The Victim Quagmire:  The Input of Complainants in Domestic Assault Prosecutions

Domestic Assault LawyerVictims of domestic abuse often find themselves in difficult positions in the Canadian criminal justice system.

Some victims do not understand that once they make an allegation to police, if the Crown decides to prosecute, the matter is largely out of the hands of the victim from that point forth.

People hear phrases like “press charges” and “drop the charges” from American television and presume that they will always have the option at any time to withdraw the allegation or decide not to proceed.  And to be sure, it is not at all uncommon that a domestic assault victim attempts to take this position.

There are myriad reasons a victim may approach the police or victim services and state that they no longer wish to continue with the prosecution.  Let us deal primarily with a situation in which the allegation is not a false one and the victim is a true victim of a criminal assault.  Even in these scenarios, domestic victims will often prefer not to testify and express their desire that the criminal charge is dropped.  Sometimes there is financial pressure on the victim to ensure their spouse or partner is not professionally damaged by a criminal conviction. Sometimes there is intimidation, or fear of further abuse if the victim testifies.  Sometimes the ordeal of testifying in court, for the victim, outweighs the benefits to be gained by a conviction.  Oftentimes the victim wants to continue the domestic relationship and concludes (hopefully after careful consideration) that what is best for them and their relationship does not include testifying at trial against their partner, or the consequences of the accused being found guilty.

But of course, no matter what the reason for his or her decision, the victim does not always have the power to decide whether or not (or how) the prosecution proceeds.

The Crown Dilemma in working with domestic violence victims:

Tdomestic sexual assault lawyerhe Crown prosecutor is put in a difficult position as well, for several reasons.  Firstly, the Crown often cannot know what external influences may be pressing on the victim.  It is not in the public interest to accede to pressures or threats of violence that may influence a victim to recant or otherwise express a desire that prosecution not proceed.  Secondly, even if the Crown can be convinced that it is the voluntary and unadulterated desire of the complainant that the charges be withdrawn, this does not satisfy all the goals of our criminal justice system.  The purpose of criminal law in Canada is not only to satisfy the victims of crimes.  There are public safety concerns, there is specific and general deterrence, and there is the need to set a standard of unacceptable behaviour within our society.  That is to say that both the perpetrator and the victim may prefer that the charges be withdrawn, but they are not the only two with an interest at stake.  Society as a whole may have an interest in seeing the accused convicted and punished, despite the position of the victim, assuming guilt can be proven beyond a reasonable doubt.

(Note: at points in this discussion I will use gender-specific pronouns such as “she” and “he”; this is not to suggest that only females can be victims or only males can be accused of domestic assault.  It is in the interest of clarity and was chosen simply based on the empirical likelihood that the complainant is female and the accused is male.)

So how do we reconcile these two competing interests?  On the one hand we have that of a true victim who may suffer two harms – the assault, and then the criminal sanction against the accused which is contrary to the victim’s own interest.  On the other hand we have a societal interest in condemning and deterring criminal acts, coupled with a hesitance to accede to the position of a victim when that position may be influenced by fear or some other external pressure.  How much should Crown prosecutors allow complainant input to influence how the Crown proceeds with respect to a domestic assault charge?

Working with the victim will lead to better results.

On a balance, I submit that the position of the complainant ought to be given considerable weight in these circumstances.

There are several reasons for this contention:  (a) It will encourage victims of domestic assault to come forward; (b) It will lead to more directed and progressive rehabilitative and preventative measures; and (c) It will lead to fewer false convictions.

(A)   ENCOURAGING DOMESTIC VIOLENCE VICTIMS TO COME FORWARD

If victims of domestic abuse know that making that call to police will be an irreversible decision that will handcuff the victim into a quagmire of criminal jeopardy, they are much more likely not to make that call.

Any victim who knows how the criminal justice system works (imagine the not uncommon circumstance of a repeat victim who has been through the process before) understands the likelihood of the following scenario:

  • The victim is assaulted by her partner;
  • The victim calls the police and gives a statement as to what took place;
  • The police arrest and charge the accused based on that statement;
  • The accused is released on bail conditions which disallow him from returning to the family home (assuming he is released at all);
  • There are children who are now deprived of seeing their father;
  • This persists for over a year or more while the matter works its way towards trial;
  • The Crown does not agree to vary the bail to allow the husband to return home;
  • The victim wants to reconcile;
  • The victim understands that if convicted, her husband will lose his job;
  • She will have difficulty supporting the family;
  • The Crown insists on proceeding with the charge despite the victim’s wishes as expressed to victim-witness services;

The victim is now faced with the following conundrum:  If she refuses to testify or testify honestly at trial, she may be charged with obstructing justice.  If she testifies honestly, her husband will be convicted and the ramifications on the family will be dire. 

(cont. to page 2 below)

By | 2017-06-22T11:56:41+00:00 January 2nd, 2015|