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Failure to protect: the criminalization of survivors of intimate-partner violence
Mandatory charging policies were supposed to protect women from abusive partners. Instead, they inflict damage that is serious and long-lasting. (Pexels Photo)
For more than four decades, Canadian criminal-justice policies for addressing intimate-partner violence have been deeply harmful to intimate-partner violence victims. Mandatory charging policies started as part of a push to get tougher on intimate-partner violence. They require police officers to lay charges in cases where there are reasonable grounds to believe that an assault has occurred at the scene of a domestic dispute.
However, they have proven to be punitive and one-size-fits-all policies, with an unintended outcome: they have significantly increased criminal charges against women who are the victims of intimate-partner violence. This, in turn, has actively made it more difficult for women to escape violence by saddling them with a criminal record, triggering ramifications that are substantial and highly gendered.
Mandatory charging policies have actively criminalized intimate-partner violence victims instead of offering them formal, legal system-based protection. These policies are a significant miscarriage of justice that warrant urgent Canadian criminal justice policy reform. To do this, the way intimate-partner violence is addressed in Canada needs to be re-conceptualized and reconfigured.
This begins with policymakers and criminal justice professionals acknowledging the deep-seated factors that create and sustain violence against women broadly. It also entails focusing on the role of health-care professionals and non-profit organizations, engaging in proactive – rather than solely reactive – approaches to intimate-partner violence, and using a trauma- and violence-informed care lens.
Trauma-and violence-informed care builds on “trauma-informed care/practice” and creates space for an account of the intersecting implications of systemic and interpersonal violence.
Trauma- and violence-informed care also focuses on the systemic inequities in an individual’s life, spotlighting ongoing and previous violence and their traumatic effects. As a result, evidence points to the idea that educating social service and health-care providers about trauma- and violence-informed care can have beneficial results, such as change in practice – which can ultimately serve to improve quality of life and health.
Proactive, collaborative approaches and a trauma-and violence-informed lens are necessary to begin understanding and approaching intimate-partner violence. This aligns with the overarching recommendation from the Organization for Economic Co-operation and Development’s policy brief on integrating services to address intimate-partner violence.
The initial goal
In the 1980s, Canadian provinces gradually adopted mandatory sentencing in response to criticisms of the “hands-off” approach that was typical of police officers called to scenes of domestic disputes. They would often identify with the male perpetrators or simply instruct the partners to “get along” before leaving.
As a result, mandatory charging policies removed individual police officers’ discretion in deciding whether to lay charges in cases of intimate-partner violence.
They were seemingly – in part – designed in response to concerns of feminist activists and victims’/women’s advocacy groups frustrated by a lack of attention to gendered violence. Advocates were pushing for police responses that would take violence against women seriously, arguing that the hands-off responses implicitly endorsed violence against women.
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Mandatory charging policies served several purposes: they signalled to the public that intimate-partner violence was to be understood and addressed as a crime rather than a private matter that occurred figuratively and literally behind closed doors. They also purported to offer a degree of protection to victims of intimate-partner violence, who were disproportionately women.
Yet, the result was a rise in the number of women being criminally charged on their own or together with their male partner, since if a police officer is unable to determine who the primary aggressor is or believes that both partners are guilty, they will both be arrested.
As a result, four years in the 1990s in Winnipeg illustrate the damage of mandatory sentencing: In 1991, 23 per cent of women’s criminal charges were for intimate-partner violence. By 1995, the percentage had more than doubled to 58 per cent.
In her 2023 book Imperfect Victims: Criminalized Survivors and the Promise of Abolition Feminism, lawyer and advocate Leigh Goodmark uses the term “criminalized survivors” to describe women who are victims of intimate-partner violence who seek police assistance but ultimately face criminalization.
Yet, navigating the statistics around the criminalization of women who have experienced intimate-partner violence is tricky.
Here, the dark figure of crime becomes relevant. The term reflects the reality that a significant number of crimes are not likely reported to the police or detected by justice-system professionals. Women often elect not to involve criminal-justice authorities such as police in cases of intimate-partner violence for reasons that are wide-ranging, well-documented, and valid. They include stigma, fears that their children will be taken from them, and financial concerns. Sometimes, there are concerns surrounding immigration/deportation.
However, the crimes that are brought to public attention and, in turn, the public perception of intimate-partner violence both impact the efficacy and urgency with which the criminal legal system approaches it.
These crimes are so vastly underreported that statistics do not paint a proper or comprehensive picture of the damage these polices are doing to victim-survivors. It is easy to get caught up in the perceived legitimacy that statistics bring to an argument or to anchor research.
However, here, statistics do not allow for an exploration or analysis of how the experience of intimate-partner violence – and in turn, the implications of these policies/criminalization as well – differs for each woman who experiences it based on her class, race, immigration status, history of victimization, and history of traumatic experiences more broadly, etc.
To truly understand the implications of these policies and the need for social, systemic, and policy reforms, it is more useful to acknowledge and understand the research that details women’s experiences with the policies. There must be a recognition of the ways in which women have often felt wholly unprotected and experienced significant harms as a result of them. This research is the most impactful work in this domain and should be used as a powerful catalyst in helping prompt social change.
Patterns of violence
Mandatory charging policies have exposed a significant gap in Canadian criminal justice policy and in the Canadian criminal justice system more broadly: there is an active lack of acknowledgement of the pattern or cycle of violence in which intimate-partner violence generally manifests in an incident-based criminal justice system.
In cases where women engage in physical violence against their male partners, their use of force is almost always defensive and in response to a pattern of sustained violence.
A highly incident-based criminal justice system isn’t designed to grant the consideration of individual circumstances that is fundamental to a holistic understanding of the patterns and contexts of intimate-partner violence. It disregards ongoing and long-term victimization often experienced by women who are in relationships where intimate-partner violence is occurring.
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For a woman who has endured a pattern of ongoing violence and then engages in defensive violence, the pattern is eclipsed by a singular act. Whoever uses violence in the context of intimate-partner violence is subject to being labelled a “batterer” and processed as an “offender.”
In some cases, victimized women arrested for intimate-partner violence are mandated to attend batterer programming when what they actually need are victim services and supports – which they are later denied access to because of the “batter” or “offender” label they have been given due to their criminalization.
Being labelled a batterer has disproportionate and highly gendered ramifications that are further compounded for women who are racialized and/or marginalized. For example, migrant women may have concerns about their or their partner’s immigration status in Canada and fear deportation if either are criminally charged.
Mandatory charging policies for intimate-partner violence were devised with seemingly positive intentions, but Canada’s incident-based criminal justice system is ill-equipped to be the sole response to intimate-partner violence.
A collaborative response
Intimate-partner violence is a complicated issue with no simple, one-size-fits-all solution. There is no broad consensus among criminologists, legal experts, health-care professionals, and those involved in social/welfare-based services on how to “solve” the problem of intimate-partner violence.
Yet, what has become abundantly clear is that a legal system-based response cannot be employed in isolation. Highly collaborative and interdisciplinary responses are needed – something the UN began advocating for in 1993.
First and foremost, individualizing the perpetration of intimate-partner violence against women – reducing it to something that occurs as an isolated event between romantic partners – must cease. Approaching intimate-partner violence as an individual, somewhat “private” issue that presents no risk to the public is harmful and obscures the realities of intimate-partner violence. As a result, a starting point is to acknowledge the incredibly pervasive influence of patriarchy and hegemonic masculinity at the societal and systemic levels.
Some experts advocate for trauma-and violence-informed care approaches to intimate-partner violence, incorporating a social-ecological perspective. This considers the complicated interaction between the wide range of individual, community, relationship, and societal factors that place individuals at risk of experiencing and/or perpetrating violence.
In sum, the Canadian government is seemingly hesitant to employ community-based responses, multi-agency, collaborative responses, or to approach intimate-partner violence from a standpoint that deviates from ‘traditional’ punitive, justice-based approaches.
However, there is a clear need for alternative interventions and holistic responses. Implementing harsh, one-size-fits-all responses have proven to be damaging, and the true experts in this domain – those who have encountered mandatory charging policies as victim-survivors – have questioned why they are still being utilized despite the damages that they have caused.
This article first appeared on Policy Options and is republished here under a Creative Commons license.
