David Butt is a Toronto-based criminal lawyer.
The NFL, rightly condemned for mishandling former running back Ray Rice's domestic assault, now promises major change. We'll see. But scant attention has been paid to a question that matters to Canadians far more than the self-interested prevarications of an elitist American sports monopoly. How does our justice system deal with domestic violence allegations where, as in the case of Ray Rice's wife Janay, the alleged victim does not co-operate with the prosecution?
Alleged victim non-co-operation happens every day in Canadian courts. And how we handle these tricky cases speaks volumes about our conflicted views on victimization, and personal autonomy.
So what does a conscientious prosecutor do with solid evidence of a less serious domestic assault, and a reluctant victim? Three factors motivate a prosecutor to press on vigorously, and three others push in the opposite direction.
First, prosecutors know our justice system's shameful history of failing domestic abuse victims by ignoring violence inside the home, and disbelieving domestic abuse victims when they summoned the courage to come forward. No prosecutor can perpetuate those inexcusable failings.
Second, prosecutors know the research on cycles of abuse, and indicators of lethality that trap victims in escalating nightmares ending in domestic homicide. Where victims cannot break the abuse cycle themselves, intervention by the justice system can.
Third, prosecutors know abuse victims often have reasons for not co-operating unrelated to the abuse. Victim reluctance often does not mean the accused is innocent. Therefore, a public justice system should not be held captive to collateral motives of private actors.
These three factors motivate prosecutors to carry on vigorously, despite a victim's reluctance.
On the other hand, when an alleged victim withholds her co-operation in a less serious case, a thoughtful prosecutor has three cogent reasons to pause, and tread carefully.
First, criminal courts are blunt instruments of social policy. For example when domestic assault charges are laid, all communication between domestic partners typically halts immediately, often for a year or more, while the charges work their way through court. Where the allegations are minor, and children, and ongoing entwined financial and social logistics are involved, as they are in so many domestic relationships, it is fair to wonder whether such heavy handed interference serves the greatest good.
Second, the criminal justice system is adversarial. Entrenched positions and courtroom warfare replace any realistic prospect of a more therapy based exploration of the domestic issues. By the time even a less serious case is over, any chance of therapeutic or restorative justice approaches can be long lost.
Third, forcing a reluctant alleged victim to participate in prosecuting her domestic partner risks victimizing the person the system is supposed to help. What can a prosecutor realistically do if a woman refuses to testify against her alleged abuser? Charge her with obstructing justice or contempt of court? Send her to jail? Disastrous.
All six considerations above are potentially meritorious in every less serious domestic violence case with a reluctant victim; and each of these considerations could justify a sound decision, or mislead the unfortunate prosecutor into a terrible decision. Quite a dilemma, and prosecutors face it every day. So what we often see is compromise in the form of diluted outcomes. Prosecutors accept lenient dispositions like Ray Rice got (counselling then withdrawn charges) thinking something is better than nothing.
From a broader perspective though, it is not surprising the prosecutor's dilemma is so perplexing and persistent: because what lies underneath it is our complex and conflicted approach to human agency and gender roles.
On one end of the spectrum, some argue women are trapped in patriarchal constructs of social, intimate and financial relationships and forced to endure abuse. Therefore, only unremitting prosecution of male abusers will rescue women from, and transform, patriarchy's traps: and womens' protestations against prosecuting their partners simply shows consciousness of oppression has been oppressed as well. Others argue womens' autonomy deserves greater recognition, so when insightful, pragmatic women decide in less serious cases they do not need a slow, clumsy justice system messing with their domestic challenges, their agency should be respected. And there are loads of thoughtful arguments in between these two opposites.
These debates are not going away. Domestic violence cases will remain complex, outcomes controversial. Indeed, they are now more complex because the long overdue integration of same-sex relationships into the mainstream has prosecutors grappling with emerging paradigms of domestic violence unrelated to male-female gender dynamics.
How then, do we identify just outcomes in domestic violence cases? The answer lies not in the often compromised result; but rather in how sensitive the courts are to dynamics at play in each particular case.
To paraphrase Gilbert and Sullivan, when prosecutorial duties to be done, to be done, a prosecutor's lot is not an easy one.