Systemic Obstacles to Battered

Systemic Obstacles to Battered Women’s Participation in the Judicial System Violence Against Women Volume 12 Number 12 ...

0 downloads 220 Views 96KB Size
Systemic Obstacles to Battered Women’s Participation in the Judicial System

Violence Against Women Volume 12 Number 12 December 2006 1150-1168 © 2006 Sage Publications 10.1177/1077801206293500 hosted at

When Will the Status Quo Change? Joseph Roy Gillis Shaindl Lin Diamond University of Toronto, ON

Paul Jebely Dutton Brock LLP, Toronto, ON

Victoria Orekhovsky Ellis M. Ostovich Kristin MacIsaac Sandra Sagrati University of Toronto, ON

Deborah Mandell University of Toronto at Mississauga, ON

The Canadian government has introduced numerous policies, guidelines, and mandates at the federal and provincial levels that recognize woman abuse as a serious social problem and violation of the law. Nonetheless, recent feminist research continues to expose laws and practices that fail woman abuse victims. The present study examined the experiences of women victims in domestic violence cases and the barriers they faced in dealing with the police, the courts, and social service agencies. Despite government initiatives, the study results corroborate previous findings indicating that many battered women feel further traumatized by ambivalent or discriminatory attitudes and practices prevalent within the system. Keywords:

domestic violence; immigrant women; legal-judicial system


uring the past three decades, the Canadian public has grown more concerned about the criminal justice system’s response to woman abuse or “domestic violence,” as it is known within the Canadian criminal code. This budding interest is Authors’ Note: We would like to dedicate this article to our coauthor, Ellis M. Ostovich, who passed away before this article went to press. Ellis was a warm, caring, and intelligent young woman who is missed tremendously by her family, friends, and coworkers. We would also like to acknowledge the brave women who shared their stories about domestic violence and the legal-judicial system. 1150

Gillis et al. / Battered Women and the Judicial System


largely credited to the women’s movement and feminist organizations that have worked hard to raise awareness about woman abuse as a public and political issue that cuts across national, cultural, social, and economic borders. As a result, the Canadian government has introduced numerous policies, guidelines, and mandates that recognize woman abuse as a serious social problem and a violation of the law (Brown, 2000; Joint Committee on Domestic Violence, 1999). For example, in the early 1980s, zero-tolerance and no-drop policies were introduced in Canada to protect battered women by putting the onus for laying charges on the police and Crown rather than on the individual victim, thereby reducing the potential for violent recriminations (Brown, 2000; Joint Committee on Domestic Violence, 1999). Although these policies indicate that the criminal justice system is responding more seriously to woman abuse cases, a number of feminist authors have suggested that mandatory charging and no-drop policies may serve to ignore victims’ choices (Bennett, Goodman, & Dutton, 1999). This is consistent with research demonstrating that a significant proportion of victims who initially wish to press charges later request that the charges be dropped (Bennett et al., 1999). In addition, there is no strong empirical evidence demonstrating that the mandatory charging policy has reduced domestic violence against women (Landau, 2000). Although police intervention implies the serious criminal nature of woman abuse and provides victims with some level of immediate protection, many women feel strong ambivalence about involving the police in their situations (Wachholz & Miedema, 2000). To date, most research concerning the criminal justice system’s response to domestic violence has focused on how police, district attorneys, and judges perceive victims (Bennett et al., 1999). Focusing specifically on the experiences of women survivors of domestic abuse, the current study is an initial attempt to increase our understanding of the legal-judicial system from the victim or survivor perspective. In particular, the literature review and discussion will focus on the experiences of immigrant women and women of color, who compose almost half the study sample, as often these experiences are marginalized in domestic violence theory and policy. This examination intends to reveal systemic barriers women face in dealing with the police, the judicial system, and social service agencies and identify some ways in which these institutions should change to better serve diverse groups of women in Canada.

Literature Review Because woman abuse victims typically come into contact with the police, the courts, and victim support services, literature on each of these components will be reviewed. Furthermore, the research in this section reflects a survey of studies that have specifically examined female victims’ participation in the prosecution process within the greater context of systemic responses to woman abuse.


Violence Against Women

Research on the Police The police are often the first point of contact with the criminal justice system for victims of woman abuse. Consequently, the victim’s trust of the criminal justice system as a whole can be significantly influenced by an officer’s work dealing with the crisis at hand (Gillis, Orekhovsky, Jebely, Reixach, & MacIssac, 2002; Joint Committee on Domestic Violence, 1999). If the police fail to make an arrest when called to the scene, it is unlikely that the victim will ever commence the prosecution process, even as she faces further abuse at home (Hartman & Belknap, 2003; Joint Committee on Domestic Violence, 1999). Women are reluctant to involve the police in domestic violence cases for numerous reasons. Several studies indicate that for immigrant women, police intervention can actually create or add to the dynamics that already exist in the abusive relationship, including social isolation, unequal power dynamics, and male control (Bui, 2003; Menjivar & Salcido, 2002; Wachholz & Miedema, 2000). In a study examining immigrant women’s perceptions of police in New Brunswick, Wachholz and Miedema (2000) found that participants did not trust police to handle their cases seriously or appropriately and feared that contacting the police might lead to greater levels of loneliness. Many recognized the police as part of a racist and authoritative criminal justice system, which will not always function in the victim’s best interests (Canadian Panel on Violence Against Women, 1993; Wachholz & Miedema, 2000). Some immigrant women believed that involving the police in domestic disputes could risk deportation of themselves or their partner (McGee, 2000; Miedema & Wachholz, 1998). In addition, contacting the police might put women and/or their children at higher risk by angering the abuser, especially if the police do not take the case seriously or fail to provide adequate protection (McGee, 2000). It is well documented that women are most likely to contact the police when they are in desperate situations, after they have already endured various forms of continued and severe abuse, or when they fear for their life (Bui, 2003; Coulter, Kuehnle, Byers, & Alfonso, 1999; Erez & Belknap, 1998; Landau, 2000; Martin & Mosher, 1995; McGee, 2000; Pratt, 1995). In these emergencies, it is of utmost importance for police officers and other criminal justice officials to approach woman abuse cases with great sensitivity and care. Unfortunately, research has demonstrated that police officers often do not handle domestic violence cases effectively. Hannah-Moffat (1995) found that many police officers wish to avoid domestic violence situations, do not view domestic violence as a legal problem, and consider most abused women to be uncooperative, weak, and unreliable. In accordance with these types of attitudes, Stephens and Sinden (2000) observed that police officers often minimize domestic violence situations, disbelieve the victim, adopt a “we don’t care” attitude, and behave arrogantly toward the abused victim. In Erez and Belknap’s (1998) study, half of the women participants stated that they encountered discouraging comments from police officers investigating their case, and some felt that police were inclined to side with the male abuser. Other

Gillis et al. / Battered Women and the Judicial System


research found that police sometimes fail to collect any evidence with which to prosecute the abuser, especially when they perceive women victims as uncooperative (Erez & Belknap, 1998; Landau, 2000). The attitudes and behaviors of police who hold power “to refer, arrest, investigate, and influence access to other parts of the criminal justice system and various social service agencies” (Miedema & Wachholz, 1998, p. 23) have a strong impact on women’s experiences of the legal system (Hartman & Belknap, 2003). The consequences of poor police conduct can be fatal, as women who have had negative previous experience with the criminal justice system in Canada or elsewhere are less likely to contact the police when they are in crisis (Canadian Panel on Violence Against Women, 1993; Friedman, 1992; Pratt, 1995; Roboubi & Bowles, 1995; Stephens & Sinden, 2000).

Research on the Prosecution Process Prosecutors play a significant role in determining how offenders in domestic violence cases will advance through the legal-judicial system (Hartman & Belknap, 2003). Unfortunately, prosecutors often hold the same kinds of problematic attitudes as police officers regarding domestic violence. For example, many court officials perceive domestic violence as a victimless crime because of the relationship between the abuser and the victim (Hartman & Belknap, 2003). In addition, prosecutors tend to think of women survivors of violence as uncooperative and consequently fail to provide them with adequate support and information (Dawson & Dinovitzer, 2001; Erez & Belknap, 1998; Landau, 2000; MacLeod, 1995). Hartman and Belknap (2003) assert that battered women are often in a no-win situation with court officials, who view victims as pathetic, stupid, or even deserving of the abuse they endured. In a study conducted by Erez and Belknap (1998), the majority of the victims interviewed reported that criminal justice officials discouraged them from proceeding with prosecution of their partner. Regrettably, the experiences of the women in this study are not uncommon, and appropriate responses and meaningful assistance to victims of domestic violence by criminal justice personnel are rare and random (Erez & Belknap, 1998; Hartman & Belknap, 2003). As Landau (2000) asserts, the victim-blaming attitudes and behaviors of court professionals create “an atmosphere of intolerance and paternalism . . . towards” (Landau, 2000, p. 153) women and will not lead to victim cooperation in prosecution of their partner (Bennett et al., 1999; Dawson & Dinovitzer, 2001; Erez & Belknap, 1998). The prosecution process is a period of intense stress for women survivors of violence, as they must face an intimidating legal process while they are still vulnerable to further acts of violence or harassment by their partner and/or their partner’s families and friends (Goodman, Bennett, & Dutton, 1999; Landau, 2000; Pratt, 1995). Many women are not familiar with the process of laying charges and testifying in court, and officials often fail to provide women with information about “what they should expect from the trial process and about their rights as survivors and witnesses” (Canadian


Violence Against Women

Panel on Violence Against Women, 1993, p. 219). Consequently, women survivors of violence are often confused and frustrated by the criminal justice process and find court procedures and evidentiary rules disturbing, inappropriate, and unhelpful (Bennett et al., 1999; Erez & Belknap, 1998; Landau, 2000; Roberts, 1996). In attempting to rectify this situation, Landau suggests that women should be provided with more support and information from court processing personnel and opportunities to meet with the prosecutor before their first court appearance.

Research on Social Service Agencies Social services are important to women survivors of violence and are often the first point of contact for women seeking information and support (Canadian Panel on Violence Against Women, 1993; Coulter et al., 1999). Many women who are pursuing legal action in domestic violence cases need social service agencies, as they risk losing economic and emotional support of their partner and the support of their extended families and friends, as a direct result of prosecuting their partner (Martin & Mosher, 1995; Pratt, 1995). Social support agencies can assist women in taking care of their economic and emotional needs during the prosecution process by offering resources such as transportation, child care, job training, and counseling referrals (Goodman et al., 1999). Such support is particularly important for women who lack the resources to live independently and are, therefore, more likely to remain in violent domestic situations (Bennett et al., 1999). Research has demonstrated that victims who meet with victim service workers are twice as likely to follow through with prosecution of domestic violence charges against their partner (Dawson & Dinovitzer, 2001; Goodman et al., 1999). There is a demonstrable need for a more holistic response providing social and economic supports to women and women’s services. Unfortunately, the Ontario government has primarily directed funding and resources to a law-and-order strategy that does not meet victims’ needs (Cross-sectoral Violence Against Women Strategy Group, 2004).

Method Participants Focus groups were chosen to collect information about women’s experiences of domestic violence cases within the Canadian legal-judicial system. Participants were recruited from one victim services location in Ontario and comprised a diverse group of 20 women. Participants ranged in age from 21 to 54 years, with an average age of 39. Most participants self-identified as either White or Caucasian (45%) or Indian (25%). Smaller percentages of women self-identified as West Indian, Chinese, Native Indian, or mixed race/ethnicity. The majority of women of color participants were first-generation immigrants to Canada, and 25% of all participants were not fluent in English.

Gillis et al. / Battered Women and the Judicial System


Six focus groups were conducted. The focus group sizes ranged from 1 to 6 participants, with an average of 4 participants in each group. Three focus groups consisted of women who had followed through with the entire process of prosecuting their partner, and the other three groups included women who had at some point withdrawn from the prosecution process. The majority of participants (75%) had completed the prosecution process. All participants were at some point involved in long-term, monogamous relationships with men who assaulted them. Participants were either married or in common-law relationships at the time of the reported assault, and most had experienced physical and/or emotional abuse for extended periods, ranging from two years to two decades. Concerning participants’ partner who had abused them, 90% were charged with assault, 30% were charged for threatening their partner, and 20% were charged with harassment. In terms of legal outcomes, 55% of abusers were given restraining orders, 35% were put on probation, 25% were granted access to children, and 20% were incarcerated. Many abusers were charged for multiple reasons related to abuse and/or faced more than one of the legal outcomes listed above.

Procedure The Victim Services Board approved the present study using an ethics protocol prepared by an experienced research consultant, following the guidelines of the Canadian Tri-Council Policy Statement: Ethical Conduct for Research Involving Humans (Medical Research Council of Canada, Natural Sciences and Engineering Research Council of Canada, and Social Sciences and Humanities Research Council of Canada, 2003). Participants were asked to read and sign the consent forms and were given the opportunity to ask research assistants for further information about the study. Before the focus groups began, each participant completed a questionnaire to collect sociodemographic, legal, and clinical information. Two trained female research assistants facilitated all focus groups. According to a semistructured discussion guide, the facilitators opened the discussion with questions about participants’ knowledge and feelings regarding mandatory charging policies in domestic violence cases, followed by questions about their experiences with police, court officials, and victim service agencies.

Analysis A grounded theory approach was used to interpret the results from focus group discussions. This involved identifying recurring themes with the aid of a software program designed for qualitative data analysis (Nu*Dist). The summary of results in this article begins with discussion about the complex factors that influenced participants’ initial decisions to seek help, followed with discussion about women’s experiences with the police, courtroom proceedings, and social service agencies. Although recurring themes came up in all focus groups, this sample represents a small and culturally diverse group of women from one region in Ontario, making it


Violence Against Women

difficult to generalize these findings to the general population of women in Canada. For this reason, this study represents an initial attempt at understanding some of the barriers women survivors of violence face in the Canadian legal-judicial system. However, the experiences of women in this sample are generally consistent with past research on domestic violence against women and the legal-judicial system, which further validates the present findings. In the results section, direct quotations are used frequently to best capture the experiences of women survivors.

Results A variety of themes emerged in the focus groups that typified problems faced by battered women in the legal-judicial system, including negative interactions with police officers and court officials, inflexible court proceedings, insensitivity to linguistic and cultural differences, issues related to custody of children, and unsatisfactory legal outcomes. The legal system failed to inform many participants about their rights and other important information at every stage of the legal process, which in turn caused them significant distress. In addition, women reported other sources of stress caused by patriarchal notions of family and gender, which were often internalized and reinforced by their family members and/or community. Participants also described having mixed feelings toward their abusive partner, including love, sadness, anger, fear, guilt, and pity, which made the prosecution process very emotionally difficult. Although social service agencies offered women some support throughout the process, a number of barriers to accessing services came up in discussion. The following sections will report on participants’ experiences during the entire legaljudicial process, from the initial decision to contact the police to the period following prosecution, as described by women in the focus groups. In general, problems described throughout the prosecution process occurred on many different levels, including individual, family, community, and systemic levels.

Decision to Contact the Police The focus group results indicated that women’s initial decisions to contact the police were influenced and complicated by many factors. Many participants who feared that leaving their relationship would leave them even more alone described feelings of isolation. One woman explained how she feared destroying her relationship, as she “couldn’t conceive of the future . . . [they] were supposed to have together [and she] . . . was so mixed up . . . with love.” It was apparent that immigrant participants were particularly vulnerable to feelings of isolation, especially when they had no familial support in Canada: “I was on my own . . . . If I had a sister or anybody in this country, I would never have been in an abusive relationship.” As a result, abuse was often minimized or rationalized to protect the abusive partner

Gillis et al. / Battered Women and the Judicial System


and maintain the relationship. For example, a participant who emotionally and financially supported her epileptic husband did not want to involve the police because she blamed the abuse on mental illness and felt a great sense of guilt, shame, and responsibility for the abuse in the relationship. She explained how she felt “really bad for this person who’s not well . . . very sick with epilepsy” and absolutely refused to blame her husband. Participants were burdened with a strong sense of responsibility for maintaining family cohesiveness and often felt ashamed for involving the legal system in their domestic affairs. This sense of familial obligation was clear in statements that came up repeatedly in the focus groups: “I don’t want to destroy my family position”; “Once a woman is with a man, she stays there”; “[The woman is] supposed to make the marriage work”; “Being a good wife, I should try to comfort him, try to calm him down.” A number of immigrant women linked their conceptualizations of family to their cultural upbringing: The kind of way we have been brought up is they have a family. As a wife, [you have] . . . a duty . . . to be supportive . . . . If something unfortunate happened being a wife, you should do something to make it easier, to help make the situation easier.

“I felt sorry for [my husband] . . . because of . . . my upbringing . . . [as a] girl.” Also, the notion that a woman must “make . . . [the relationship] work for the sake of . . . children” prevented participants from contacting the police or leaving the abusive relationship. Participants also feared potential consequences of contacting the police, particularly when they lacked detailed knowledge of the legal system. “Even though you know it’s the right thing to do, you have to make a decision on whether you can actually live with the consequences that are going to be thrown at you.” The well-founded fear that police involvement might put women and their children at higher risk by angering the abuser was voiced repeatedly in the focus groups: “If you step out of line he’s going to make you pay for that in whatever way he can. So . . . it’s more peaceful if I just sort of cooperate.” “I seen his strength and because I took his threats serious . . . . [I] didn’t know how to deal . . . thinking if I dealt with it he’d be more angry and he’d definitely kill me.” Some women avoided contact with the legal system to protect their children from further trauma: I could see him taking the children and saying, well if I can’t have them no one can and off the bridge he goes. That was my biggest fear . . . that he would just take it upon himself because he [thinks he] is God.

The potential financial impact of separation on the victim and her children was another major concern that came up in focus group discussions. One participant stated, “I had nowhere to go, and here I had three little children.” Another participant said, “I had to


Violence Against Women

stay . . . . I don’t have that much education to be able to go out and get the good paying job.” And a third participant remarked, “The financial . . . stuff . . . kept me there for 7 years.” Women were very doubtful that the system would provide adequate financial support if they did choose to leave the relationship. A number of immigrant women faced additional linguistic and cultural barriers that prevented them from contacting the police. They often did not have access to sufficient legal information and were unable to communicate their situations to English-speaking police officers, “I was new in the country. I didn’t know anything about the laws, what the law said, what are the rights and everything.” One woman’s husband even went so far as to disconnect the telephone to prevent her from telling others about the abuse: “He pulled all the wires because I didn’t know the language very well.” Two other women received some support and information from friends or family members who encouraged them to seek help, “[My family] encouraged . . . [me] to charge him with criminal harassment”; “[My friend] gave . . . [me] support and . . . told . . . [me] that in this country ladies [have] rights too.” Initial decisions to contact the police were usually made after years of enduring physical abuse, when participants “couldn’t take it anymore,” after “5 to 7 years . . . smashing the head . . . smashing my face.” They were most likely to contact the police when the violence escalated to a point resulting in serious physical trauma, such as broken bones, disfigured faces, hospitalization, and long-term disabilities. In many cases, women came to realize that they could not protect themselves from the abuse and feared for their lives: “She [contacted the police] . . . for her safety, because when he was physically assaulting her, he strangled her . . . she got really scared.” Some women decided to contact the police when they came to understand the impact of abuse on their children and/or grandchildren. Participants placed value on keeping their families intact, but not at the expense of keeping their children safe and healthy, “When I seen him going after my granddaughter, I thought of my kids, and I thought, oh, I can’t see this anymore.” Another woman reported that she “[contacted the police] mostly for . . . [her] kids.” She had a 6-year-old son and worried about him learning violence as an acceptable tool to gain dominance and control over others.

Experience With the Police Participants named different motivations for involving the legal-judicial system in their domestic violence cases. A couple of women stated the notion of justice as a strong incentive for involving the police so that “he could learn a lesson.” One woman contacted the police specifically because she wanted her husband sentenced to jail to send the message that men “can’t go around doing this to women and . . . get away with it.” More typically, however, participants did not contact the police with the intention of laying charges but rather did so to escape immediate danger or in hopes that the police would remove the abuser from the immediate situation. In most cases, participants were unaware of the mandatory charging and no-drop policies

Gillis et al. / Battered Women and the Judicial System


before police contact. Rather, they were informed that police “were going to press charges” after they arrived at the scene. In cases where women did not want to lay charges, the police informed them that “they have no choice in the matter”; “they were going to press charges” regardless of the victim’s wishes. Women had diverse and complex reactions to these policies; some expressed guilt and regret for involving the police, whereas others were relieved that “it [was] not in . . . [their] hands anymore.” A few women felt that charges laid by the police were fair or were thankful in cases where the police forced the abusive partner to leave. Although experiences with police varied widely, most women reported some negative occurrence. Delayed police response was one factor that discouraged some participants from pursuing further legal intervention: “I felt like dropping [the case] right then [because of] the length of time [that had] gone by.” Other complaints came up frequently in focus groups that indicated police were not taking woman abuse cases seriously. Often, police behavior was described as insensitive, impersonal, and dismissive, as if “the incident that happened wasn’t big enough” to merit police attention. For example, some women felt that the police blamed them for being “stupid enough to stay in” an abusive relationship. In fact, one woman actually saw police reports stating that she only contacted the police “to get back at her husband.” Even worse, in three cases, police officers were responsible for some major errors and omissions at the crime scene that caused women to lose their case in court. For example, an immigrant woman told a police officer that she needed an interpreter to communicate her story. He told her that he was unable to get an interpreter and instead asked her husband’s aunt to translate her story. The aunt failed to translate the story accurately, probably because she had a vested interest in protecting her nephew, and as a result there was no evidence to charge for abuse. Another woman reported that the police lost her husband’s papers, and, as a consequence, the case never made it to trial. In another case, the police failed to attain a search warrant before collecting major evidence, so it could not be used in court. In contrast to the many complaints regarding police intervention, a couple of women were very pleased with police support they received. In one case, a woman found the police officers to be “very helpful and patient” as they “explained exactly by detail what would happen” throughout the entire legal proceedings and provided her with contact information for various social service agencies. Some other police officers came by for follow-up visits shortly after initial contact to ensure that the victims were safe.

Experience in Court The time between first contact with the police and the actual court date represented a long waiting period during which court officials provided very little guidance or information to women. Women described their dissatisfaction and lack of support from attorneys: “The attorney was not available, so she could not talk to me,” and “the lawyers and Crown attorneys and the other lawyers . . . are supporting each other and they are not helping us at all.” Court officials failed to provide women with support


Violence Against Women

and information throughout the entire court process. For example, a woman was told by her attorney to “come . . . an hour early before . . . court” proceedings, but the attorney did not arrive until “5 minutes just before the bell.” Some participants were not informed that the court proceedings “could be . . . 8 hours of the day,” and most lacked knowledge of legal terminology. Because of this “general lack of knowledge,” women felt unprepared the day of their court proceedings, as demonstrated by the following statements: “You feel lost and there’s something missing”; “I didn’t know what to do. I didn’t know what my rights were. I didn’t know nothing.” The actual court proceedings were described by participants as intimidating, impersonal, and demeaning. Court officials demonstrated little empathy and often treated women as “case files.” One participant believed that “[the court officials] weren’t interested. It was how many files are we going to get through today . . . nobody . . . took the time to look at what was going on” with the people involved. This sentiment was reiterated by another participant who stated: “[The officials] don’t care [about the] . . . impact of the order [or] . . . what happens to me after that order, during the order, [or] where I stand.” On one court date, “the judge was almost asleep, and all he said [was] . . . get on with it,” which was very discouraging to the victim. Many women stated that the court officials acted as if they did not have time to listen to the case stories: “I wanted to tell a lot of things . . . but [the Crown] always used to say do it very small . . . . He said the time will be wasted, don’t give a long story.” During the difficult experience of giving their court statements, women felt silenced or unheard, like they “didn’t have a say” or that “nobody [listened].” Several participants specifically referred to the court system as a “game” played by police officers, lawyers, and judges: “It’s a battle of two lawyers. It had nothing to do with exactly what happened . . . with courts or penalties or . . . laws. It had to do with who’s got the best lawyer.”

Legal Outcomes All women in the present study reported that they would never use the legal system again in domestic violence situations. Although one woman was glad that she went through the legal system and was pleased overall with the court process and outcomes (“My life is much better than whatever it was with him.”), she did not want to go through the system again because “it was mentally and emotionally exhausting.” All other women were disappointed with both the court process and outcomes: “Never in my wildest dreams I would think I would go through that [again] . . . [or] the end results.” In fact, a number of women felt that they were further victimized by the court sanctions (“Instead of being the victim, you might as well have done the crime.”) and that “the justice system [is] . . . not making these guys pay [but rather] . . . telling them it’s okay . . . to beat the shit out of women.” Women with children repeatedly mentioned custody issues as a major problem that came up after the legal proceedings. Although they were all granted primary custody of their children, the abusive men “still [had] . . . . visiting rights [and] access to them.” Many were very concerned about their children keeping contact

Gillis et al. / Battered Women and the Judicial System


with an abusive father. For example, one woman described how her husband continued to hurt his children emotionally: He played a lot of mind games with me and our kids . . . he plays games with them. “I don’t want to see you anymore.” But he has a court order saying to see them whenever he decides I’m going to come back again. He disappears for like a year at a time and comes back.

Another woman explained that “you’re definitely on the lower end when you’re looking after the children . . . . They say you’re in control, you have custody. We’re not. We’re vulnerable because the first thing usually is you think of your child.” In addition, participants felt that their own safety was at stake “having somebody visit your home 1, 2, 3, or 4 times a week to pick those children up, giving him access” to both the victim and her children. Lack of aftercare or support services was another recurring problem that came up in the focus group discussions. Participants hoped that the court would sanction mandatory counseling for abusers or some other form of help. Instead, “conditions of probation . . . were swept under the rug” and “nobody . . . made sure that [the perpetrators received] . . . the counseling” ordered by the courts. In addition, victims who separated from their abusers “[ended up with] nothing” and often did not “know where to turn and from where to get support.” For example, one participant reported that she “walked out with . . . [her] daughter going to . . . [her] parents,” and she ended up at a women’s shelter. Another woman was left with very little money and the responsibility of supporting a diabetic child. She stated that “[family services would] not help . . . [her] keep this child alive, but at the same time . . . [they would] turn around . . . to take that child away from . . . [her].” The contradictions within legal and social institutions were very apparent to women who experienced first hand the financial and social punishments of leaving an abusive partner, which they were told was “the right thing to do.” Even after completing prosecution, participants did not feel safe and continued to “live in fear” (“Even if he’s not with you, he’s abusing you.”). Some reported that wearing a safety beeper had been somewhat useful in helping them feel safer, but in general, they feared the consequences of having further aggravated their abusers. One woman explained that she would “never ever walk . . . out of the house without somebody . . . regardless with the beeper alarm” as she was petrified that her abuser “was still walking the streets.” Another woman continued to live in hiding, moving regularly, because she believed that her partner was “dangerous enough to kill . . . [and that] if he had to wait 2 years or 5 years, he’d come out looking” for her.

Social Service Agencies All women in the present study were recruited from Victim Services and, therefore, had at least minimal contact with the social service sector. It was apparent from


Violence Against Women

the focus groups that Victim Services provided women with some information and support. One woman stated that Victim Services “kind of gave . . . [her] a brief idea of what was going to be going on” and instructed her to call back if she had any questions. Another woman was very impressed with Victim Services, as they “gave . . . [her] all the information [she] needed” in terms of options and financial considerations. Overall, women reported mixed experiences with Victim Services and other agencies with which they came into contact. Some women were fortunate to find social service workers who worked hard to support them: “My social worker did many things—spoke to . . . my housing, spoke to . . . my social worker, tried to get . . . money for . . . my child.” Others had more difficulty accessing agencies for various reasons: The agencies neglected to call the victim back, victims were overwhelmed with information, or women lacked transportation and/or child care resources. Nonetheless, Victim Services and other agencies offered some women invaluable resources in the midst of a confusing and intimidating system.

Participant Recommendations There were two major recommendations that came up repeatedly in the focus groups. First, women felt that court officials and police officers should provide them with more information about rights, terminology, and the legal process. One woman noted regretfully that if she had access to “information, things would have definitely been different.” Second, women felt a strong need for a more supportive court process in general. In particular, many women reported difficulties in “giving a statement” when “she gets nervous” or “very scared that the judge will say something” in “the court . . . [where] there are so many people.” Women also felt burdened to prove the abuse. As one woman stated, “It’s your word against theirs . . . if you’re not a convincing person, you could have created all of this nonsense and you could be lying.” Some reported that they are “intimidated by males” because of their survivor histories and felt further “intimidated and assaulted by the courthouse,” in part because of the overrepresentation of men. One suggestion was made that “maybe they should put a woman up there . . . [because] a woman judge . . . [would] hear these horror stories . . . and wouldn’t like it very much.” Another woman recommended that police officers and court officials be screened on entering the profession to ensure that they genuinely want to help people. All of these problems and recommendations reflect a need for more effective training for police officers and court officials and a need for a more flexible system to better meet the needs of traumatized people.

Discussion The present study corroborates previous findings that women survivors of violence continue to face difficulties in the legal-judicial system that impair its usefulness as a

Gillis et al. / Battered Women and the Judicial System


resource for their protection. This is perplexing in consideration of the many programs, policies, and guidelines established by the Ontario Ministry of the Attorney General (2004) to support victims of woman abuse at various levels of the prosecution process. For example, the Domestic Violence Court Program requires the police, Crown attorneys, victim support staff, and community agencies to work collectively to facilitate the “prosecution of domestic assault cases and early intervention in abusive domestic situations” (Ontario Ministry of the Attorney General, 2004) in ways that address the needs and safety of victims. The Victim/Witness Assistance Program is mandated “to provide information, assistance and support to victims and witnesses of crime throughout the criminal justice process” (Ontario Ministry of the Attorney General, 2004) by way of services covering crisis intervention, needs assessment, referrals to community agencies, emotional support, case-specific information, and court preparation and orientation for victims. Victim Awareness Education Workshops are administered to front-line police officers to improve their abilities “to respond to victims in a professional and compassionate manner” (Ontario Ministry of the Attorney General, 2004), in collaboration with more basic training at police college and enhanced training about specific departmental procedures (Joint Committee on Domestic Violence, 1999; Ontario Ministry of the Solicitor General, 2000). These are only a few of the programs put in place to address the needs and safety of woman abuse survivors in the criminal justice system, and they seem to address many of the issues described by women in the present study. Despite these many government initiatives, only a minority of participants in the present study reported positive experiences with police officers and other criminal justice officials. The majority of women were further traumatized by ambivalent or discriminatory attitudes and practices prevalent within the system. The contrast in women’s experiences can be at least partially attributed to the ethnic diversity among participants. The few women who reported positive experiences within the legal system self-identified as Caucasian and spoke English fluently. Most women who reported negative experiences during the prosecution process did not explicitly state racism as a barrier within the system, but not one woman of color reported positive experiences within the legal-judicial system, indicating that racist stereotypes and cultural barriers were in play. Consistent with these findings, past research indicates that the system is more biased against women who contradict the White, middle-class notion of women (Canadian Panel on Violence Against Women, 1993; Miller, 2001). Many participants from non-Western cultures described internal barriers caused by cultural upbringing that prevented them from seeking legal help. This is consistent with some other research indicating that immigrant women’s cultures, contexts, and legal statuses increase vulnerability to abuse (Raj & Silverman, 2002). However, when interpreting such findings, it is critical to recognize the racist discourse underscoring notions of violence against women as natural, traditional, or inherent to non-Western communities. Bannerji (2002) asserts that imagined notions of traditional communities rest explicitly on patriarchy but are legitimated as an essence of identity in non-Western


Violence Against Women

immigrant communities. This traditional patriarchal identity is equally the result of othering imposed by powerful outside forces embedded in oppressive Western institutions (Bannerji, 2002). This discourse may socialize women from non-Western cultures to blame internalized barriers on their cultures’ traditions rather than on difficulties exacerbated by their specific locations as immigrants, including limited host-language skills, lack of access to dignified jobs, uncertain legal statuses, and experiences in their home countries (Menjivar & Salcido, 2002). Most women in the present study had little knowledge about the legal-judicial system and did not know how to access necessary information. They did not know what to expect during the prosecution process, were unfamiliar with their rights as victims, did not understand legal terminology, and felt intimidated by courtroom proceedings. This is worrisome considering that the Ontario Ministry of the Attorney General (2004) has created programs designed specifically to provide victims with such information and that police officers are mandated to refer women to available services and offer to make initial contact with victim services (Ontario Ministry of the Solicitor General, 2000). Although some women found support through victim service agencies, many were unaware of these services or could not gain access to them because of financial restraints. This is consistent with past research that emphasizes a lack of accessible, multilingual, culturally appropriate public information and services for ethnic minority women survivors of violence (Godin, 1994; Joint Committee on Domestic Violence, 1999; Pratt, 1995; Roboubi & Bowles, 1995). Many participants expressed the need for more support throughout this stressful period, preferably from other survivors of violence who would be more sensitive to their needs. The Cross-sectoral Violence Against Women Strategy Group (2004) has detailed immediate and longterm recommendations for change to the Ontario government that would allow them to create and maintain required services for woman abuse survivors. Unfortunately, the government has yet to implement many of these changes, and women’s services continue to suffer from tight budget restrictions (Cross-sectoral Violence Against Women Strategy Group, 2004; Lakeman, 2003). The present study also indicates that women who complete the prosecution process are often disappointed with court outcomes, which do not correspond with the severity and repercussions of their partner’s abusive behaviors. In the present study, the courts ensured little or no follow-up with respect to probation or provisions for treatment after prosecution, and women survivors were offered little protection from further violence after their partner completed his sentence. Most of these women continued to fear for the safety of themselves and their children and found little support from the legal-judicial system or victim service agencies after prosecuting their partner. All women reported that they would be reluctant to involve the legal-judicial system in future domestic violence cases. Although these findings offer some insight into the experiences of women during prosecution in domestic violence cases, there were a number of limitations in the

Gillis et al. / Battered Women and the Judicial System


present study. For example, the sample represented a small and culturally diverse group of women from one region in Ontario, making it difficult to generalize these findings to the general population of women in Canada. Despite repeated attempts to recruit participants through victim service agencies, the response rate remained low, probably because of the sensitive nature of the topic. Also, the retrospective design of the study might have elicited different responses than a study examining the experiences of women at various stages of the prosecution process. Nonetheless, this study design was necessary to ensure that women had completed the judicial process and had come to some resolution of their emotional trauma so as not to further traumatize women during an already stressful period. Finally, the focus group format may have inhibited some women from telling their stories or expressing opinions that differed from the majority group opinion. Further research is needed to evaluate different aspects of prosecution in domestic violence cases to facilitate more radical restructuring of the system. For example, a longitudinal research design that follows women through the legal-judicial system, gathering information at various stages of the prosecution process, might be more informative than the retrospective design used in the present study. Furthermore, research examining a larger sample of women who complete prosecution versus those who withdraw from the process would be useful to assess the positive and negative outcomes of legal action, taking into account the safety and emotional and financial well-being of women and children. Finally, research is also needed to evaluate current interventions established by the Ontario Ministry of the Attorney General and the police training colleges to address the gaps between policy and guideline mandates and the lived experiences of woman abuse survivors in the criminal justice system.

References Bannerji, H. (2002). A question of silence: Reflections on violence against women in communities of colour. In K. M. J. McKenna & J. Larkin (Eds.), Violence against women: New Canadian perspectives (pp. 353-370). Toronto, Canada: Inanna. Bennett, L., Goodman, L., & Dutton, M. A. (1999). Systemic obstacles to the criminal prosecution of a battering partner: A victim perspective. Journal of Interpersonal Violence, 14, 761-772. Brown, T. (2000). Charging and prosecution policies in cases of spousal assault: A synthesis of research, academic and judicial responses. Ottawa: Department of Justice Canada. Bui, H. N. (2003). Help-seeking behavior among abused immigrant women: A case of Vietnamese American women. Violence Against Women, 9, 207-239. Canadian Panel on Violence Against Women. (1993). Changing the landscape: Ending violence, achieving equality. Ottawa: Ministry of Supply and Services Canada. Coulter, M. L., Kuehnle, K., Byers, R., & Alfonso, M. (1999). Police-reporting behavior and victim police interactions as described by women in a domestic violence shelter. Journal of Interpersonal Violence, 14, 1290-1298. Cross-sectoral Violence Against Women Strategy Group. (2004). Emergency measures and beyond. Retrieved November 5, 2004, from


Violence Against Women

Dawson, M., & Dinovitzer, R. (2001). Victim cooperation and the prosecution of domestic violence in a specialized court. Justice Quarterly, 18, 593-622. Erez, E., & Belknap, J. (1998). In their own words: Battered women’s assessments of the criminal processing system’s responses. Violence and Victims, 13, 251-268. Friedman, A. R. (1992). Rape and domestic violence: The experience of refugee women. In E. Cole, O. M. Espin, & E. D. Rothblum (Eds.), Refugee women and their mental health: Shattered societies, shattered lives (pp. 141-154). New York: Harrington. Gillis, J. R., Orekhovsky, V., Jebely, P., Reixach, D., & MacIssac, K. (2002). Abused women’s participation in investigative, judicial and social services: Their experiences and candid points of view. Ottawa: Department of Justice Canada. Godin, J. (1994). More than a crime: A report on the lack of public legal information materials for immigrant women who are subject to wife assault. Ottawa: Department of Justice Canada, Research and Statistics Division. Goodman, L., Bennett, L., & Dutton, M. A. (1999). Obstacles to victims’ cooperation with the criminal prosecution of their abusers: The role of social support. Violence and Victims, 14, 427-444. Hannah-Moffat, K. (1995). To charge or not to charge: Frontline officers’ perceptions of mandatory charge policies. In M. Valverde, L. MacLeod, & K. Johnson (Eds.), Wife assault and the Canadian criminal justice system (pp. 35-46). Toronto, Canada: University of Toronto, Centre of Criminology. Hartman, J., & Belknap, J. (2003). Beyond the gatekeepers: Court professionals’ self-reported attitudes about and experiences with domestic violence cases. Criminal Justice and Behavior, 30, 349-373. Joint Committee on Domestic Violence. (1999). Working towards a seamless community and justice response to domestic violence: A five year plan for Ontario. Toronto, Canada: Ministry of the Attorney General of Ontario. Lakeman, L. (2003). Canada’s promises to keep: The charter and violence against women. Vancouver: Canadian Association of Sexual Assault Centres. Landau, T. C. (2000). Women’s experiences with mandatory charging for wife assault in Ontario, Canada: A case against the prosecution. International Review of Victimology, 7, 141-157. MacLeod, L. (1995). Policy decisions and prosecutorial dilemmas: The unanticipated consequences of good intention. In M. Valverde, L. MacLeod, & D. Johnson (Eds.), Wife assault and the Canadian criminal justice system (pp. 47-61). Toronto, Canada: University of Toronto, Centre of Criminology. Martin, D. L., & Mosher, J. E. (1995). Unkept promises: Experiences of immigrant women with the neocriminalization of wife abuse. Canadian Journal of Women and the Law, 8, 3-44. McGee, C. (2000). Children’s and mothers’ experiences of support and protection following domestic violence. In J. Hanmer, C. Itzin, S. Quaid, & D. Wigglesworth (Eds.), Home truths about domestic violence: Feminist influences on policy and practice (pp. 77-95). London: Routledge. Medical Research Council of Canada, Natural Sciences and Engineering Research Council of Canada, and Social Sciences and Humanities Research Council of Canada. (2003). Tri-council policy statement: Ethical conduct for research involving humans. Retrieved January 3, 2005, from http://www Menjivar, C., & Salcido, O. (2002). Immigrant women and domestic violence: Common experiences in different countries. Gender & Society, 16, 898-920. Miedema, B., & Wachholz, S. (1998). A complex web: Access to justice for abused immigrant women in New Brunswick. Ottawa: Status of Women Canada. Miller, S. L. (2001). The paradox of women arrested for domestic violence: Criminal justice professionals and service providers respond. Violence Against Women, 7, 1339-1376. Ontario Ministry of the Attorney General. (2004). What we do. Retrieved August 8, 2004, from Ontario Ministry of the Solicitor General. (2000). Policing standards manual. Toronto, Canada: Ministry of the Solicitor General.

Gillis et al. / Battered Women and the Judicial System


Pratt, A. (1995). New immigrant and refugee battered women: The intersection of immigration and criminal justice policy. In M. Valverde, L. MacLeod, & K. Johnson (Eds.), Wife assault and the Canadian criminal justice system (pp. 84-103). Toronto, Canada: University of Toronto, Centre of Criminology. Raj, A., & Silverman, J. (2002). Intimate partner violence against immigrant women. Violence Against Women, 8, 367-398. Roberts, T. (1996). Spousal assault and mandatory charging in the Yukon: Experiences, perspectives, and alternatives. Ottawa: Department of Justice Canada, Research and Statistics Division. Roboubi, N., & Bowles, S. (1995). Barriers to justice: Ethnocultural minority women and domestic violence— A preliminary discussion paper. Ottawa: Department of Justice Canada, Research and Statistics Division. Stephens, J., & Sinden, P. G. (2000). Victims’ voices: Domestic assault victims’ perceptions of police demeanor. Journal of Interpersonal Violence, 15, 534-547. Wachholz, S., & Miedema, B. (2000). Risk, fear, and harm: Immigrant women’s perceptions of the “policing solution” to woman abuse. Crime, Law & Social Change, 34, 301-317.

Joseph Roy Gillis is assistant professor at the Ontario Institute for Studies in Education at the University of Toronto in the Department of Adult Education and Counselling Psychology. His research and teaching interests include the development of a counseling model for hate crime survivors, attitudes toward teaching about sexual diversity in the classroom, sexual dysfunction in gay men, HIV prevention and safer sex fatigue, forensic psychology, and psychological assessment. He has published broadly in those fields in academic journals and has presented his research to both community agencies and academic audiences. Shaindl Lin Diamond is a PhD student in the Counseling Psychology Program at the Ontario Institute for Studies in Education of the University of Toronto (OISE/UT). She received her undergraduate degree from Trent University in women’s studies and psychology and her MA from OISE/UT in counseling psychology. Her academic and activist interests include antipsychiatry, queer studies, antioppressive education, multicultural psychology, critical psychology, feminist theory, equity studies, and anticapitalism. Paul Jebely is a student-at-law with Dutton Brock LLP in Toronto. He completed his BA at Trinity College at the University of Toronto, his LLB at Osgoode Hall Law School York University, and a special course of study at the Sorbonne in Paris, France. Victoria Orekhovsky immigrated to Canada from Ukraine in 1990. She is completing her doctoral degree in counseling psychology at the Ontario Institute for Studies in Education at the University of Toronto. She has been actively involved in clinical and academic research since 1994. Some of the projects that she worked on focused on HIV/AIDS, such as issues around safer sex among undergraduate students, rapid assessment of injection drug use in the Peel region, Ontario, and, most recently, a longitudinal study of HIV/AIDS in Russia. Ellis M. Ostovich received her BSc with high distinction from the University of Toronto posthumously in 2004, with a double major in psychology and criminology. She worked as a research assistant in psychology both at Lancaster University, where she was an exchange student and at the University of Toronto. She was the winner of the Bloor Lands Entrance Scholarship and two Regents In-Course Scholarships at Victoria University, University of Toronto. She also wrote poetry and fiction, sketched, performed as a musician, and produced a film short, Gaela Running, which was selected for showing at the Hart House Film Festival. Kristin MacIsaac is currently completing a master’s of teaching degree at the Ontario Institute for Studies in Education of the University of Toronto. She was awarded her BSc Hon in psychology from the University of Toronto in 2003.


Violence Against Women

Sandra Sagrati has extensive experience in research and clinical practice in the areas of depression, anxiety, and eating disorders. Employed as a research coordinator for the past 7 years at the Centre for Addiction and Mental Health, she worked in the Cognitive Behavior Therapy Unit and Neurochemical Imaging Program in Mood Disorders. In addition, she has worked in the Anxiety Treatment and Research Centre and Mood Disorders Program at St. Joseph’s Healthcare and Eating Disorders Day Program at the University Health Network. She obtained a master’s of education in developmental psychology at the University of Toronto and is completing her doctorate degree. Deborah Mandell is a personal counselor at the University of Toronto at Mississauga. An antiviolence activist, advocate, and educator, she has worked with teenagers and young adults, creating and coordinating programs to promote healthy and empowering relationships. She recently received her MEd in counseling psychology at the Ontario Institute for Studies in Education of the University of Toronto.