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

4. Prosecutor Perspectives on the Policy

In an anecdotal report based on interviews with twenty Crown attorneys in Canada, Macleod (1995) reported on a number of dilemmas and frustrations faced by Crown attorneys faced with mandatory prosecution or “no drop” directives. While the report does not purport to reflect the experiences of all Crown attorneys across Canada, it highlights some of the concerns and frustrations held by those charged with the responsibility of prosecuting domestic violence offences under a prosecution policy. Among the concerns identified by the Crowns interviewed:

  • Prosecution policies are counterproductive and do not reflect the wishes or needs of the victim.
  • Successful implementation of the policy required more time and resources than could reasonably be dedicated by Crown attorneys; policy did not reflect the realities of daily Crown work.
  • The policy treats all wife assault cases as the same, which fails to recognize that Crowns are dealing with individuals in individual situations.
  • Removal of Crown discretion inhibits the ability to meet professional responsibilities; discretion is the key to dealing with wife assault cases sensitively and appropriately.
  • Rigid policies are making the women in the most danger turn away from the system.
  • The policy revictimizes many women.

It is important to emphasize that the above concerns should not be taken to represent the views of all or even a majority of Crowns. As the author notes, “[t]he Crowns who agreed to speak with me anonymously were enthusiastic about having an opportunity to give voice to the challenges and frustrations they are experiencing. However, the author approached several other Crown attorneys who said they experience no dilemmas and are totally in accordance with the policies concerning wife assault in their province or territory” (Macleod, 1995, p.49).

Persistent feelings of frustration among Crown counsel with uncooperative or recanting victim-witnesses has been well documented (Ursel & Brickey, 1996; Law Reform Commission of Nova Scotia, 1995). The perceived insensitivity of Crown counsel to victim needs has also been the subject of considerable criticism by feminist scholars and social science researchers (see for example Landau, 2000; Martin, 1998). However, Ursel (1998) and Ursel and Brickey (1996) have isolated an area within the Canadian criminal justice system where “Crown culture” has been redefined in a manner that has allowed the dual and often contradictory mandates of rigorous prosecution and victim sensitivity to co-exist.

As part of the Family Violence Court project in Winnipeg, Manitoba, specialized courts and prosecution units were designed in an effort to change the “work culture” and concepts of success that had until that time prevailed in Crown prosecutors’ offices and operated as impediments to the successful prosecution of domestic assault cases (Ursel & Brickey, 1996). Prior to specialization, cases known as ‘domestics’ were considered low-profile, messy cases with poor prospects for conviction and were therefore not considered rewarding cases for Crowns to take on. With the introduction of the specialized courts and prosecution units, however, ‘domestics’ were redefined as high-priority cases requiring skilled and sensitive lawyers (Ursel, 1998; Ursel & Brickey, 1996).

The greatest apparent benefit of this change in work culture has, according to Ursel (1998) and Ursel and Brickey (1996), been the redefinition of success in spousal assault cases among Crown attorneys in the Family Violence Court. In response to these altered conditions, Crown attorneys in the specialized Prosecutorial Unit have introduced a number of creative strategies that have helped them to achieve high conviction rates despite the perpetual challenge of reluctant witnesses. Foremost among these strategies is that of “testimony bargaining”, a process similar to plea bargaining which instead focuses on Crown negotiation with the victim-witness. As Ursel (1998) notes, typical testimony bargaining patterns unfold in the following way. A victim indicates to the Crown that she will not testify because she does not want her husband jailed. The Crown then asks the victim what outcome, ideally, she would like to see. More often than not, she simply wants the violence to end. In response, the Crown might offer to drop the most serious charge that could lead to a jail sentence, and agree to recommend probation and court-mandated treatment in exchange for her testimony. If she agrees, the Crown notifies the defence that the witness will testify and, most often, the case is resolved through a guilty plea (Ursel, 1998, p.78).

It is clear that more research is needed to accurately gauge the perceptions of mandatory prosecution policies among Crown attorneys. The experience documented by Ursel (1998) and Ursel and Brickey (1996) in the Family Violence Court in Winnipeg, however, seems an appropriate model from which to approach the often competing concerns of rigorous prosecution and sensitivity to the victim within a policy of mandatory prosecution of domestic violence cases.

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