Regarding judicial treatment

Largely as a result of the women's movement, violence against women has become a prominent social issue in recent years. However, in the past, many more victims "suffered in silence" because of long-standing cultural beliefs and legal practices that served to condone and reinforce the legitimacy of male violence against women.

For example, violence against women within marriage was viewed as a private matter rather than a public issue; sexual or physical attacks by a man known to the victim were regarded as less serious than violence perpetrated by a stranger; and the legal system frequently treated victims of wife abuse and sexual assault as somehow responsible for their victimization. 1 Our cultural beliefs, social conventions, and major social institutions-law, politics, and religion-have all emerged from a tradition that asserts the inherent superiority of men over women-and hence the right of men to dominate women.

Like all other major social institutions, the law has played a significant role in reflecting and reinforcing gender imbalances in power. There is an obvious need to develop and implement reforms that have the potential for reducing the incidence of violence against women and improving the criminal justice systems treatment of victims and offences. I will look at the various units of the criminal justice system in North America-namely the legislators, the police, the prosecutors, and the judges-and analyze the effectiveness of the system.

I intend to show that, although many reforms have been made, the system still fails to adequately protect women from domestic violence because of this embedded belief that the problems are private and because of the gender imbalance in power. In 2000, victims of spousal violence represented 18% of all victims of violent offences reported to the police in Canada, of this subset women accounted for 85% of the victims.

2 One-year rates of spousal violence from the 1999 General Social Survey indicate that an estimated 222,000 women (3%) with a current spouse or ex-spouse had been the victim of some form of spousal violence in the past twelve months. 3 Since 1974, until 2000, nearly 2,600 spousal homicides have been recorded in Canada, the majority of which have been against women. 4 In 2000, victims of spousal homicide accounted for 17% of all victims of solved homicides, a total of 67 persons were killed by a spouse and three in four of these spousal homicide victims were female.  

For centuries, women's inferior status was maintained through laws that defined women as male property. Law defined and regulated women's sexuality through marriage laws and through the criminalization of fornication, adultery, birth control, abortion, and prostitution. 6 Numerous other laws have given men explicit authority to exercise sexual control over women. Canada's old rape law was a good illustration of this point. The fact that a man could not be found guilty of raping his wife was powerful evidence that the law was rooted in a view of women as men's property.

The rape law also seemed to encourage women to not report the crimes committed against them. Women could be questioned extensively on their past sexual histories, and this information could be used in assessing their credibility; women who made complaints of rape were unlikely to be believed unless they had resisted to the point where they bore signs of violence, and then immediately informed the first person. 7 Proponents of legislative reform argued that Canada's rape laws, combined with prevailing social attitudes, had several major consequences. First, the vast majority of the sexual assault victims did not report the crime to the police.

8 Second, there was a high rate of attrition as cases were filtered out of the system over the course of their transition from police to prosecution and the courts. 9 Third, there was a low conviction rate in cases that did proceed to trial. 10 In response to these concerns, Bill C-127 (the 1983 Rape Reform Legislation) was passed by Parliament and enacted in January 1983. The important changes made were that a husband's immunity from rape was abolished; the new offences were gender-neutral; and several important changes were made in the law of evidence so that trials would be less traumatic and humiliating experiences for the complainants.

11 Many regarded this rape-reform legislation as a major breakthrough; but major social changes are not achieved in a few years, and there are clear limitations on the degree to which statutory revisions can effect corresponding changes in the attitudes of those in positions to develop legal definitions. The impact of the law depends on the way in which it is interpreted and applied at various decision-making stages of the criminal justice system, including police, prosecutors, and judges.

The 1983 Criminal Code revision thus marked the beginning rather than the end of an ongoing process of judicial decision-making and legislative changes in the criminal justice response to sexual-assault offences, and ultimately violence against women in general. One of the most important questions to look at is whether this legislation has been successful in achieving the intended effect of increasing the reporting rate of crimes of sexual assault. The general trend in this regard is quite clear. Between 1983 and 1992, the number of incidents of sexual assault reported to the police in Canada increased by almost 300 percent.

12 There is little evidence to support that the notion that the law has had a significant impact upon the likelihood of the founding rate (charges being laid in a case) or the conviction rate. Statistics for Canada reveal that the unfounded rate for all sexual-assault offences, from 1983-92, has remained virtually unchanged. 13 At this point, studies of the impact of Bill C-127 on the processing of sexual-assault cases suggest that the reform legislation has been clearly successful in achieving only one of its intended goals.

While it has encouraged a larger number of victims to report their victimization, it does not appear to have had any substantial impact on the subsequent processing of those reports by the police and courts. Domestic violence calls constitute the single largest type of calls received by the police each year. 14 The police response to domestic violence calls has varied considerably and has, unfortunately, often been inadequate: failure to respond to the calls, refusal to arrest the assailant, failure to file reports, and harassment of the victim of such violence.

For example, during a nine-month period of time, police in Cleveland received more than 15,000 calls relating to partner violence; they responded to only 700 of these calls, and made arrests in 460. 15 The police response may assume a number of alternative forms including arresting the batterer, providing mediation, providing transportation or other services, and forcing the batterer to leave. Today the increased frequency of arrests and the notification to victims of their rights are police practices of relatively recent origin. These changes reflect a change in attitude generally towards the role of the police in such situations.

The first changes came about in 1984, when claims against police departments for failure to provide protection to battered women were premised on violations of the equal protection clause, arguing that individuals assaulted by intimates are treated differently than those who are assaulted by strangers (e. g. Thurman v. City of Torrington, 1984)16 More recently, suits have been brought where the police failed to act in accordance with a state statute, such as a failure to act in accordance with a statutory provision that mandates the arrest of an individual who has violated the terms of a restraining order.

(e. g. Balistreri v. Pacifica Police Department, 1990)17 Pro-arrest policies have been established across the United States; the statutes requiring mandatory arrest have been enacted in 15 states and the District of Columbia. 18 When these policies were implemented, U. S. studies found that there were dramatic decreases in domestic assault and homicide. 19 Yet, it appears that many police officers resent these kinds of pro-arrest policies and often return to their "traditional 'discretionary' methods" or have adopted a shocking, but predictable, behaviour toward this legislation.

20 In addition, many abused and battered women fail to contact the police due to excesses in regards to mandatory arrest-in which the "primary aggressor" is supposed to be arrested, but often both partners are arrested due to "dual arrest" policies. 21 This practice often discourages future complaints and punishes abused women by arresting them. Overall, the charges laid by officers has increased. Statistics Canada reported that in 2000 the police-reported spousal violence victims in 2000 where an accused was identified, the majority of victims (82%) saw charges laid by the police.

22 Police departments in Canada and US have noted an increase in reporting to police on the part of women. Statistics Canada suggested that this increase might be due to a number of factors including a reduction in the social stigma of being a victim of spousal violence and seeking help, increased public awareness, improved training of police- and court-related victim support services, and, consequently, increased public confidence in the ability of the criminal justice system to deal effectively with spousal violence cases.

23 It is also found that police officers might not arrest or press charges against batterers because of many systemic barriers. Some studies have suggested that the manner in which courts handle cases of partner violence may actually serve as a deterrent to arrest and intervention. 24 The traditional response of prosecutorial offices to instances of domestic violence was similar to that of the police. Prosecutors often perceived domestic violence cases as family matters that did not belong in the court.

25 In an effort to reform such practices, some jurisdictions have adopted "no-drop" prosecutorial policies. Such policies provide that once a complaint has been filed, the victim of intimate partner violence may not withdraw it, despite threat or intimidation from the batterer. 26 Two schools of thought have emerged regarding mandatory intervention laws, or specifically mandatory arrest laws, and the affect of deterrence were analyzed in a study called "Domestic Violence Laws: The voices of Battered Women" by Alisa Smith.

One perspective suggests that since mandatory arrest, no-drop policies and mandatory medical reporting do not take into consideration the preferences of victims, they will disempower victims. 27 On the other hand, some argue that there is a deterrent effect that sends a broader, societal message that these acts will not be tolerated; this may decrease "women's sense of powerlessness" and remove a "major obstacle to their empowerement". 28 The study by Smith concluded that these mandatory reporting laws are the least likely to increase reporting of violence in the future.

29 The failure of many prosecutors to adequately deal with the abuse of women appears to go hand-in-hand with another integral and more potent systemic component-the judge who wields enough authority to make a substantial difference toward impeding much of spousal violence. The judge is able to remove batterers from their homes, while offering adequate protection to the victims and potential victims of his abuse, legislating serious jail time, especially for repeat offenders, as well as sentencing batterers to combined sanctions and rehabilitation.

Yet this is hardly the norm regarding judicial treatment of men who terrorize their female partners. 30 Often, the judicial establishment, too, tend to react to this outrage by turning away, and ignoring or denying its seriousness and reality. The following are examples of cases in which male judges revealed a profound insensitivity to the victim and an almost total lack of understanding of the harm caused by the violence.