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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
5
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
6
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
9
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
10
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
12
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
14
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
16
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
17
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
18
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
19
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
21
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
22
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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