Specialised Justice Responses to Family Violence in Canada
13-14 April 2004
Associate Professor, Jane Ursel
Presentation notes available here.
The Centre was delighted to host a two-day visit from Associate Professor Jane Ursel from April 13–14 and extends its gratitude to the Faculty of Arts, Health and Sciences for making Jane’s visit possible through the Visiting Scholars Program.
Jane is located in the School of Sociology and is the Director of the University of Manitoba ’s Research and Education for Solutions to Violence and Abuse Centre (RESOLVE). She is also a lay bencher with the Manitoba Law Society and serves as an expert witness in inquests and inquiries dealing with domestic homicides.
Jane is the Director of a thirteen year longitudinal study of the Winnipeg Family Violence Court, which is a criminal court responding to ‘spouse’ abuse, child abuse and elder abuse. The study is unique because of the specialised nature of the court and the period of time over which the data has been collected. Her research and expertise adds a valuable international perspective to discussions around domestic and family violence and criminal justice responses.
RESOLVE is situated in Winnipeg , a city of approximately 700 000, and the largest in the Canadian province of Manitoba . The research centre is one of five that were established throughout Canada by the federal government in 1992. The alliance of these centres facilitates co-ordinated national studies and presents a national voice on issues of family violence.
RESOLVE works in partnership with service agencies, government departments and universities across the provinces of Manitoba , Saskatchewan and Alberta . Research areas have included:
- Criminal Justice
- Aboriginal Family Violence Programs
- Youth Exploited through Prostitution
- Dating Violence
- Childhood Sexual Abuse
- Elder Abuse
- Abuse in Institutions
- Program Research and Evaluation
- Shelter Services
- Treatment of Offenders
For more information go to RESOLVE’s website.
Summary of seminar presentation
During her visit, Jane presented a seminar to a broad audience of academics, policy-makers and practitioners. The seminar was broadcast via video-link to nine sites around the state, from Cairns to the Gold Coast and out to Mt Isa.
Her seminar, “Can Specialised Courts Meet Victim Needs for Justice? The Case for Family Violence Courts”, presented an overview of a new paradigm of criminal justice in responding to issues of domestic and family violence in Manitoba , which included social policy reforms (see overhead 1), changes in cultures of intervention, and the creation of a specialised family violence court in Winnipeg . Jane also presented her research findings from a thirteen (13) year study that examines criminal justice responses in Winnipeg both pre and post reform. The overheads presented in Jane’s presentation appear at the end of this summary.
In her presentation, Jane argued that:
- domestic and family violence is a most complex terrain to negotiate in determining what constitutes justice
- the traditional paradigm of criminal justice is not well equipped to respond to cases of domestic and family violence
- achieving justice in cases of domestic and family violence requires a new paradigm of criminal justice in which goals of intervention and definitions of ‘success’ are reconsidered
The criminal justice system’s response to domestic and family violence is limited by a fundamental paradox. That is, it is extremely powerful in delivering swift interventions (eg quick police response, jail sentence or denied bail request) that may be critical to preventing domestic homicide; however, the system is profoundly limited as these interventions cannot, in and of themselves, prevent the cycle of abuse.
The traditional paradigm of criminal justice is organised to respond to discreet incidences; its responses are shaped by the legal seriousness of the offence and probability of conviction. Domestic and family violence is never a single incident; rather, it is typically a profoundly disempowering process that involves multiple incidents, few witnesses and little physical evidence. A criminal justice response assumes that victims of domestic and family violence share the same goal as the system, that is: public conviction and punishment. However, such victims often have diverse motivations for engaging criminal justice interventions. Further complexities encountered by many victims of domestic and family violence include collateral legal issues such as divorce, custody, child support proceedings and property division.
Jane referred to the Manitoba response as an example of a new paradigm of justice that better fits the complex nature of domestic violence cases. This new approach asks the criminal justice system to think differently about how it defines success and its goals for intervention. This shift requires a change in the culture of work and asks the system to depart from a one-dimensional focus on outcomes and instead engage in a process of empowerment of women.
A single police response, court appearance or stay in a women’s shelter does not miraculously change the complex web of love, fear, dependency and intimidation woven into the fabric of an abused woman’s life… If we change the goals of intervention from conviction (a one-dimensional outcome) to redressing dangerous power imbalances (a complex process of empowerment), then possibly the criminal justice system could offer women at risk meaningful interventions.
(Ursel 2002 p 47-48)
Changing culture of work in criminal justice system
Police
The new paradigm of justice commenced with the 1983 pro-arrest policy initiative that directed police to charge perpetrators of domestic violence. This policy reform, together with the 1993 policy of zero tolerance, sent a message to both police and the community that domestic violence is a serious criminal matter and that where reasonable and probable grounds exist, arrests will be made.
In Manitoba , top priority is given to responding to domestic violence call-outs, and in situations where arrests are not made, police are required to submit a report outlining the reasons for this. Overhead 4 depicts the number of spousal assault cases where charges were laid between 1983 and 2002. The impact of the 1993 zero tolerance policy is reflected in the dramatic increase of cases that attracted arrest and charges.
The new paradigm of justice asks Police to redefine their role from ‘centre-stage actor’ to participant in a process. It asks Police to increase patience and tolerance of repeated call-outs from victims and recognise that her primary motivation for calling police is safety for herself and her children.
Vulnerable family members use rapid police response to correct a power imbalance between themselves and their assaultive partner. The person who calls the police for protection may choose not to “use” the rest of the criminal justice system... (Ursel 2002 p50).
Zero tolerance and pro-arrest policies requires police to arrest and remove the offender, this in effect, provides safety and a short-term deterrent to escalating violence. Each arrest must carry the same message to the offender and victim, irrespective of outcomes in the courts. It must be consistently demonstrated to the offender that abuse is a crime and that there will be serious consequences; and the victim must know that the police will respond, conduct a serious investigation and take action.
Defining success of police interventions in one-dimensional terms of conviction rates and deterring future violence ignores the complex, cyclic and recurring nature of domestic and family violence. Rather, safety and deterring escalation of ongoing or imminent violence are more appropriate measures of success of police intervention, and importantly, are consistent with the victim’s motivation for engaging police intervention.
Prosecutors
A traditional paradigm of justice measures prosecutorial success in terms of conviction rates. A typical source of frustration for prosecutors is the high rate of stays of proceedings in domestic violence cases. Stays of proceedings refer to a temporary or permanent halting of the prosecutorial process, due largely to insufficient evidence. Such rates are often explained in terms of victim ambivalence as victim testimony is seen as central to the prosecution’s case. ‘No drop’ and pro-prosecution approaches to domestic and family violence cases works within this traditional paradigm and requires prosecutions to proceed, irrespective of the victims’ wishes. The emphasis of this approach is on more thorough investigation and a greater reliance on evidence from expert witnesses and material evidence rather than evidence from the victim or witness. Despite these policies however, stay of proceeding rates remain very high.
The assumption that victims ought to share the prosecutor’s goal of conviction implies that ambivalent victims are ‘uncooperative witnesses’. “An implied corollary is that victims who fail to cooperate forfeit their entitlement to the benefits of the legal system” (Ursel 2002 p53).
The new paradigm of justice argues that the prosecutorial system must abandon conviction as the sole measure of success, and expand its objectives to include measures such as enhancing victim safety and meeting the complex needs of victims and their families. This approach requires prosecutors to tolerate and understand a high stay rate within the context of a victim’s long process to control her partner’s violent behaviour and secure her safety. An imperative of this approach is the message for victims that ‘when you are ready to testify, the criminal justice system will be there for you’.
Judges
This new paradigm of justice recognises that Judges have a very difficult mandate. It asks them to remember the multiple complexities that are inherent in a victim’s process to secure her safety; that recanting or not being ready to testify does not equate to disrespect for the law; and that she may desire the perpetrator’s bail conditions to be varied for a range of reasons.
This understanding is balanced with the recognition that women are not always the best judges of the risks to their safety; and the imperative that she properly understands the level of risk to her.
Corrections Personnel
Similarly, this paradigm of justice asks workers in the correctional system to understand that their work is also part of a larger process. It reminds workers that not everyone who enters an offenders program will change; and challenges workers to not participate with offenders and victims in minimising the violence. Reduction in recidivism is an objective of this arm of the criminal justice response.
Specialised Family Violence Court
In September 1990, Manitoba ’s specialised Family Violence Court was launched in Winnipeg . This specialised justice response comprises of three components:
- A specialised unit within the prosecutor’s office that employs crown prosecutors who are exclusively designated to prosecute family violence matters from the initial bail hearings through to trial. This system enables the same prosecutor to represent a woman throughout her involvement and, if necessary, across courts.
- A Women’s Advocacy program, which is composed of counsellors who work with women about safety plans, provide information regarding court processes and convey information to prosecutors when the woman requests a stay of proceedings or variations in bail conditions
- Specially designated courtrooms for first appearances, and screening processes in to expedite processing of domestic violence cases.
Policy guidelines for specialist prosecutors were introduced to complement the structural changes and reflect a dual mandate of rigorous prosecution and sensitivity to the victim’s needs. This mandate “has the potential to encompass a wider array of objectives, including victim safety, communicating to the offender the unacceptability of violence, and potentially investing victims with greater power and agency in dealing with a violent partner. Each of these outcomes can be achieved in the absence of a conviction” (Ursel 2000 p55).
Judges sitting in the Family Violence Court are not specialised, rather they rotate through the court system. The lack of specialisation has not made a difference to the sentencing patterns.
Sentencing practices
Prior to the establishment of the Family Violence Court the most frequent outcome for a convicted perpetrator of family violence was a, “conditional discharge”. In effect, this outcome meant no punishment, no criminal record and no treatment.
The sentence most frequently handed down in the Family Violence Court is supervised probation and court-mandated treatment; and the second most frequent sentence is incarceration, the majority being sentenced to between one and six months. (See overheads 13, 14, 15)
Culturally specific treatment programs for both male and female offenders have been developed and are delivered in both community and jail settings. The government mandated treatment program has 26 sessions and a more intensive 40 session program is also available. Overhead 17 refers to an impressive reduction in recidivism rates (measured by returns to court) of those graduating from the STIP (Short Term Intervention Program) compared with the recidivism rates of control groups.
A range of social policy initiatives, improved government funding (see overhead 2), enabled a new paradigm of justice and changes to the culture of work within the justice system that has redefined goals of intervention and indicators of success for the various components of a specialised justice response. This new paradigm of justice views women as not only ‘victims’ of family violence, but also actors, strategists and survivors who are engaged in a process of creating safety and who have a right to influence the system’s management of their case.
Underscoring this justice paradigm’s commitment to honouring victims’ needs and wishes, securing their safety and understanding the inherent complexities and cyclical nature of family violence is the continued awareness and reality that women are sometimes fatally wrong in judging the level of risk to their own safety. The importance of partnership with victims throughout the justice process is crucial.
Ongoing evaluation of the Manitoba specialised justice response to family violence demonstrates that the more the criminal justice system works in concert with the needs of the victim (eg safety, empowerment) and delivers consequences to the offender, the more likely people are to engage this system. This is borne out in overhead 3 where it is identified that residents of Manitoba (compared with other provinces in Canada ) are more likely to engage a criminal justice intervention in response to their experiences of family violence.
The overheads are available here.
Reference: Ursel, J. (2002) “His Sentence is My Freedom” Processing Domestic Violence Cases in the Winnipeg Family Violence Court . Reclaiming Self. Tutty, L.M. & Goard, C (Eds) 2002 Fernwood Publishing: Nova Scotia
