Charging and Prosecution Policies in Cases of Spousal Assault: a Synthesis of Research, Academic, and Judicial Responses
5. Academic and Public Suggestions for Reform
Given that women need protection and call the police for that protection, how should police respond? In the past, police frequently did not respond, were slow arriving at the scene, reluctant to believe victims…. Arrests were infrequent. The battered women’s movement, shelter workers, and victims criticized police, arguing that failure to intervene implicated the police and the criminal justice system in perpetuating the problem. Today we have come full circle. As more police departments arrest offenders, we hear pro-arrest and mandatory-arrest policies criticized on the grounds that the police are a blunt and repressive tool, as likely to re-victimize as rescue victims…
Ursel, J.E. (1998), Mandatory Charging: The Manitoba Model at p.74.
Martin and Mosher (1995) have challenged the ability of an aggressive criminal justice intervention to work consistently as a specific deterrent to spousal abuse, to change abuser’s attitudes, or to heal men and address the underlying causes of the violence. They have also challenged the degree to which Charging and Prosecution Policies in Cases of Spousal Assault: a Synthesis of Research, Academic, and Judicial Responses provide protection to women, arguing that the validity of the policies presupposes that men are aware of the policies, that they understand them, and that they will not assault their partners if their partners have no say whether charges are laid or a prosecution proceeds. In regard to this last item, the authors note that batterers frequently blame their partners for things over which the partner has no control, and wonder why charges laid by police would be treated any differently.
In light of these propositions, Martin and Mosher (1995) have recommended that the present criminal justice intervention, characterized by mandatory charging and “no-drop” prosecution policies, should be abandoned. In their place, the authors propose a model of criminal justice intervention characterized by the exercise of informed choice. One suggested mechanism for satisfying the needs of the victim is the provision of an advocate to provide full and accurate information about the criminal process, about the prospects of reform for the batterer, and about the supports realistically available. Women should be allowed resort to the full criminal justice response should they choose to utilize it.
Under the Martin and Mosher model, police response to calls of domestic violence would include:
- A requirement that police respond to the call;
- Police must treat the call seriously (this does not, however, necessitate a charge);
- The woman must not be asked at the time of crisis whether she wishes charges to be laid;
- Police take whatever steps are necessary to ensure the woman’s immediate safety, including removing the batterer, ensuring that the woman receives medical attention, taking a woman to a shelter or safe place, or arrest of the batterer where circumstances require.
- In every case, something significant should happen. Police must communicate through their words and actions that the abusive conduct is serious and wrong.
The model also recognizes that a criminal justice intervention, if appropriate at all, is only one among a multitude of services and interventions that may be needed.
Landau (2000) has also questioned the utility of continued reliance on policies of charging and prosecution that, in her view, silence and disempower female victims of violence to an even greater degree than before the introduction of the policies. While Landau does not suggest any alternative suggestions for reform beyond redirecting funds to shelters, legal aid, social assistance and the like, she perceived a number of weaknesses in the ways in which police officers and Crown attorneys carry out their duties. The author reported finding that police rarely documented independent, material evidence of an assault and that, in the vast majority of cases, the only evidence in the file was the statement taken from the victim even though there were witnesses to the assault in over 50% of the cases. Lack of case preparation by the Crown was also cited as a problem with the present system. Landau notes that in fewer than 30% of the cases studied did the victim report meeting with the Crown attorney before the case came to court. Almost 60% of the women reported meeting the Crown for the first time on the day of the trial. The author does not however indicate whether she would support the policy if these reported deficiencies were addressed.
Where feminist critiques like those of Martin and Mosher (1995) and Landau (2000) have called for the end of mandatory Charging and Prosecution Policies in Cases of Spousal Assault: a Synthesis of Research, Academic, and Judicial Responses , others have argued that such policies continue to play an important role in combatting domestic violence. Ginn (1995, p.9), for one, has argued that the question of whether or not to use the criminal law to counter domestic violence may be an academic debate that women experiencing violence cannot afford:
[U]ntil major social changes occur, the legal system, flawed as it is, may represent the only possibility of protection for some battered women and their children. To abandon efforts to improve the legal response would be to abandon those battered women who turn to the legal system for assistance.
Drumbl (1994) has argued that the complete absence of any arrest policy is a non-solution, whereas returning the onus to the victim to lay charges herself has been proven only to perpetuate the cycle of violence. Moreover, Drumbl argues, even if not conclusively proven to deter wife assault, arrest clearly has a positive impact in ensuring the immediate protection of the victim for long enough to allow the victim to make alternate accommodation arrangements.
“The simple fact that pro-arrest policies have rough edges does not mean they should be jettisoned…The real challenge is thus to render these policies sufficiently flexible and contextual so that they can effectively meet the needs of the victim as well as of society more generally”: Drumbl, para.68. The author goes on to suggest that a pro-arrest policy with clear guidelines and some narrow discretion to be exercised by the police might be an optimal compromise.
Light and Rivkin (1996) have commented on the current tendency for feminists and advocates who support criminal justice system intervention to part ways with feminists and advocates who have serious concerns about the direction that intervention takes. While the authors agree that there is no question that women may experience Charging and Prosecution Policies in Cases of Spousal Assault: a Synthesis of Research, Academic, and Judicial Responses as fundamentally disempowering, they assert that such policies have gone a long way toward sensitizing the justice system’s approach to violence against women in relationships. They have increased awareness and knowledge about the extent, seriousness and dynamics of family and sexual violence and about victims’ reluctance to participate in the justice system. Further, Light and Rivkin argue that a thorough police investigation or Crown prosecution of a wife assault matter can empower a woman by validating her position. Being taken seriously by the justice system can help her to disengage from an abusive relationship and re-establish control in her life.
After extensive public consultations, the Law Reform Commission of Nova Scotia in 1995, released its final report on domestic violence. Entitled “From Rhetoric to Reality: Ending Domestic Violence in Nova Scotia”, the Commission considered the “double victimization” of women that may result where victim-witnesses are forced to testify in criminal prosecutions against their spouse. The Commission, while in favour of mandatory charge and prosecution protocols, identified as crucial in the implementation of such protocols that every effort be made to go to trial using evidence other than that of the victim. In its recommendations, the Commission included the direction to police and prosecutors to ensure that all possible evidence is gathered and full statements taken at the time of the call and that all records of earlier or related incidents are obtained. By reducing the incidence of victim-witnesses taking the stand, the Commission hoped to minimize further harm to the victim by eliminating the need for her attendance at the trial of her partner or spouse.
Ursel (1998, p.74) states the fundamental challenge of charging and prosecution interventions as such:
The question becomes: Is it possible to provide a responsible safety/crisis intervention system without re-victimizing the victim? The answer, I believe, lies not within police departments alone, but within the web of intervening and interacting agencies such as criminal justice and social service systems.
Indeed, Jaffe et al (1991) were of the opinion that the success they reported of the mandatory charging policy in London, Ontario was in large part due to the availability and effectiveness of specialized services in the community. The lesson, at least in this respect, appears to be clear: In jurisdictions committed to retaining or implementing aggressive policies of charging and prosecution in domestic violence cases, the availability of information and services to victims of crime can be expected to increase victim satisfaction with the process.
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