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Is the criminal justice system’s response to domestic violence working?

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October is Domestic Violence Awareness month. It is hard to imagine that anyone would argue against increasing society’s awareness of domestic violence and taking steps to prevent it and help those who are a victim of it. Over the years, the perception of domestic violence has changed. Where it once used to be considered a private matter between a husband and wife (or a couple) not openly talked about, it is now widely considered to be a societal concern. Where at one point in time the police would not involve themselves in domestic violence issues, charges are now regularly laid when grounds exist to believe that a domestic assault has taken place. Few would argue that ignoring the problem the way we used to was a good thing. But what about the way domestic assault cases are handled now? Is it helping or hurting?

Let’s take a look at the way in which a typical domestic assault case unfolds. For the purposes of this illustration, I will assume the victim or complainant is the wife and the accused is the husband since in the majority of cases, the woman is the complainant and the man is the accused. A dispute takes place between husband and wife. The wife calls 911. The police come and investigate. The wife makes an allegation that she has been assaulted. The husband is arrested and taken away. He is held for a bail hearing. If he is released from custody, his conditions of release will typically stipulate that he cannot return home, he cannot have contact with his wife, and that he must reside with his surety (the person who bailed him out) or somewhere else. These conditions will stay in place until the case is concluded. The typical domestic assault case can takes between 2 to 12 months to conclude depending on whether the accused person pleads guilty or chooses to go to trial. Once the police are called and charges are laid, the wife has little to no input as to whether the prosecution should continue. In other words, even if she doesn’t want her husband prosecuted, it doesn’t make a difference. The matter will continue and the case will be prosecuted. This way of dealing with domestic violence in the criminal courts has evolved on the assumption that victims of domestic assault need protection, they fear their attackers, they fear further assaults, and do not have the strength to stand up to them. There are, indeed, many victims that fit this profile. For them, this response from the criminal justice system might be appropriate.

The problem is that not all victims of domestic violence fit into this profile. There are a large number of domestic assault cases that fall into lower end of the spectrum.  Let’s take an example:  A husband and wife get into a heated argument. During the course of the argument the wife is waving her index finger in her husband’s face. He gets upset and pushes her hand away. She gets upset and calls the police. He is charged with assault and the process starts. He has conditions placed upon him requiring him to stay away from his home and to have no contact with his wife. They have a young child who wonders why Daddy left. The wife called 911 in the heat of the moment to mediate and had no idea that the police would arrest her husband. The husband, though he is prepared to take responsibility for his actions, is afraid that a criminal record will mean the end of his career. The wife feels the same way. She doesn’t fear him and wants him back. Their finances are stretched to the limit as they now have to pay for a second residence as well legal fees. The wife never intended this to happen and does not want the case to proceed. She does not want to see her husband prosecuted and does not want to see him get a criminal record. She tries to express this sentiment to the Crown but her pleas fall on deaf ears.

She wants him to fight the charge and he wants to fight the charge as well.  The only problem is he will have to remain out of the house until the trial (which could be close to a year away) and cannot have any communication with his wife. Ironically, if he pleads guilty, he will most likely be able to go home right away. He decides he cannot be away from home for that period of time and decides to plead guilty. He loses his job and the family struggles to get back on their feet. Alternatively, he waits it out and goes to trial. Perhaps, he wins at trial but at that point the family is fractured beyond repair. Of course, another possibility is that one way or the other, whichever option he chooses, it works out in the end and the family moves on. All of this over a push.

As a criminal defence lawyer, I have represented clients accused of domestic assault but I have also represented the complainants or “victims”. More often than not what they tell me is that they had no idea as to what would happen when they called the police and they wished they never had. They also tell me that they will never make the mistake of calling the police again.  They thought the system would help them but has, instead, devasted their lives. Surely, this cannot be the intended effect of implementing a response to domestic violence.

I am not suggesting that the system never works. What I am suggesting is that no one approach can be an appropriate response to every case. What I am suggesting is that both the police and Crowns need to be given enough discretion to look at all the circumstances of a case.

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