Charging and Prosecution Policies in Cases of Spousal Assault: a Synthesis of Research, Academic, and Judicial Responses

Introduction

The purpose of this review was to provide a synthesis of the social science research, academic commentary, and Canadian jurisprudence addressing the effectiveness of the policies in achieving their goal of reducing the incidence of spousal abuse in Canada.

Charging and prosecution (“no-drop”) policies were introduced in Canada in the early 1980s, beginning with federal guidelines issued to the Royal Canadian Mounted Police and federal and territorial Crown prosecution offices in 1983. By 1985, some form of spousal assault policy was in place in most of the provinces of Canada. The policies were implemented in response to what was perceived to be an inadequate criminal justice system response to incidents of spousal violence. The policies were designed to counter the notion that spousal violence is a private affair, and instead give it recognition as a serious social problem, which is also a violation of the law. Police intervention and Crown prosecution of spousal abuse incidents were seen as critical elements of an overall societal response to the problem. The implementation of the policies was also seen as an important step towards protecting individual victims. By placing the onus for laying charges on the police and Crown, the victim could indicate to her abusive partner that the decision to proceed was not hers, and thereby reduce the potential for violent recriminations. The ultimate goal of the policies was to achieve a reduction in the incidence of spousal violence in Canada.

It became clear over the course of preparing this report that most provinces and territories in Canada either have some form of charging and prosecution policy presently in place, or are working towards the implementation of such a policy. The prevalence of such policies as a governmental response to the problem of spousal abuse warrants a close analysis of their effectiveness in achieving their stated goal reducing the incidence of spousal abuse in Canada.

The following report presents a synthesis of research literature that evaluates the effectiveness of these policies in reducing the incidence of recidivism, and research that assesses the perceptions of female victims of domestic violence, the police, and prosecutors as to the effectiveness and ultimate value of these policies as implemented. The report canvasses academic literature that both challenges the assumptions underlying the policies and suggests alternative avenues of reform. Finally, the report examines Canadian jurisprudence that addresses issues arising out of the implementation of Charging and Prosecution Policies in Cases of Spousal Assault: a Synthesis of Research, Academic, and Judicial Responses .

An analysis of the research literature reveals that the effectiveness of Charging and Prosecution Policies in Cases of Spousal Assault: a Synthesis of Research, Academic, and Judicial Responses in reducing domestic violence is the subject of considerable debate among social science researchers and academics. Much has been written about perceived deficiencies in the policies and the ways in which they are implemented, including the oft-made criticism that the policies serve to “re-victimize” the survivor of a spousal abuse incident. The policies remove the onus from the victim to lay charges against her abuser, thereby reducing the risk that the victim will be blamed by the abuser for the abuser’s prosecution. As a consequence, however, many victims feel disempowered by a legal process that deprives them of any say in the ultimate disposition of charges and which often operates against their wishes to withdraw from the system. It is somewhat ironic that Charging and Prosecution Policies in Cases of Spousal Assault: a Synthesis of Research, Academic, and Judicial Responses were in part implemented as a response to the perceived need for criminal justice professionals to treat domestic violence “like any other crime”. The deficiencies identified in these policies are frequently rooted in their failure to recognize that spousal assault is not a crime like others. Unlike violence between strangers, domestic violence victims may live with their assailants, often have strong emotional and financial bonds, often share children, and often do not wish the relationship to end. All of these factors create complications for victims, police officers and prosecutors that are seldom present in cases of violence between strangers (Martin & Mosher, 1999; Johnson, 1996; Ursel & Brickey, 1996). Research that evaluates how these participants in the criminal justice process view the effectiveness of “zero tolerance” policies is synthesized herein.

Studies directed at assessing the success of such policies in reducing the incidence of spousal abuse have produced mixed results, as have those studies attempting to gauge the reactions of women, police, and Crown prosecutors to the implementation of the policies. Moreover, some prominent feminist academics have called for the abolition of the charging and “no drop” prosecution policies currently in place throughout Canada.

Canadian jurisprudence on the subject of mandatory charging, meanwhile, has been sparse. While policies of mandatory charging and prosecution tend to bring more domestic violence cases before the courts, the central purpose of the judicial inquiry is to determine whether an offence has been committed, and not to assess the wisdom of the policy that brought the case before the courts. The existence of the policy itself is collateral to the determination to be made before the courts, that is, whether the guilt of the accused of the offence charged has been proven beyond a reasonable doubt. Commentary on the Charging and Prosecution Policies in Cases of Spousal Assault: a Synthesis of Research, Academic, and Judicial Responses is therefore rarely included in the written reasons for a judge’s decision. However, the persistent concern over the role of the “reluctant victim-witness” in cases of spousal assault has occasionally provoked commentary in judicial decisions, as discussed below.