Largely as a result of the women's movement, violence against women has become a prominent social issue in recent years.

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.  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.  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.  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.  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)  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)   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.  When these policies were implemented, U.S. studies found that there were dramatic decreases in domestic assault and homicide.  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.  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.  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.    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.  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.

        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.  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.  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.  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”.  The study by Smith concluded that these mandatory reporting laws are the least likely to increase reporting of violence in the future.

        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.  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.        

• A Quebec judged stated in an assault case:  “Rules are like women—they are made to be violated.”
• An Ontario judge gave a man a $200 fine and three years’ unsupervised probation for aggravated sexual assault against his partner.  The woman was hung naked, by ropes, from the beam of a barn and whipped to a state of unconsciousness—in front of the man’s three children.
• In Ontario, a man who caved in his wife’s skull with a baseball bat during an argument was sentenced to 90 days, to be served on weekends.
• In Ontario, a 40 year-old man who kicked his wife to death was sentenced to six years in prison; and was eligible for parole in two years.

Another particular area where the judicial system plays an important role is spousal homicide.  Ironically, many of the same judges who bend over backwards to dismiss and often empathize with male abusers, reserve their harshest judgment and rage for women, especially those women who kill an abusive husband or lover: “battered women who kill in self-defense account for about half of all women who kill.  Even here, men and women are not ‘equal’.  (Non-battered) men kill their female domestic partners three to four times more often than (battered) women kill their domestic partners/aggressors.  Battered women who kill in self-defense rarely ‘get-off’ and to date, are rarely granted clemency; most are given long or even life sentences”   Often, in a few of these cases of self-defense, a woman who is a victim of ongoing abuse may strike back pre-emptively and kill her abuser.  Legally, the question is whether a woman who kills an abusive spouse, when no assault is in progress, can be considered to have acted in self-defense and therefore with justified use of deadly force.   The standard for assessing the reasonableness of a woman’s actions was whether an “ordinary man” in similar circumstances would have believed himself to be under threat of death or grievous bodily harm, and whether he further would have believed that self-preservation required him to use the same amount of force.  This gendered construction of the self-defense doctrine failed to take into account the usual differences between men and women in terms of size and strength, or the fact that women who killed their spouses lived in situations characterized by ongoing violence.    A landmark ruling by the Supreme Court of Canada was made in 1990 in the case of R.v. Lavallee.  The Supreme Court upheld the jury’s acquittal of Lavallee on the basis that she was a victim of battered women’s syndrome, and therefore could claim self-defense.  This ruling both recognizes and eradicates the gender bias inherent in previous judicial interpretations and statutory provision of the law.  Unfortunately it is still rarely admissible in cases of self-defense, and it is very difficult to prove.  Nonetheless, it proves to be one step forward for many woman who suffer from abuse, unfortunately it can only serve as an advantage at the end of their ordeal.  It can’t protect them from the terror.

        In recent years, despite evidence of widespread concern about violence against women, people fail to acknowledge that it is a serious social problem, rather than a “private” problem.  Many people also fail to appreciate that there are limitations on the degree to which legislative reforms can provide a meaningful solution to this serious problem.  The legislative reforms might improve the way in which the criminal justice system responds to violent offences against women, but only if the actors within the system—the police, the prosecutors, and the judges—are committed to solving this public issue.  Real reform will require changing the social attitudes and behaviors, and such change will result only from the understanding of the relationship between the incidence of male violence against women and women’s structured inequality in society.

        

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