Canadian Legal and Justice Systems Review

The first phase of our research into aspects of the judicial system, police policies, and court processes with regard to domestic abuse in Canada can be downloaded here as a PDF document. An abbreviated version of the review is posted below. For a full list of citations please consult the PDF document.


A Review of the Criminal Justice System, the Police Policies and the Court Process in Canada
Prepared By Core Researcher Jill Sharrock

Introduction

The Criminal Justice System and Domestic Abuse in Canada

Understanding police policies, the criminal code, court processes and support systems in place to deal with domestic abuse, and their effectiveness in protecting victims.

Even in Canada, domestic abuse continues to permeate all cultures, social classes, age groups, and financial and educational status, despite legislation and law enforcement agencies being increasingly empowered to protect victims. Domestic abuse is insidious, long term and surfaces in many guises, from the obvious violence of physical attacks to the less noticeable emotional bullying that erodes self-esteem and independence. In a culture that rewards the sociopathic personality traits of an abuser: namely risk taking, lack of empathy, grandiose sense of self and success at all costs to name a few, we find the very people to whom we look for protection: lawyers, police and judges, to be embodiments of these traits. The authoritarian cultures of courtrooms and police stations are precisely the environments where abusive and sociopathic personalities thrive. As Marie Thomas informs us in her book “Confessions of a Sociopath, “ one in four high achieving Chief Executives in society today, show pronounced symptoms of sociopathy.

We also live in a culture that automatically questions a woman’s motives, her honesty and integrity when making accusations of abuse and sexual violence. The recent Jian Ghomeshi case illustrated this with the immediate torrent of angry disbelief and hatred to which the victims were subjected by Ghomeshi’s Facebook fans. The women who have now come forward, admitting to having been abused by Ghomeshi in the past, gave the following reasons for not exposing him earlier: fear that they would be disbelieved- he is famous and has a huge and powerful corporation behind him, fear that they would be sued or would be the object of internet retaliation, as has proven to be the case. Added to this culture of disbelief, we must also recognize the culture of “victim-blame” within which we live. When a judge and jury can consider the importance of a victim’s skirt length, whether or not the victim had been drinking or even if the victim was flirtatious with her attacker as more important factors than the attacker’s ability to respect another human being’s boundaries and their right to say and mean no, we have to recognize that we live in a biased culture that treats women as liars.

In 2013, Statistics Canada published a report, “Measuring violence against women: Statistical trends” adding to the body of evidence of gender-based violence in Canada. The report highlighted the following statistical data:

In 2011, the five most common violent offences committed against women were common assault (49%), uttering threats (13%), serious assault (10%), sexual assault level I (7%), and criminal harassment (7%). Women were eleven times more likely than men to be a victim of sexual offences and three times more likely to be the victim of criminal harassment (stalking) (p.8).

The report goes on to say that the most common offence: common assault, has a conviction rate of only 17% of convicted spouses receiving prison sentences, compared to 21% of other violent, non-domestic offenders. The difference was similar for aggravated assault: 32% for family violence offenders and 36% for other violent, non-domestic offenders. Criminal harassment was the only violent offence where spousal violent offenders were more likely to be sentenced to a term of imprisonment.

The first criminal harassment legislation was introduced into Canada in 1993 in response to high profile cases of women being murdered by their estranged partners following periods of harassment.

Police and court recorded data captured in 2011, in The Handbook for Police and Crown Prosecutors on Criminal Harassment states that,

Between 1997 and 2009, criminal harassment was the precipitating crime in a total of 68 homicides—for example, a female was stalked (and subsequently killed) by a recently separated intimate partner. This translates to an average of five such homicides per year over the 13-year period ( p.1.3.1).

Considerations:

Under these circumstances, how can we ensure that our legislation adequately protects victims, and that our enforcement agencies are fair, unbiased and sensitive to the unique complexities of domestic abuse in all its manifestations?

In order to understand the issues and potential points of intervention within the system, we must first understand the workings of the system. In the appendix of this paper, I have provided detailed summaries of the historical context of domestic abuse legislation in Canada, the development of the pro-charge policy, the arrest process and the current judicial system including the use of specialist courts, with corresponding systems flow charts. This illustrates the systems and their linkages involved in the protection of victims and the rehabilitation or prosecution of abusers.

This research focuses on domestic abuse and the law in Canada, but it also draws on information from the UK and USA. These judicial systems have a lot of similarities due to the historical development of their governance processes. All three countries are currently developing similar policing and criminal code responses to family violence and domestic abuse.

Domestic Abuse Legislation

Legal Definitions:

The criminal code is a federal statute that has been enacted by parliament, providing the federal government exclusive jurisdiction to legislate criminal offences in Canada.

The code defines the types of conduct that constitutes criminal offences and establishes the kind and degree of punishment that may be imposed. Approximately 40% of the criminal code deals with procedure, whilst the remaining 60% defines the offences, the charging definitions and the sentencing options available to the presiding judges.

The legislative act is a defined action passed into law, describing and prohibiting an act.

Violence versus Abuse:

The Ministry of Justice describes domestic abuse as “Family Violence.” Under the umbrella of family violence, the ministry then goes on to define the acts of violence as various forms of “abuse”, i.e. sexual abuse, physical abuse etc. The police force documentation uses the wording in the same way.

Family Violence:

Most judicial and police policy focuses on domestic violence, as there is usually concrete evidence to support the fact that violence has occurred, i.e. bruises or damaged property. However, domestic abuse covers many other types of non-violent abuse. The Ministry of Justice, Canada recognizes five main types of family violence.

Their five definitions of family violence are:

  1. Physical abuse
  2. Sexual abuse
  3. Psychological and emotional abuse
  4. Neglect
  5. Financial abuse

Each area of abuse has a detailed list of actions that describe the behavior and informs the criminal code and resulting legislative acts with which family violence is policed:

Physical abuse, including assault, is the intentional use of force against a person without that person’s consent. It can cause physical pain or injury that may last a long time. Physical abuse includes pushing or shoving, hitting, slapping or kicking, pinching or punching, strangling or choking, stabbing or cutting, shooting, throwing objects at someone, burning, holding someone down for someone else to assault, locking someone in a room or tying them down and finally, killing someone.

Sexual abuse of an adult can include sexual touching or sexual activity without consent, continued sexual contact when asked to stop and forcing someone to commit unsafe or humiliating sexual acts. All sexual contact with anyone without consent is a crime. This includes sexual touching or forcing sexual activity on a spouse, a common law partner or a dating partner. Even when married, a spouse cannot be forced to have sexual contact.

Emotional abuse happens when a person uses words or actions to control, frighten or isolate someone or take away their self-respect. Emotional abuse is sometimes called psychological abuse. It can include threats, put downs, name calling or insults, constant yelling or criticism, controlling or keeping someone from seeing friends or family, making fun of preventing someone from practicing their faith or religion, destroying belongings, hurting pets or threatening to do so, bullying: intimidation or humiliation (including on the Internet).

Many subtle forms of emotional abuse are not listed as crimes but they can be early signs that the abuse might get worse. Some forms are crimes such as threats to harm the person or someone else, stalking, which involves following or repeatedly contacting a person when they don’t want contact and they’re afraid.

Financial abuse happens when someone uses money or property to control or exploit someone else. It can involve taking someone’s money or property without permission, withholding or limiting money to control someone, pressuring someone to sign documents, forcing someone to sell things or change a will. Most forms of financial abuse are crimes, including theft and fraud.

Neglect happens when a family member, who has a duty to care for you, fails to provide you with your basic needs. This can involve not providing proper food or warm clothing, failing to provide adequate health care, medication and personal hygiene (if needed), failing to prevent physical harm, failing to ensure proper supervision (if needed)

While there is no specific offence describing family violence in the criminal code, the federal legislation addresses family violence in Canada in the following legislative acts:

Offences related to the use of physical and sexual violence are:

  • Assault (ss. 265-268)

(Within acts 265-268 acts include assault, assault with a weapon or causing bodily harm, aggravated assault and unlawfully causing bodily harm)

  • Kidnapping & forcible confinement (s. 279)
  • Trafficking in persons (ss. 279.01)
  • Abduction of a young person (ss. 280-283)
  • Homicide – murder, attempted murder, infanticide and manslaughter (ss. 229-231 and 235)
  • Sexual assault (causing bodily harm, with a weapon and aggravated sexual assault) (ss. 271-273)
  • Sexual offences against children and youth (ss. 151, 152, 153, 155 and 170-172)
  • Child pornography (s. 163.1)

The most common domestic abuse charge is within the assault act: criminal Act 265: common assault. This act accounts for 49% of all domestic abuse prosecutions. (Department of Justice, 2006) The criminal justice system also attempts to address the non-violent offences within the parameters of domestic abuse. Offences related to some forms of psychological or emotional abuse within the family are contained within the following acts:

Emotional Abuse:

1.) Criminal harassment (sometimes called “stalking”) (s. 264)

Criminal harassment or stalking is described as the following actions:

  • Repeatedly following from place to place the other person or anyone known to them;
  • Repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;
  • Besetting or watching the dwelling-house, or place where the other person, or anyone known to them,   resides, works, carries on business or happens to be; or
  • Engaging in threatening conduct directed at the other person or any member of their family.

2.) Uttering threats (s. 264.1)

Act 264.1 covers the following behavior: to knowingly utter, convey or cause any person to receive a threat. Threats are described in the following ways:

  • To cause death or bodily harm to any person;
  • To burn, destroy or damage real or personal property; or
  • To kill, poison or injure an animal or bird that is the property of any person.

3.) Making indecent and harassing phone calls (s. 372)

4.) Trespassing at night (s. 177)

5.) Mischief (s. 430)

These are all charges that correspond to concrete actions and results that can be measured. However, in a society where bullying behavior is perceived to be within the parameters of social acceptability, emotional and psychological abuse must be visible, extreme and documented over a period of time, to be taken seriously by the authorities.

As criminal harassment is often the most common resulting behavior of the abuser, after being charged with domestic abuse, it’s important to understand how the system attempts to protect victims and their children once an arrest has been made and subsequently, throughout the duration of the court process, bearing in mind that a case can take upwards of two, three or more years to come to completion.

Acts that enforce restraining orders:

Conditions of bail, continuing restraining orders and peace bonds may all be used to ensure victim safety. The criminal code punishes breaches of these orders with the following acts:

  • Disobeying an order of court (s. 127)
  • Failure to comply with condition of undertaking (s.145(3))
  • Failure to comply with probation order (s. 733.1)
  • Breach of recognizance (peace bond) (s. 811)

Domestic Abuse and the Policing Policy

The way in which the criminal justice system in Canada has responded to domestic abuse has evolved considerably over the last three decades. Whereas domestic abuse was once considered a private family matter, the instigation of pro-charge and prosecution policies was a deliberate attempt to protect the victim by treating family abuse as seriously as any other crime of assault. Many women also failed to press charges against their abuser, for fear or further victimization, so the pro-charge policy was designed to take this responsibility out of their hands.

The pro-charge policy was introduced in 1981, but didn’t become widespread or consistently enforced until the “mandatory charging policy” was introduced into the Policing Standards Manual in 1994. This slow acceptance of the policy appears to have been due to cultural indifference towards domestic abuse within the law enforcement agencies. Buzawa, Buzawa and Stark (2012) state that,

Regardless of reality, it has been a truism that police were socialized from their earliest training into a culture that did not highly value social work. A new recruit, to be an accepted member of the police or as ‘one of the boys’ was required to adopt this occupational code. Key elements of the cultural norm included the protection of other officers, admiration of a ‘good pinch’ or a ‘good collar’ by a fellow officer, and explicit acceptance of the same normative framework as other officers as to what constitutes a ‘serious crime ‘ (p.125).

It’s questionable as to whether the culture of the police force has changed, and this in turn continues to affect the way these policies are enforced. There is also a surprising ambiguity around the definition of terms such as “mandatory charging”, “pro-charge,” “primary aggressor “ and “cross-charging, ” as can be seen in the different ways each police jurisdiction interprets the process. There is a large degree of individual judgment to be used by the police when attending a domestic abuse call, and this is where many factors come into play: from age, experience, personal bias and local policy interpretation, that define exactly how the pro-charge policy will be enforced. (See A. Satterthwaite’s forthcoming research paper on the culture of abuse.)

The intention of the pro-charge policy was to protect the victim by taking responsibility for pressing charges away from the abused person, thus protecting them from acts of retribution. However, the resulting chain of legal events often fails to protect or worse, it penalizes the victim and children as well as the abuser. Whilst these policies were intended to promote the social unacceptability of domestic abuse, the justice system has struggled to adequately legislate for the distinct differences between family abuse and violence by strangers. There is a failure to recognize that, unlike other crimes, domestic abuse means that the victim and perpetrator often share an ongoing emotional relationship and financial obligations; sharing a home and parenting children together. This is described as the Battered Mother’s Dilemma. This refers to the choices an abusive partner forces a mother to make between her own interests; physical safety, and the safety and interests of her children.

Buzawa et al, (2012) give the following example:

“ In custody disputes, common examples involve abusive husbands who threaten extended custody battles unless the wife abandons all claims for financial support or threaten her with physical harm if she pursues custody” (p. 421).

Abusive behavior is usually a cyclical and recurring event, as partners are unable or unwilling to leave for a variety of reasons ranging from fear of reprisals, financial dependence, lack of alternative accomodation to fear of losing custody of children and a misguided desire to stay and fix the relationship. For all these reasons and many more, the police intervention and charging policies of domestic abuse cases are more challenging than other crimes. Statistics show that victims attempt to leave their abuser on average seven times before finally leaving (Robinson, 2013)

The first line of formal contact in a domestic abuse situation is the 911 calls to the police force. Unfortunately, studies have shown that police officers are the highest offenders of domestic abuse, abusing their partners at double the rate of the general population (Neidig, Russell & Seng, 1992). This is attributed to the dehumanizing effect of the work and the authoritative and punitive culture of the police force. Although officers regularly receive training in handling domestic abuse situations, the police culture and attitude towards women and spousal abuse remains largely unchanged. There are many contributing factors to why police have historically considered domestic abuse not to be worthy of “real” policing. Not least the unintentional organizational disincentives created by considering domestic abuse to be a minor misdemeanor, not worthy of an officer’s time, promotion or recognition. The researcher, Stanko in 1989, states that,

Many officers trivialized such offences, and arrests were typically infrequent. Because the offender was known and domestic violence was a ‘minor’ misdemeanor offence, any arrest that resulted would be considered a ‘garbage arrest’ not worthy of recognition (Buzawa et al, 2012, p. 125).

Consequently officers preferred not to make domestic abuse arrests if possible, as the time required to complete the paperwork was considered valuable time that could have been spent on other, more important or career enhancing activities.

The pro-charging policy may have gone some way to addressing this, but it has also brought about an unexpected increase in dual charging. This describes the process of arresting both the victim and the abuser. When undergoing the standardized police training for domestic violence situations, police officers are trained to “read” a situation in order to decide who is the primary aggressor. However, when this is unclear the pro-charge policy has created an increased incidence of dual arrests. Research also shows that women who have been attacked and then used a weapon defensively, to self- protect from further injury are often arrested.

(Buzawa et al. 2012, p. 203). Leading us to believe that the police generally perceive acts of self-defense by women to be worthy of arrest. This increase in dual arrests has resulted in complicated and expensive legal situations with disruptive alternative family arrangements being implemented for the care of any children involved. It also further punishes the victim and has acted as a deterrent to calling the police. It’s interesting to note that older, more experienced police officers are less likely to make dual-arrests, suggesting that maturity and experience in navigating complex family dynamics is an essential skill set for the police, in these situations

(Buzawa et al, 2012, p. 187). As a result, victims of abuse don’t feel confident that the police will adequately protect them, and they fear that they may be in a worse position, once the police are involved.

Also, whilst the pro-charge policy has been in effect for twenty years, it isn’t widely known beyond the police community. It comes as a huge shock to couples, finding themselves in the midst of a domestic altercation reach out and call 911. Often the victim wants immediate assistance to stop or prevent the threat of physical violence, but has no desire to see their abuser arrested. Proceeding directly to arrest can result in acts of violent retribution from the abuser and can mean that partners become enemies for life, locked in a spiteful and expensive battle over child support and custody.

The only coordinated review of the pro-charging policy to be undertaken in Canada was in the year 2000, by the Department of Justice, Canada: The Final Report of the Ad Hoc Federal-Provincial-Territorial Working Group Reviewing Spousal Abuse Policies and Legislation. As outlined in the document, the focus of the review was the implementation and status of the mandatory or pro-charging and prosecutorial policies related to spousal abuse. The preface stated,

The working group conducted an extensive review of research, including statistical data. In addition it endeavored to obtain input from frontline justice personnel to assess the perspectives on how the policies are working, as well as to identify any inconsistencies between the policies as written and adopted and their day-to-day operation (p. 5).

The review asserted that the policies were having a positive impact on the numbers of arrests, and were broadly supported by victims, but recommended that much work still remained to be done within the charging and court processes. It is also worth noting that this research is now 14 years old, and was mainly conducted with input from criminal justice personnel. Whilst victims’ opinions were anecdotally included, via the police interviews, victims of abuse who had experienced the pro-charge policy process weren’t directly interviewed.

Evidence suggests that first time offenders are often deterred from re-offending by the pro-charge policy but hardened re-offenders continue to offend, and are often unable to control their temper in domestic and non-domestic situations, exhibiting aggressive behavior with strangers as well as family (Babcock, Green and Robie, 2004).

Considerations:

Is a policy that only works for first time offenders, and creates huge family hardship, the right approach when it has little deterrent effect on long-term re-offenders?

Should there not be a more flexible approach?

Are police officers the right people to make this judgment?

Shouldn’t the views of the victims of abuse be included in reviews of policy effectiveness?

Whilst probation, restraining orders and rehabilitation programs may prove to be an appropriate approach for first time abusers, it compounds the cultural police view that domestic abuse arrests are “social work” rather than real law enforcement.

Domestic Abuse and the Consequences of Calling 9-1-1

As there is no criminal act called domestic violence in the criminal code, an abuser will commonly be charged with assault, which then starts a chain of events that will ultimately be disruptive to the abuser, the victim and any children in the family. The financial implications to the family are enormous. The stigma of domestic abuse can lead to loss of employment, loss of reputation, loss of home and limited visitation rights to children.

The abuser will be arrested, taken to the police station and the decision to press charges will be discussed between the police and the Crown Counsel.

If the abuser is charged, they may be detained or bailed with conditions not to return home. In this case the abuser may be escorted home once, to collect their effects. They may then be required to find alternative accomodation. The abused will have to provide a statement to the Domestic Violence Unit detectives, and so may any children that witnessed the abuse. Once the Crown Counsel has laid a charge, it is highly unlikely that it will be rescinded.

The victim is now potentially at even greater physical risk, as the abuser may be on bail, but back in the community. The victim may have the legal right to stay in her home, but she may not be safe, even with bail restrictions. In this situation, the Domestic Violence Safety Co-ordinator is available to assist the victim with any necessary referrals to shelters, counselling or available local support agencies. There are also Victim/Witness Assistance programs to help the victim through the future court process.

Considerations:

How effective or readily available these services are requires further investigation?

If the Crown Prosecutor deems there is not enough evidence to press charges and the abuser is released, the victim will this time be referred to the Victim Services Unit to, again, determine the need for a place of safety or alternative accomodation. If children are involved, the Children’s Aid Society may be notified. Not only is the victim now concerned to ensure her children are safe and remain in her custody, but, this is also the time that she is at most risk of further violent reprisals (Statistics Canada, 2011). Consequently, it’s imperative that support services are readily available to provide victims with a safety plan and secure shelter. However, availability of services varies from area to area as many Government organizations have budgetary constraints. These services are supplemented by charities and privately funded organizations, but most services are grossly over-subscribed and availability is patchy.

Recent reports in the UK have highlighted the impact of government budget cuts on support services for women fleeing domestic abuse. A lack of safe accomodation for women and children has resulted in a huge increase of children being taken into child welfare services, children’s homes and foster care. Data suggests that domestic violence has outstripped parental mental illness or drug and alcohol misuse as the most common underlying factor behind child protection intervention in the UK (Butler, 2014).

Immigrant women and children are particularly vulnerable, as they have limited housing options available to them. Without independent legal status many women find themselves ineligible for sheltered accomodation and risk being homeless or deported, if they leave their partners.

Initially friends, families and employers can be an immediate source of support, but they will inevitably begin to experience compassion-fatigue as time goes by and the informal support systems invariably begin to diminish. So it’s not surprising that safe alternative accomodation is the number one major crisis point for victims of abuse. Many shelters run at capacity and are regularly turning women and children away due to lack of space or their inability to support victims’ complex needs. Few agencies are equipped to respond to women with multiple issues, such as those whose experiences of violence are compounded by mental illness or substance abuse

(Acalde and Caragate, 2007, p.9).

In ” The Case for a National Action Plan on Violence Against Women, “ a document prepared by the Canadian Network of Women’s Shelters and Transition Houses in October 2013, it states,

On a single day, 4,645 women and 3,611 children were residing in shelters in Canada and 426 women were turned away; half due to lack of space, one-fifth because the shelter was unable to accommodate their mental health or substance abuse problems (p.18).

(See L. Dempsey’s forthcoming research papers on trauma and survivors of domestic abuse.)

Government budget cuts also reduce support for domestic abuse victims. More research is required into the current funding levels and availability of safe shelter for women and children fleeing from abuse in Canada.

Once an abuser has been bailed or released pending a court appearance, the only forms of legal protection the victim can apply for through the courts are peace bonds or restraining orders to ensure the abuser doesn’t contact them. This is wholly inadequate as there is nothing preventing the abuser from transgressing a restraining order and intimidating, frightening or harming the victim. Any legal repercussions will be as a result of the violation of the order, after the event.

Many victims experience criminal harassment for the first time, following the arrest and charging of their partner in a domestic abuse situation. An American study revealed that intimate partners stalked 43% of women immediately after they had ended their relationship (U.S Dept. of Justice, 1998, p. 11). This is often a form of retaliation for the consequences of being arrested. Abusers continue to blame their victims for the consequences of arrest, despite the pro-charge policy. Abusers blame their victims for a myriad of actions or perceived transgressions that justify continuing the abuse, and an arrest or charge can become the major focus for further abusive contact.

The efficacy of restraining orders is also difficult to judge, due to the wide variety of individual circumstances. However, an American study in 1993, found that, whilst a restraining order might curtail physical violence, the victims reported that harassment, threats of violence and stalking behavior increased. A total of 52% of victims reported receiving unwanted phone calls and 21% said they were stalked, stating that the abuser also entered their homes in violation of the restraining order (Harrell, Smith and Newmark, 1993). Several studies examining the effectiveness of restraining orders in preventing further violence have shown mixed results, but overall, little positive impact. A study by Mears, Carlson, Holden and Harris in 2001, found that re-victimization occurred, ranging between 23% and 50% of the time (Buzawa et al 2012, p.296). Research on the efficacy of restraining orders has highlighted the fact that families with young, dependent children and custody issues have the highest incidence of violations, as well as being in the lower socio-economic and minority groups.

Abusers who violate restraining orders also have predominantly the most violent and abusive histories, the highest rates of substance abuse and the highest rates of re-offending.

Over the past decade the USA and Canada has experienced several “family suicides” where an abuser violated a restraining order, entered the family home and killed the family, several police officers attending the scene and then the abuser finally committed suicide. These terrible events were usually preceded by warning signs from the abuser and requests for additional support from the families, but in these instances, the police failed to follow up with additional protective action. Consequently, the enforcement of restraining orders by police departments seems to be a complex situation that varies from police department to department. These situations are extreme, but they highlight the inadequate approach to ongoing family protection.

Research on the subject of restraining orders to date has failed to take into account the higher income, educated, manipulative offender who consistently breaches a restraining order in small ways, as a continuous methodology for control and threat to the victim. Many abusers, whose psychological profile fits a borderline or sociopathic personality disorder are articulate and fully capable of minimizing or justifying small breaches of a restraining order, ensuring that the police then become complicit in failing to protect the victim, by ignoring what they perceive to be minor and inconsequential breaches.

Considerations:

How might we monitor, evaluate and legislate against this manipulation of the system that allows for continuous subtle psychological abuse?

Domestic Abuse and Criminal Harassment

The first criminal harassment legislation was introduced in Canada, in 1993 in response to high profile cases of women being murdered by their estranged partners following periods of harassment behavior including stalking. The two charges of criminal harassment and uttering threats combined, account for 20% of domestic abuse prosecutions, and highlights a growing acknowledgement of the seriousness of stalking as a phenomenon of domestic abuse. Harassment is also the only non-violent offence where spousal offenders are more likely to be sentenced to a term of imprisonment (Department of Justice, Canada, 2014). It’s also a crime predominantly carried out by men, against women. 80% of victims are women and there is a strong link between criminal harassment and domestic abuse. 57 % of stalkers are ex-intimate partners of their victims (Logan, 2010).

Investigating and prosecuting criminal harassment differs from investigating other non-violent crimes in that it often involves conduct that, in isolation, appears to be innocent and harmless, but can escalate to violence or homicide. It’s usually a progressive crime that wears down the victim over time. Unfortunately, the nature of this crime means that the victim must collect evidential data of the continuous acts of harassment, whilst also trying to protect themselves and ensure their own safety at all times. Often victims aren’t taken seriously or believed, because the nature of the harassment appears to be minor. Police are slow to support victims, even when the harassment is happening regularly. Legal counsel are also complicit in this behavior, usually advising victims against taking action, as the courts often perceive women to be manipulative for raising these issues .

This reluctance to act on minor transgressions leaves the victim feeling powerless and vulnerable and in turn increases the stalkers’ perception of power and continuing control over the victim. The inference that women

use restraining orders as methods of manipulation has no evidentiary support. In fact it is just as likely that an articulate abuser can eloquently minimize or justify his aberrant behavior.

Buzawa et al argue that:

Enforcement of restraining orders is extremely important. If they aren’t enforced, it’s obvious that their value is limited. Furthermore, batterers might interpret enforcement failure as a continued lack of societal concern for their abusive behavior (2013, p.300).

Considerations:

The inadequate policing of restraining orders perpetuates the cultural norm that minor victimization of women is socially acceptable. Coupled with this is the judicial attitude that a woman who wishes to enforce actions related to the contravention of a restraining order is motivated by malice rather than fear for her safety.

The laws exist but are not enforced. This judicial attitude leaves women unprotected and in very real and persistent danger.

Collating evidence on criminal harassment can eventually result in arrest, which is usually followed by fines, more restraining orders and in serious cases, imprisonment. Most usually the perpetrator will have yet more restraining orders enforced against them or are charged with lesser crimes than stalking, such as assault or vandalism. This behavior of downgrading the implications of stalking to minor infractions of restraining orders can become a vicious cycle of harassment and yet more proof of the abusers’ power over the victim and a continuing form of abuse. Leaving a relationship doesn’t always end the abuse.

The police depend on the Victim Services program, to assist in on-going protection of the victim whilst a case is going through the court process. Victim Services run two programs for high-risk abuse cases. The Domestic

Violence Emergency Response Program (DVERS) provides a personal alarm and case management to women who are high risk when there has been a restraining order against the abuser. The Support Link Program has criteria that are a little less strict than the DVERS program (e.g., no restraining order against the abuser). Women have access to the Support Link program if they are at a lower risk than those in the DVERS program, yet still of sufficient risk to need protection. Risk assessment in these cases is unclear but seems to depend on previous records of abuse, the severity of the existing circumstances and the victims’ judgment of her situation in discussion with the detectives. Women in the Support Link program are given cell phones linked directly to 911.

Considerations:

Interviews in the field are required to determine the determination process for defining sufficient risk to the victim as well as the efficacy and timeliness of this approach to protecting the victim. There is also an issue of availability and cost that requires more research. The DVERS program appears to be outsourced to private security firms.

Domestic Abuse and the Court System (Family and Domestic Violence Courts)

The judicial system isn’t a process for the faint-hearted or unprepared. All too often victims find themselves going through the courts, ignorant of the legal landscape and without adequate professional support, whilst struggling to maintain safe accomodation, a stable environment for children and financial security as well as their own personal safety. An “Environmental Scan of Services and Service Coordination for Woman Abuse in Toronto” prepared for Toronto Public Health by Acalde, J. and Caragata, L. highlighted inadequate funding for legal assistance for women fleeing abuse as a serious problem, resulting in a rising number of self-represented applicants in family courts (2007). Research has highlighted that many victims of abuse exhibit symptoms of PTSD. Under these circumstances, it’s hardly surprising that victims often self-medicate with alcohol or drugs. This in turn can be misunderstood, and have a negative effect on their eligibility for shelters and result in losing access to their children.

The Victim/Witness Assistance Program (VWAP’s) was created to assist victims through the criminal justice process, by providing information on the court process, including court updates. They also assess for safety and refer, if needed, back to the Victim Services for the DVERS or Support Link programs, or to other agencies for counselling and community supports. So the process exists, but recent research suggests that collaboration and communication is a problem between agencies (Acalde and Caragata, 2007, p. 17).

Considerations:

Expert interviews may provide a deeper understanding of how and where this manifests in the system, and may provide insights for improved protection of victims.

Criminal Courts:

Under the laws set out in the Criminal Code, domestic violence charges will be tried in a criminal court, in all circumstances unless the perpetrator agrees to a guilty plea. Trials are long, arduous, expensive and nerve-wracking. Domestic violence cases that do make it to the criminal court rarely result in a prison sentence unless the abuse was particularly violent or a homicide resulted. Most cases end with restraining orders or periods of probation for the abuser.

Family Courts:

All other aspects of a domestic violence situation, such as financial negotiations, support payments and child visitation rights will be heard in a family court. This necessitates two very different approaches with two separate groups of professionals. Most often the two processes will run on different time schedules and will very often produce conflicting outcomes. This is an added aggravation and expense in an already difficult family situation. Inconsistencies between the two court systems have been known to create situations where abusers are granted access to children, thereby contradicting the bail and sentencing conditions and consequently increasing the risk of violence.

Pilot Court Programs

Domestic Violence Courts:

In 1997 the Ontario government recognized that the criminal court was not necessarily the most productive environment for dealing with domestic violence cases, and established the Domestic Violence Court (DVC). The DVC provides specialist legal intervention designed to hear these cases in a more effective and sensitive way. The courts can insist on Partner Assault Response programs, counselling and rehabilitation programs to support victims and hold abusers responsible for their behavior. Although rehabilitation may not always be suitable for hardened reoffenders, statistics show that men who go through counselling are four times less likely to reoffend than abusers who don’t receive counselling. (Babcock, Green & Robie, 2004).

Despite the fact that these programs reduce offences in situations of minor or first time offences and reduce court appearances and corresponding expenditure, they are always vulnerable to budget cuts and program funding in Toronto hasn’t increased since 1999. In 2013 Justice Minister Darin King, cut the $500,000 funding for Domestic Violence Courts from the provincial budget in Newfoundland and Labrador (CBC News, King, D. Oct. 2013). Consequently these courts no longer exist.

Integrated Domestic Violence Courts:

In 2011, the Ontario Justice system went one step further in developing focused court support for domestic abuse cases, by piloting the Integrated Domestic Violence Court (IDVC).

Designed to deal with all the disparate related aspects of domestic violence and corresponding family law that would otherwise be heard in separate courts. The intention was to speed up the resolution of the family issues with less conflict and more affordably with a one-case, one-judge approach. The criminal and family cases are heard on the same day in the same courtroom. The IDV court judge has more complete information about the family and having one judge ensures consistency between family and criminal court orders. However, participation in the court is voluntary and as it’s not a trial court, the abuser must agree to plead guilty to be eligible for this court process. If the person charged with domestic violence wants to go to trial instead of pleading guilty, the case would be heard through the traditional criminal court system. This pilot project has been rolled out into other provinces and replicated as similar pilot projects.

Considerations:

More research needs to be done in the field, to understand how many of these courts are still sitting and their success rate and current thinking on the pilots. 

Conclusions:

Whilst the policing policies, criminal, family, civil law and child welfare policies, are designed to protect victims of abuse, they all inadvertently seem to further victimize or hold survivors accountable in the following ways:

  • When police apply a strict interpretation of the pro-charging policies, women are charged with their abusers.
  • Failure-to-protect policies are gender-neutral yet they invariably hold women, not their violent partners, responsible for preventing harm to children.
  • Inconsistencies between criminal and family courts is an ongoing problem; custody orders that grant abusers access to children often contradict bail and sentencing conditions and can put victims into risk situations on a regular basis.
  • Women can lose their homes, immigration status and their children as a result of the repercussions of reporting domestic abuse to the police.
  • Resulting heightened tension between partners often puts the victim at greater risk of escalating violence or instigates activities such as stalking, abusive phone-calls and threats.
  • Restraining orders and victim support services don’t adequately protect victims from stalking and other harassment activities or ensure victims have timely information to prepare or protect themselves.
  • Protecting women from the immediate threat of violence is paramount, but the subsequent consequences of a victim being homeless and unable to financially support herself and her children or pay for accomodation remains a low priority for government funding.
  • Charges are mainly restricted to domestic violence and not to other forms of abuse.

Despite the fact that the first priority of the police and judicial system is to ensure that women and children are safe from the immediate threat of domestic violence, the system fails to acknowledge the factors that tie women into the cycle of abuse. By almost willfully refusing to recognize the systemic societal and cultural biases and economic and financial inequalities that force women to stay with their abuser the authorities are being naïve and negligent in their duties to protect. This refusal to acknowledge these societal barriers again victimizes the victim and often forces the victim to return to the abuser. The victim often has to choose between a life of violence and a life of poverty. Most likely if the victim never leaves, she will continue to experience abuse on a financial, physical and psychological level. Unfortunately, if she leaves, the same may also be true.

The organizations authorized to protect victims from abuse are themselves cultures of aggression and dominance, employing personalities that gravitate towards control and power. It’s ironic that women suffering from abuse have to seek help from people who rank the highest as perpetrators of domestic abuse. Whilst training programs go some way towards re-education of front line staff, recent public events such as the now, infamous Ray Rice incident highlight the fact that attitudes remain unchanged.

Considerations:

Is there a way that we can begin to address this inherent bias in our society?

Can we educate our children to think differently about sexual boundaries?

Can we make changes to our legislation to protect victims from the further abuse of “trial by social media?”

How do we ensure our police and judicial systems enforce these laws adequately and appropriately, to ensure greater safety for women and children?

These are questions that will be considered within A. Satterthwaite’s forthcoming research on the culture of abuse.

As the time immediately after separation is the most dangerous for the victim, protecting them from acts of harassment and stalking, being inflicted as a form of revenge, whilst the court case and ongoing child custody/visitation agreements are in progress is a major issue. That being said, continuous protection from stalking relies heavily on the support systems that are activated after the arrest and conviction of abusers. There are a variety of services to assist victims to remain safe and, if possible, provide the necessary support to leave relationships in which they and their children have been abused. However, there aren’t enough services and they’re a complicated mixture of private and public organizations and charitable foundations with no consistent approach and no

guarantee that services will be continuously funded or available to everyone. There seems to be much anecdotal

evidence of a general lack of communication and collaboration, meaning that even the professionals working within the system struggle to navigate the processes.

Considerations:

There are many opportunities for intervention within this long and complex system, but to fully understand the how and where to effectively intervene, more research is required to understand the services, their funding, managerial issues and their connections. This would be best served by in-depth research into the support services as well as proceeding to expert interviews in the field.