Six Degrees from Liberation: Legal Needs of Women in Criminal and Other Matters

Chapter 3: Women as Witnesses, Complainants and Third Parties in Cases of Intimate Violence and Sexual Assault (cont'd)

3.5 Summary

This chapter examined the legal aid and other legal needs of women as survivors of intimate violence[284] who are required to give evidence against their abusive partners; as complainants and as third parties in sexual assault cases; as claimants in criminal injuries compensation proceedings; and as participants in restorative justice processes.

Women as survivors of violence by intimate partners: A consideration of the legal needs of survivors of intimate violence inevitably merges with their experiences with mandatory charging policies. Recent assessments of women’s experiences with the policies, and the extent to which the policies met their expectations and needs, indicate that abused women are often reluctant to contact the police. They may fear state intervention in their lives from welfare, child apprehension and immigration authorities, or retaliation from their partners in the form of further abuse and counter-charging. Women who are economically dependent on their abusive partners may fear for their financial security should they be detained. Immigrant women may fear that their abusive partners will withdraw their sponsorship application. Women from closely knit cultural or rural communities may fear ostracism. Finally, Aboriginal, visible minority, immigrant and refugee women may fear a racist systemic response against their partners or themselves. Many women – almost 40 percent in one study – did not expect that their calls to the police would trigger a full criminal justice system response that would include arresting, charging and prosecuting the abuser.

Survivors of intimate violence may need independent legal representation to compel prosecution of a charge where the Crown declines to lay one, to lay a more significant charge, and to protect personal records from disclosure to the accused or the media. There is also a need for legal representation at inquests and public inquiries to probe systemic failures that have led to women’s deaths. Similarly, to the extent that current immigration law and policy discourage women from leaving dangerous family situations, women need access to legal representation to assert their constitutional entitlements to liberty and security of the person, pursuant to Section 7 of the Charter.

The practice of counter-charging gives rise to a clear need for legal advice as soon as an abusive partner utters a statement that implicates the abused woman. Bearing in mind that the most frequent defence to an assault charge against an abusive partner is that he acted in self-defence, women require legal advice during any further questioning by the police, and certainly if charges are laid.

Abused women also need realistic information about the consequences of calling the police, the court process, and the protections available to them and their children. Women whose immigration status is unresolved, or who have been threatened with deportation, need basic information about their entitlements under immigration legislation, and about the child welfare implications of abuse within the home. They must have access to information before they call the police in order that they can assess how it might affect their immigration status.

Finally, abused women would benefit from legal support to assist them in weighing their options, including the risks and benefits of proceeding with a charge, to facilitate their access to different services, and to assist with various decisions throughout the criminal justice process.

Women as complainants or third parties in sexual assault cases: Legal representation may be required for sexual assault victims and sexual assault centres or therapists to defend against production of personal records in court. Women need counsel independent of the Crown, because the Crown’s interest is to represent the public, not the privacy or equality interests of the record keeper. Record keepers require legal advice when policy is being formulated regarding the kinds of records they are required to keep and what may be disposed of. In addition, advice at this preliminary stage will assist the centre or therapist to explain disclosure obligations to the client. Record keepers also require advice when they are served with a subpoena.

Legal representation before criminal injuries compensation boards would permit a challenge to documented systemic bias that implies that women survivors of sexual assault are the authors of their own misfortune. Furthermore, legal representation would be necessary to participate in any appeal from such discriminatory decisionmaking.

Women as participants in restorative justice and alternative dispute resolution processes: With few exceptions to date, the literature promoting restorative justice and other alternative dispute resolution processes has not taken gender and diversity into account. Upon examination, concerns have surfaced regarding the use of restorative justice initiatives for crimes of violence against women and children. Community members share different values, based on their social position within the community. Different values can lead to different expectations of what constitutes a just result. Moreover, it cannot be assumed that community members universally condemn male violence against women. There needs to be widespread community acknowledgment, not only of the relational imbalance between a particular abusive man and an abused woman, but also of the systemic factors that allow continuing acts of male violence against women. Otherwise, a clear denunciation of the acts of an abusive man cannot be issued. The structure of community-based circles or sentencing circles over-individualizes the conflict between a particular man and woman, and has the effect of obscuring the greater systemic factors at play.

In Aboriginal communities where many people are related, family and kinship might serve to silence a victim if her abusing partner is related to a powerful family or leader. The potential for a victim to feel pressured to participate in an alternative system can be great. Additionally, the dynamics of an abusive relationship can make the victim’s willingness to participate impossible to discern.

Aboriginal women choosing the existing system may be criticized for not supporting "their own" system, and acting in ways that are not in the best interests of the community.

Many circles make no record of the comments of participants. As such, inappropriate utterances that may indicate a bias against the abused woman, or an equivocal attitude towards male violence against women in intimate relationships, cannot easily be challenged beyond the circle.

Furthermore, cautions have been raised that volunteers in restorative processes might not possess the appropriate background and training. The use of volunteers, and not paid professionals, removes the responsibility of supporting these processes from the government and moves it into the community.

Domestic violence or sexual assault survivors who participate in processes such as sentencing circles, community justice committees and victim-offender reconciliation processes require legal advice and, if necessary, legal representation to ensure that their participation is voluntary; that the process is representative of a broad diversity of interests; that their rights to privacy are protected; and that any aspect of the process or any agreement that is reached do not violate her rights to liberty, physical security and equality under the Charter.

Conclusion

It would be simplistic to suggest that identifying women’s legal aid and other legal needs, or even providing for them, would be sufficient to ensure access to justice for them. The dimensions of marginalization that women experience, the political choices that permit their continued existence, and the social conditions that aggravate them form the backdrop for virtually all of the experiences and needs described in this paper.

This marginalization is shaped by political decisions to criminalize women for their efforts to survive and nurture themselves, their children and their elderly dependents; by correctional environments that countenance disregard for the Rule of Law;by a criminal justice response to a call for intervention that forces women to choose between enduring intimate violence and triggering state scrutiny, thereby risking losing their children, immigration status or liberty; and by societal tolerance of the continuing epidemic of male violence against women.

These are broad issues that are not part of the dialogue around the provision of legal aid and other legal services and they cannot be resolved solely by the provision of legal services, no matter how broadly defined and how generously funded. They are essentially the timeless political controversies over the cost of providing basic human entitlements in society.[285]


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