Feminist Research Education Development and Action Centre Reports Index

The FREDA Centre for Research on Violence against Women and Children Sentencing Reforms and Women Survivors of Men's Violence: Why Women Should Care Patricia Kachuk, Ph.D. April 1998 Research Funded by Status of Women Canada The efficacy of involving the criminal justice system to deal with issues concerning violence against women has evoked much debate among feminists. In the early seventies, feminists argued that criminalizing wife assault was one method of ensuring that this type of violence would be recognized and treated with some severity by society. Since then, many feminists have noted the double jeopardy inherent in this approach, namely, that women who engage the criminal justice system as complainants/victims or witnesses to crimes against them are re-victimized by the courts in the very process of seeking redress. These feminists argue that criminalization, far from sending the message that violence against women is not tolerable in society, have instead deflected attention away from its root cause-that of gender-based inequality. As UBC Sociology professor Dawn Currie has written: "wife battery as a social issue has been transformed into a policing issue. Within this discourse the issues concern legal rights, police protection and criminal justice: technical issues that can be safely met within the current system without any meaningful redistribution of power. For this reason, the effect of intervention could well be the strengthening of the very same processes and institutions that gave rise to the demand for justice in the first place." In part, the dilemma posed in the debate around criminalization is rooted in the either/or ideological double-bind-that the desire to have access to equivalent retribution is taken to signify a pro-criminalization perspective. As Yasmin Jiwani, Executive Coordinator of the FREDA Centre for Research on Violence against Women and Children has argued, such is not necessarily the case. The desire to have access to justice or the same degree of retribution-equivalent in the sense that perpetrators of crimes against property and men suffer the same degree of retribution should they commit crimes against women-is rooted in the need to have crimes against women recognized by society and the state, and to have the seriousness of these crimes unchallenged. This perspective embodies a stance which relies on pressing for access to justice and demanding state intervention, while simultaneously taking a critical position on the efficacy of treatments meted out by the justice system. To a large extent, this response is coherent with and grounded in feminism which argues for the total transformation of society and its institutions. Recently the Canadian Criminal Justice System introduced reforms aimed at transforming the way it views and treats crime. At the core of these new reforms is a restorative justice philosophy which is concerned with repairing the harm done to victims and the community through a process of negotiation, mediation, victim empowerment, and reparation. This restorative approach to crime is in contradiction to the current retributive criminal justice approach which is generally viewed as being focused on public vengeance, deterrence, and punishment through an adversarial process. On September 3, 1996, legislation was passed by the Federal Government incorporating this restorative justice philosophy into the Criminal Code by completely re-writing those sections that deal with how offenders are to be sentenced in Canada. Under this amendment, offenders are to be sorted into high-risk and low-risk categories on the basis of the seriousness of the offences they commit and their likelihood to re-offend. For those offenders deemed high-risk and who have committed serious offences, judges now have two additional options. Under one option, offenders such as serial rapists and child molesters who repeat their serious crimes, can be declared "dangerous offenders." Once a dangerous offender is so designated, judges are now required by law to impose an indeterminate sentence, that is, a sentence with no expiry date. Even when sex offenders do not meet the dangerous offender criteria, but are still at risk of re-committing sexual offences, it is now possible, to designate such persons as "long-term offenders." This means that these offenders can be subject to supervision for up to ten years following their release from prison. On the other hand, offenders in the low-risk category-usually but not always first time, non-violent offenders-are, under the new amendment, eligible for diversion out of the traditional court system into alternative measures, meaning that these individuals will now serve their time in the community with restrictions similar to those of probation rather than jail. This diversion can occur at any one of three stages in the criminal justice system: sentencing, pre-trial, or pre-charge. Previously, the Criminal Code contained no provisions for alternative measures. Now each province is permitted to set up and administer its own alternative measures for adults. Post-Sentence Diversion: Conditional Sentencing "Conditional sentencing" was a new sanction added to the Criminal Code under the September 1996 amendments. If a judge is satisfied that serving a sentence in the community would not endanger the safety of the community, that there is no statutory minimum sentence for the offence, and that if the jail term for the offence that would otherwise be imposed would be less than two years, the offender can qualify for a conditional sentence. Certain conditions will be attached to such a sentence, similar to those conditions currently found in probation orders, aimed at ensuring the offender keep the peace, not re-offend, maintain good behaviour, and in many cases get what is deemed by the courts as "appropriate treatment." At the same time as giving a conditional sentence, the judge will impose a jail term but then suspends it as long as the offender fulfills the conditions ordered by the Court. Herein lies the attraction of this new sanction for judges-the assumption that if the offender fails to carry out the terms set by the conditional sentence, in part or in full, they can be brought back to court, have the suspension of the jail sentence cancelled and then be sent to jail for the remainder of the sentence. The amendment further holds that while the judge can feasibly impose new conditions on the offender or reinstate the suspension, this can only be done after the offender has served a specified amount of time in custody. In a condemnatory review of conditional sentencing, a three-judge panel from the Alberta Court of Appeal in January 1998, found that increasingly judges are automatically granting conditional sentences whenever the minimum requirements are met, regardless of whether or not the offenders are likely to obey the conditions. This finding coupled with the justifications usually offered by both the federal and provincial governments for introducing sentencing reforms in the first place, namely the high costs of prosecuting cases through the courts and providing for an increasing prison population, certainly raises the question of whether failure of compliance will really be strenuously pursued. Many other questions have been raised about the use of conditional sentencing, especially in cases of sexual assault of women and children and cases of violence against women in relationships (VAWIR). While it was not the intent of the September 1996 Criminal Code amendments to allow for the use of conditional sentencing in these cases, the fact that many sentences for sexual assault, child sexual abuse, and violence against women in relationships normally are only for two years less a day, means that in all of these cases conditional sentencing is an option for the sentencing judge. The panel from the Alberta Court of Appeal raised another issue concerning conditional sentencing which is particularly relevant when this sanction is used for cases involving violence against women: whether or not a conditional sentence can be an effective deterrent. As Alberta Chief Justice Catherine Fraser has queried: "It is questionable whether conditional sentences generally have much more deterrent value than suspended sentences." The Chief Justice added that when "Properly used and carefully crafted, a conditional sentence will serve its intended purpose. [However,] improperly used or skimpily drafted, it will undermine respect for the law. Like all tools or instruments, it is to be used in the right situation, not the wrong situation." Cases involving violence against women are the "wrong situation" in which to use conditional sentencing. Pre-Trial Diversion: A Formal System of Diversion for Adults in B.C. Pre-trial diversion to alternative measures at the discretion of Crown Counsel has recently come into force in British Columbia. Now, once a police officer's report has been received by Crown Counsel, and it is determined that there is likely enough evidence to convict, Crown will make an assessment of whether or not it is in the public interest to: prosecute the case in court or refer it to alternative measures. Paramount in this decision is consideration of the needs of the person alleged to have committed the offence, the interests of society and of the victim, and whether diversion would endanger society. In making this assessment Crown will balance the factors favouring diversion with those factors favouring prosecution through the court system. On the pro-diversion side would be such factors as: whether the use of alternative measures would achieve the same deterrent effect as prosecuting the case through the court system, but without the time and expense of so doing; whether the penalty in the event of prosecution in court would be insignificant; whether the loss or harm as a result of the offence could be described as minor; and whether the offence was a result of a single incident. However, the Crown would favour prosecution if the offence were of a serious nature, for example: threatening the safety or exceeding the tolerance of the public; if it would result in a significant sentence were a conviction made; causing considerable physical and/or psychological harm to a victim; involving the use of a weapon, or its threatened use; an offence against a vulnerable person or a person to whom the offender was in a position of authority or trust; were it demonstrably premeditated; if it were likely to be continued or repeated; was committed while the offender was under an order of the court; or if it was an offence that was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor. If, after applying the above statutory test and making all the necessary criminal and Corrections record checks, Crown still feels alternative measures are appropriate, an information will be laid, which in the case of spousal assault means the six-month limitation period is no longer in effect and the case will be referred to an approved local contractor (usually a retired Corrections officer) for further assessment. The contractor will conduct an in-person screening interview with the alleged offender. During this interview, the contractor will determine the suitability of the offender for alternative measures and whether the individual would be willing and able to complete the specific terms and conditions that are being recommended. In order for the alternative measures to be implemented, the offender must agree with "the circumstances of the offence as outlined in the police report, not deny 'participation or involvement in the commission of the offence' and 'accept responsibility for the act or omission that forms the basis of the alleged offence.'" Any participation in alternative measures by the offender is completely voluntary. The offender is informed in this interview that non-compliance or partial compliance with the terms and conditions of the alternative measures may result in prosecution of the original offence; that if he were to re-offend, his alternative measures record may be introduced into evidence or be referred to in a pre-sentence report for up to two years after completion of the current alternative measures plan; and that any "'admission, confession or statement accepting responsibility' for an offence is not admissible in evidence against the person making it in any civil or criminal proceeding." The local contractor is also to consult with the victim. While the purpose of such consultation is "to solicit the victim's opinion respecting alternative measures and to encourage their participation, where possible and appropriate," there is no explicit indication that the victim can demand that the case be prosecuted rather than diverted. Rather, it is explained that if the offender meets the criteria of alternative measures and agrees to accept the terms and conditions of such a plan, then Crown will enter a stay of proceedings and implement an alternative measures plan. Terms and conditions in this plan can, for example, include any one or a combination of: "apology to the victim; victim offender reconciliation; community service or direct service to the victim to a maximum of fifty hours; monetary compensation to a specified victim with consideration to the client's ability to pay; full or partial restitution to the victim; referral to an outside agency; counseling, either within or outside the program; an essay or research assignment; [which hopefully, if it were one of the terms in a VAWIR or sexual assault case, would demand the use of resources having feminist analysis] educational sessions (e.g., the consequences of shoplifting and/or other crimes); or any other reasonable, creative measures tailored to the individual and the circumstances." These terms and conditions are usually carried out over a three-month period. The local contractor would be responsible for monitoring whether or not the offender successfully completes the alternative measures plan. What constitutes a breach of these terms and conditions is only slightly more explicitly described in Crown Counsel Policy in B.C. than in the actual Criminal Code amendment. In British Columbia, if the offender does not comply, partially or fully, with "a fundamental term or condition of the alternative measures," then the original charge might be reinstated and prosecuted. As part of sentencing reforms in British Columbia, offences have been divided into four categories, with only the most serious offences of murder, conspiracy to commit murder, attempted murder, and manslaughter being explicitly considered as never being suitable for alternative measures. Even other Category One offences (those deemed the most serious under these new schema), such as sexual assault with a weapon; aggravated sexual assault; sexual offences involving breach of trust and/or children; criminal harassment; or aggravated assault, can be approved for alternative measures in "rare circumstances" by Regional Crown Counsel, with the written consent of the Assistant Deputy Attorney General. What constitutes "rare circumstances" is undefined in Crown Policy. The most controversial issue in this new categorization of offences for women's groups concerns those Category Two offences which under "exceptional circumstances" are eligible for alternative measures. These offences include: spouse assault and violence against women in relationships (other than aggravated assault); sexual assault (other than those described in Category One); and child abuse (except those in Category One). At the heart of this controversy is the meaning of "exceptional circumstances" which, like "rare circumstances" has not been explicitly defined in Policy. A member of Crown, who had argued in favour of "exceptional circumstances" and expressed interest in the reaction of women's groups, provided the following rationale. By allowing cases of violence against women in relationships to be diverted in "exceptional circumstances" by Crown, it is argued that such discretion "keeps the door open for women who do not want to break up the family, or where there isn't a history of abuse, or who don't want their male partner to have a criminal record, or who don't want to go to court. [That is, women] who refuse to testify or lie when giving testimony." In other words, "it gives these women another option. It means that men may receive treatment in situations that they would otherwise not be held accountable [for] in any way [by] their actions." The Crown member indicated that this rationale also holds for women who have been sexually assaulted and who do not want to go through the court system. This of course raises, among many other things, the issue of the effectiveness of men's treatment programs which are generally based on psychological models that treat violence against women as the pathology of individuals or families rather than addressing those structures and components of society which tolerate, contribute to, and maintain violent male behaviours within intimate settings. The question remains as to whether the treatment programs that are part of the alternative measures plan will provide a strong enough societal message to these men that their chosen behaviour is not to be tolerated. These men have adopted and internalized violence as a way of life, and they clearly know that the only reason they are in these treatment programs is that the women they have abused are terrified to testify against them. It should be noted that approval of Category Two offences for alternative measures must be made by one of the three Regional Crown Councils, meaning that only a very limited group can approve of exceptional circumstances. Pre-Charge Diversion/Informal System of Diversion: Community Accountability Programs based on a Restorative Justice Philosophy Unlike the formal system of diversion, which to a large extent can be monitored and does have the ability to specify sanctions for non-compliance, the informal system of diversion has no such safeguards. This process begins with police discretion to divert alleged offenders out of the formal justice system at the pre-charge stage. This action precludes preparation and submission of a report to Crown Counsel-a report which currently, by the Attorney General's own admission, the only vehicle available to ensure provincial tracking of Criminal Code offences. In determining whether or not the current incident is a continuation of previous violence against the victim (albeit in a different form), or is connected to stalking, the consequences of not having this tracking mechanism can be deadly. In deciding whether alternative measures are appropriate at the pre-charge stage, a police officer will consider whether the offence occurred because of a "genuine mistake or misunderstanding;" resulted in only "minor loss or harm;" or was a first-time action. The willingness of the alleged offender to accept responsibility and to make amends is also taken into account. Offences that fall into Category Four, the least serious offences, are the most likely to be considered for informal diversion. Category Four offences may include: theft under $5,000; possession of stolen property under $5,000 (except when the victim is vulnerable or the offender in a position of trust); causing a disturbance; or mischief under $5,000. Depending on the circumstances, even repeat offenders in this category may be diverted. Category Three offences, such as trespass at night; taking an auto without consent; mischief over $5,000; assault Section 266 (except VAWIR); forgery; fraud; false pretenses; uttering; unlawful use of a credit card in amounts over $5,000; and unauthorized use of a computer (except in cases where the victim is vulnerable or the offender in a position of trust), may also qualify for diversion at the pre-charge level. Once the decision is made not to proceed, the police officer has a number of options open, such as giving an oral caution or issuing a cautionary letter; referring the alleged offender to social, health, educational or other agencies that may provide needed treatment, or referral to any appropriate community programs available. These local community initiatives, often in partnership with police, can take different forms such as victim-offender reconciliation, family group conferencing, neighbourhood accountability boards/panels, or circle remedies. While these models differ in structure and implementation, they are all premised on restorative justice principles which see crime as causing harm to victims, offenders and communities and because of this, requiring the active involvement of victims, offenders, and communities in repairing this harm. These programs then focus on problem solving, that is, on the harmful consequences of the offender's behaviour and on what should be done to restore harmony between both parties and the community in the future. The offender must accept responsibility for his actions and be prepared to repair any harm resulting from his actions. The emphasis is on dialogue and negotiation between offender and victim, in which the community is to act as a facilitator. As mentioned above, if the individual fails to comply with any form of informal resolution, there is no recourse to prosecute the offender for the original offence. The Ministry of Attorney General has "reminded" police and community groups-via both the "Diversion Guidelines for the Police" and the "Community Accountability Program Kit" it developed to enable communities to set up their own programs to implement restorative solutions to crime-that cases involving violence against women in relationships (VAWIR), and sexual assault can only be considered for diversion by Crown Counsel in exceptional circumstances. But as we know from incidents in Sparwood, BC, and more recently in BC's Fraser Valley (the latter revealed at the March 21, 1998 consultation on new alternative measures reforms), that the Attorney General's "reminder" can be ignored and that VAWIR cases can be diverted at the pre-charge stage. And as was pointed out at the consultation on restorative justice measures held in October 1997-during which a woman who ran a men's treatment program in a northern BC community related that the RCMP member in charge had indicated to her that he would divert up to forty percent of VAWIR cases to her program-not only is it likely that these cases will continue to be diverted at the pre-charge stage, but this type of diversion may indeed increase. It is interesting to note that in the above case, the RCMP officer's reasoning for diverting up to forty percent of the VAWIR cases in his jurisdiction was much the same as that used by Crown for retaining "exceptional circumstances," namely that it is the only way of getting these men into treatment. One possible way to ensure that the "reminder" of the Attorney General is heeded is for all police forces in the province to follow the initiative of the Vancouver Police Department in issuing a directive to its members not to divert any cases involving violence against women in relationships. It is hoped, however, that the Vancouver Police Department will in the near future issue a further directive declaring that as well as not diverting VAWIR cases, no sexual assault cases involving women and children will be diverted at the pre-charge stage. This action would send a strong message, which could be echoed by other police forces in the province, that violence against women and children in any form will not be tolerated. But while the initiative of the Vancouver Police Department, as far as it goes, is laudable, one must at least raise the question here as to why, if the VAWIR and the new alternative measures policies have any enforceability whatsoever, it is necessary for a police department to have to tell its members that diversion in cases involving violence against women in relationships should not be left up to police discretion. What this really means is that in lieu of such directives from police forces and of any monitoring mechanisms (such as a funded independent monitoring body to oversee this informal system of diversion), we will not know the prevalence of pre-charge diversion of VAWIR and sexual assault offences, except, of course, in those instances when someone is willing to risk their job to reveal its occurrence. While I have raised some issues of concern about the new justice system reforms in British Columbia, many other important issues remain unstated. This article is meant to begin a dialogue on these new changes that may have a profound effect on the safety of women generally and in particular on women in or leaving abusive situations. It is a call for women's groups and women who are most directly affected by these measures to make their voices heard and demand that these reforms work to ensure the safety of women, not to jeopardize it further.