The Supreme Court has confirmed that the defence of duress is unavailable to a woman who commissioned the murder of her violent, controlling husband. The judgment disappoints those who contend that a battered woman should be allowed to defend herself from her abuser using any means without criminal liability.
Such a ruling would not, however, improve circumstances for women facing domestic violence. The case warns us against investing too much faith in the criminal law as a vehicle of social change.
Twenty years ago, the Supreme Court acquitted a woman who shot and killed her violent husband as he walked away after a heated argument. Feminists and observers of Canadian criminal law welcomed that case as pathbreaking and positive. But did it really improve the lives of women endangered by spousal abuse?
Nicole Ryan, the woman accused in last week’s case, had been subject to her husband’s “reign of terror”. He had threatened the lives of her and her daughter. Despite multiple 911 calls, police refused to get involved. They saw her case as a civil problem, not a criminal one within their remit.
By its nature, criminal law reacts to harms after they happen. A court’s encounter with a woman who uses force to halt spousal violence follows long after the abuse has become endemic. It does nothing constructive on the side of prevention.
Broadening the legal defences available to women who use force as means of self-preservation is unlikely to affect domestic violence’s frequency or severity. It’s also unlikely to make law enforcement officials respond more effectively or sensitively to this pervasive social problem.
Regardless of how judges interpret the criminal law, these situations will keep recurring.
So, if the criminal law isn’t the answer, what is? An effective response to domestic violence must comprise several elements.
A first relates to social services. Those who work with survivors of domestic violence know that it is widespread and complex. If asked to list the greatest challenges confronting them, they might point to the lack of resources for women who try to leave abusive relationships, particularly with children.
Second, social workers and police must be sensitized to the scope and impact of domestic violence. They must also be reminded of their responsibility to intervene promptly and effectively in the face of reports of domestic violence. Awareness of the link between their inertia and the escalation of spousal abuse is paramount. And while police represent an arm of the criminal law, their under-enforcement of assault laws against abusers misdirects their focus to the women who fight back.
Third, prevailing attitudes about abused women exacerbate the problem. The ways we tend to view women in abusive relationships aggravate these challenges. On the one hand, such women are viewed as powerless victims. On the other, they’re seen as partly responsible for their lot if they fail to leave their partners or if they walk away and then come back.
This is an unfortunate conundrum. It overlooks completely the resourcefulness, courage and resilience abused women muster in their day-to-day lives. It also blames them, wrongfully, as a source of the violence to which they and their children are subject.
Fourth, legal reform outside the criminal law can also be useful. Consider family laws, in place in some provinces, that direct courts to consider a history of family violence in making decisions about child custody and guardianship. These can be a boon for women who wish to end an abusive partnership, but who fear losing their children to their violent spouse.
The intricate and pervasive nature of domestic violence cannot be effectively redressed by the criminal law. Regardless of what the Supreme Court had decided in last week’s ruling, any victory for abused women would have been slight at best.
Angela Campbell is a law professor at McGill University.
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