Last year the Federal government introduced Bill C -75, legislation to reform the criminal justice system. The bill passed its third reading in the House of Commons and is now at its first reading at the senate. The government has promoted this legislation partly as: a remedy to reduce the overrepresentation of marginalized people in the criminal justice system and to make criminal law more efficient in order to ensure swifter access to justice, reduce preliminary trials to decrease revictimization of victim’s by having to retell their stories and strengthen the criminal justice response to intimate partner violence. The federal government touts this legislation’s impact to have far reaching effects
As a feminist, front-line worker, I am hopeful that some of these measures will have a positive impact for raped and battered women—in particular, the decision to limit the use of preliminary inquiries, to add the use of reverse onus bail, to make strangulation a more serious aggravating factor, and to changes in the language regarding male violence against women.
We believe that protecting women’s equality rights does not have to come at the expense or violation of men’s Charter rights. But we do take the position that it’s battered and sexually assaulted women who so rarely find justice or have their Charter rights upheld.
We argue that the existing laws be applied as they relate to battered and raped women. We recognize that it’s poor, racialized, and Indigenous men who fill the prisons, not because they commit more crimes against women but because the criminal justice system unfairly criminalizes these populations and lets rich white men off the hook. It is also poor, racialized and Indigenous women who are more likely to be arrested in cases where the violent man abusing her calls the police on her.
We don’t believe prisons successfully reform men and we do not call for longer jail sentences; however, communities do not hold men accountable for the violence men commit, therefore women will continue to need the criminal justice system for protection, and we as feminists must fight for women’s access to the rule of law.
We welcome the change in language from spousal abuse to intimate partner abuse and to expand the definition to include former partners and dating partners, because it better reflects the range of relations women are in outside of marriage. This change also allows for a broader and deeper interpretation of the continuing power abusive men exert over women after the relationship has ended, since women are most at risk in the first 18 months after leaving an abusive man. However, this language change does nothing to correct the fundamental flaw in the law; nowhere in this bill is violence against women acknowledged. It is understood worldwide that male violence against women is a social reality that cannot be denied. This bill does nothing to reflect or acknowledge that the overwhelming perpetrators of violence are men and victims of that violence are women. We see that men use violence towards women at all different stages of a relationship including after it ends, so the change to intimate partner violence could mean a higher chance of him being held responsible for his behaviour.
The change to reverse onus bail in cases of male violence against women is an encouraging step to help reduce the number of men who immediately re-offend and attack their female intimate partners. It is a positive step because the onus is on the offender to prove why they should be let out on bail in particular if they have a history of domestic violence. This sends a message that violence against women is a serious crime. It is, however, unfortunate that this reverse onus will not apply to those men without a criminal record for domestic violence, which will include convicted persons who received an absolute or a conditional discharge. What we see from our work is while getting a conviction is rare, when it does happen it’s almost always a man of colour. As a result, we can see the possibility that something like this will disproportionately affect racialized men, while the majority of men who go without being charged and convicted remain unaccountable and undeterred.
I had a recent case where I was working with a resident whose ex-had been charged with assault, she had permanent damage to her eye as a result of his attack, he pled guilty but his lawyer asked for a conditional discharge so he could travel to the states to see family and with a record he would not be able to do so. He was also a lawyer. The judge granted him the conditional discharge. If he battered again his record of violence would not be considered even with this reverse onus bail.
Eliminating the mandatory use of preliminary trials as it relates to women who have been sexually assaulted is a positive step. We know from our experience accompanying women to court that preliminary trials are used by the defense as an attempt to discredit their testimony by pointing out minute discrepancies from their police statements, and preliminary trial to trial testimonies.
In one recent example of a trial I attended, the woman was asked to justify why she said “I think I wore a cardigan” in one statement and “I was wearing a cardigan” in the other. The defense cross-examined her gratuitously on this difference, implying that because she didn’t use the exact same wording, she was lying. This misuse of preliminary hearings in sexual assault trials is common and we are glad to see its use limited.
Bill C-75 makes strangulation a more serious level of assault, equal to assault causing bodily harm. Since strangulation is an indicator of the likelihood of increased and more severe violence, including wife murder, this change better reflects the seriousness of the crime. However, strangulation is not only a more severe act of violence it can be lethal. This changed does not reflect the potential lethality.
The Bill expands the provision on sentencing to include any intimate partner violence as an aggravating factor. The shift to include former partners and dating partners is significant because women who have left an abusive man are at increased risk of violence.
Although Bill C-75 would allow the court to raise the maximum sentence for a repeat offender who has a record of domestic violence offences, most judges don’t apply the maximum sentence to domestic violence, so this is unlikely going to have an impact. And given the over-representation of people of color and poor people in prison, this may be used unequally against poor men and men of color.
I note however, summary convictions that include most forms of male violence sentencing increased from 6 months to 2 years except for sexual assault it seems to suggest sexual assault doesn’t happen to battered women. I think this reflects a common myth that somehow women who experience intimate partner violence are different women then those who experience sex assault. Part of an abusive man’s physical assault often includes sexual assault.
Overall, these changes can have a positive impact on holding men accountable for the violence they commit. We are cautiously optimistic. But without informed, women’s equality-seeking judges, access to criminal justice system through adequate legal aid, responsive and effective policing of male violence, we fear the changes will result in few criminal convictions.
Changes to the criminal law can only be effective in changing the condition for women if women have judges who do not have a sexist bias against women. Women must also have access to legal aid, a guaranteed livable income, safe and affordable housing, and a strong and diverse civil society to fight for equality rights, including a strong women’s movement.
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