Gender as a factor in the Family Violence Courts

Though your statistics are about incidents reported to the police, you use the definite term "victims" and "incidents", rather than "alleged ..." Furthermore, there usually are several incidents concerning same participants.

• Although this sample of police forces is not nationally representative, it does deal with 41% of the annual national volume of crime. [That is, allegations.—WHS] 

• In 1999, females accounted for three-quarters of all victims of criminal harassment. Most victims of criminal harassment know their accused and, in many instances, the stalker and victim were involved in a previous relationship.  Slightly more than half of all female victims were stalked by a current or former partner. A further 25% were stalked by a casual acquaintance.

I have not seen the full report. There are no reliable statistics available, but it is reported that as many as 99% of the allegations filed during divorce and custody proceedings are false. 

Most incidents filed are repeat allegations against same alleged offenders and therefore do not provide us with any understanding about the number of persons involved. Thousands of Canadian men are the target of tens of accusations by the same person, all false.  Defending against those allegations often decimates entire families. Yet, there are no consequences to the person who files those reports. On the contrary, she will enjoy the full rewards of support payments and sole custody, just like thousands of others in a similar situation.

Dept. of Justice Canada:

• "Since the introduction of section 264 in 1993, the number of reported incidents of criminal harassment has increased from 1,647 in 1994 to 2,482 in 1997. Such an increase is not uncommon following the introduction of a new law. It is difficult to assess, however, whether the rise is due to an increase in the number of criminal harassment incidents, increased reporting by victims, or a change in how police record such incidents. 

• 58% of cases were stayed or withdrawn; approximately 17% of all cases went to trial 

• 25% of all accused pleaded guilty 

• 10% were found guilty 

• 7% were found not guilty" 

  [Source: GUIDELINES FOR CROWN PROSECUTORS]

My note: The 25% who pleaded guilty in the first instant may, or may not, be guilty (see the process at the FV courts below).

More from Dept. of Justice:

THE LAW

3.1 Prohibition of Criminal Harassment 

"As outlined in, the criminal harassment provisions have only been in force since 1993. A significant factor in the swift enactment of section 264 was the increasing concern amongst criminal justice personnel that existing Criminal Code provisions did not adequately capture "stalking" conduct which was emerging as a new form of violence against women." 
[My note: If we look at the statistics, a better way to put it would be "a new form of filing false allegations."]

"The need for the criminal law to evolve and address new forms of criminal conduct such as criminal harassment was expressly recognized by Madame Justice L"Heureux-Dubé in R. v. Hinchey (1996), 142 D.L.R. (4th) 50 at 66: "The notion of criminality, thus, is not a static one, but one which very much changes over time. As society changes, the conception of what types of conduct can properly be considered criminal evolves. There are a myriad of different activities which at one point in time were considered legal, but which we now consider criminal. The offence of criminal harassment is one obvious example. For many years, it was not recognized as criminal to persistently follow someone and cause them to fear for their safety, so long as no contact was made. Now, that has distinctly changed with the addition of s. 264 of the Code, which makes this conduct a crime." 

Once again, the famous "fear" has become the all encompassing term. Who is able to say if it is real or feigned. If it is real, is it irrational, or caused because of some action by the one to profess it? Thus a woman only needs to utter: "I was afraid" and the man is behind the bars. A man's fear for losing everything that he owns, including his children and his freedom, never enters the equation. Men are ready to plead guilty in order to be found not guilty, as dictated by the advocates who run the FV courts.

3.4.5 Reasonableness of Fear

The victim must reasonably, in all of the circumstances, fear for her/his safety or that of someone known to her/him. 

In determining the reasonableness of the victim's fear, all of the evidence must be taken into account including: "the gender of the victim and the story and circumstances surrounding the relationship which existed or which had existed, if any, between the accused and the victim. As per Lavallee, it is legitimate to take gender into account due to the differences which recognizably exist between the size, the strength, and the socialization of women when compared to their male counterparts. 

See also R. v. Sousa, [1995] O.J. No. 1435 (Ont. Ct. (Gen. Div.)) wherein Cusinato, J. held that in assessing the reasonableness of the victim's fear, consideration may be given to the victim's sex, race and age, but section 264 did not require that the victim have knowledge of what the defendant is capable. 

The Department of Justice Canada’s research found:

The most current Statistics Canada police and court data for 1997 relating to criminal harassment reveals that: 

The vast majority of simple obsessional stalkers are not mentally ill. Many have long-standing personality disorders.  Department of Justice Canada research found that of 601 cases examined, 91% of the accused were male and 88% of the victims were female. Analysis of the accused/victim relationship showed that a large proportion of female victims were stalked by an ex-husband or ex-boyfriend. In many respects, intimate partner stalking is an extension of domestic violence. [See their other statistics below. Also, once more, an accusation does not make a finding.]

In the same paper, we have the following data:

• 8 out of 10 victims were female (79%) 

• 9 out of 10 accused were male (88%) 

• 67% of victims were criminally harassed by a current or former intimate partner or close male friend 

• 43% of male victims were criminally harassed by a casual acquaintance, almost half of whom were male [which means that more than half of them were stalked by females —WHS]; only 13% were stalked by a former spouse or girlfriend [see the neat little 'only'] 

• 59% of all incidents occurred at the victim's home although victims almost always suffered emotional harm, physical injury was recorded by the police in less than 1% of all cases [no mention who was injured and what was the cause for injury] 

• 21% of all criminal harassment incidents involved other offences: physical assault (16% of all related offences); property offences (21%); breach of probation (7%); and bail violations (6%)." 

  [Source:  CRIMINAL HARASSMENT: A HANDBOOK FOR POLICE AND CROWN PROSECUTORS]

Gender as a factor in the Domestic Violence Courts:

Domestic Violence Courts Project, By: Vivian Green, Metro Woman Abuse Council [as published in the EWA Newsletter V.8 #1 Spring 1997: The Impact of Funding Cutbacks on assaulted Women] 

North York Family Violence Court.

The project targets first time offenders where there is no significant /visible injury to the person abused. [my note: if no signs of abuse, the term should be allegedly] 

Cases are screened by the Crown Attorneys, who identify those eligible for the Pilot court. Women victims are given information cards by the police which urge the woman to contact the Victim Witness Assistance Program at the Courthouse. Cases are then also screened through the victim witness co-ordinator's individual contact with victims.  These identified cases are directed to attend the specialized court. 

At the court, a group of both the men and their partners are introduced to the project. The women then go to a different room as a group, and meet with a Crown Attorney. There is group discussion and, most importantly, each woman has an opportunity to talk about what she wants out of the court process.

If an individual before the court on abuse charges agrees to plead guilty, and assuming his partner is agreeable, the court will accept the guilty plea. His plea will be entered and he will get a series of court orders from the judge. The orders will be Bail Conditions which will include mandated attendance at an intervention program for batterers. His Bail orders will also be changed to allow him to reside with his partner. It is specified that if his partner feels threatened or afraid she should contact Police immediately and the Bail condition can be changed to get him out of the house. [i.e. no abuse, only an allegation that the woman feels afraid or threatened can get a man evicted from his home] 

While the women are speaking with the Crown Attorney and Victim Witness Co-ordinator, the men have the opportunity [if there ever was an oxymoron, that is one!] to meet with the centralized intake staff person, provided by the Metro Woman Abuse Council, who is responsible for assigning individuals to the intervention programs. As the men meet with the centralized Intake staff they begin to decide if they will plead guilty and if so, they are assigned to an appropriate agency. Currently, there are ten community agencies providing intervention programs that men may be referred to, including a range of ethno-specific agencies with various language and ethno-cultural capabilities. 

Once all of the women have had an opportunity to identify what they want, the full court reconvenes. At this point those charged who are willing to plead guilty and enter the program appear before the judge and are mandated to attend the already identified intervention program. 

The offender is then given new bail conditions which cite that he is expected to attend the full program of sixteen weeks.  During this time, the partner will be contacted at least four times by the community agency to monitor her safety and to offer her support and services. While the offender is on extended bail and mandated into the intervention program, any threats to the partner's safety, and/or breaches of the bail conditions, are reported by intervention program staff and handled by the local police. 

At the conclusion of the intervention program, assuming that all has gone smoothly, with no risk or threat to the woman, the offender will reappear before the specialized court and he will receive his final sentence. The final disposition will be a conditional discharge with one year probation. 

All interventions programs must regard the safety and protection of potential [my emphasis] victims as the highest priority. Towards this end, all intervention programs must ensure that women partners are made aware of advocacy services [my emphasis] through community/education outreach strategy. 

The victim never causes the violence. A man's violence [my emphasis] is a matter of personal choice. Intervention strategies with men who abuse should focus on the abusive behaviour, not on other family or relationship issues. 

In working with men who abuse, the physical safety and psychological, emotional well being of potential [my emphasis] victims must take priority over the abuser's right to confidentiality [note the definitive "Abuser". There can not be an abuser if the victim is only "potential"]. 

Intervention strategies for men who abuse should undertake ongoing evaluation of program effectiveness, given that ineffective intervention may do more harm than good and jeopardize the safety of women. 

Intervention programs must be an active participants within a community-wide response, and must not operate independently. 

The creation of two specialized domestic violence courts in Toronto provided the opportunity to have batterer programs that strictly adhere to the standards and guidelines. 

After much negotiation, the Council agreed to administer a coordinated batterer's program. Agencies interested in providing batterer's programs could apply to be on a roster of agencies that would receive referrals of men from the Domestic Violence Courts. A group with representatives from women's advocacy services and prevention programs interviewed prospective programs and identified ten agencies that met the criteria of the accountability standards and guidelines to participate on the roster. Using the standards as a guideline, the agencies provide culturally based programs, while maintaining a common criteria and accountability process. This group of agencies is actively involved in ongoing collaborative monitoring, review and tracking of offenders. Extensive work is done with other sectors, such as probation, to ensure an effective and safe response to women who are being abused. 

This system has been in place now for more than a year. In that time, over 250 offenders have attended programs at the ten agencies. There seem to be successes in the system, as well as areas for continued refinement and change. Perhaps the most important move is our continued work to ensure that the purpose and goal of the program is to provide safety for women. We are becoming clearer that while these programs can teach men that there will be serious consequences for their behaviour, but it takes a lifetime to change values. [Heck, it took the Nazis only about 20 years to change values. —WHS]

We need to seriously reflect on how to continue to monitor behaviour and demonstrate the community will, indeed, hold men accountable for their abusive behaviour. But we must also continue to find ways to reach out to women victims in order to provide support and resources to them such that they can have a real choice in creating a violence free life for themselves and their children.