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

1. Effectiveness of the Policies in Achieving Deterrence

Charging and Prosecution Policies in Cases of Spousal Assault: a Synthesis of Research, Academic, and Judicial Responses are directed toward achieving goals of both general and specific deterrence. The arrest and public prosecution of abusive spouses is intended to send a message to the public that spousal abuse is both morally and legally wrong (general deterrence), and to deter individual abusive spouses from engaging in further violence against their partners (specific deterrence) (Johnson, 1996). The ultimate goal of such a policy is to reduce the incidence of domestic violence.

A number of Canadian and American studies aimed at assessing the impact of charging policies in reducing the incidence of violence have produced mixed results. Jaffe, Reitzel, Hastings, and Austin (1991) examined the impact of a newly implemented police charging policy in London, Ontario, over a ten-year period. The authors reported that the implementation of the policy resulted in a dramatic increase in police-laid charges in cases of domestic violence. In 1979, the year prior to the introduction of the policy, police officers laid charges in only 3% of the occurrences involving spousal assault. By 1983, the figure had risen to 67% and by 1990 to 89%. The authors also assessed the extent and severity of violence used by males 12 months before police intervention and 12 months after police intervention. In the majority of cases, the authors reported a significant reduction in the level of violence after police intervention and the laying of a charge by police.

Similar findings were made by American sociologists Sherman and Berk (1984), who found in experiments in Minneapolis that arrested abusive partners manifested significantly lower levels of subsequent violence than those who were only given a warning or ordered to leave the premises. Indeed, compared to arrest, the temporary separation of the victim and offender resulted in two-and-a-half times the number of repeat incidents. Victim interviews also indicated that fewer repeat incidents occurred after arrest than after the use of any other police intervention strategy.

Replication studies of the Sherman and Berk (1984) study conducted in six American cities have, however, produced conflicting results (Schmidt & Sherman, 1993). While in some cases arrest had a crime-reduction effect, particularly for those perpetrators who were employed, married and had earned a secondary school diploma, it was concluded in other instances that arrest actually had a long-term criminogenic effect, increasing the violence among unemployed, unmarried, and racial minority abusers. These findings raise the concern that the implementation of pro-arrest policies will have an unequal impact on victims in different social settings and, indeed, benefit some victims to the detriment of others.

Plecas, Segger, & Marsland (2000) recently examined the extent to which a mandatory charging policy implemented in Abbotsford, B.C. was successful in reducing subsequent violence against a victim of domestic violence. The study surveyed 74 female victims of domestic violence to determine levels of repeat violence after the initial police intervention. The results of the study indicated that 43% of offenders re-assaulted their victim with the 27-month follow-up period. The authors noted important correlations between the ultimate disposition of the case, and the likelihood of repeat violence. In cases where charges were stayed, which accounted for 40% of all dispositions, the victim was re-assaulted in 54% of the cases. Cases where the accused partner was acquitted, which accounted for 3% of all dispositions, resulted in re-assault 100% of the time (note: due to the small number of cases this represents 2 women re-assaulted after acquittal). Dispositions by peace bond, probation, jail, or fine resulted in lower levels of re-assault. The authors concluded that a relationship existed between the staying of charges and the likelihood of re-assault, however as noted, due to the small number of cases involved any conclusions should be considered with caution.

Studies on the deterrent effect of mandatory charging and pro-arrest policies are generally regarded in the academic literature as inconclusive and warranting further research. Even the work of Jaffe et al (1991) is subject to the authors’ own caveat that their results may not be generalizable to other communities because the study took place within a community that had developed a highly co-ordinated and integrated response to domestic violence. It has also been suggested that the difficulties associated with measuring the deterrence value of a prosecution policy are insurmountable, as incidents of recidivism after an abuser’s initial arrest may be attributable to any combination of factors. As Faubert and Hinch (1996) have noted, where an abusive partner assaults his spouse after having been arrested, it should not be assumed that the arrest itself, isolated from other factors, is the sole cause of the behaviour. Abusive behaviour subsequent to arrest may be attributable to the difficulties associated with marriage breakdown, separation, and divorce, a period in which the increased risk of physical abuse for women has been well documented. Moreover, Plecas, Segger, and Marsland (2000) found that the single best predictor of re-assault was the offender’s previous criminal history. Once again, however, it should be noted that no tests of statistical significance were reported on this finding.

Research to date has not assessed victim perceptions of the relationship between the initial charge, arrest, and/or prosecution of the abuser, and later acts of violence. To what extent survivors of violence attribute post-arrest acts of violence to the initial intervention of criminal justice authorities could prove quite valuable in measuring the effectiveness of Charging and Prosecution Policies in Cases of Spousal Assault: a Synthesis of Research, Academic, and Judicial Responses in reducing the incidence of domestic violence.

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