The policy of mandatory police charging in domestic abuse, which was put in place to protect women, is now often being used against them.
By Doreen Nicoll
Published January 19, 2016
For decades, domestic violence has largely been viewed as a private matter best dealt with by a couple in the privacy of their home. Domestic violence is defined by police departments as any physical, sexual, financial, emotional, spiritual or psychological harm caused, or attempted, between persons involved in an intimate relationship including: assault, murder, sexual assault, threatening, harassment, intimidation, unlawful interference with personal liberty, and any other criminal offence.
American psychologist Lenore Walker found that women are assaulted an average of 35 times before they make that initial call for help to police. It's also well documented that women will attempt to leave at least five to ten times before freeing themselves, and their children, from an abusive relationship.
Imagine how disheartening it would be for women in abusive relationships to finally make that important call to police, only to be treated as if the abuse was their own fault. Or, worse yet, being asked in front of their abuser if they want to press charges. Even when charges were laid, the abuser had time to threaten and coerce his victim into withdrawing them before his trial.
It wasn't until the 1980s that professionals began to understand domestic violence is rooted in a man's need for power and control over his intimate partner. Police, lawyers, court staff, child protection agencies, hospitals and government policy makers were faced with a growing body of evidence that patriarchal society perpetuated the gender inequalities that enabled domestic violence to continue unabated.
With the introduction of Mandatory Charging in Canada in 1983, things began to change. Section 15 of the Department of Justice Domestic Violence Occurrences (LE-024) includes the mandatory charge policy, which states that in all domestic violence occurrences an officer is to lay charges where there are reasonable grounds to do so.
Section 17 states that an officer should explain to both the victim and the suspect that it is the officer's duty to lay a charge when there are reasonable grounds to believe that an offence has been committed, and that only a Crown can withdraw the charge.
Section 20 highlights the importance of determining the primary offender in order to distinguish assault from defensive self-protection and thereby avoid laying dual charges, as well as laying counter-charges.
Mandatory police charging requires officers to lay charges in domestic violence cases where the officer believes there is a reasonable likelihood of getting a conviction, whether or not the victim wants a charge to be laid. The intention was to protect assaulted women from further threats and abuse by having the police lay charges. However, mandatory charging went largely unused until the 1990s.
But now the policy put in place to protect women is often being used against them. As Jo-Anne Miller, a Partner Assault Response (PAR) Counsellor, will tell you, "The outcome has been quite different and we now find women being victimized by a system that was initially meant to keep them and their children safe."
Miller was one of four presenters taking part in the Domestic Violence Legal Information Training: Women Charged with Partner Assault workshop facilitated by the Metropolitan Action Committee on Public Violence Against Women and Children (METRAC) on January 14, 2016.
Miller has worked in the Aboriginal and mainstream social service sector in Toronto for over 20 years. Most recently she worked for the Elizabeth Fry Society of Toronto as the Manager of Court Programs, which included being responsible for the largest women's PAR program in the Toronto region.
According to Miller, "Once mandatory charging came into effect, we saw an increase in both parties being charged. But, after discussions with police and domestic violence advocates, dual charging began to decline. The outcome appears to be that women being solely charged is now on the rise." This is hardly a surprise to women working and volunteering in the field of domestic violence.
Officers responding to a domestic violence complaint are to determine the dominant aggressor in each occurrence. However, that can mean relying on wounds as proof of an assault having taken place. While men use force to inflict pain, injury, and death, women use force in self-defence.
A woman who is being strangled may use her nails to scratch her assailant's chest, neck and face to get him to release his grip. The act of strangulation may leave no marks on her skin, but he will certainly have wounds to show the police. The same is true when a pillow is used to suffocate a woman who will instinctively scratch in an attempt to free herself.
The officer called to the scene of a domestic disturbance may not understand the history of ongoing abuse and threats of violence that have caused the woman to act out. A woman is more likely to use a 'weapon' like a water bottle, phone or clock to try to stop an assailant who is much stronger than her. Often women only retaliate when threats or acts of violence target her children or pets rather than herself.
Men wrongfully accuse women to gain more power and control over their partners. Once charged and released on a restraining order or peace bond, women cannot return to their matrimonial home without breaching the terms and conditions of their release.
These women are homeless and without access to their children who are probably still living in the matrimonial home with the abuser. In addition, many of these women will have been out of the workforce while others may have lost their jobs due to the assault charge, but regardless, they have no income.
The abuser may have orchestrated this false arrest so well that his victim finds the bank accounts have been closed and all credit cards cancelled, leaving her penniless. This at a time when she needs to hire a criminal lawyer to deal with the false assault charge and may be considering hiring a family lawyer to get her children back and proceed with a divorce.
Once wrongfully charged with assault, a woman may be directed by the courts to complete a PAR program. These programs, administered by the Ontario Ministry of the Attorney General (MAG), were originally designed for men.
The 12 week program is an early intervention used with first-time offenders who did not use a weapon and where the victim did not sustain serious injuries. There is a mandatory sliding scale fee that must be paid by each participant.
Rather than being an anger management course, PAR was designed to create an understanding of the power imbalances that exist between partners experiencing domestic violence. Participants learn about the dynamics of relationships and develop strategies to avoid using violence in the future. The PAR program was meant to hold the men accountable for their actions.
This program designed for abusive men and created with a male focus was never adapted using a gendered lens for women. That means in its current form PAR doesn't work for women because most women in the programs are in fact the victims of, and not the perpetrators of, the violence.
A second, perhaps more important piece, is the fact that PAR programs were meant to enhance the victim's safety. While a male offender is attending a PAR program, staff offer the victim help with safety planning, referrals to community resources, and information about the offender's progress.
When women who have been wrongly charged attend a PAR program, their abusive partner should be receiving the same victim services. However, that would place these women at great risk. Women who have been wrongly charged with assault should let their PAR councillor know about their domestic violence situation so that information that may place the participant in greater danger is not released to her abusive partner.
Ironically, it's during the PAR program that many women learn about and really understand what constitutes abuse. More importantly, it's often the first time that these women realize that they have been victims of multiple forms of violence that are not necessarily illegal but that constitute domestic violence.
Put downs, accounting for every penny spent, isolation from friends and family, checking her cell to see who she has been speaking with or texting, demanding she give all of her pay to him, not letting her work, calling her to see that she is where she said she would be, forcing her to wear her hair a certain way or wear only clothes that he approves of - it really comes down to male privilege and an inherent sense of entitlement.
When women are wrongfully charged and sent to PAR programs, staff need to be vigilant to prevent abusive partners from manipulating the system to gain information about the woman's whereabouts or to make false reports and allegations which would compromise her restraining order or peace bond and create additional problems.
Women are the victims in 90 percent of domestic violence cases. Women tend to admit to and own both their anger and the force that they used to defend themselves. Men make up the majority of abusers. Men tend to downplay their abusive behaviours, their use of force, and blame their victims for inciting the abuse. But, in a twisted way the fact that women in PAR programs come to realize that they are being abused may just save their lives.
MAG desperately needs to rework the PARS program for women using a gendered lens. Since the majority of women taking PAR programs identify as the victims of domestic abuse MAG needs to create gender specific standards including ensuring women facilitators for these programs rather than the current standard of a man and a woman.
Abusers should receive no information regarding when and where classes will be held. At the very least, additional services and referrals to agencies which address the issues and consequences of domestic violence including counselling need to be made available at no cost.
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