Six Degrees from Liberation: Legal Needs of Women in Criminal and Other Matters

Chapter 3: Women as Witnesses, Complainants and Third Parties in Cases of Intimate Violence and Sexual Assault

Chapter 3: Women as Witnesses, Complainants and Third Parties in Cases of Intimate Violence and Sexual Assault

Criminal charges represent offences against the state. The violence or trespass to a victim is meant to be owned by the community, and is represented within the criminal process as "an attack on us."[183] As such, the interests of the woman who has experienced intimate violence or sexual assault are considered to be allied with those of the Crown. Within the classical structure of a prosecution, the only independent role that the victim is accorded is as the complainant, or, in the words of Nils Christie, the "trigger" of the criminal justice process.

3.1 Women’s Experience with Mandatory Charging

A consideration of the needs of survivors of intimate violence for legal aid and other legal services inevitably merges with women’s experience with the mandatory charging policy that has been in place for the last two decades in Canada.[184] The policy, which the Solicitor General of Canada introduced in 1982, was a response to the expectations of equality-seeking women’s organizations for a broad-based strategy that would take seriously the harms women experience at the hands of their intimate partners. While physical assault theoretically included assault inflicted against wives or other intimate partners:

… in practice this use of violence was treated as paradigmatically private and thus, of little interest to the criminal justice system. The characteristic police response (if they responded at all) to wife assault in the post-war years was to attempt to reconcile the parties, usually by briefly separating them or by attempting informal mediation. Charges were rarely laid, and if laid, rarely prosecuted through to sentencing.[185]

Mandatory charging represented the first prong of a tripartite strategy to address the contemporary characterization of male violence against women in intimate relationships as a matter of public concern and a serious one, at that. The three elements of the approach included: a direction that the police would lay charges in all incidents of "wife assault" when there were reasonable grounds to do so;[186] a corresponding direction to prosecuting Crowns that charges should only be withdrawn by the Crown under "exceptional circumstances," noting that reluctance by the victim did not give rise to such exceptions;[187] and, finally, an expectation that a judicial sentence would reflect the gravity of the offence and resound with the appropriate ring of community denunciation. A policy of appeal by the Crown was intended to challenge those cases where it did not.

This approach was meant to transform a societal belief system that had indulged the premise that violence against women was most properly characterized as a private matter into which the state ought not to stray, a practice of mutual sabotage between husbands and wives properly relegated to the privacy of the family and the home.[188]

It is controversial to assert that this policy has resulted in a reduction in male violence against their intimate female partners.[189] More to the point however, there has been a sustained reluctance – and in many cases, resistance – on the part of many abused women to co-operate with the prosecution of their partners.[190] This raises significant questions about whether the needs of women who have experienced conjugal violence – both their needs within and beyond the criminal justice system – are being met by the current policy.[191]

A number of qualitative assessments reveal what women say about the current criminal justice response and how they define their needs.[192] These assessments report that women’s experiences with the mandatory charging policy, and the extent to which it met their expectations and needs, are shaped by experiences that go beyond that of gender. Race, class, maternal status and citizenship predominate and intersect as variables that both inform a woman’s decision to call police, as well as her experience of the state’s response.

Mothers who experienced abuse were unequivocal in prioritizing the needs of their children, either in securing their safety or in keeping the abuse hidden from them. Mothers adopted their children’s needs for safety and protection as their own, and factored them into their decision either to make efforts to leave the abuser or to keep the family intact.[193]

The spectre of state intervention was also a preoccupation for many women who feared the degree to which calling the police would bring unwelcome scrutiny into their lives. They feared child apprehension authorities, welfare workers and deportation authorities. Fear of having their children taken by child protection authorities was cited by some Aboriginal survivors of intimate violence as a deterrent to calling the police.[194]

Consequences for their economic security weighed heavily in women’s consideration of possible actions to put an end to their abuse. For women who are economically dependant on their abusers, charging and prosecuting has the potential consequence – if a period of incarceration is imposed – of compromising their own and their children’s economic position. For women with limited employment experience, limited knowledge of English and few marketable skills, the prospect is of almost-certain poverty.

Abused immigrant women who contemplated police intervention sometimes faced threats from their abusive partners to alter their immigration status. Additionally, many women in close-knit cultural communities identified fear of ostracism within their community if they reported the abuse. Finally, many women were also forced to reconcile their need for reprieve from the abuse with a previous experience of state or police brutality in their country of origin.[195]

Immigrant women were not alone in grappling with this legacy of state oppression, and the consequences of police intervention for their own safety, the safety of their abusive partners, and the implications for their community. Aboriginal women have repeatedly raised concerns about the ways in which the state has oppressed First Nations people culturally, physically and economically.[196] The literature confirms that the fear of a racist response against their partners or themselves is well founded.[197]

On a practical level, women in rural and isolated communities who need assistance in order to escape abusive partners may have only the police to call. For these women, the consequences of calling for police intervention against abusive partners have included shaming, banishment, and the abandonment of their culture, community, and even their children.[198] Access to help for women and children living on reserves may be further compromised by band politics.[199] Abusers have used delays in police response either to increase the violence or to pressure the victim to forgive and forget.[200]

Overall, the data from these studies indicates that the mandatory charging policy falls short of meeting women’s expectations. Clearly, all of the women interviewed needed the police to answer their calls[201] and needed their reports of abuse to be taken seriously.[202] They expected the police to express to the abuser that his actions were wrong,[203] and hoped that the abuse would stop if the police did so.[204] All women who were interviewed identified a need for physical safety. In fact, women most frequently had hoped that the police would remove the abusive partner from the house.[205]

However, many women did not expect that their calls to the police would trigger a full criminal justice system response that would include removing, arresting, charging and prosecuting the abuser. Indeed, there is some indication that many women who call the police have no understanding of mandatory charging policies and how it will affect them or their partners.[206] In one study, almost 40 percent of women who had called the police to report an incident of abuse did not know that the police were required to lay charges, even if the complainant was against it.[207]

However, in about 9.75 percent of cases women wanted the partner charged.[208] When a charge and prosecution are clearly what an abused woman wants, the results have significance far beyond the outcome of the individual case. As Joanne Belknap pointed out, the subsequent charge, prosecution and unequivocal judicial denunciation of abuse can lead to an improvement in women’s perceptions of the justice response:

The prosecution and adjudication stages are consequential for perpetrators – deciding their guilt or innocence, creating a criminal record and imposing a penalty. But they are even more important for battered women and their determination to access the legal system. By convicting batterers, the law reaffirms victims’ versions of abusive behaviour, and rejects abusers’ presentation of the event and the legal defences that they put forward. … The symbolic message the law sends through the approbation of women’s complaints is critical for their willingness to mobilize the law to resist intimate violence.[209]

If and when women speak more positively about their experiences, more women may be encouraged to turn to the justice system for a response to intimate violence.[210]

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