TIme to revisit mandatory charging?

In the mid-1980s, domestic violence was still considered a private matter between a husband and wife, not something to be talked about in polite company or even to be closely regulated by the law.

At that time, if a woman called the police because of her husband’s abuse, she often faced a disbelieving or unsympathetic officer, who might suggest that the woman was over-reacting to or was responsible for her husband’s behaviour. It was not uncommon for the officer to speak to both the husband and wife together, asking the woman while her abusive spouse stood by her side: “Do you want to charge him?”

Not surprisingly, most women answered no to this question, usually because they were too afraid of their husband (and perhaps the police officer, too) to say yes.

Not a laughing matter

In 1982, NDP MP Margaret Mitchell rose in the House of Commons to ask the Minister Responsible for the Status of Women, Judy Erola, what action the government was prepared to take to protect battered women. She began her remarks by saying: “One in 10 Canadian husbands beat their wives regularly,” and was unable to continue because of the laughter and heckling by other MPs, one of whom was heard to say: “I don’t beat my wife. Do you, George?”

Mitchell persevered, and when she was able to continue speaking, pointed out that out of 10,000 incidents of domestic abuse the Standing Committee on Health, Welfare and Social Affairs had heard about, only two had led to convictions of the abuser.

Shortly thereafter, the federal government, followed by provincial and territorial governments, introduced mandatory charging policies. The intention of these policies was to place responsibility for decision making with respect to laying charges in domestic violence cases where it belonged: with the police, thus relieving women of this burden.

Helpful or not?

There is no doubt that these policies have been helpful for some women. Having charges laid against their abuser helps them take the next steps in developing a plan to move forward that will keep them and their children safe.

But there are concerns about the unintended consequences for women in the way in which the policies are sometimes enforced.

Often, a woman calls the police for immediate assistance during an assault. She has no idea that once the police respond to the call, it is the police who will control what happens next. It is not her intention for her partner to be charged; she simply wants help dealing with an emergency situation.

For some women, having charges laid against their abuser makes their lives more difficult. The violence may escalate; the family may lose its primary or sole breadwinner, bail conditions may make it impossible for the family to function as it did previously; families in the midst of an immigration or refugee process may have their status in Canada placed in jeopardy; child protection authorities may become involved with the family in a way that is not helpful.

When the police use mandatory charging policies to justify charging women whose use of force has been to protect or defend against an attack or anticipated attack, the implications for the woman are very serious. She faces the possibility of bail conditions that could limit her contact with her children. If she pleads guilty, as many women do simply because they do not have access to legal representation and want to deal with the criminal case as quickly as possible, or is found guilty, this outcome will affect her family court case as well as child protection proceedings; it may have an impact on her employment and her ability to travel outside Canada; it could affect her housing status and, if she is a newcomer to Canada, it may affect her immigration status.

There are concerns based in anecdotal feedback from women and service providers that mandatory charging policies may be applied in a racialized manner, with calls from women of colour with white partners taken less seriously than calls from white women with partners who are men of colour. Gay, lesbian and trans survivors of partner abuse indicate that police are often dismissive and don’t lay charges when they report an assault. Indigenous women routinely report problems with reporting intimate partner abuse to police authorities.

One of the biggest concerns about mandatory charging is that, when the policy is not interpreted well by police, the negative impact means that women do not call the police again, thus placing themselves and their children at risk of more serious harm in the future.

Time to reconsider?

It is more than 30 years since these policies were introduced across the country. Much has changed in that time – there is an increase in awareness and understanding about violence against women, we know about the unintended negative consequences that can flow from mandatory charging, police and others in the criminal system have access to domestic violence training. Furthermore, there does not appear to be any clear research data to confirm whether or not mandatory charging practices have had a deterrent effect on men’s violence.

As the Domestic Violence Advisory Committee wrote in its 2009 report “Transforming our Communities:”

“This [is] an appropriate time to review mandatory charging, its positive and negative effects, the changing context of Canadian society and other factors to determine whether or not changes to this approach might be appropriate. The question to be asked is: Does mandatory charging hold all abusers accountable while enhancing the safety of all women?”

Last year, Building a Bigger Wave undertook a research project into mandatory charging. While the conclusions of that research are inconclusive about whether these policies should remain in effect, the report provides an excellent starting point for community discussions about this issue.

Who wants to talk?

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