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1 Protecting Victims’ Interests in Domestic Violence Court Holly Johnson, PhD Department of Criminology University of Ottawa National Research Day Engaging our Communities: Working Together to End Intimate Partner Violence Muriel McQueen Fergusson Centre for Family Violence Research University of New Brunswick November 4, 2010

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Protecting Victims’ Interests in Domestic Violence Court

Holly Johnson, PhD Department of Criminology

University of Ottawa

National Research Day Engaging our Communities: Working Together to End

Intimate Partner Violence

Muriel McQueen Fergusson Centre for Family Violence Research University of New Brunswick

November 4, 2010

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We in Canada have much to be proud of in terms of our collective response

to intimate partner violence. In many ways, Canada is a world leader in

establishing aggressive criminal justice policies to combat this crime. Pro-arrest

policies are in force in police departments across the country and pro-prosecution

policies and specialized domestic violence courts have been mandated in many

locations to ensure that these cases are treated seriously. These responses are

centered on the premise that engaging strong and punitive crime control

responses will denounce the violence by naming it a social wrong.

While not the first to implement specialized court processes, the province

of Ontario has the largest roll-out with a Domestic Violence Court Program in

each of the province’s 54 court jurisdictions. The Domestic Violence Court

Program aims to facilitate the prosecution of domestic assault cases, provide early

intervention, increase offender accountability, and improve support to victims.

Specialized court processes similar to Ontario’s are now deeply embedded in the

Canadian criminal justice response to intimate partner violence, having been

implemented in some form in many provinces and the Yukon Territory.

Underlying these policies is the presumption that arrest and prosecution is the

most appropriate response to intimate partner violence in all cases.

Today I would like to briefly identify some of the dichotomies and tensions

that have arisen within the criminal justice response to intimate partner violence

as we know it in Canada, then to summarize what is known about women’s

objectives when they engage the criminal justice system, and how these mesh

with or are at odds with the objectives of the justice system itself. Finally, I will

argue for expanding dialogue and research on ways to improve women’s safety

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while respecting their right to be autonomous decision makers, and thus

protecting their interests.

One central objective of aggressive pro-charging and pro-prosecution

policies in the Ontario Domestic Violence Court is to improve the speed and

certainty with which cases will be prosecuted, and this requires that Crown

Attorneys prosecute cases independent of the victim’s wishes. Known as “no-

drop” prosecution policies, this aspect of specialized courts in Ontario is arguably

the one subject to the strongest critique. Advantages to “no-drop” policies have

been cited:

demonstrates a clear societal commitment to treat partner violence

as a serious crime

provides a credible threat of prosecution

speedier court processing

greater consistency in sentencing

protects the woman from retaliation if the abuser perceives the

decision is out of her hands (Corsilles, 1994; Eley, 2005; Hanna,

1996).

A central research question for the Canadian Observatory on the Justice

System Response to Intimate Partner Violence and many of us here is: Is there

evidence that these specialized processes are effective? In fact, formal and less

formal evaluations in various court locations in Canada and elsewhere have

identified significant improvements in many aspects of the functioning of the

justice system over the traditional response:

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A rise in the number of cases reported to the police

The offender is more likely to plead guilty if he knows the victim

doesn’t control the case

An increased focus on rehabilitation has resulted in a rise in the use

of probation with mandated treatment for abusers

Fewer cases dropped by the police or prosecution

Enhanced training of police and Crown attorneys which improves the

sensitivity and consistency of the response

Some studies have tracked a decline in recidivism

Better support for victims throughout the criminal justice process

and through referrals to community agencies, risk assessment and so

forth

We also have an indication that partner homicides are declining

which researchers have linked at least in part to the provision of

services to victims and policies and laws that mandate a more

aggressive criminal justice response (Dugan et al., 1999; Hornick,

Boyes, Tutty & White, 2008; Tutty, McNichol & Christensen, 2008;

Ursel & Hagyard, 2008)

It has been argued that criminal justice processing of intimate partner

violence provides an opportunity for the woman to expose the man’s violence,

have her experiences validated, and get support for her challenge to this

behaviour (Lewis, 2004). Many argue that women are empowered by their

allegiance with criminal justice agencies and the support they receive from other

agencies working in collaboration (Ford & Regoli, 1992). Indeed, few would

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disagree about the law’s symbolic power or would argue for a return to the days

when crimes of violence against women were widely treated as private, non-

criminal matters.

However, concerns have been articulated about policies that force women

to participate in a process that so fundamentally affects all aspects of their lives

and wellbeing. While no-drop prosecution was initially endorsed by advocates for

battered women as a way to equalize power between women and male abusers,

and ensure that violent men would be held accountable, many advocates argue

that strict adherence to these policies, as is the case in many court jurisdictions in

Ontario, leaving women no choice but to prosecute following a call to police for

protection, has occurred at the expense of women’s autonomy and

empowerment as they:

Transfer power and control from violent partners to the state

Infantilize women and assume they are not capable of making

decisions that affect their lives

Emphasize arrest and punishment of offenders over meeting the

needs of victims

Assume that prosecution is always the best or safest solution

On the other side of the debate are those who argue that the benefits of

no-drop policies outweigh these concerns. There is sometimes a belief that

inflexible no-drop policies are justified to protect women from abusive and

controlling men. Removing a woman’s right to choose may undermine her

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autonomy, but this is necessary to protect individual victims and protect the

public.

Herein lies one of many dichotomies or tensions we are confronted with in

our engagement with the criminal justice system to respond to intimate partner

violence: the tension between portraying women as victims and recognizing their

agency. Many writers have written passionately about this; let me cite just two.

Ruth Lewis and her colleagues Russell and Rebecca Dobash and Kate Cavanagh

(2001) speak about women’s “active negotiation and strategic resistance” to

violence and abuse and argue that, rather than passive victims, women actively

resist violence and strategically use the resources available to them. The criminal

justice system is just one such resource, and it is usually called upon when others

have failed. Related to this is Melanie Randall’s (2004) observation that “most

mainstream social and legal responses to the problem of…violence against

women in intimate relationships, remain… bound up with and shaped by

incomplete and distorted representations of the nature, causes, and effects of

that violence.”

Randall (2004) presents as examples the legal construction of women who

suffer from the battered woman syndrome and women who refuse to cooperate

with the prosecution of their violent partners. Both are built on stereotypical

representations which fail to consider that women make decisions that are

rational in the context of the particular circumstances of their lives and the

conditions of inequality that shape those circumstances. One is constructed as

helpless and ineffective in her failure to act and one as demonstrating excessive

agency in opposition to the needs of the criminal justice system. Randall argues

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that there is a fundamental disconnect between “the way in which domestic

violence is understood and processed in the criminal justice system and the way

in which it is lived and negotiated in the context of assaulted women’s lives”.

Women who recant their testimony in an attempt to halt the prosecution of their

partners are making choices that may be quite rational and reasonable given the

particular circumstances they find themselves in. By negating women’s agency,

women who refuse to cooperate with the prosecution are constructed as a

problem that impedes the objectives and intent of a system set up to serve their

interests. To quote Randall (2004: 109), “dominant images and legal

representations of women who are victims of violence typically fail to apprehend

the co-existence of women’s victimization with women’s agency that is often

expressed through the context specific strategies of resistance which most

women employ”. These constructions of abused women reflect an understanding

of victimization and agency as mutually exclusive which limits the development of

responses that might better serve women’s needs.

But early feminist advocacy must be held partly accountable for this

essentializing of the stereotypical “battered woman”. Representing themselves as

advocates for all abused women, early advocates in the battered women’s

movement lacked diversity and tended to be white and middle-class. These were

women with the power and privilege to define the nature of the problem.

Intimate partner violence was portrayed as a universal experience, affecting all

women equally, thereby minimizing the significance of race, ethnicity, class and

other difference for the women who experience violence and the way in which

policies play out (Fedders, 1997). Framing intimate partner violence as an

experience that crossed race and class boundaries helped in the struggle to gain

8

widespread support for aggressive and consistent responses, but this essentialist

understanding of the “battered woman” has led to mandatory criminal justice

processing as a universal solution to a complex problem that empowers some

women and not others (Fedders, 1997).

How women in different social positions experience violence, its

consequences, and the social and legal structures set up to respond to it has not

been well incorporated into our investigations until relatively recently. We now

know that all women do not benefit equally from justice system responses. We

know that many Aboriginal women perceive the state in terms of mistrust due to

the brutality and harsh treatment by police and other state agencies toward their

communities (Nancarrow, 2007; McGillivray & Comaskey, 2004). We also know

that minority and marginalized women often suffer negative consequences as a

result of aggressive legal intervention in the form of racism and increased

violence following arrest of their partners. We are beginning to understand the

complex situation many immigrant women find themselves in when their

immigrant or refugee status complicates their decision to seek help from

mainstream services. We clearly have much to learn about how diverse groups of

women strategically manage male partner violence and how they are affected by

social and legal policies set up to respond to this problem.

A second tension we grapple with in using the justice system as a

centrepiece of a societal response to partner violence is the question of “expert

knowledge” under the law. The law privileges certain forms of knowledge and

disqualifies others. We see this when the testimony of expert psychologists is

needed to validate women’s actions when they use the Battered Women’s

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Defence. We also see it when experts are brought into the courtroom to

disqualify women’s testimony when they recant in an attempt to halt the

prosecution. When prosecution proceeds without the woman’s agreement legal

knowledge clearly trumps any knowledge the woman might have: the court sends

the message that “experts” are required to correct the woman’s misguided

decision and meet the court’s goal of obtaining a prosecution. Jessica Dayton

(2002/03) argues that when the court uses the testimony of others to explain the

woman’s behaviour or interpret her experience, this not only disqualifies her

testimony but compounds her powerless. Any power the woman may have

acquired by calling the police is removed when they proceed with prosecution

against her wishes.

A third tension is between the private and public aspects of intimate

relationships and the violence that can occur in these situations. Much feminist

and other public discourse concerning the criminalization of intimate partner

violence has centered on the argument that private violence must be re-

conceptualized as a public concern in order to compel state intervention, and to

shift it from the private realm of the family. Historically, the privacy of the male-

dominated household served to strengthen patriarchal power over women and

children as male heads of households were permitted to use their discretion to

use physical punishment against them. By shifting intimate partner violence from

a private to a public concern, the privacy of the family can no longer be used to

justify non-intervention by the state (Hanna, 1996).

Cheryl Hanna (1996) asks an important question: Must we always

characterize intimate partner violence as a purely public phenomenon or is there

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some place for preserving a more privacy-based model of intervention? Is there a

way to resolve the conflict between the goals of protecting public safety and

holding law violators accountable on the one hand and furthering the private

wishes and goals and personal safety of individual women on the other? Hanna

argues that resolving the public/private distinction to favour the private can

actually work to women’s advantage, if we consider privacy not as a separate

sphere where men are free to oppress women, but as preservation of autonomy

over important decisions. In that way, we can more easily see how decisions to

break up her family, and subject her and her partner to legal intervention and her

partner to jail time should be her choices (Hanna, 1996).

This leads to the question: Is there a place for the experiences of individual

women to guide our policy goals, or should societal goals always take precedence

(Hanna, 1996)? It is clear that simply re-labelling a private family matter a public

crime fails to consider the messy realities of real life.

A concern is that safety and protection are all too often equated with arrest

and prosecution. Yet, research tells us that, despite some positive outcomes of

specialized justice process for responding to intimate partner violence, these do

not guarantee safety. For example, research tells us that:

Arrest has a small effect on deterring abusers from further violence

(Maxwell, Garner & Fagan, 2002)

Arrest is most effective at deterring men who have positive

connections to their communities that they feel are worth

preserving, through work, social groups, and family who do not

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condone violent behaviour. It is least effective for those who have

previous convictions, chronic unemployment, or men whose

environment provides support for his violent behaviour or punishes

the victim for speaking out against him.

While court-mandated behavioural change programs for violent men

seem to be more effective than traditional criminal justice sanctions

alone (Lewis, 2004) and can work for some men to reduce recidivism,

overall the effects are small and uneven (Babcock & Steiner, 1999;

Babcock, Green & Robie, 2004; Feder & Wilson, 2005; Gondolf,

2002).

Evidence of the effectiveness of protection orders is mixed (Klein,

1996)

In fact, the range of solutions available to the justice system to respond

effectively to put an end to the violence and ensure women’s safety are limited.

In many instances, these actions actually endanger women, result in dual

charging, and affect their long-term recovery and ability to cope effectively, and

identify and find redress for their own needs.

Many argue that the choices presented in intimate partner violence cases

are too important and too complex to be made by a justice system with little

personally at stake, that these policies strip women of personal choice and send

the paternalistic message that women cannot think for themselves, cannot be

trusted to make the right decision, and don’t know what’s best for themselves

and their children. Critics argue that pro-charge and pro-prosecution policies can

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more harm than good. They argue that the use of state power re-victimizes

women, holds them accountable for failing to stop men’s violence, and forces

them into a process over which they have no control.

Women’s organizations and domestic violence support and advocacy

services now find themselves facing a dilemma: while strong and consistent legal

intervention is unarguably an essential component of an effective societal

response to partner violence, to what extent should the state use its powers to

compel women to participate in the prosecution of men with which they are

intimate involved? To what extent do we sacrifice women’s autonomy in this

quest to hold offenders accountable? Support for mandatory arrest grew out of

the belief that it can empower women, but does it in all cases? Perhaps

prosecution can be empowering for women when they have freely chosen to

pursue prosecution, but how does it empower women who are forced into the

process?

While the shift to a rigorous justice system response has produced some

encouraging outcomes, evaluations have generally overlooked one central

question: to what extent are women actually safer as a result? And are there

aspects of these policies that have a negative impact on women’s safety? What is

obvious from the results of evaluations listed earlier is that most employ

indicators of success from the perspective of the criminal justice system, such as

case processing and re-arrest rates. Most have failed to investigate “what

matters” to victims of intimate partner violence. This is a logical approach in many

respects since procedural justice, or the perceived fairness of decision-making,

improves the appearance of criminal justice legitimacy and is related to victim

13

satisfaction with the process (e.g., Hinds & Murphy, 2007; Sunshine & Tyler,

2003). And indeed many women do value procedural justice.

Measuring “what matters” means, among other things, assessing service

delivery from the perspective of those receiving the services, a framework that

has been used to expand and improve upon the criteria typically used to assess

general police performance (Robinson, 2008). This framework can be applied to

evaluations of specialized domestic violence courts so that performance can be

measured in potentially more meaningful ways. Typical criminal justice

performance measures (such as arrests, prosecutions and convictions) do not

help us identify “success” from a victim perspective, and do not measure what

matters to the primary users of this service. One American study of court

personnel found that staff tend to value speed, efficiency and procedural fairness

over other goals (Mirchandani, 2005). A shift in orientation is critical because

what matters to victims is often very different to what matters to police,

prosecutors or judges. Research oriented toward identifying success from a victim

perspective is particularly important because of claims made by governments that

these specialized court processes attempt to make the criminal justice system

more victim-centred.

So what does matter to women who engage with the criminal justice

system as an avenue of support and redress for partner violence? What do

women want or expect when they turn to the justice system for help?

Researchers who have interviewed women about their needs and expectations

have discovered that women tend to become involved in the criminal justice

system after all other resources have been exhausted. Women who call the police

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are usually looking for protection and an immediate stop to a particular incident

of violence; many are not committed to long-term involvement with the criminal

justice system.

According to the General Social Survey on Victimization, the primary reason

women give for calling the police after partner violence is for immediate

protection (88%) (Johnson, 2006). Fewer reported because they wanted their

partners arrested (43%). Carolyn Hoyle (1998) in the United Kingdom found that

women’s expectations from the police were to have the violent man removed,

warned to cease the violence, or arrested, in equal parts. Most wanted advice and

information about short- and long-term options, and someone to talk to who

would be supportive and non-judgmental, who would not insist on taking action

she didn’t want taken. Victim satisfaction with police was not determined by

arrest; satisfaction was related to getting the result she wanted (as opposed to

having police proceed with their own agenda) so arrest led to satisfaction if that

was indeed her preference. This is similar to other studies that find women’s

satisfaction and willingness to call police again in the future is tied to whether

their objectives in engaging the system have been met (Hickman & Simpson,

2003).

In her study of marginalized women in Winnipeg, Joanne Minaker (2001)

investigated what abused women need and whether criminal justice policies and

practices provide what they are looking for. Needs identified by these women

were organized around dominant themes:

Understanding: the need to be believed and have their experiences

validated. For many, the abuse was trivialized, dismissed or ignored. Police,

15

lawyers and judges often failed to take the women seriously or failed to

demonstrate understanding of the context in which the abuse occurred.

Police often failed to recognize the control violent men have over their

partners and underestimated the extent of fear and risk

Reprieve: the need for protection, safety, escape from the abuse.

Immediate protection was paramount but a call to police was often a last

resort after they had exhausted other resources. The level of protection

received depended on how the police understood the danger these women

were in.

Survival: medical attention and other basic human needs. Survival at times

meant physical safety while other times it was a psycho-social process.

Several women were reluctant to involve police or provide a statement, not

seeing the justice system as central to their survival.

Children: needs of children were central to their own needs. Women were

concerned about impact of abuse on children, custody disputes. Criminal

justice agents often failed to appreciate how tied the women’s own needs

were to those of their partners and their children. In family court, abuse is

often not given credence and violent partners are given access to or

custody of children.

Means, remedies and rebuilding: coping mechanisms and resources to deal

the abuse; having long-term security. This includes counselling,

information, advice, and the need for financial resources. The justice

system often failed to provide information and direction that would provide

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the means to cope with the situation, or the kind of remedies they were

seeking. The women focused on having some control over the process,

including whether their partners were arrested, prosecuted or convicted.

They expressed discontent because their experiences were largely

misrepresented by those involved in the criminal justice process.

According to this study, the criminal justice response both enables and

constrains women’s ability to negotiate choice. One Important finding was that

women’s needs and choices and the effects of decisions to involve the justice

system cannot be separated from the power structures in which they live, eg.,

race, class, colonization, other forms of marginalization, and immigrant status.

The constraints posed by these hierarchies are absent from the law’s view of the

event and how they limit options available to these women.

While many of these survivors of partner violence spoke of wanting

“justice”, they did not always see that as something the criminal justice system

could deliver and in fact engaging the justice system often resulted in negative

consequences, such as dual charging and loss of children (Minaker, 2001).

Indeed, women who contact the criminal justice system may be looking for

something entirely different than punishment and retribution. Studies find that

the most important resolution victims of partner violence want is validation of

their experiences, and for family and friends to take an unequivocal stance in

support of her and condemnation his violence (Herman, 2005). Victims express a

desire for healing and rebuilding, and to feel safe throughout and as result of this

process. While many have faith in the justice system overall, most don’t see it is a

solution to their situation or as a guarantee of safety (Barata, 2007). Many worry

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that involvement with the justice system could make their situation worse, in

terms of their future financial and personal well-being. Women are generally

afraid of their partner, but feel frustrated and confused about the criminal justice

process and conflicted over whether or not they want him criminalized (Bennett,

Goodman & Dutton, 1999). Most express a desire for rehabilitation for their

partners over punishment or retribution ( Cretney & Davis, 1997; Bennett, et al.,

1999; Robinson, 2008).

Robyn Holder’s research in Australia shows that women’s feelings following

finalization of their case in court are mixed. Only half felt that justice was done

even though two-thirds of cases had resulted in a conviction. One-in-five had not

wanted to proceed with prosecution (Holder, 2008). Only two-thirds of women

whose partners were prosecuted in one survey and less than half in another

survey felt it was beneficial to them. Some who had negative views of the

prosecution had not wanted it to proceed because they felt the incident was not

serious or the perpetrator’s problems were better addressed some other way. On

the other hand were those who felt the outcome was inadequate or failed to

have an impact on his behaviour. Although 79% said they would call the police for

assistance again, just 53% said they be involved in another prosecution, again

suggesting that women engage with the law as an active choice, but that a desire

for arrest does not signify a wish to prosecute in all cases.

Clearly, abused women have very diverse and complex needs when they

engage with legal intervention and these vary by access to financial and other

resources, as well as social hierarchies, and the ways these lived realities

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interconnect. Abused women’s needs are often in conflict with the goals and

objectives of the justice system to aggressively prosecute offenders.

When women want to halt the prosecution, they are often characterized as

“uncooperative” of “hostile”. Women who refuse to cooperate with the

prosecution are constructed as a problem that impedes the objectives and intent

of a system set up to serve their interests. They are considered at least partially

responsible for the violence continuing if they refuse the court’s protection and

state their wish to withdraw. While strong no-drop prosecution policies can

empower women who have no hesitation about having their partner prosecuted,

they overlook the possibility that women might use the law strategically and that

prosecuting and leaving a violent partner can be part of a lengthy and uncertain

process. Women actively and strategically make decisions based on their own

personal safety which may involve calling police and it may or may not involve

prosecution. To overlook this is to overlook the context in which women are

making decisions which are fluid and shifting.

Myrna Dawson’s work in Toronto with Ronet Dinovitzer (2001) found that

victim cooperation is key to a successful prosecution and that cooperation is

enhanced by providing victims with extra-legal support. But even within a

supportive environment, large numbers of women use the only option open to

them to halt the prosecution and that is to recant their statement, often under

oath. This leaves them open to being subpoenaed on witness warrents and

charges of contempt of court and perjury. Robinson and Cook (2006), in their

study of victim retraction in five specialized domestic violence courts in England

and Wales, found that half of women recanted, even with victim support. Other

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researchers find that women call the police to put an immediate stop to the

violence, but after this goal is satisfied, they often want the charges against their

partner dropped (Ford, 1991). Although at odds with the goals of the criminal

justice system, these decisions should be interpreted as rational and strategic.

Figures on recantation in the Ontario Domestic Violence are not easily

obtainable. However, a recent evaluation found that many criminal justice system

staff and victims were unhappy about not being able to drop cases (PRA, 2006).

Only one-half of the victims interviewed felt their views were considered with the

respect to the decision to proceed with prosecution. The lack of flexibility in terms

of being able to adjust to the particular circumstances of individuals was

identified by staff as a weakness that sometimes hindered the ability to meet the

needs of victims and offenders. Many felt that vigorous prosecution was not

always appropriate. It was felt that greater flexibility would allow the program to

be more responsive to the needs and preferences of victims, but cautioned this

must be done with great attention to victim safety, such as risk assessment and

effective monitoring of release conditions.

Decisions to engage or withdraw from the criminal justice process are

based on myriad factors that shift over time as the woman tries to manage her

safety and the welfare of her children. The decision to withdraw are often

determined by intimidation and threats of retaliation from the abuser or his

family, the severity and frequency of the violence, lack of knowledge about the

justice system, court delays, fear of the unknown, bail conditions, and negative

experiences in the past. But decisions are also affected by factors not directly

related to the violence or the criminal justice process, cultural pressures from her

20

family or her community, availability and accessibility of community supports, the

stigma of divorce, fear of losing her children, financial impacts of having her

partner incarcerated, poor language or literacy skills, immigration status, and

fears that the costs will exceed the benefits. These considerations each weigh on

women’s ultimate goal of keeping themselves safe from further violence. How

their decision to continue or withdraw from the justice process affects system

goals is secondary to their goal of dealing effectively with an extremely difficult

personal situation (Robinson, 2008).

It is clear that decisions to stay or to leave a violent relationship, to refuse

to testify or cooperate with the prosecution, are complex decisions made within

the context of women’s lived realities. It is now becoming clear that strict pro-

prosecution policies, although developed with good intent, respond to very

narrow conceptualizations of intimate partner violence. The weight of the

criminal justice system is brought to bear equally on all cases, regardless of the

sometimes coercive way this is experienced by female survivors (Ford, 2003).

Since women do not have identical objectives when it comes to engaging

with the criminal justice system, we must ask whether blanket policies can

respond to the diversity of the women affected. Almost 30 years after police were

first directed to adopt aggressive charging policies, it is time to step back and

articulate a different vision, one that puts women’s needs and preferences at the

centre of the discussion.

If one goal of the Ontario Domestic Violence Court has been to be more

responsive to the needs of victims, shouldn’t women therefore have a greater

role in policy making? Women are the primary “clients” of the system, yet are

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rarely invited to participate in discussions about the impacts of these policies on

their lives, how they may have had unintended negative impacts on their safety

and the safety of their children, and what an effectiveness victim-centered

response might look like. We must ask: Are the goals of making women safer

forever at odds with the justice system goal of aggressively prosecuting offenders,

or is there space for flexibility? Is holding offenders accountable through arrest,

prosecution and conviction the only possible measure of success?

This is certainly not a call to dismantle the strong justice responses to

intimate partner violence. There will continue to be a need for women to use the

law in resisting men’s violence; many women rely on it and describe positive

aspects to it. There is ample evidence that women can have their needs met,

particularly when criminal justice agencies act in collaboration with community

agencies, and that some men are deterred from using violence. At a time when

we are faced with neoliberal-minded governments with law-and-order agendas,

and a waning of the rehabilitative ideal, it is encouraging that rehabilitation of

violent men retains a central place within comprehensive responses to partner

violence (Lewis, 2004). Holding men accountable for their violence and supporting

them to change their behaviour must continue as important ideals within our

legal interventions.

What I am arguing is that within the current climate of no-drop prosecution

in Ontario research must continue to work to identify the strengths and

weaknesses in all components of our response, including pro-arrest, rehabilitation

programs for violent men, multi-agency coordination and referrals, social service

responses, and prosecution. I am arguing that women have a central role to play

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in discussions and research evaluating the effectiveness of these responses. If

women’s safety is not central to questions about effectiveness, whose interests

are being served? If the victims of these crimes are relegated to the status of

mere “witness” without a voice, how can we know when we’re getting it right?

Not getting it right might mean deterring women from seeking police protection a

second time.

I am drawn to Ruth Lewis’s (2004) suggestion that the perspectives of both

women survivors and male perpetrators can and should be incorporated into

investigations of legal interventions. Listening to women is essential for knowing

how criminal justice policies and responses affect them personally while listening

to men can provide “meaningful insights into how they perceive, rationalize and

adapt their violence…and how they experience interventions aimed at this

behaviour”. She further argues that hearing men’s accounts can help us

understand the dilemmas confronting women when they consider their own

needs.

We must ask: What would we lose by giving women more autonomy over

decision-making at the level of prosecution? Is it possible to maintain a public

response to intimate partner violence while giving women the right to choose not

to prosecute their partners? How can we reconcile the need to maintain strong

offender accountability with victim autonomy? Do we have to deny women

autonomy in order to be truly committed to ending violence against women?

(Hanna, 1996)

Erin Han (2003) suggests these two objectives can be met if we consider

pro-arrest and pro-prosecution policies as independent. She suggests that arrest

23

can empower victims by strongly denouncing the violence but it might make

sense to consider these actions separately from no-drop prosecution policies

because of the different purposes each policy serves: arrest addresses the

immediate safety needs of victims and an opportunity to get connected with

services while prosecution aims primarily to hold abusers accountable and may

nor may not enhance victim safety or autonomy. Controlled experiments

comparing the effectiveness of no-drop prosecution policies on deterring violent

offenders are rare but Davis and colleagues (2008) compared two sites in New

York City, one in Brooklyn which had a strict no-drop policy and the other in the

Bronx where the prosecution did not proceed if victims chose not to go forward,

unless the history of violence was severe. In a six-month follow-up, no differences

were found in re-arrest. This suggests that similar levels of victim safety can be

achieved with a more flexible approach to prosecution that takes account of

victim preferences, although further research is needed for longer-term follow-up

and victim-based measures of recidivism and safety.

Can women be supported to make decisions they feel are in their best

interests, even if that decision is to refuse prosecution? How can we make sure

this is an informed process and not one determined by fear or intimidation

(Robinson & Cook, 2006)? Can this be done in a context that reaffirms the

commitment of the justice system to take these crimes seriously? Can women’s

rights to make their own decisions and exercise autonomy be reframed as a

component of achieving just and safe outcomes the definition of which is

determined by individual victims?

24

The important work of the Canadian Observatory to examine the effective

components of various court models is sure to add to debates about the most

effective way to hold offenders accountable and increase victim safety. By

incorporating women’s voices into the framing of our research questions, our

methods, and our policy recommendations we can help ensure that specialized

justice processes are protecting victims’ interests in Domestic Violence Court and

ultimately meeting the needs of those they were designed to protect.

25

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