Why did Sally Challen take a hammer and murder the man she loved, and why should the criminal law intervene to protect such women?
These were the questions raised last Wednesday at a talk hosted by the new legal charity Centre for Women’s Justice about the defence of coercive control in the upcoming Sally Challen appeal.
Professor Evan Stark, an expert witness on coercive control, raised the following paradox: despite the frequency of domestic abuse, which will affect one in four women in the UK, despite the fact that domestic violence accounts for a large number of homicides, severe injuries, sexual assaults and rape, criminal law has perpetually struggled to identify it as serious — or identify it at all.
Instead, as with Sally Challen, it is the victims who often end up behind bars.
Sally Challen was married to her husband Richard for 31 years. They met when she was 15 and he was 22. Within a year, he was caught having an affair — but he warned Sally that he would leave her if she forced him to choose. Throughout their marriage he would tell her how she should dress, eat and work. He routinely shamed her weight and body image publicly. According to Sally, the couple’s sex life was confined solely to what Richard wanted and when he wanted it. Sally would be sent upstairs to get ready beforehand, as he didn’t like to see her naked, and wash because he claimed she smelled. Richard pursued affairs and was once spotted by Sally entering a ‘massage parlour’ which was later found to be staffed by trafficked women. After an incident where Sally and a friend of Richard’s were caught hugging goodnight whilst on holiday, Richard reportedly took her upstairs and anally raped her.
In August 2010, Sally Challen killed her husband by striking him in the head with a hammer more than 20 times. Convicted of his murder in 2011, Sally’s appeal will be heard on Wednesday. The case represents the first time that coercive control has been used to appeal a murder conviction, and there are hopes that this could be a ‘watershed’ moment for understanding and using the concept of coercive control to protect women who kill their abusive partners.
David Challen, the couple’s son who supported his mother throughout the trial and now appeal, told the meeting: ‘She had her world created by him and he convinced her that she could not survive without him — he sought to isolate every independent thought in her life. I was not able to legitimise this as abuse; I was not able to call it out as abuse.’ He described how his mother only came to learn of the term ‘coercive control’ during a course in prison.
‘This appeal can help recognise the lack of understanding in the courts, but also in society, where it is needed the most.’
Criminal law focusses on discreet incidents of violence. Because the vast majority of instances of domestic abuse are relatively trivial from a criminal justice or medical standpoint, most cases that are reported to the police are never formally prosecuted. Although the offence of coercive or controlling behaviour was introduced in 2015, from January 2016 to July 2018 there were 7,034 arrests made but, as of December 2018, only 235 of those cases had resulted in a successful prosecution. The maximum sentence for coercive control is limited to five years’ imprisonment.
‘Although coercive control now criminalises a form of behaviour, it is behaviour which, on its own, is not necessarily criminal,’ explained Clare Wade QC, the lead counsel on Sally Challen’s appeal. Moreover, she highlighted that coercive control represents a ‘bespoke form of abuse’, tailored to the specific vulnerabilities in each victim.
‘Coercive control’ can be both a specific offence and an element to the defence of duress. In terms of the latter, it remains to be established in the Challen appeal whether the concept of coercive control creates a level of harm that is sufficient to mitigate murder or manslaughter.
The concept of coercive control creates a bipartite challenge to criminal law as it currently exists: first, how to identify a highly embedded and contextually-variable pattern of offending? And secondly, can the law step in to award women the rights they enjoy in their public life — the right to privacy, to freedom of speech, to buy what they want, go where they want, think what they want — in their private lives as well?
Professor Stark explained the problem using a case in point. He described how he had given evidence in a court in the USA involving a similar fact pattern — a woman who had suffered domestic abuse at the hands of her husband and had eventually killed him. Stark described how the woman had been forced to keep a log book, where she recorded daily where she had been, who she had spoken to, what she read, what she bought and how much she had spent. Every evening her husband would call her downstairs and question her on the day’s entries in the book. Inevitably, the woman would get some of the details slightly wrong.
‘This was when her husband would start beating her,’ Stark said, ‘and then take her upstairs to rape her.’
The log book was admitted as evidence in the case, and Stark read sections out to the court. The judge was incredulous: ‘What if I told you that I make my wife keep a book like that, and made her go over every item on the list. That wouldn’t make me a wife beater would it?’ Stark reported that her response to the judge was, ‘I needn’t answer that question.’ The jury apparently returned a sentence of not guilty.
Although proving coercive control as an offence or defence will depend on entirely different legal elements, Clare Wade QC highlighted three facets imperative to establishing a successful case in each. First, there is a prerequisite that the police look at the overall pattern of abuse, including historic abuses stretching to 30 or 40 years prior and abuse spanning several relationships. Second, the dynamics of coercive control need to be explained by experts — not simply psychiatrists who focus on the mental health impact of the victims, but those who understand the unique concept and pattern of domestic abuse.
Third, Wade emphasised that advocates should not attempt to render those who have experienced such abuse as straightforward victims, the ‘battered woman’ effect. Rather, they should portray their victims in three-dimensional terms: victims may be ambitious, confident, tenacious. ‘Advocates can then show for the jury how it might be that such a victim could be broken down as they had been.’
Both Stark and Wade agreed that there was still much to be done. However, Wade was clear that the new offence of coercive control and appeals such as Challen’s are changing the way in which abuse comes to be conceptualised and challenged in the courts.