduct, a violation, and four class B misdemeanor convictions." (14)

G.M. is a survivor of human trafficking, the crime of using force, fraud, or coercion to lure a victim and force them into either labor or sexual exploitation. (15) G.M.'s case also exemplifies a psychological phenomenon known as coercive control, "the micro-regulation" of someone's everyday behaviors, including the way they dress, perform chores, parent, interact with friends, or perform sexually. (16) Coercive control involves a totalizing influence of a coercer over the target's life. It is a form of domination that arises not only from violence and threats, but also through more indirect means such as humiliation, isolation, and seizure of physical or financial resources. (17) Human traffickers frequently utilize coercive control to keep their victims powerless and compliant. (18)

A broad literature critiques domestic abuse's status under traditional criminal law that primarily only covers transactional events like assaults or threats to commit them as crimes. (19) This transactional approach neglects the programmatic nature of domestic abuse, including its purely psychological components. (20) Scholars pay less attention to the legal situation of those subject to coercive control who are charged with crimes.

In most U.S. jurisdictions, a defendant in G.M.'s position might have two possible legal defenses. First, in some jurisdictions, the defendant might plead an affirmative defense available for those subject to human trafficking. (21) Such laws vary widely, and certain limitations disqualify many human trafficking survivors. For example, most U.S. jurisdictions limit the human trafficking affirmative defense to specific crimes, often to crimes related to sex work. (22) Had New York's current human trafficking affirmative defense applied at the time of G.M.'s arrests, it would have reached only G.M.'s two prostitution charges and not her drug possession or trespassing charges. (23) Yet, this result seems anomalous because each of these charges arose out of the same coercive control scheme.

Another potential defense is duress. At common law, the duress defense arose where a defendant's criminal activity was the result of another person's unlawful threat to cause death or grievous bodily harm to the defendant or a third person. (24) G.M. faced many threats of bodily harm to herself and her children. (25) Yet it is unclear from the opinion in G.M. whether each (or any) of her charged crimes was a direct response to a specific threat from D.S. Moreover, G.M. would have needed to show that D.S.'s threatened harm was imminent and that her fear of that threatened harm was well-grounded in order to prevail on a duress defense. Some case law denies that threatened harm is immediate if the defendant has an opportunity to engage in delay tactics, (26) as G.M. conceivably did. For example, D.S.'s threats regarding G.M.'s children would likely fail to ground a duress defense under this standard because they were far away in the Dominican Republic and thus unlikely to have been considered in immediate danger. (27) Therefore, the duress defense would seem inapplicable to G.M.'s case because the triggering conditions of duress are not realized. Yet the rationale for the duress defense seems at least as strong in G.M.'s case as in a case of criminal wrongdoing conducted in acquiescence to a specific, imminent threat.

There are deeper challenges to applying coercion-based defenses such as duress and human trafficking to cases like G.M.'s. These problems stem from the notion of coercion that underlies much contemporary thinking about criminal law. The most prominent understanding of coercion applicable in criminal law would deny that G.M. was actually coerced by D.S. Call this predominant view the wrongful pressure approach to coercion. (28) On this approach, coercion exists when a coercer's threat causes the target to experience psychological pressure and that threat violates the target's normative expectations. A coercion-based defense arises only if the coercer's threat generates a feeling of pressure in the target sufficient to overbear or significantly impair the target's will and the target has a good reason to feel this pressure as a result of the coercer's threat. As explained in more detail below, it is unclear that all (or any) of these conditions would have been recognized in G.M.'s case.

As G.M.'s case illustrates, the wrongful pressure approach is problematic as an account of coercion and a basis for coercion-based defenses. (29) This model's focus on threats and reasonableness is insensitive to background power dynamics between parties. It also misconstrues the objectionable features of coercion and fails to capture the phenomenology of coercion.

Establishing an adequate affirmative defense for coercive control contexts like G.M.'s case invites reexamination of the wrongful pressure model of coercion. Recent work challenges the prevailing understanding of what coercion is, why it is objectionable, and how coercion should bear on the legal liability of those who are coerced. (30) Drawing from this literature, this Article proposes an alternative model called the enforcement approach to coercion after philosopher Scott Anderson's theory of the same name. (31) On the enforcement approach, coercion is a function of the coercer using power to determine what the target will or will not do. The enforcement approach provides a more plausible understanding of the wrongdoing in coercive control cases and a clearer explanation for why those subject to coercive control should be provided a defense against criminal liability. This approach supports a generalized defense for victims of coercive control that is broader than the duress defense.

This Article has five substantive parts. Part I describes the phenomenon of coercive control and applies this concept to human trafficking. Part II explains the justification for and challenges of tailoring affirmative defenses to coercive control contexts. Tailoring an affirmative defense for coercive control contexts raises deeper questions about what coercion is and why coercion is wrong. Part III identifies the standard "wrongful pressure" approach to coercion in law and explains why this approach misfires in coercive control contexts. Part IV articulates and defends an alternative account of coercion-based defenses built on the enforcement approach. The enforcement approach should supplant the wrongful pressure approach as the predominant way of conceiving of coercion in the realm of criminal defenses. Part V proposes a model defense for coercive control that should supplement existing coercion-based defenses.

1. THE COERCIVENESS OF COERCIVE CONTROL: A GENERAL OVERVIEW

   Coercive control is a distinct form of interpersonal abuse. Part I first describes the phenomenon and discusses existing and proposed criminal offenses targeting coercive...