Reproductive Coercion in California Domestic Violence Law

• Jurisdiction: California,United States
• Author: Written by Judge Mark Juhas*
• Citation: Vol. 45 No. 1
• Publication year: 2023

REPRODUCTIVE COERCION IN CALIFORNIA DOMESTIC VIOLENCE LAW

Written by Judge Mark Juhas*

California has a forty-plus year history of protecting domestic violence victims and survivors. The Domestic Violence Prevention Act (DVPA) initially started out in the Code of Civil Procedure, and ultimately became part of the Family Code, where it now resides¹ The legislature recently made two significant additions to Family Code section 6320; effective in 2021 the legislature statutorily defined "coercive control" ² and beginning in 2022 the legislature further expanded coercive control to include reproductive coercion³

"Coercive control" is a statutory subset of "disturbing the peace". Specifically, section 6320⁴ defines "coercive control" as: "a pattern of behavior that in purpose or effect unreasonably interferes with a person's free will and personal liberty"⁵ As of 2021, the section provided further explanation:

Examples of coercive control include, but are not limited to, unreasonably engaging in any of the following:
(1) Isolating the other party from friends, relatives, or other sources of support.
(2) Depriving the other party of basic necessities.
(3) Controlling, regulating, or monitoring the other party's movements, communications, daily behavior, finances, economic resources, or access to services.
(4) Compelling the other party by force, threat of force, or intimidation, including threats based on actual or suspected immigration status, to engage in conduct from which the other party has a right to abstain or to abstain from conduct in which the other party has a right to engage.

Following these 2021 amendments, the Judicial Council quickly changed the mandatory DV forms to reflect this new language. The DV-100 request for restraining order now contains a plain language definition of disturbing the peace, including coercive control⁶ The DV-130's orders closely parallel the DV-100's language.

Beginning in 2022, the legislature added section 6320(c)(5) expanding coercive control to specifically include "reproductive coercion". New section 6320(c)(5) reads:

[Coercive control includes unreasonably] engaging in reproductive coercion, which consists of control over the reproductive autonomy of another through force, threat of force, or intimidation, and may include, but is not limited to, unreasonably pressuring the other party to become pregnant, deliberately interfering with contraception use or access to reproductive health information, or using coercive tactics to control, or attempt to control, pregnancy outcomes.

Because this statutory language is slightly over one year old, to date, there are no appellate decisions interpreting it. In January 2023, the mandatory Judicial Council forms

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DV-110 and DV-130 were again modified to account for the addition of reproductive coercion⁷

Most of us may not fully appreciate the far-reaching effects of reproductive coercion. The story line of potential grandparents endlessly pressuring newlyweds for a grandchild is a constant grist for many screenwriters and authors. Several years ago, Pete Davidson⁸ joked that his then fiancée, singer Ariana Grande, pays $60,000 for rent while all he must do is "stock the fridge." He noted further: "last night I switched her birth control with Tic Tacs. I believe in us, and all, I just want to make sure she can't go anywhere."⁹

Not to be out done, the British columnist Liz Jones wrote that she wanted a baby so badly that she stole her then husband's sperm from a used condom and inseminated herself. In her words: "The 'theft' itself was alarmingly easy to carry out. One night, after sex, I took the used condom and, in the privacy of the bathroom, I did what I had to do. Bingo."¹⁰

On a less flip note, Ms. Jones states, without citation, that a 2001 survey demonstrated that 42% of women would lie about contraceptive use to get pregnant despite their partners wishes.

Only recently has the law specifically recognized reproductive coercion as an act of Domestic Violence. However, reproductive and sexual coercion have been a topic of discussion for several years in the medical, academic and gender-based literature¹¹ There is a substantial body of literature available in this area exploring the repercussions and significance of this type of domestic violence. Over ten years ago The American College of Obstetricians and Gynecologists¹² and Planned Parenthood¹³ among others, published opinions, papers, and fact sheets on reproductive and sexual coercion. The endnotes cite several articles that are readily available on the internet¹⁴

Understandably, most of the literature appears to focus on women as victims and survivors, however, statistical information on the prevalence of reproductive coercion may be of limited reliability due to a lack of conceptual clarity and inconsistent measurement.¹⁵ As an example, the reported rates of reproductive control in different studies ranged from 8.6% of women to 37.8 % of women;¹⁶ however, younger women and women in lower socioeconomic status, as well as women who are Latina, African American or Multi-racial are disproportionately affected.¹⁷ Finally, in one study over 30% of women reported experiencing reproductive coercion and abuse¹⁸in addition to other forms of DV; the interconnection between reproductive coercion and other acts of domestic violence is a common theme throughout the literature.

The issue of reproductive coercion as a male victim phenomenon has not been extensively studied. However, comparing DV victims, 15.3% of female and 17.5% of male victims reported experiencing reproductive coercion and 8.6% of female victims and 15.1% of male victims reported that their partner tried for a non-mutual pregnancy.¹⁹

While little seems to have been written about it, women with disabilities face additional challenges with reproductive coercion.²⁰ A perpetrator may abuse by withholding or damaging medicines or adaptive devices for a partner or disabled child, withholding necessary assistance or preventing access to needed medical or social services.²¹ While these actions may be in addition to coercive control, they may also form the basis of reproductive coercion as well.

WHAT IS REPRODUCTIVE COERCION?

The perpetrator's intent is to develop and maintain control over an intimate partner through finances, individual freedom, or sexual activity. These nonviolent actions are the very essence of coercive control. Generally, reproductive coercion is behavior that interferes with another's decision-making concerning their reproductive health. Reproductive coercion occurs in three broad time categories:²²

(1) Pre-intercourse, in the form of pregnancy coercion, where the male partner uses verbal demands, threats and physical violence to put pressure on his partner to become pregnant;
(2) During intercourse, in the form of birth control sabotage, where the male partner uses direct acts to ensure a woman cannot use contraception or to render the contraception ineffective; and
(3) Post-intercourse, in the form of controlling pregnancy outcomes, where the male partner uses threats or acts of violence to ensure a woman complies with his wishes regarding the decision to continue or terminate a pregnancy.

While the above is mostly directed to a female victim or survivor, all these time frames may equally apply to male victims and survivors. Women too may press a male partner for a child, sabotage birth control, or once pregnant control her pregnancy outcomes. Same sex victims and survivors may experience coercion most often, but not exclusively, during intercourse. None of these time categories are rigid, nor divided by bright lines.

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Women experience reproductive coercion and abuse in many ways. This list is intended to provide no more than a general indication of the various types of actions and motivations perpetrators have employed based on the victim's and survivor's actual experience.²³

1. Blocking, disposing, or interfering with contraceptive use or availability (including perpetrator physically removing an IUD or other internal contraceptive device)²⁴ and "stealthing";
2. Preventing or interfering with contraceptive information, including intentionally providing misinformation, such as stating that hormonal contraception will cause serious health problems;
3. Monitoring menstrual cycles;
4. Preventing or interfering with access to medical professionals;
5. Promoting pregnancy, by threatening to end the relationship or telling extended family member that the couple was starting a family without the partners knowledge;
6. Sexual violence, such as rape;
7. Pressure or coercion to terminate a pregnancy, including removing the pregnant partner from the family home;
8. A failure to allow, or at least support pre-natal care during pregnancy;
9. Pressuring a partner to have a tubal ligation during a breakup so that she could not have a child with a subsequent partner;
10. Violence with the intent to end the pregnancy; including physical violence, or covertly "spiking" food or drink with an abortifacient²⁵
11. Denial of paternity, or refusing to acknowledge the pregnancy;
12. Pressure or coercion not to terminate a pregnancy, withholding funds to pay for the procedure, denying transportation to the appointment or sabotaging appointments, forcing her to eat so that she could not have a general anesthetic, making a scene at the clinic so the procedure could not go forward;
13.

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