The Walrus Talks

On Thursday November 16th, I had the honour and pleasure of speaking at an event put on by The Walrus Magazine. Called The Walrus Talks, these events bring together seven speakers who each speak for seven minutes on a topic that is “vital to Canadians.” The event at which I spoke was about gender-based violence, and took place at the Isabel Bader Theatre in downtown Toronto in front of a live audience as well as livestreamed to viewers across the country. It will also be posted online for those who couldn’t make the live event.

Here’s what I said in my seven minutes:

The term coercive control has entered the legal discourse relating to intimate partner violence – IPV — in Canada over the past few years. Coercive control is a pattern of behaviours including psychological, social and financial abuse that gives one partner power and control over the other. It may or may not also involve physical violence.

Sometimes compared to gaslighting, it’s a particularly insidious kind of abuse that leaves the victim feeling as though she is the hostage of her partner as she steadily loses her autonomy and sense of self in an atmosphere of constant fear or even terror.

The term is included in the definition of family violence that appears in family law legislation across the country, where it’s slowly beginning to have a positive impact on how judges make decisions about parenting arrangements in families where there has been intimate partner abuse.

Now, there is a push to create a new criminal offence of coercive control, as has been done in some other countries.

Just say no

I don’t think this is the right direction to go.

That’s certainly not what I would have said 30 years ago, when I began representing women who had been victimized by gender-based violence. Then, I was all for a criminal response and very much wanted to see my clients’ partners charged and jailed, thinking that this would, perhaps, send a message to the abuser that he should change his behaviour. Even if that were not the case, putting him behind bars would, I thought, validate for the woman that what had happened to her was wrong and increase her safety.

However, I quickly realized that criminalizing GBV did none of these things and, as a result, I no longer think of the criminal law as a helpful response to IPV. Applying it to GBV-related behaviours is like trying to jam a square peg into a round hole. It just doesn’t fit – for either the victim or the person who has caused the harm.

Criminal laws work reasonably well for those who have developed them over the past few hundred years: straight, white, cis men with money and property, and those with other kinds of privilege. They don’t work so well for – and often cause more harm to – the rest of us: women, Indigenous people, people of colour and poor people, to name just a few.

Why would we expect anything different when Canadian criminal law is rooted in the misogyny, racism, classism and colonialism of British law?

Lessons learned

We have only to look at mandatory charging policies, in effect across Canada since the mid-1980s, for evidence of how a policy intended to protect victims of intimate partner violence has actually been used to further harm those victims. This policy requires police to lay charges where there is any evidence a domestic assault has taken place, whether or not the victim wants this to happen.

Good idea in theory, maybe, but it has backfired in its execution. First, some women have good reasons not to want to engage with the criminal system. Second, others don’t want their partner to be criminalized. Third, mandatory charging removes the woman’s control over her situation. Fourth, sometimes, charging the abuser makes life more dangerous for the woman. And, fifth, women – especially those from marginalized communities – find themselves charged when they shouldn’t be. This charge will follow them into family court, where it will often have a negative impact on the parenting related aspects of their case.

When I think about criminalizing coercive control, I think of the negative consequences of mandatory charging and that’s why I say —  no, let’s not do that again.

Considerations

Here are just a few questions to consider:

Criminal law is single incident focused, but coercive control is the opposite: it’s a pattern of incidents, often extending over a long period of time. Given this, how likely is it that charges will be laid and prosecuted and that judges will be able to make guilty findings beyond a reasonable doubt?

The players in the criminal system – from police to judges – lack adequate education on IPV. Given that, will they be able to apply and interpret a criminal offence of coercive control properly?

As with mandatory charging, abusers will manipulate the truth to convince the police that they, not their partner, are the victim of coercive control. Does this mean that women will be inappropriately charged and face the challenges in family court I discussed a moment ago?

What if a woman does not report coercive control to the police, just as about 70% of women don’t report other forms of IPV? Will this be used by her partner in family court to discredit her claims of violence?

I think we need to urge the government to abandon its thoughts about creating a criminal offence of coercive control. Instead, as the Nova Scotia Mass Casualty Commission recommends,  let’s embark on a society-wide discussion about finding different responses to IPV; responses that will hear and empower survivors rather than silencing and disempowering them; responses that will allow those who have caused harm to acknowledge what they have done, take responsibility for it, make reparation and heal; responses that will build safe communities for all of us.

That’s how we will move from responding to gender-based violence to building a world that is free from violence.

One thought on “The Walrus Talks

  1. Thank you Pamela for your poignant talk as part of the Walrus talks on GBV. I was fortunate to be in the audience, and it was a powerful reminder of the work that has been done, and the work that lies ahead. We all have a role to play. Thank you!

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