Leaving aside for the moment the desirability of allowing these family pressures to influence the victim’s position, let us recognize that a victim who foresees the above scenario is much more likely to say to himself or herself: “the abuse was not so bad, I cannot withstand the consequences of a criminal charge; I will say nothing”.
Locking the victim into the above-described quagmire discourages reporting of assault even in scenarios where the victim may well agree at the end of the day that she does want the prosecution to proceed … that she is better off without the abusive partner, that she can manage without him, that upon careful consideration, having him answer for the abuse is worth the lateral consequences.
Rather, let us encourage victims to come forward, and understand their options. Speaking of which, let us examine these options that are available when complainant input is given weight …
(B) THE AVAILABILITY OF DIRECTED REHABILITATIVE AND PREVENTATIVE MEASURES
It is important to understand that the scenario in which a victim is empowered to influence whether and how the charges are prosecuted does not involve a black-and-while, all-or-nothing decision. It is not the case that the complainant must decide to either (a) testify against the accused, help secure a conviction, and write a wrenching victim-impact statement, or (b) have the charges withdrawn upon agreeing in writing that no abuse ever took place and she made the whole thing up.
There are other options that can be progressive, rehabilitative and preventative. And that can be properly tailored to the unique situation of the complainant and the accused. For example, the accused can agree to relationship counselling, anger-management counselling, to enter an alcohol-abuse program, or a drug-abuse program. The complainant and accused may agree that the accused will enter into a peace bond, with any number of appropriate conditions. For example, the complainant may agree to written-revocable consent to contact. This means that the complainant wields all the power to ensure her safety and comfort for the duration of the bond, without compromising the relationship unduly. It allows the complainant to decide whether or not there will be contact, and if she is feeling endangered or disempowered, or feels that the bonded partner is not working on agreed-upon self-betterment measures, she may revoke the consent to contact at any time.
Best of all, it allows the complainant (and the accused) to address the problems they see in the relationship. It would be inappropriately paternalistic for the state to claim to know more about the intimate relationship of two people than they themselves know, and that they know what is best for the couple.
Here, however, we are faced again with the “other” dilemma of the Crown prosecutor: even if a peace bond is in the best interest of the accused and the complainant, what about the greater societal interest in fact-finding and the imposition of deterrent and punitive sanctions (i.e. “criminal justice”)?
In response to this, simply put, I submit that we risk losing the forest for the trees if we do a disservice (or forego an optimal outcome) to the specific, real, flesh-and-blood complainant and accused in the interest of the theoretical complainant and accused in society at large.
(C) AVOIDING FALSE CONVICTIONS IN CASES OF DOMESTIC VIOLENCE
In the scenario where a complainant is faced with the conundrum of essentially having her partner convicted or rendering herself criminally liable by testifying in court that she lied to police, we have perhaps been overly simplistic. That is to say, cases rarely are a simple as: either the man assaulted the woman or he did not. Sometimes it is that simple. But sometimes we have an escalation of hostilities; sometimes we have force being applied by both parties; sometimes it is difficult to determine when the line of acceptable behaviour was crossed and by whom.
When the police are called to the scene of a domestic disturbance, tensions are almost always very high and there is usually a great deal of anger. The person eventually charged may give a statement of their own; they may be the person who placed the call to police in the first place. We are often faced with a “he said, she said” situation wherein each partner accused the other of assault.
I introduce this scenario to say the following: the truth may lie somewhere between what the complainant says to police on the scene and a scenario of “nothing happened”. So when the complainant is faced with a scenario in which the Crown is proceeding against her wishes, if she is forced to choose a version of events, there is little sense in choosing the “middle ground”, which also happens to be the truth.
So unless the complainant chooses to totally exculpate the accused and hope she is not charged for lying to police, she is likely to stick by her original story. Even if it is not true. Which leads to false convictions. Therefore it is best to allow a complainant, when applicable, to determine that the account she gave to police was not entirely accurate, and yet there are issues of violence or anger or substance-abuse that need to be addressed (i.e. it would inaccurate to say “nothing at all happened that night”). This way the disposition can be appropriately tailored to the truth of what happened: for example, there was alcohol abuse and anger in the house which led to a physical altercation by both parties, so a peace bond after successful alcohol and anger management counselling would be the most appropriate outcome.
Because let us not forget, the complainant may be just as likely to choose the “nothing happened” option and these matters go unaddressed as she is to stick to her original story out of necessity, giving evidence of a criminal offence that did not actually take place. Neither scenario is desirable for anyone involved.
THE NECESSARY LIMITS OF COMPLAINANT INVOLVEMENT
To be clear, the argument that domestic assault complainants ought to have input as to the prosecution of offences is not an endorsement of the troublesome trend towards “victim interests” over criminal justice and rights of accused. That is to say, it is still the primary duty of Crown prosecutors to only pursue prosecutions that are in the public interest and it is imperative that they remain committed to this end despite the position of complainants. Complainants are not party to the proceedings and the Crown does not represent the complainant; the Crown represents the state.
A cynical view of this position would be that I am espousing that complainant input should only be influential on the Crown position when they want a better outcome for the accused. And in effect this is true. But it is within the context of the important principle noted above: that the duty of the Crown is to the public interest and upholding the integrity of the criminal justice system. A Crown who believes it is not in the public interest to proceed with the prosecution must not be moved by the opinion of a complainant.
This is because of the presumption of innocence and the nature of the jeopardy faced by accused persons. The state’s position as to the highest appropriate level of jeopardy for an accused must be determined by an impartial representative of the state (the Crown), and nobody else. The role of defence counsel is to acquire the best possible outcome for the accused within the rules of professional and ethical conduct. The role of Crown counsel is to acquire the just outcome. (Not the “worst possible outcome for the accused”.) Think of this as a “maximum standard”: the highest level of jeopardy espoused by the state must be what is deemed as “just” by an impartial representative.
Conversely, if input from the complainant moves the Crown to take a level reducing the jeopardy of the accused, this is not a violation because the accused is presumed innocent. All that is happening is a shift in the Crown’s understanding of the “public interest” — when appropriate — in light of the complainant’s stated interest.
It works one way and not the other because there is no opinion a complainant can give that ought to shake the Crown from a position that it is not in the public interest to prosecute an offence. If the complainant provides facts as to the seriousness of the offence, or aggravating circumstances, that is one thing. A Crown may (indeed must) consider the nature of the allegation in taking a position. But a complainant’s opinion as to the seriousness of the allegation or what ought to happen to the accused must not influence the Crown position lest we subject the accused to a level of jeopardy beyond what is just. We venture into a scenario where Crown counsel and all the resources of the state advocate for the “worst” possible outcome for the accused, or at least an outcome desired by somebody not party to the proceedings and certainly not objective.
(cont. to page 3 below)
