Reasonable Doubt: How do we solve a problem like domestic violence?
In my time as a lawyer, I have dealt with domestic violence right at the various entry points where it trickles, seeps, and sometimes pours into the legal system. As a criminal defence lawyer, I have represented men and women accused of assaulting their partners. At other times, I have also given advice to and represented the men and women who were complainants in criminal cases of domestic violence. As a family lawyer, I deal with family violence daily. (In family cases, the proper term for domestic violence is “family violence”).
My work does not make me an expert about domestic violence; in fact the issue of domestic violence in family relationships often perplexes me as a lawyer. When a client tells me about domestic violence in their family relationships, I have to assess what the best course of action is in order to protect my client’s best interests. Do we proceed with negotiation and mediation? Or do we go straight to court? Ultimately, I need to decide what the significance of family violence means for the newly separated family. Does my client need a protection order? Can the separated parents parent effectively together?
I also have to assess their case to determine what sort of evidence we have about domestic violence in the event their family case ends in court. To do this, I have to question and challenge my clients about the nature of domestic violence in their family relationships and ask them how they can prove it. Not surprisingly, the only proof available is what my client can tell me. Family violence still goes largely unreported. Unfortunately when you’re alleging family violence, the other party has a tendency to deny it and respond with their own allegations. It is really difficult, if not impossible, to sort out fact from fiction.
In my criminal law career, I understood that in cases of domestic assault, the complainants would often not show up to trial or would recant their statements to police shortly after charges were laid. The courts, seeing this pattern, adapted by reserving court time to set early trial dates for cases of domestic violence. The hope being that an early trial date will prevent a complainant from changing her mind about coming forward and justice will be served. Crown prosecutors adapted to the high collapse rate of domestic violence trials by making it a policy to push most cases of domestic violence through to trial or sentencing. Police are adapting by developing special domestic violence task forces and making it a point to forward more cases to Crown for charge approval.
The legal system is instrumental in discussing and scrutinizing the issue of domestic violence. It was in 1990, in a case named R. v. Lavallee, that history was made in Canada. The Supreme Court of Canada recognized “battered woman syndrome” as a defence to murder. In Lavallee, Lyn Lavallee killed her boyfriend by shooting him in the back of the head when he was leaving the room after starting to beat her. Lavallee argued that her act was an act of self-defence.
Self-defence, traditionally, is a very narrow defence to a crime, essentially the difference between self-defence and an assault or murder is that self-defence is the necessary use of force to repel an occurring attack. The force cannot be more than that which is necessary to protect oneself and get away.
Expert testimony on “battered woman syndrome” was admitted at trial; it stated that women in repetitive abusive relationships react differently than men in self-defence, picking moments to strike back at their batterer when they are not in the course of being brutally attacked.
Most importantly for posterity, the expert testimony accepted at trial, dispelled notions that women in abusive relationships like being abused and provoke violence. It also explained that it’s often not possible for an abused person to pick up and leave an abusive relationship. Finally, an understanding of domestic violence, which may have been prevalent in women’s rights groups and in academic circles, was made that much more legitimate when it was made law.
Even though the courts are instrumental in addressing domestic violence, what I have seen makes me question the adequacy of our legal system to deal with domestic violence on a day-to-day basis. Domestic violence as a problem is one without a straightforward solution. While there are many recurring patterns to which our law and legal system can adapt, each case (family or criminal) has its own intricacies and consequences for many people directly and indirectly involved.
Despite the good that the legal system can do to acknowledge, condemn, and punish domestic violence, for most people, criminal court or family court can often only ever provide short-term solutions or stop gap measures. Jail can only last so long and family court protection orders tend to be time limited. More realistically, when someone is intent on injuring another person, words in a court order are only words on a page and offer little protection to victims of abuse.