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Chapter

Reading 8.doc


Department
Law
Course Code
LAWS 2301
Professor
Ronald Saunders

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Criminal Justice System
Page 217-235
Battered Women: Definition, Models and Prosecutorial Policy (A. McGillivray)
Introduction
The family is not considered a legal entity by the state, nor has the issues of state
responsibility for family order been widely addressed in light of broader goals of
peace and social order
Despite the mutuality of social and family reform, there remains tremendous
reluctance to involve the blunt processes of the state in the delicate web of family
relationships
Wife battering is in fact a deviance so widespread it is almost a social norm
Violence toward women by their husbands has at the least been tolerated and, in
many societies, institutionalized
Historically, the state’s interest has been the control, rather than the denunciation of
wife battering
In numerical terms, wife battering is a major social problem
One in ten Canadian women in an intimate marital-type situation will be assaulted
by her partner
The assault will be repeated for one in twenty and those who bring criminal charges
will have been assaulted an average of 35 times
The LRCC calls the wife battering problem “serious” and the Canadian Association
of Social Work identifies if as the “current most pressing concern within the
spectrum of domestic violence
The Criminal Law
Prosecutorial Policy
Discretion – investigative, prosecutorial and judicial – is as much a hallmark of the
Canadian legal system as is the right of the accused to make full answer and
defence
Criminal acts are not equally prosecuted, nor are judges bound to dispose of cases
in any rigidly controlled fashion to achieve absolutely uniform sentencing
The decision to control prosecutorial discretion in wife battering cases is properly a
policy determination
The Saskatchewan No-Drop Policy
Prior to the institution of the policy, discretion was exercised primarily on the basis
of the victim’s choice
Implicit was an individual-level model of wife abuse, a model inappropriate to a
situational-level judgement
The relationship between victim and offender and the repetitive nature of abuse led
to an assumption by prosecutors that the victim in at least some cases had consented
to the act
Since women frequently wanted charges withdrawn, police and prosecutors tended
to avoid the matter at the outset
The criminal law is less concerned with the interest of a particular victim than with
deterrence of crime in general and the interest of society at large

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Prosecuting the abuser not only requires the victim to testify against someone with
whom she has had a close relationship; she must also undergo cross examination
Criminal prosecution cannot prevent future violence by the batterer or assist his
family in reorganizing their lives
The prosecution of abusers sends the clear message that society will not tolerate
their acts
The no-drop prosecutorial policy is evidence of the consensus between reformers
and the state that social interests are to take precedence over the immediate interests
of the victim
The policy is beneficial to a victim who wants the prosecution to proceed
A significant number of victims do not want the prosecution pursued
Social Workers and Police
Interviews with social workers, police, prosecutors and family court judges indicate
the policy has resulted in perceptible changes
Contacting the police remains the victims responsibility
The policy has changed the situation in that the laying of charges will now be
followed up by police and prosecutors
Attitudes, however, have yet to change
The attitude of the legal profession and the police is “Why go back? If she’s stupid
enough to go back the first time, why should we get involved again?
Pressure to establish wife battering crisis services has steadily increased
In an abusive situation the priority is to find a safe place for the victim so that
counselling and legal services can begin
When a victim changes her mind, police are irritated and if the violence has ended
by the time police arrive, no charges can be laid if she is the sole witness
A conscientious police officer can lay charges based on reasonable suspicion for
breach of the peace
Police respond to all calls fully prepared for violence. Instead, they may end up as
unwilling arbitrators
Prosecutors and the Court
More people have been convicted subsequent to the policy than in the same time
period preceding it
The policy does simplify dealing with victims
The frustration of dealing with reluctant witnesses, however, continues
The police may have put a lot of work into a case, and are often sympathetic to the
woman and appalled by her injury
Without her full co-operation the best they can hope for in sentencing is probation
instead of discharges
In most cases there is no witnesses except the victim herself
Photographs and circumstantial evidence are not sufficient for a conviction
The police are only called to corroborate
In the opinion of police, rules of evidence and procedure governing assault cases
are at their discriminatory worst in spousal violent cases
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