The Dilemma of Mandatory Charging in Domestic Violence Cases
Mandatory charging in domestic violence cases was introduced by the federal Solicitor General in1982 and came into use in Ontario in the 1990s. It has been a cornerstone of the criminal justice system’s response to domestic violence or intimate partner violence (IPV) ever since. This policy removes the decision to press charges from the hands of the victim and places the onus on police officers to lay charges against violent partners where there are reasonable and probable grounds to do so.
The goal of this directive was to keep women safer. Unfortunately, in large part because of the system’s move to gender neutrality, directives such as zero tolerance and mandatory charging have, in many cases, had the reverse effect and are putting women at higher risk.
The dilemma occurs when women act in self-defense and are charged with assault in domestic violence situations.
Service providers working with women who have been abused are familiar with the pros and cons of this directive and much of this awareness is corroborated in a 2017 University of Ottawa research paper: The Benefits and Impacts of Mandatory Charging in Ontario: Perceptions of Abused Women, Service Providers and Police.
Responding to domestic violence with a gender neutral approach is problematic. It fails to place women’s use of force in the context of an ongoing abusive relationship where the predominant aggressor is the male partner and to recognize that women are acting in self-defense. Practically all women charged with assault in domestic violence situations have been living with men who are abusive.
Violent incidents in relationships should not be treated as isolated and separate occurrences. Domestic violence is understood as an ongoing process involving an array of abusive behaviours in attempt to control and coerce one’s partner. The majority of women being charged are reacting to being psychologically, verbally and/or physically victimized by their male partners. Furthermore, the character of women’s use of force does not meet the criterion for being a ‘batterer’ as women’s motivation and type of force does not reflect efforts to control or dominate but rather to respond, protect, defend or retaliate against male batterers.
The long term patterns of abuse in a relationship are usually hidden and require time to uncover. Accordingly, a single domestic violence incident requires thorough investigation to identify the dominant aggressor in the situation and relationship. This need is well articulated and there are tools and techniques available to police for this critical step in addressing domestic violence.
Researchers report several benefits of mandatory charging when investigations identify the dominant aggressor. Most important is that the perpetrator is charged. Other benefits are that women are validated that the abuse was wrong, they are also able to leave, stay safe, and connect to community resources.
Negative consequences of mandatory charging include weak penalties for perpetrators, lack of support for abusers, and increase abusers’ anger at being charged.
Responding to domestic violence is a complex issue to say the least. In the process, the law can be both empowering and disempowering.
In March of 1996, Randy Iles killed his estranged wife and then himself in Oshawa. Two years later, the May-Iles Inquiry Report laid the groundwork for a new criminal justice response to domestic violence and influenced the development of new programs for aggressive men.
Recommendations arising from this report include direction to police to determine the primary offender in order to distinguish assault from defensive self-protection, to not lay charges in cases where victims have taken self-defensive action, and that all evidence available in every case must be collected in order to minimize the onus placed on victims to provide testimony.
These recommendations came out more than twenty years ago. By following such recommendations, our community can move toward justice for women who’ve been abused and ultimately ending violence against women.
Bernice Connell is the Sexual Assault & Outreach Manager at Women’s House Serving Bruce & Grey
The Benefits and Impacts of Mandatory Charging in Ontario: Perceptions of Abused Women, Service Providers and Police, Department of Criminology, University of Ottawa, 2017
Women Charged with Domestic Violence in Toronto: The Unintended Consequences of Mandatory Charge Policies, The Woman Abuse Council of Toronto, 2005