One of the greatest obstacles to getting relief for agunot in civil courts is the principle of separation of state and religion ensconced in the Establishment Clause of the First Amendment to the U.S. Constitution. Under this principle, which prohibits government-sponsored establishment of religion, U.S. courts will not get involved in resolving disputes that are essentially religious in nature. In language having no counterpart in the federal constitution, the Free Exercise and Establishment of Religion Clause of the California Constitution (Art. I, sec. 4) provides for the “free exercise and enjoyment of religion without discrimination or preference.”
California courts have interpreted the “no preference” clause to be broader in scope and more stringent in implementation than the federal constitution. It prevents California courts from giving any advantage to a religion that is not given to society at large, even if there is no discrimination between religions. (By contrast, the New York “removal of barriers to remarriage” requirement—the socalled Get Law—would be deemed unconstitutional in California since it benefits religion, even though it serves a secular purpose and is neutral on its face.) Under California’s no-fault divorce statutes, a woman is free to remarry; her identification with religious law is her choice, and the court will not intervene.
To get the California courts to provide relief for agunot, it was necessary to define “get abuse” in secular legal terms unrelated to religion. That is why, in 2020, on behalf of Get Jewish Divorce Justice, an organization I founded in 2012, I lobbied for expansion of the definition of domestic violence in the California Family Code to include “coercive control.” The term was coined by Dr. Evan Stark in his 2007 book Coercive Control: How Men Entrap Women in Personal Life. He concluded from his extensive research that domestic violence laws have not been effective in preventing or predicting violence against women. Traditionally, domestic violence statutes focused on discrete instances of physical assaults.
Dr. Stark found that a better predictor of the death of women by their domestic abusers was an underlying pattern of conduct by the abuser meant to subordinate the will of the victim to that of the abuser, with or without physical assault. Such conduct generally includes intimidation, isolation from social supports, deprivation of necessities, and control of the victim’s movements and finances. Dr. Stark called this pattern of conduct “coercive control” and likened it to hostage-taking or kidnapping—a form of domestic terror within an intimate partner relationship. Yet, under the traditional domestic violence statutes, the victim had no legal redress until an act of serious violence had occurred.
As of 2010, laws had been enacted in several European countries criminalizing “coercive control” and psychological abuse within marriage. In 2020, in the United Kingdom, two cases of get refusal were prosecuted under their criminal “coercive control” statute. These UK cases encouraged me to lobby for the passage of a “coercive control” law expanding the California Domestic Violence statutes. As part of this effort, I informed the legislative committee that “get abuse” could be part of a pattern of coercive control.
The California law became effective on January 1, 2021. It expanded the definition of “disturbing the peace of the other party” in the California Family Code (§6320(C)) to include “conduct that, based on the totality of the circumstances, destroys the mental or emotional calm of the other party…. This conduct includes, but is not limited to, coercive control, which is a pattern of behavior that in purpose or effect unreasonably interferes with a person’s free will and personal liberty.”
When defining behaviors that constitute the abuse of “disturbing the peace,” courts are not limited to the objective reasonable person standard applied to other forms of abuse, such as stalking, under the DVPA (Domestic Violence Prevention Act). Rather, the applicable standard is whether, under the totality of the circumstances, the conduct of the party against whom a restraining order is sought destroyed the mental and emotional calm of the other party.
The statute includes a non-exhaustive list of behaviors as examples of coercive control, such as isolating the victim from friends, relatives, and other social support; depriving the victim of necessities; and controlling the victim’s movements, finances, and reproductive autonomy, all of which serve as tools for the abuser to deprive the victim of her freedom and autonomy. Judges are authorized to issue restraining orders prohibiting such conduct under the Domestic Violence Prevention Act. The court must consider such conduct when awarding custody and visitation rights, as well as when setting the amount and duration of spousal support and awarding attorney’s fees. In California custody cases, there is a rebuttable presumption 2 that an award of custody to a person who has perpetrated domestic violence, including coercive control, is detrimental to the best interests of the child. Although, under the California Constitution, the statute cannot specifically enumerate get abuse, the tactics used by get abusers to subvert the will of agunot often conform with the description of behaviors that constitute coercive control.
Since the adoption of this law, I have been counseling California-based agunot and educating their attorneys on how to use the law effectively. This requires using secular terms and language already found in prior case law. The attorney and the agunah must demonstrate how the behavior of the get refuser constitutes coercive control without entangling the courts in religious doctrine. This approach argues that the refusal to give the get is not about religion; rather, it is a tactic used to “disturb [the agunah’s] peace” in a manner that “in purpose or effect unreasonably interferes with [her] free will and personal liberty.” It is often the ultimate manifestation of a pattern of power and control exhibited throughout the marriage that becomes most acute after the victim has taken steps to leave—upon separation or when she summons him to a rabbinical court (beit din) for a get, even after they may already be civilly divorced.
Initially, most attorneys were resistant to addressing get abuse in court because judges immediately assume that the refusal to grant a religious divorce cannot be addressed, as it violates the separation of religion and state. Moreover, California courts do not understand (1) why the continued refusal to give the get constitutes grounds for issuing a domestic violence restraining order even after the parties are no longer living together and have no physical contact; (2) why the refusal to give the get is relevant where the civil divorce itself has not yet been adjudicated; or (3) why the civil divorce itself is not sufficient to free an agunah from her abuser’s control.
In an effort to address this situation, I typically counsel the agunah and her attorney to present the following types of evidence, as applicable: (1) If the husband has argued that he has no intention of refusing to give a get when, in fact, he has refused to give it, the agunah should present copies of the “hazmanot” (summonses) to the beit din or a “seruv” (contempt decree of the beit din for failure to appear), or a ruling of obligation to give the get (“ḥiyuv get”), together with evidence that he has not complied. (2) She should produce text messages, videos, or witnesses that can attest to any extortionary demands made by the husband that she waive her property rights, financial support, custody of the children, or that she retract a restraining order in exchange for the get. Witnesses may include rabbis, family members, neighbors, and friends. (3) The agunah must be prepared to testify about the impact of the get refusal on her emotional and psychological well-being, using the language of the statute and prior case law that defines the meaning of “disturb[ing] the peace.” This would include creating anxiety, disturbance (emotional, mental, or spiritual), or inner conflict; or destroying her mental or emotional calm. The agunah’s testimony can often be supported by a therapist who can testify to the psychological impact of the get refusal on the victim. (4) The agunah’s attorney may want to use an expert witness such as a rabbinic court judge or other person knowledgeable in the area of gittin (Jewish divorce) to clarify the get procedure and the social, economic, and spiritual consequences if the get is withheld.
An important milestone under the new law occurred on February 7, 2022, when Judge Bruce Iwasaki issued a written decision (unpublished, lower court, Hazani v. Hazani) that a husband’s failure to give his wife a get was part of a pattern of coercive control that he exerted over her, and that his reasons for not giving the get were not credible. The judge had denied the wife’s request to produce an expert witness or even the testimony of her therapist regarding the effects of the husband’s conduct. I prepared her to describe her suffering in the secular language of the statute—how her husband’s refusal to give the get pervades her life every waking moment, despite their separation for well over a year. The judge was impressed, and the husband delivered the get that same day. Since the Hazani decision, a number of attorneys representing get abusers have advised their clients to give the get before a custody hearing is held.
Limitations and Caveats to the Use of the Coercive Control Statute
The California coercive control statute is not a criminal statute. It is limited to the remedies available in the Family Code, described above. The statute was effective in the Hazani case because custody and visitation were at issue. It may not serve as a deterrent where there are no children or where the agunah does not want a restraining order because she is afraid of the husband’s retaliation. Monetary damages are not permitted in family court. Although a provision of the Family Code requires the judge to consider an enhancement of the amount and duration of spousal support when there is evidence of domestic violence, that provision has not been generally litigated, and its applicability in cases of coercive control is unsettled.
Finally, since its enactment, several claims of coercive control—unrelated to get abuse—have been overturned on appeal because the courts found that the evidence failed to demonstrate, under the totality of the circumstances, conduct that destroyed the mental or emotional calm of the protected party. In such cases, the courts concluded that the behavior did not rise to the level necessary to justify a restraining order under the statute.
Nevertheless, the statute has created an atmosphere among California attorneys, judges, rabbis, and advocates that has led many get refusers to give the get before a court hearing. In conclusion, while there are significant limitations to California’s coercive control statute, it serves as an effective deterrent to get refusal in California courts.