[as published in the EWA Newsletter V.8 #2]Introduction
'Mandatory Arrest/Charging' policy refers to guidelines that require police officers to lay criminal charges against the abusive partner in
all cases of wife assault where there are "reasonable grounds"1. In addition, officers are directed that their decision to lay charges should not be influenced by such factors as: "the victim's unwillingness
to attend court proceedings or the officer's belief that the victim will not attend...[and]...the officer's concern about reprisals against the victim by the suspect"2. This policy is located in Ontario's
Policing Standards Manual
(1994), which directs the activities of police officers province-wide. This policy responded to ongoing lobby by the battered women's movement for a stronger criminal justice response to wife assault, as well as a 1982 Federal Solicitor General initiative which urged all police departments to adopt more aggressive charging policies in cases of wife assault
3.
Mandatory Arrest policy, while being hailed as a victory by some, has been quite controversial amongst many assaulted women, advocates, and policy-makers. This article explores some of the varying
opinions on this issue via interviews with three women who are concerned about 'mandatory arrest' policy.
Interviews
1. Biographical information
Yasmin Jiwani
is the Coordinator of FREDA, the Feminist Research, Education, Development and Action Centre, one of the five violence research centres in Canada. She holds a PhD in Communications, and much of her previous work focussed on issues of racism.
Janet Mosher is an Associate Professor of Law and Social Work at the University of Toronto, from 1989-present. She is the Director of the combined LLB/ MSW programs. She teaches and does
research in the area of violence against women.
Deborah Sinclair has been a social worker in practice and consultancy for 19 years, as well as a project staff member and former board member of EWA.
2. What has been your experience of the impact of mandatory arrest policy on assaulted women you have had contact with? Has there been any difference in impact according to women's socio-economic location?
YJ: In our study4, service providers in BC said that it was not being implemented evenly, and that much depends on the discretion of the individual police officer. Arrest
depends on jurisdiction, geographic location, and social status. For example, if you're an Aboriginal woman on the downtown East side of Vancouver, one of the more poverty-stricken areas, then police are not going to
respond. In one particular case, an Aboriginal woman was being assaulted and called the police, and the police came to pick up the man who was abusing her, and dropped him off several blocks away. Whereupon,
he returned and stabbed this woman numerous times. She survived.
JM: A frequent point made by women survivors of abuse is that they do not want their husbands criminalized. They want the
violence to stop, but they do not want their husbands or partners arrested or incarcerated. Alternatives to arrest could be intervention at the community level, with other men telling the abusive male that what he is
doing is wrong. Arrest can make things worse. A police presence can lead to an escalation of violence in the short term. The impact of police arrest is extremely variable, depending upon the context of the abuse.
Economic status has a tremendous effect. With recent changes in welfare policy, women can't escape violence anymore. It is easier for men to get away with abuse. In reasoning that men abuse because they can get away
with it, economic dependency makes it easier for men to do so. Race has an impact as well. Generally, women are caught in self-blame about abuse done to them by their partners, that it is their fault, that they have in
some way failed in the relationship and "deserve" the abuse.
DS: Mandatory arrest is universally applied in the province, rather, it is left to the discretion of individual officer
who responds to an assault call. Theoretically, mandatory arrest was put in place as a result of studies from the early 1980's that showed a significant reduction in recurrence of violence when abusers were arrested and
charged, even if they were not convicted. However, mandatory arrest is not consistently applied. There has been considerable criticism levelled against it, largely from Native women and women of colour, who believe it
to be another form of discrimination against Native men and men of colour. Rather than subject their partners to an unfair criminal justice system, these women are looking for alternative ways to hold their men
accountable..
3. What effect do you think police arrest has on the incidence of violence against women? What three suggestions do you have to intervene in a way that might reduce the incidence of
violence?
YJ: Much depends on the level at which the incident is happening. If it is an immediate crisis, where it really seems that the man is going to kill the woman, then it does have a
deterrent effect. But, it can take up to 35 incidents of abuse before a woman will even call the police. Ironically, in calling the police, her chances of being murdered, or seriously abused by the offender
increase dramatically. In the place of no alternative interventions, police intervention seems to be the only choice, and can make a difference between life and death. In the Vernon, BC massacre, for
example, had the RCMP acted right away, that family might still be alive today. There were nine people killed.
Violence is about unequal power relations that allow one party to dominate the other. The
question is to equalize the power, which means that women who have a devalued status in society, must have that status raised. Women must be accorded economic equality for both paid and unpaid work. Women must have
political rights, so that decision and policy makers consider women's concerns and realities, and provide support for women caught in abusive relationships. Which brings us to why women don't leave - well, they
don't leave because they're economically dependent on abusive men. They need economic support. They also don't leave because society disbelieves them, and that has to be rectified.
JM: The police
have a variable impact. They do not have much of a deterrent effect. There is an inconsistency between the public denouncement of violence against women, and the public cultural messages that reinforce the belief that
it is still okay for men to abuse women, that violent behaviour is acceptable. On the whole, it seems the police efforts don't outweigh the other public messages that accept male violence. The public has little
information about sentencing, and the media, which has a large impact on public thinking, controls what to report and not to report. Public education of men and women about violence may help some, but it has little
impact in the context of mass media influence. As per police intervention, police must respond, and do so immediately, in a way that tells the abuser that what he is doing is wrong. We need to build in a advocacy for
the woman, and not force her to make a decision right then, in front of the abuser;
b. the woman ought to be separated from the abuser, in an advocacy situation so she can decided whether to proceed or not with
charges and prosecution; and
c. police need to be thorough in their investigation regardless of whether or not the woman decides to proceed, and treat the incidence of violence as they would any other assault.
DS: The individual applications of mandatory arrest need to be examined in order to result in a more uniform practice. Police should be asked about: how their assessments are made, what happens when
they respond to an incident of violence, and what criteria they use to decide to charge the abuser. Currently, there is no easily accessible mechanism in place to follow-up on individual situations, and due to lack of
time and lack of belief by advocates/professionals that their feedback can make a difference. There is little accountability in the system, and there needs to be an ongoing dialogue in order for the system to
self-correct. Some suggestions for effective intervention may be:
a. working in partnership cross-culturally so that all women benefit from each other's experience and wisdom;
b. ongoing, specialized training and
support for advocates and professionals, such as: police officers, probation officers, Crown attorneys; and
c. creating a formal mechanism to assess the effectiveness of our present criminal justice intervention and a
case-by-case basis.
4. What control should women have over the criminal justice process? What do you think is the relationship between control of the process and the risk of retaliation/escalation of
male violence?
YJ: The criminal justice process has never been for, or designed by, women. There is extensive documentation of the pervasive gender bias in that system. There have been
women in the system that have made a difference, for example Justice Bertha Wilson at the Supreme Court level. However, there are very few women at high enough levels to make significant change. There are also
forces within the system itself that force women to assimilate into entrenched paradigms.
At the level of prosecution, many cases are stayed because women don't want to testify. They are afraid of
retaliation, and of being revictimized in the court process. When women go into the courts, they are not necessarily seen as autonomous beings, their bodies that have been injured are seen as belonging to society,
so the case is argued on the basis of crimes against society. The woman survivor is, in the view of the court, a witness to this crime. There are things that have been done to her, and the crime has been enacted
on her body, on her soul, yet she is there as a witness, not as an active agent. She is certainly not empowered in any way. In that context, what control or power can a woman have? Her control is so
limited, it comes down to whether or not she shows up, and oftentimes, she chooses not to show up.
JM: Whether or not charges are laid needs to be the choice of the abused woman. She should not be
forced through the prosecution process. The charge/arrest/prosecution process can lead to an escalation of violence by the abuser. We need to protect women from additional threats as well as the economic risks of
arrest. If an abuser is imprisoned, the woman may lose her family's income. Abused women need a victim/witness support system in place to protect them from the consequences of arrest. We need to socially take social
responsibility to protect women in the context of the criminal process. This advocacy role allows the abused woman to assess the costs/benefits of proceeding, and to continually assess her safety through the process.
The no drop approach by the state, which supposedly makes the woman not responsible for the prosecution process does not have its intended effect of protecting the woman from blame by the abuser.
DS:
Criminal justice intervention for the assaulted woman should be evaluated on a case-by-case basis at this stage of our work. This type of individual assessment is important because of the experience of the assaulted woman has when she moves from the private to the public sphere, which results in a 'crisis of disclosure'. This process brings up all of the woman's realistic fears, including: backlash from family and community, shame, guilt, fear of making things worse, fear of what others will do with the information, children's fear of abandonment if the father is taken from the home, and so on. Abused women's response in an arrest situation is sometimes reactive, as they do not know the criminal justice system or what impact it will have on their lives. Research has shown that women who are left alone to cope with arrest situations often recant and withdraw charges. In contrast, women who have access to accurate information and a strong advocate at their side, rarely asked for withdrawal of charges because they can make informed choices and, as a result, experience greater control over their lives..
5. How can the implementation of mandatory arrest policies be made more effective?
YJ: In BC, we do not even have the implementation taking place in a consistent manner. I think
it can be made more consistent if the system is made more accountable. There has been extensive training, and millions of dollars spent on that training. There has to be is a system of accountability in place, and
that accountability has to come from outside the police forces. I would go so far as to say that accountability should be a condition of police forces getting their budgets approved! I recommend a civilian
oversight body, and a very tight level of accountability.
JM: Mandatory arrest needs to be monitored more closely. We need to do more education of police officers. Police need to know there are
serious employment consequences to not implementing arrest procedures. This would change the status of the directive of what officers ought to do. There also needs to be better tracking of arrests. There are problems of
police misclassifying or not reporting incidents, or not being identified as assaults.
DS: Knowledge from actual cases needs to be incorporated into effective, ongoing training of police officers in
police colleges and Crown training. There needs to be a broader perspective to show that an incident of abuse is not a right/wrong relationship, it is complex with complex consequences. If the assaulted woman does not
wish it, the process should not include conviction of an abuser. There may be consequences that the court may have no control over and from which it cannot protect her. The theory of mandatory arrest needs to be
connected to the practical reality of incidents of violence on a case-by-case basis. Any intervention on behalf of a woman who is abused must be evaluated in light of its impact on her day-to-day life, making her life
safer and qualitatively better.
