Enhancing Safety: When Domestic Violence Cases are in Multiple Legal Systems
(Criminal, family, child protection)
A Family Law, Domestic Violence Perspective
Part 7: Potential for Lethal Outcome
Screening for facts indicating the potential for lethal outcome is critically important in family and child protection cases, yet reporting rates to police are low.Footnote 81 Domestic violence research as a whole documents the existence of prior intimate partner violence in the majority intimate partner homicide cases (albeit not always known to police or recorded in arrest records).Footnote 82 While, in 2010, Statistics CanadaFootnote 83 reported the existence of records of prior family violence in the majority of cases in which spouses were accused of killing intimate partners, numerous studies and reports document the absence of prior police involvement and records in many lethality cases.Footnote 84 Moreover, since some of the indicators of potential for lethal outcome are non-criminal, in the absence of use of lethality indicators, police will not necessarily collect information relating to known indicators of potential for lethal outcome.Footnote 85 Family lawyers and service providers should keep in mind that the best source of information relating to risk of potential for lethal outcome is the person subjected to domestic violence.
7.2 Facts Associated with Potential for Lethal Outcome
Jacqueline Campbell has reported that approximately 15% of cases of homicidal domestic violence are not predictable using any current indicators or assessment tools.Footnote 86 Nonetheless, in the majority of homicide reviews the following facts, associated with domestic violence homicide, are remarkably consistent across death reviews and lethal outcome research studies, from jurisdiction to jurisdiction:Footnote 87
- Access to weapons, particularly to guns. Removal of access to guns is critically important in domestic violence cases
- Unemployment. Perpetrator unemployment is identified regularly and appears to be a strong predictor (when associated with other indicators). This is perhaps, in part, because avoidance of support obligations is a form of continuing harassment and control as well as a form of economic child abuse. It may reflect some of the behaviours characteristic of many domestic violence perpetrators such as self-indulgence, entitlement, and non-acceptance of responsibility. Alternatively, social circumstances that produce stress are known to increase danger
- Pending or actual separation (for female victims)
- Prior domestic violence, escalating in severity or frequency. Not all cases will include documented incidents of prior domestic violence known to the police. The absence of a record of police involvement does not indicate safety
- The presence of children in the home, particularly children not biologically related to the perpetrator
- Death threats. (The absence of a death threat may not indicate safety when other facts are present.)
- Attempted strangulation (choking). Prior non-lethal strangulation is strongly associated with homicidal domestic violence. For additional information on evidence issues associated with strangulation, see part 9.12 below
- Suicidal tendencies and attempts to commit suicide. Perpetrator threat of, consideration of, or attempted suicide should be taken very seriously since suicidal tendencies are strongly associated with domestic violence homicide followed by suicide in the domestic violence literature
- Stalking, monitoring
- Forced sexual acts and sexual abuse.Footnote 88 Keep in mind that both victims and violators are known to underreport sexual abuse
- Victim fear of being killed
- Controlling, obsessive forms of psychological bond. For example a pattern of coercive domestic violence and inability to contemplate the possibility of life without the other; high levels of possessive jealousy
- Threat(s) with weapons
- Violence during pregnancy
- Significant perpetrator life changes
Particularly worrying are cases involving a collection of these indicators. A pattern or combination of such facts is known to compound the risk of lethality.Footnote 89
See the web link for access to and information about one of the most widely researched and respected risk assessment tools for assessing the potential for lethal outcome, constructed by Jacqueline Campbell and colleagues in the United States: http://www.dangerassessment.org/
When a collection of facts associated with the potential for lethal outcome is present, lawyers should also consider facts, if any, outlined in 7.3 below.
7.3 Additional Facts Associated with Lethality
Identified here are additional facts that are commonly, but not consistently, identified in homicide and Death Review studies. Other indicators of danger commonly identified in studies of lethal domestic violence outcome, include:
- Hostage taking (child abduction)
- Threats to harm children
- Prior police involvement or arrest (some studies have documented an association with lethal outcome; others have not)
- Violation of protection orders
- Age disparity (large differences in age between intimate partners)
- Common law relationship and young age of the targeted adult (under 25)
- Anti-social personality disorder
- Child custody and access disputeFootnote 90
- Relocation of the targeted parent with children across jurisdictional lines
- Violent criminal behaviour other than domestic violence
- Animal cruelty (See for example, C.S.N. v. A.L.C., 2011 ABQB 370 (CanLII) wherein the respondent killed the children's grandparents' two cats, then left a photo album of the mother and children next to the cat's bodies. Justice Donald Lee extended the emergency protection order indefinitely.)
- Alcohol and drug abuse
The facts outlined here contribute to risk of potential lethal outcome, particularly when associated with facts outlined in 7.2 above.
7.4 Mandatory Information Exchange: Potential for Lethal Outcome
When indicators of continuing physical risk are present (see Part 6 above), service providers, professionals, and lawyers, subject to professional rules associated with solicitor-client privilege and confidentiality, should be authorized and encouraged to share information pertinent to risk and safety across legal systems in order to enhance safety.
When a collection of indicators of the potential for lethal outcome are present, lawyers, including lawyers representing perpetrators, will wish to consider carefully the Code of Professional Conduct test of imminent harm. Swift exchanges of information across court sectors may be necessary in order to protect the lives of victims of domestic violence and their children.Footnote 91
In a family law or child protection context, consider special measures to enhance safety including: a civil protection order, immediate referral to mental health (for depression, suicidal thoughts) and substance abuse service providers; implementation of methods to monitor compliance as well as supervised or suspended access to children until safety can be assessed and assured. Follow up to ensure active participation in services.
Dr. Peter Jaffe, academic director of the Canadian Centre of Research & Education on Violence Against Women and Children, reports that an analysis of factors associated with the potential for lethal outcome in domestic violence death reviews has found no difference between the facts associated with lethal outcome for children and facts associated with lethal outcome for targeted adults.Footnote 92 The finding is consistent with observations of lethality literature. When indicators of the potential for lethal outcome are present, children as well as adults are in danger. Suspension of access until risk and safety can be assessed and assured is the safest course of action. Alternatively, if supervised access is contemplated, ensure that the supervised access centre has: complete knowledge of the continuing risk and the potential for lethal outcome; copies of protection orders and judicial findings, if any, relating to risk; specialized safety measures in place; a clear understanding of the type of supervision required; policies in place to prevent child abduction; and specialized training in the domestic violence field in connection with both parenting and indicators of potential lethal outcome. In addition, the supervisors should be culturally appropriate and should speak the language spoken by the perpetrator with the child.Footnote 93 Research studies of supervised access are indicating serious safety concerns in coercive domestic violence cases.Footnote 94
While the best option, even when indicators of danger are present, is the client's consent to the release of information, in the absence of client consent, lawyers will want to weigh carefully potential responsibility for serious, even lethal, harm to adults and children in the event of failure to reveal information relating to danger. As stated earlier, in connection with risk (see part 6.5 above), most Professional Codes of Professional Conduct authorize lawyers to reveal confidential information in the face of imminent risk of harm. That said, Rule 3.3.3 of the Federation of Law Societies of Canada (2012) Model Code of Professional Conduct, approved December 2012, allows (but does not mandate) release of confidential information (limited to that required) when the lawyer believes on reasonable grounds that
"there is an imminent risk of death or serious bodily harm, and disclosure is necessary to prevent death or harm".
The advice in the commentary associated with Rule 3.3.3 of the 2012 Model Code may make it difficult for lawyers to respond in a timely fashion. The commentary suggests that such disclosures will be limited to "very exceptional circumstances." And, while the commentary tells lawyers to keep in mind that Smith v. Jones,  1 S.C.R. 455; 169 D.L.R. (4th) 385 states that serious psychological harm may constitute serious bodily harm if it interferes with health or well-being, it also advises lawyers to:
- Consider, when assessing whether public safety outweighs solicitor-client privilege:
- the likelihood that the potential injury will occur and its imminence
- the apparent absence of any other feasible way to prevent the potential injury
- the circumstances under with the lawyer acquired the information about the client's intent or future course of action
- Contact the local law society for ethical advice, and, when practical,
- Seek a judicial order for release of information
- Record particulars in writing (such as time and date, grounds for release, extent of the client's consent to release, particulars surrounding the decision to release such as the circumstances in support of the reasonableness of the belief in imminent harm)
Although preservation of solicitor-client privilege is extremely important, from a domestic-violence safety perspective, a rule expressly enabling lawyers to convey information relating to the known indicators of potential for lethal outcome in domestic violence cases could help to save Canadian lives.
7.5 False Positives: Facts May Not Result in Death
The facts outlined above are associated with cases that have resulted in lethal outcome. The research does not prove that every domestic violator whose case includes a combination of these factors will kill. Nonetheless such factors indicate that the intimate partner and the child are in serious potential danger such that immediate preventative action to ensure safety is warranted.
7.6 Does Preventative Action Violate Rights?
In a family law context, consideration of the potential for lethal outcome operates in a preventative manner. The goal is to enhance safety, not to predict or to punish a domestic violator for something he or she might do.
In connection with family law matters: adults do not have a right to contact or to control former intimate-partners; access is a right of the child, not of parents. Provisions that limit a perpetrator's contact with a former partner or with a child until safety can be assured do not, therefore, violate rights. Instead such provisions can save lives -- including the lives of perpetrators.
7.7 Facts That Should Not be Taken Into Consideration
Facts that should not be taken into consideration when deciding whether or not to take preventative action to reduce the potential for lethal outcome include: socio-economic status, professional status, age, gender, culture, and ethnicity.
It is true that:
- domestic violence victim homicide rates are higher for female victims than for male victims
- Child homicide followed by suicide by a family member is more often perpetrated by men, and
- Domestic violence homicide rates are higher for young couples, and among some cultures, and among the poor
Nonetheless it is also true that domestic violence homicide with suicide crosses all genders, ages, socio-economic, professional and cultural boundaries.
7.8 Best Practices: Managing Risk and Danger
A number of jurisdictions have established cross- sector, integrated, community domestic violence oversight committees to coordinate services and to ensure the seamless exchange of information relating to danger in high risk cases.Footnote 95 In addition to participating on information exchange committees, family lawyers may wish to consider designing and implementing client consent forms authorizing the release of specified types of information relating to increasing risk and to a potential for lethal outcome in domestic violence cases.
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