Can the deliberate withholding of sex constitute coercive and controlling behaviour under English & Welsh law?

Question

First I should clarify that this question is (fortunately) entirely hypothetical and academic, so please don't worry about me (I'm fine).

I am trying to figure out a seeming conflict in the broad remit of coercive and controlling behaviour (as defined in the The Serious Crime Act 2015) and the principle of sexual consent. Though the newness of the offence means there aren't many cases on the subject, the guidance from the Cheshire Police, though hardly legally binding, indicates that it would be a crime to withhold affection in an attempt to punish one's partner.

Indeed, it's easy to see how, in colloquial rather than legal terms, deliberately withholding sex could be an attempt to coerce one's partner, and abusive. The linked definition in the Serious Crime Act covers any behaviour designed to have a serious coercive or controlling effect on their partner, which is so extremely broad that deliberately withholding sex as coercive quasi-blackmail clearly seems to qualify.

Yet, accepting that this abusive behaviour constitutes a crime would suggest that people in a relationship are obliged to periodically have sex, even if one of the people wishes not to (albeit for malicious reasons). That would be repugnant, and undo the precedent of R v R [1991] UKHL 12, which clarified (shockingly late) that marital rape is a crime in England and Wales.

Leaving aside the practical objection that the Crown would be unlikely to find a prosecution for just withholding sex as in the public interest, in this conflict of laws, which "wins"? Both outcomes seem unappealing: one lets off emotional abusers and the other forces people to have sex against their will.

Answer 1

TL;DR No

Context

Let's look at what the Act actually says:

76 Controlling or coercive behaviour in an intimate or family relationship

(1)A person (A) commits an offence if—

(a)A repeatedly or continuously engages in behaviour towards another person (B) that is controlling or coercive,

(b)at the time of the behaviour, A and B are personally connected,

(c)the behaviour has a serious effect on B, and

(d)A knows or ought to know that the behaviour will have a serious effect on B.

...

(4)A’s behaviour has a “serious effect” on B if—

(a)it causes B to fear, on at least two occasions, that violence will be used against B, or

(b)it causes B serious alarm or distress which has a substantial adverse effect on B’s usual day-to-day activities.

...

And let's look at what the Cheshire Police actually say:

You/they may be in an emotionally abusive relationship if your/their partner:

...

• Punishes you by withholding affection

...

You/they may be in a sexually abusive relationship if your/their partner:

...

• Has ever forced or manipulated you into to having sex or performing sexual acts

...

• Demands sex when you're sick, tired or after beating you

...

• Ignores your feelings regarding sex.

Discussion

The Act requires the behavior to be engaged in "repeatedly or continuously" and it must have "a serious effect", meaning it must cause "serious alarm or distress which has a substantial adverse effect on B’s usual day-to-day activities".

The withholding of sex of itself does not have "a serious effect" as defined.

As part of a broader pattern of emotional "controlling or coercive behaviour" within the broad context of "withholding affection" it could be a factor in evidence but the law recognizes an absolute right for anyone at any time to refuse sex (Sexual Offences Act 2003 s4). The latter part of the Cheshire Police's advice draws from this.