Criminal Justice Outcomes in Intimate and Non-intimate Partner Homicide Cases
2. LITERATURE REVIEW
2.1 Why might intimacy matter?
Criminal justice theory and research has drawn attention to the way in which legal actors such as police and prosecutors may use screening devices to filter cases through the criminal justice process – devices that may take into account factors that are not directly related to the criminal act itself (Becker, 1963; Black, 1976; Emerson, 1983; Erikson, 1964; Horwitz, 1990; Kitsuse & Cicourel, 1963; Rubington & Weinberg, 1978; Schur, 1971; Sudnow, 1965; Swigert & Farrell, 1977). More specifically, this work has highlighted the way in which certain expectations may develop over time about the nature of an offence based on the characteristics of the individuals involved or on particular concerns that arise in a community. As a result, these expectations may often shape public and professional attitudes about certain crimes that, in turn, help identify those individuals who are or should be defined as criminal (Farrell & Swigert, 1986). In short, criminal justice actors, like other social control agents and the public at large, may rely on stereotypes or assumptions about crime and criminals that lead them to focus on some offences and offenders more than others.
The degree of intimacy that exists between an offender and his or her victim is one characteristic that has been shown to generate stereotypical images in cases of interpersonal violence, often leading to different punishments (Miethe, 1987; Rapaport, 1991, 1994; Waegel, 1981). For example, as noted earlier, intimate violence is often believed to involve intense emotion or passion, such as desperation or rage, which may act to decrease the accused person’s culpability in law (Loftin, 1986; Maxfield, 1989; Messner & Tardiff, 1985; Parker & Smith, 1979; Rojek & Williams, 1993; Sampson, 1987; Smith & Parker, 1980). In contrast, non-intimate violence is often presumed to be instrumental in nature thereby often lacking strong emotion or loss of control (see Block, 1981; Riedel, 1987; Rojek & Williams, 1993). This perceived lack of emotion, in turn, increases an offender’s culpability and, consequently, the severity of punishment imposed. Research has also shown that crimes between intimates are more often perceived to involve some degree of victim responsibility, precipitation, or provocation than crimes that occur between non-intimates (Rapaport, 1991; Riedel, 1987; Wolfgang, 1957). Within the criminal process, the legal notion of provocation generally mitigates the culpability of an offender, leading to lighter punishments (see Miethe, 1987; Williams, 1976). Based on these and other stereotypes that may be associated with the victim-accused relationship in cases of interpersonal violence, it is commonly assumed that the degree of intimacy that victims share with the accused will (and possibly should) affect criminal justice outcomes, leading to more lenient sanctions.
Until recently, there has been little Canadian research that has systematically examined the role played by victim-accused relationship in criminal justice decision-making. As such, much of what is known about the role of intimacy in criminal law comes from research conducted elsewhere, primarily the United States. A review of this research demonstrates that the association between intimacy and criminal law is more complex than traditionally believed. For example, findings from studies that use bivariate analyses generally find an association between the victim-accused relationship and court outcomes, demonstrating that violence between intimates is treated more leniently by criminal justice officials than violence that occurs between non-intimates (Ferraro & Boychuk, 1992; Hickman, 1995; Lundsgaarde, 1977; Rapaport, 1994; Vera Institute, 1977). However, the effect of the victim-accused relationship on outcomes in cases of violence is less clear in multivariate analyses that control for the effects of other legal and extra-legal factors on criminal justice decision-making. Some of this multivariate research confirms the findings from bivariate analyses, supporting the belief that accused persons who victimize people known to them or with whom they were intimate are generally treated differently within the criminal justice process (e.g. Horney & Spohn, 1996; Erez & Tontodonato, 1990, Miethe, 1987; Williams, 1976) In contrast, other studies find no association between the victim-accused relationship and the allocation of criminal sanctions (e.g. Albonetti, 1991; Simon, 1996b; Myers, 1979a; Myers, 1979b).
Research has also shown that the role of intimacy in criminal law may depend on the stage of the criminal process examined. That is, the victim-accused relationship may be associated with different treatment at one stage of the criminal process, but not at other stages. For example, accused persons who victimize intimates may more often resolve their cases through plea bargains than those who victimize non-intimates. However, there may be little difference in the rate at which accused persons in the two types of homicide are found guilty at trial. Some studies that have examined several decision points in the criminal process have shown that intimate violence is treated more leniently than non-intimate violence. More specifically, this work has demonstrated that accused persons who victimized intimates were: (1) more likely to have their cases dismissed at the initial charging stage (Miethe, 1987); (2) more likely to have their cases dismissed at the pre-trial dismissal stage (Miethe, 1987); (3) less likely to be found guilty at trial (Myers, 1980); (4) less likely to be sentenced to prison (Erez & Tontodonato, 1990); and, finally, (5) when imprisonment was imposed, offenders who were intimate with their victims were likely to receive lighter sentences (Erez & Tontodonato, 1990; Simon, 1996b). Other research, however, found that there were no differences in how cases involving intimate and non-intimate violence were treated at various stages of the criminal process. More specifically, this research demonstrated a lack of bias toward intimate violence at the following decision-making points: (1) pre-trial dismissal (Myers, 1980); (2) charging (Myers, 1980; Adams, 1983); (3) plea bargaining (Myers & Hagan, 1979; Myers, 1981); (4) conviction (Myers, 1979); and (5) sentencing (Miethe, 1987; Myers, 1979; Myers, 1980; Albonetti, 1991; Simon, 1996a).
A review of the research, then, demonstrates that the findings to date do not allow for a definitive statement regarding the extent to which the relationship between an accused and his/her victim may affect criminal justice outcomes. However, few studies have focused exclusively on the victim-accused relationship as the key variable of interest (see exceptions Miethe, 1987; Simon, 1996a, 1996b). Rather the majority of studies have incorporated relationship type as a control variable in the examination of other factors that may influence the criminal processing of accused persons (e.g. gender, age, race/ethnicity) whereas other research has included the victim-accused relationship as one of a multitude of factors being examined. There has also been a tendency in this research to include ‘intimate partners’ in a broader intimate category with other family members and friends. This has precluded the examination of potentially important relationship distinctions in criminal justice decision-making and, in particular, that of intimate partners compared to other types of relationships. Finally, no study has examined the effects of intimacy in criminal law over a significant period of time. In fact, the majority of research has examined time periods that are less than three years in duration and, primarily, from the mid-1970s – a time when the role of intimacy in criminal law first began to be vigorously challenged by feminist researchers. This represents a significant limitation because various legislative and policy initiatives in the past three decades have been specifically directed at changing the way in which criminal justice actors respond to intimate violence. Today, however, we still know little about whether and how the treatment of intimacy within the courts has been transformed as a result.
In an effort to address these issues within the Canadian context, Dawson (2003a, 2004) examined how the victim-accused relationship affected court outcomes in cases of homicide in one urban jurisdiction. For example, examining the total population of cases processed through the court in Toronto, Ontario from 1974 to 1996, Dawson (2004) found that those accused of killing intimates did appear to receive lighter sanctions during the earlier period of the study (1974-1984), but that this effect diminished somewhat over time so that, in the later period (1985-1996), cases involving intimates did not appear to be treated any differently than cases involving those who shared more distant relationships. Thus, it may be that during the past few decades – a time when there has been an increasing recognition that intimate violence is a serious social issue – a parallel trend has occurred in which intimate violence is being treated more seriously by the courts or, at least, being treated as seriously as other types of violent crime. While this research was not able to determine whether there is a direct relationship between the legislation and policy changes directed at intimate violence and the subsequent treatment of intimate violence by the courts, it does suggest that an association is possible and warrants further investigation.
With the introduction of Bill C-41 in 1996, an examination of the impact of legal and policy changes on the criminal justice processing of intimate violence is even more pertinent. In response to reports by the Canadian Sentencing Commission and the Daubney Committee, Bill C-41 includes a statutory statement of the purpose and principles of sentencing found in section 718 of the Criminal Code of Canada (see Box 1).
718.2 A court that imposes a sentence shall take into consideration the following principles:
- (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,…
- (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner or child,…shall be deemed to be aggravating circumstances;…"
As part of this, it is now stipulated that evidence that an offender has abused a spouse, common-law partner or child should be considered an aggravating factor in sentencing. As such, it is important to examine the role played by intimacy in criminal justice decision-making in more recent years to capture the potential impact of these amendments.
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