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Rethinking Spousal Assault Prosecutions in BC

Any time police receive a report of “domestic violence” in British Columbia, the response is the same. On an allegation as trifling as a shove that causes no injury, someone is arrested. At that point a very frustrating and costly entanglement with the criminal justice system begins – for not just the accused, but also the victim. Especially if the victim is a woman and she does not accept the state’s dogma on the correct response to spousal assault.

The initial statement of a female victim to the police is accepted and relied on to prosecute the accused. That, however, is where the victim’s input in the process effectively ends. Female victims then have to endure the exasperating paternalism of the state, which suddenly judges women incapable of making decisions about their own living arrangements or safety. As far as the government is concerned, a woman who calls 911 apparently loses her mental faculties and judgment after having had the good sense to ask for help. Interestingly, while experts say that domestic violence is about power and control, a woman who asks for help loses all control.

Usually the accused is released within hours of his arrest but is prohibited from communicating with his spouse, returning to his house or parenting his children. This is fine if this is the wish of the victim. More commonly it is not, and to the disappointment of accused and victim alike, these restrictions do not expire. Where a 24 to 48 hour cooling off period would probably be reasonable in most cases, the state imposes these restrictions indefinitely.

For the first time in their lives, people who have been together for years are cut off from each other. Young children who have never been apart from their parents are deprived of one. Typically a victim will not succeed in persuading a prosecutor or judge that she and her partner should be “allowed” to live together unless a significant period of time has passed since the complaint was made to police. The victim will be told a “few weeks” must pass or that the accused must do some counselling first. Then she will be told that contact must be increased incrementally, starting with text messages and telephone contact, progressing to in person contact in public or at a counsellor’s office, and culminating in contact with the victim’s consent.

In reality, this one-size-fits-all approach to complaints of spousal assault or domestic violence is not necessary for the vast majority of cases. It seems counter-intuitive and counterproductive to prohibit communication between spouses for more than a few hours or days. From our early childhood, we are taught to solve our problems by communicating. In the realm of domestic assault cases, communication is forbidden and separation is mandated. The couple’s desire to communicate and interact doesn’t matter. Father, in this case the state, knows best.

To be clear, I am not saying there are no situations where an accused should be prohibited from contacting a victim. I have seen more than a few in my time as a defence lawyer, representing both accused persons and on occasion victims. I can tell you these situations are readily apparent to even a casual observer. Contact should be prohibited any time there has been a serious assault, any time the accused has previously been the subject of spousal assault charges, and any time there is an obvious power imbalance between accused and victim. In the latter instance, you don’t have to spend a lot of time with a victim to figure out the type of dynamic at play in a relationship. There are some obvious indicators of vulnerability that can be investigated during a short interview.

Yet in British Columbia the criminal justice system proceeds on the assumption that every victim “needs” the protection of the state. Any victim who says she doesn’t need it or doesn’t want it is told that she does. This is unfortunate. It is a policy basically borne out of institutional fear. The worst nightmare of any police officer, prosecutor or judge who does not impose strict release conditions is that the accused will murder his spouse after he is released. That fear lingers at the back of everyone’s mind and drives the whole system. It leads to the treatment of every accused person in a spousal assault case as a potential murderer, and starts the punishment of that person before he ever steps foot in a courtroom.

Technically, bail conditions are not considered punishment. Try explaining that to an accused who has been cut off from his children for several weeks, who has had no contact with his spouse, and who has been allowed to return to his house just once for 15 minutes in the company of a police officer to gather a garbage bag full of personal effects.

The prosecution of domestic violence is important. Violence in relationships, especially intimate relationships, cannot be tolerated, and must be addressed by the criminal justice system. Let’s not forget, however, that the vast majority of accused persons in spousal assault cases are not murderers. More importantly, let’s abandon the fiction that “no contact” restrictions would prevent a determined murderer from killing his spouse if she is not in hiding. So let’s not punish everyone else to make the institutional players sleep better, and let’s not discourage female victims from asking for help.