As I wrote last week, mandatory charging policies intended to protect survivors of intimate partner violence have proven to be highly problematic. Despite police training on domestic violence and attempts to ensure that they focus on identifying the primary aggressor, the problems have not gone away.
Women are often not believed when they report abuse to the police. Some officers hold stereotypes about what a “real” victim looks like and how she acts. As well, not all police are adequately trained in how to conduct a proper IPV investigation. This can lead officers to lay charges against both people, leaving it to the courts to sort out what really happened; an approach that minimizes the inevitable negative impact of being arrested, even if ultimately the charge is dropped or the person arrested – the victim — is acquitted.
Police officers are used to working in the single-incident-focused atmosphere of criminal law, whereas most IPV involves patterns of behaviour, ongoing over time. Someone who is trained and experienced at investigating single-incident criminal activity (for example, a bank robbery that occurred on a specific day at a particular time) may not have the nuanced understanding of IPV needed to conduct a proper investigation before decisions are made about whether or not to lay charges and, if so, against whom.
Pros and cons
There is no doubt that mandatory charging has been helpful for some women who want their partner charged but are not able to make the decision themselves. For them, having the abuser removed from the home to face criminal charges, with bail conditions prohibiting contact, gives them time to assess their situation and make decisions about whether or not to remain in the relationship. They have the opportunity to connect with women’s support services and make a plan to get out.
It has not worked well for all survivors, however. For many, mandatory charging policies – like other criminal law responses to IPV – have had negative legal, economic and social impacts.
Women who are inappropriately charged tend to lose faith in the criminal system, which can put them at risk of greater harm in the future, because they may be reluctant to call the police when they are in an unsafe situation.
IPV cases are challenging to investigate, as often there are no witnesses beyond the abuser and the victim, leaving police to sort out “he said/she said” stories. Many women report that they don’t feel the police give as much weight to their story as they do to the one their partner tells. He may spin a convincing tale of himself as the victim that the police believe, resulting in the woman, who is the real victim, being charged.
Or, he may manipulate and bait her until she throws something at him or pushes him, and then call the police claiming that he has been assaulted. She may have defended herself or the children against the abuser’s violence, which is then misinterpreted by the police as an act of violence rather than one of self-defence. Often, these acts of “aggression” by the primary victim are extremely minor, and yet police lay charges.
There are further challenges when police do not conduct a proper investigation into who is the primary aggressor. For example, if the abuser is strangling his partner and she defends herself by scratching at his face or arms, he will have visible injuries when the police arrive, whereas the bruising on her neck will not yet have developed. This can make it look like she is the one who should be charged.
When the woman is charged, enormous family law challenges follow. She will likely be removed from the home and separated from her children, which will take an enormous emotional toll on the children and may create a status quo of the father as the primary parent. The presence of criminal charges will hamper her case to have the children returned to her.
There is yet another complication related to mandatory charging policies. Often, women are managing the abuse in a way that is safest for them, which may not involve calling the police. When police are called by a child, neighbour or other third party, they may be disrupting a plan the woman has for her safety and that of her children. For instance, she may be saving money so she can move out or may have met with a lawyer and be waiting for the safest moment to let her partner know the relationship is over.
When police enter the scene and lay charges, this can jeopardize a carefully made plan and increase risk of future harm to the woman and children.
Mandatory charging has a disproportionately negative impact on some communities of women. Because of systemic racism, Indigenous, racialized and Black women are more likely to be charged either dually or solely. Newcomer women are more vulnerable to being inappropriately charged, as we saw in Farrah’s story last week, and may face more significant consequences, including deportation, as a result. Women who have had a prior unrelated history with the police and women with mental health or substance use issues are less likely to be believed when they report intimate partner violence. A history of IPV calls to the police may also affect police attitude and willingness to conduct a thorough investigation before they decide whether or not charges should be laid.
Now what?
Because mandatory charging is helpful for some survivors, even if not for others, we can’t just discard it. It needs a thorough review to determine its future.
Before Doug Ford became premier, this province had a very effective Violence Against Women Roundtable. Consisting of community-based VAW experts, it met regularly to discuss government policy and provide input to senior bureaucrats and politicians. The Roundtable did good work that led to better legislative and policy initiatives by government and improved outcomes for survivors of gender-based violence.
We need to call for the reinstatement of the Roundtable, with a broader mandate and more diverse membership as well as adequate resourcing. One of its first tasks could be to lead a comprehensive, independent review of mandatory charging, including meaningful consultations with survivors, those who have caused the harm, women’s advocates, police officers, Crown Attorneys, family law lawyers and the judiciary. When it has completed its work, it should have the autonomy to release its report publicly.
It will take some difficult conversations and some hard thinking, but it’s the only way to create good law and policy while also ensuring transparency and accountability.