D. Social and Legal Responses to Spousal Abuse

Author:Julien D. Payne - Marilyn A. Payne

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Domestic violence, and especially spousal abuse, has triggered various social and legal responses during the past twenty years. Although community agencies and resources are limited, they provide services and facilities that were virtually non-existent twenty years ago. Spousal assault "hotlines" and shelters for battered wives are now common in Canadian urban centres. The medical and legal professions, as well as the police, are more responsive to problems engendered by spousal abuse than they were hitherto.

1) Shelters and Transition Houses

In 2008, there were 569 shelters across Canada providing residential services to women and children escaping abusive situations. Transition homes, which provide short- to moderate-term housing, were the most common type of shelter. In 2008, they represented 47 percent of all shelters, while emergency-type facilities accounted for 26 percent.12There were about 4,300 women and their 3,400 dependent children in emergency shelters or transition houses

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on 16 April 2008. Approximately 75 percent of the women were escaping abuse; the remainder were there for other reasons such as housing, addiction, or mental health problems. Between 1 April 2007 and 31 March 2008, admissions to shelters reached just over 101,000 people: 62,000 women and 38,000 children.13The various types of facilities providing shelter to abused women include transition homes, women’s emergency centres and emergency shelters, second-stage housing, and safe-home networks. They differ in terms of the length of stay and the array of services offered.14They are run by a combination of full-time and part-time staff together with volunteers. Their location is closely guarded for the purpose of ensuring the safety of the residents, but relevant telephone numbers are listed in the front of the telephone directory.

For the minority of men who are victims of spousal abuse, there are few comparable resources.

2) Counselling Services

Victims of spousal abuse use a variety of counselling services in urban communities. Family service agencies provide counselling services for dysfunctional families but specialized counselling services are also available to abused women. Governmental funding of specialized services, such as sexual assault centres, distress centres, alcohol and drug abuse treatment facilities, transition houses, and information services for abused women, is often short-term and subject to budgetary cutbacks. Furthermore, few facilities exist in rural communities or to serve special ethnic or cultural groups or recent immigrants.

Counselling for abused women is not confined to dealing with their emotional needs. Housing and financial needs as well as medical and legal needs must also be met. Above all, the future safety of victims of abuse must be assured to the fullest extent possible.

Counselling services are not always limited to the victims of abuse. Where domestic violence is linked to alcohol or drug abuse, some agencies offer counselling for the abuser. In addition, there are a few men’s self-help groups for the perpetrators of domestic violence. These groups engage in counselling or therapy under the guidance of a professionally qualified group leader. Their objective is to enable abusers to take responsibility for their misconduct and develop alternatives to violence in dealing with interpersonal relationships. Although there has been some success with individual and

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group therapy for abusers, there are probably no more than thirty-five self-help groups for abusers in all of Canada.

3) Legal Responses to Spousal Abuse

The law provides a veritable arsenal of weapons to deal with problems generated by spousal abuse. How effective they are is open to question. The following are some reasons the Ontario Women’s Directorate gives as explanations for the reluctance of abused women to use the legal system:

1) fear of retaliation or revenge instilled in the victim by threats made over an extended period of time;

2) fear that the police and the courts will not believe that the abuse has occurred, will blame the victim for the abuse, or will take no action to protect the victim and her children;

3) desire to keep the family together;

4) fear of living in poverty on social assistance after a family breakdown;

5) lack of information regarding community services such as counselling, shelters, the Children’s Aid Society, victim crisis units, and legal rights after marriage breakdown; and

6) for immigrant women, a fear that they or their partners will be deported, and mistrust of the police.

Battered women have traditionally encountered two primary obstacles to invoking legal remedies. First, they often have no money to hire a lawyer and must obtain a legal aid certificate in order to pursue civil proceedings, including matrimonial relief. Even when it is available, legal aid pays low hourly rates and therefore attracts junior lawyers in an area where substantial professional experience judgment is vital. Second, criminal prosecutions necessitate the intervention of the police, some of whom still perceive domestic violence as a private affair that should be resolved by the spouses rather than as a crime in which the public has an overriding interest. Although the police have traditionally been disinclined to use criminal prosecutions as a means of controlling or deterring spousal assaults except in cases of severe bodily injury or death, the Solicitor General of Ontario chartered a new course of action for police in that province by issuing policy directives to provincial police forces stipulating that, in the absence of exceptional circumstances, charges should be laid and prosecutions pursued regardless of the wishes of the victim. At the same time, the training of police has been improved by their introduction to new techniques of intervention in domestic disputes. Improving the response of the criminal justice system for abused women requires changes that include the following:

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1) continuing training for everyone involved;

2) women’s advocacy services;

3) a legal clinic for women;

4) beefed-up victim crisis units in the police service, and victim/witness assistance programs in the courts;

5) emphasis on front-end police investigation to reduce court costs by providing more guilty pleas and by shifting resources from police court activity to police investigations;

6) specialized prosecutors and courts;

7) making the court process more accessible to and supportive of complainants;

8) preventing defence lawyers from intimidating victims/witnesses;

9) maintaining a zero-tolerance policy for breach of restraining orders, conditions of bail, or probation;

10) insisting on mandatory counselling services for men who batter; and

11) all sectors of the criminal justice system working together to send a clear message to abusers that violence against women is a crime and will not be tolerated.

4) Criminal Law15a) Criminal Code Offences

A person who commits a spousal assault may be charged with one or more of several offences under the Criminal Code16of Canada. The specific offences vary according to the type of conduct and the gravity of the injuries sustained.

Any person who intentionally applies force to another person, or attempts or threatens to do so, commits an "assault" under section 265 of the Criminal Code of Canada. This section applies to all forms of assault, including sexual assault. It carries a maximum penalty of five years’ imprisonment. If the person committing an assault uses a weapon or causes bodily injury to the victim that is not transient in nature, this constitutes the separate of-fence of "assault with a weapon or assault causing bodily harm" under section 267 of the Criminal Code, which carries a maximum penalty of ten years’ imprisonment. An even heavier penalty is imposed by section 268 of the Criminal Code for "aggravated assault." This offence is committed by any person

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who "wounds, maims, disfigures or endangers the life of the complainant." It carries a maximum penalty of fourteen years’ imprisonment. Sexual assaults are regulated by additional provisions of the Criminal Code. Section 271 imposes a maximum penalty of ten years’ imprisonment for sexual assault. Section 272 regulates sexual assaults with a weapon, sexual assaults induced by threats to a third party, and sexual assaults causing bodily harm. These offences carry a maximum penalty of fourteen years’ imprisonment. Section 273 defines the offence of "aggravated sexual assault," which involves wounding, maiming, disfiguring, or endangering the life of the victim. This offence is punishable by a maximum term of imprisonment for life. With respect to the evidence required to sustain a conviction for physical or sexual assault, corroboration is not required. Section 278 of the Criminal Code specifically provides that a husband or wife may be charged with an offence under sections 271, 272, or 273 of the Criminal Code, whether or not the spouses were living together at the time of the conduct complained of. The former notion that marriage necessarily implied consent to sexual intercourse between the spouses has been abandoned. Spouses may, of course, be charged with other offences under the Criminal Code, including murder.

Section 264 of the Criminal Code imposes a maximum penalty of five years’ imprisonment on any person who knowingly or recklessly harasses another person by engaging in conduct causing that person to reasonably fear for his or her own safety or the...

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