Women's Experiences with Mandatory Charging for Wife Assault in Ontario, Canada: A Case Against the Prosecution
| Date | 01 January 2000 |
| Author | Tammy C. Landau |
| DOI | 10.1177/026975800000700308 |
| Published date | 01 January 2000 |
Domestic
Violence:
Global
Responses,
pp.
141-157
©
2000
A B
Academic
Publishers
Printed
in
Great
Britain
WOMEN'S EXPERIENCES WITH
MANDATORY
CHARGING FOR WIFE
ASSAULT
IN
ONTARIO,
CANADA:
A
CASE
AGAINST
THE PROSECUTION
TAMMY
C.
LANDAU
Assistant
Professor;
Department
of
Psychology
and
School
of
Justice
Studies,
Ryerson
Poly-
technic
University,
Toronto,
Canada.
1
ABSTRACT
Over
a
decade
ago,
the
Canadian
government
and
most
provinces
implemented
a criminalization
strategy
for
wife
assault.
The
policy
has
as
its
main
goals
the
reduction
of
case
attrition
through
the
prosecution
process
from
charge
to
disposition,
and
the
imposition
of appropriate
sentences
upon
conviction.
These
goals
are
achieved
through
removing
police
discretion
in
charging,
and
reducing
the
number
of
cases
withdrawn
or
stayed
by
the
Crown
prosecutor.
Evaluations of
the
policy
suggest
it
has
strong
support
from
justice
professionals
who
work
within
the
system.
This paper
presents
data
from
interviews
with
94
women
whose
male
partners
had
been
charged
with
assaulting
them.
Views
and
experiences
of
women
are
presented,
and
indicate
complex
views
of
mandatory
charging.
The
findings
support
the
conclusions
that
women
do
not
equate
calling
the
police
with
the
criminal
prosecution
of
their
spouses,
and
often
experience
additional
anxiety,
frustration
and
disempowerment
as
a
direct
result
of
the
strategy.
However,
recommendations
for
reforming
the
strategy
emphasize
the
resource
and
evidentiary
needs
of
the
police
and
Crown,
while
the
needs
and
interests of
women/victims
are
seen
as
barriers
to
the
smooth
prosecution of
wife
assault
cases.
It
is
suggested
that
the
voices
of
women
are
not,
and
cannot
be,
integrated
into
the
current
strategy,
as
it
prioritizes
the
bureaucratic,
professional
and
structural
imperatives
of
the
administration of
justice
and/or
its
agents.
The criminalization
of
wife assault, through the policy
of
mandatory charging
and prosecution
of
appropriate cases, has been the primary state response to this
particular form
of
violence against women in Canada for over a decade.2 It
emerged at a time
of
increasing pressure to recognize, first, the severity and
amount
of
violence perpetrated against women by their male partners, and,
second, that the agents
of
the criminal justice system (primarily the police but
including Crown prosecutors and other criminal justice workers) ignored women
who called on them for protection in what were often long-term, abusive rela-
tionships. Most,
if
not all, provinces in Canada have formally adopted criminal-
ization strategies to prevent and to reduce violence against women by their male
partners. The details
of
how the policy is implemented is continually evolving,
and varies across locations. In general, however, the policy centres around
mandatory charging in all cases
of
wife assault and the consequent reduction in
case attrition in the prosecution process (Prairie Research Associates, 1994;
142
Ursel,
1994).
These
are
achieved
through
policy
directives
aimed
at
the
police
and
Crown
prosecutors ('Crowns'). Police discretion
in
charging
is
removed
in
cases
where
there
are
reasonable
and
probable
grounds
to
believe that
an
assault
has
taken
place,
and
by
means
of
guidelines
developed
specifically
for
dealing
with
wife
assault,
Crowns
are
discouraged
from
dropping,
staying
or
withdraw-
ing
these
charges.
While
the
formal
policy
is
limited
to
law
enforcement
and
prosecution,
the
strategy nevertheless
has
significant
and
direct
repercussions
for
assaulted
women
who
come
to
the
attention of
the
police.
By
removing
the
women's
influence
over
charging decisions,
the
policy
is,
in
part,
an
attempt
to
relieve
them
of
the
moral
responsibility
for
the
criminal
prosecution
of their
spouses,
and
to
protect
them
from
any
intimidation or retaliation
from
their
spouses
which
may
follow.
Additional strategies
are
therefore
employed
to
'encourage'
the
full
participation of
victims
as
witnesses,
through,
for
example,
establishing
Vic-
tim/Witness
Assistance
Programs.
Nevertheless,
the
proportion
of
women
who
refuse
to
co-operate
in
providing
evidence
against
their
spouse
is
high,
and
is
seen
bl
police
and
Crowns
as
the
primary
cause
of
case
attrition (Roberts,
1996).
For
those
many
women
who
still
refuse
to
testify,
coercive
legal
measures,
such
as
the
issuing
of
bench
warrants
or
subpoenas,
may
be,
and
have
been,
used.
EVALUATING
MANDATORY
CHARGING
There
have
been
a number of evaluations of
the
mandatory
charging
policy
in
Canada
(see,
e.g., Gill
and
Landau,
1996,
1998;
Prairie
Research
Associates,
1994;
Roberts,
1996;
Ursel,
1994).
Amain
component
of
most
of
these
studies
is
a cross-sectional analysis of
wife
assault cases prosecuted
under
the
policy,
combined
with
data
from
interviews
with
the
main
players
in
the
prosecution
process, particularly police officers,
Crown
prosecutors
and
community
workers.
Some
(e.g., Roberts,
1996)
include
interviews
with
assaulted
women
who
may
or
may
not
have
had
direct experience
with
the
prosecution
process.
However,
in
most
studies, pre-
and
post-charge
measures
with
respect
to
the
occurrence
and
recurrence of violence
are
lacking
or
based
on
unreliable
data,
so
conclusions
cannot generally
be
drawn
about
the
extent
to
which
mandatory
charging
is
'working'
to
prevent or reduce
violence
against
women.
These
studies
might,
therefore,
be
best characterized
as
'operational' evaluations,
in
that
they
provide
valuable
data
on
the
nature of
the
cases
processed
under
the
policy,
and
on
the
social
context
and
consequences of prosecuting
wife
assault.
Interview
data
are
also
extremely valuable
in
identifying
strengths
and
weaknesses
of
the
current
policy, from very different perspectives.
Data
from
previous studies suggest that
support
for
the
mandatory
charging
policy
is
strong, although a number of
concerns
have
been
identified (e.g.,
Gill
and
Landau,
1998;
Prairie Research
Associates,
1994;
Roberts,
1996).
According
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