DOMESTIC VIOLENCE AND THE LAW
PAPER 5.1
Negotiating Domestic Violence:
An Exploratory Study
These materials were prepared by Inspector Richard Konarski, Operations Support Officer, Langley RCMP
Detachment, Langley, BC, for the Continuing Legal Education Society of British Columbia, May 2011
© Richard Konarski
5.1.1
NEGOTIATING DOMESTIC VIOLENCE:
AN EXPLORATORY STUDY
I.
Research on Recantation and Uncooperative Victims ............................................................................... 1
II.
Methodology ...................................................................................................................................................... 3
III.
Findings ............................................................................................................................................................... 4
A. Intimidation ........................................................................................................................................................................................ 4
B. Escalation in Threats of Violence ............................................................................................................................................ 5
C. Response to Breaches of “No Contact” ................................................................................................................................ 6
D. Family—Relationships, Finances, Religion, and Culture ............................................................................................. 6
E. Manipulation of the Court System ........................................................................................................................................ 7
F. Pro-Arrest and Pro-Charge Policy ........................................................................................................................................... 7
G. Changing Their Minds ................................................................................................................................................................... 8
H. Dealing with Recantations .......................................................................................................................................................... 8
IV.
Discussion ........................................................................................................................................................... 9
V.
Conclusion ........................................................................................................................................................10
VI.
References Cited ..............................................................................................................................................12
I.
Research on Recantation and Uncooperative Victims
The issue of recantation has been the subject of considerable debate and discussion within the legal
community. This interest has largely focused on the means to manage recantations. Recantations are
indicative of the extreme actions of an uncooperative victim or witness; however, the managing of
uncooperative witnesses in criminal court proceedings also extends to those who do not show up for the
proceedings, remain mute in the witness box, develop amnesia surrounding the events, or fail to detail
substantive elements of their statements made to the police. In the Supreme Court of Canada’s seminal
decision in R. v. K.G.B., [1993] 1 S.C.R. 740 on the admissibility of prior inconsistent statements from recanting
and other uncooperative or unavailable witnesses, the Court at para. 110 framed the problem in the following
manner:
In the case of prior inconsistent statements, it is patent that we cannot expect to get
evidence of the same value from the recanting witness or other sources: as counsel for the
appellant claimed, the recanting witness holds the prior statement, and thus the relevant
evidence, “hostage.” The different “value” of the evidence is found in the fact that
something has radically changed between the time when the statement was made and the
trial and, assuming that there is a sufficient degree of reliability established under the first
criterion, the trier of fact should be allowed to weigh both statements in light of the
witness's explanation of the change.
The debate has waged on and was most recently addressed by Canada’s highest court in R. v. Khelawon, [2006]
2 S.C.R. 787. At para. 39, the Court described, by way of example, the conflicting and confounding issues that
must be considered when faced with a recanting victim in a domestic violence case:
5.1.2
In an out-of-court statement, W identifies the accused as her assailant. At the trial of the
accused on a charge of assault, W testifies that the accused is not her assailant. The Crown
seeks to tender the out-of-court statement as proof of the fact that the accused did assault
W. In these circumstances, the trier of fact is asked to accept the out-of-court statement
over the sworn testimony of the witness. Given the usual premium placed on the value of
in-court testimonial evidence, a serious issue arises as to whether it is at all necessary to
introduce the statement. In addition, the reliability of that statement becomes crucial. How
trustworthy is it? In what circumstances did W make that statement? Was it made casually
to friends at a social function, or rather, to the police as a formal complaint? Was W aware
of the potential consequences of making that statement, did she intend that it be acted
upon? Did she have a motive to lie? In what condition was W at the time she made the
statement? Many more questions can come to mind on matters that relate to the reliability
of that out-of-court statement. When the trier of fact is asked to consider the out-of-court
statement as proof that the accused in fact assaulted W, assessing its reliability may prove
to be difficult.
As can be seen, the discussion revolves around the procedural rules that would allow the courts to receive outof-court statements concerning the substantive offence being alleged. The debate does not focus on the
dynamics or circumstances that might cause a victim of domestic violence to alter or take back her prior
statement.
In an interesting view of the criminal justice system and its interaction with victims, similarities are drawn
between the treatment of the offender and the victim. More specifically, there is an element of coercion in the
dealings with both. The offender is under various coercive elements in relation to charges being brought
forward, being held in custody or released on some form of conditional bail, as well as having various sentences
meted out at the conclusion of the proceedings. This coercive tone is also evident with victims in that they are
compelled to participate with the judicial proceedings under the threat of criminal sanctions should they not
cooperate (Ford D. A., 2003). Further, there is some suggestion in a US study that the judiciary have contempt
for recanting victims in domestic violence cases. This absence of respect for the victims and the charges
brought before the courts manifests itself in placing the cases as lower priority on the court docket (Rutledge,
2009). From the perspective of the police and prosecutors, recantations cause a sense of “[d]iscouragement,
demotivation, and frustration” (Gauthier, 2010, at 1382). Recantations that occur in domestic violence cases
create credibility concerns in relation to the victim’s statement and will typically result in a cessation of the
prosecution (Malloy & Lamb, 2010). Additionally, there is concern by criminal justice personnel that the
perpetuation of dropped cases from victim recantation sends a message to society that it is not a particularly
important issue and further, that the criminal justice system is inadequately suited to deal with it (Gauthier,
2010).
In spite of the concern with the incident of recantation in domestic violence, the research in relation to case
attrition, beyond the adverse impact that it has on the prosecution of domestic violence cases, is limited. The
specific phenomenon of victim recantation or retraction has been infrequently considered (Robinson & Cook,
2006) and the research that has been conducted has tended to focus on the perspective of the officials within
the system, while largely silencing the voice of the victim through the absence of that perspective (Erez &
Belknap, 1998). While there have been some studies conducted in the US and the UK, no similar research
studies exist in Canada (Gauthier, 2010).
In light of these findings, it is important to reflect on the recently revised BC Violence Against Women in
Relationships Policy where the primary purpose of the policy is defined as follows: “to ensure an effective,
integrated and co-ordinated justice and child welfare response to domestic violence. The goal is to support
and protect those individuals at risk and facilitate offender management and accountability” (Ministry of
Public Safety and Solicitor General; Ministry of Attorney General; Ministry of Children and Family
Development, 2010, at 2). In order to gain insights into the strain between victims and the system, it appeared
timely to open a dialogue with victims of domestic violence who had engaged with the system obtain in order
to their perspective on the phenomenon of recantation.
5.1.3
II.
Methodology
In an effort to gain access to domestic violence victims who had been processed through the criminal justice
system, the manager of the community-based victim services program, embedded within Ishtar Transition
House Society in Langley, BC, was contacted in January 2010. As a peace officer with over 33 years experience
with the Royal Canadian Mounted Police (“RCMP”) and with my current assignment as the Operations
Support Officer at the rank of Inspector with the Langley RCMP, I have had extensive dealings with the
manager in relation to domestic violence investigations.
The manager was made aware of the research interest in conducting interviews with domestic violence victims
who had experienced interaction with the criminal justice system in relation to their victimization. I indicated
a specific interest in focusing on recanting victims and other factors that would lead victims to choose not to
cooperate with criminal proceedings. While it would be particularly insightful for participants to have some
experience in relation to recanting their statements to the police, this was not deemed a mandatory factor for
inclusion in the interviews as the scope of the research was meant to be inclusive of the victims’ total
experience with the system.
In order to create the most comfortable interview environment for the women, it was determined that the
interviews would be conducted at the Ishtar Transition House Society office in one of their boardrooms. This
was done to maximize their sense of security. In an effort to create an interactive interview environment, it
was determined that a focus group format would be the preferred vehicle for the collection of the women’s
experiences. It was rationalized that the women who would be considered for selection would be familiar with
a group format through their counselling experience and the focus group would be a familiar context for the
dialogue. It was requested that the number of participants should not exceed eight (8) women in order to
maintain a manageable number of participants. The manager was made aware that my role would be limited
to that as a graduate-level researcher from Simon Fraser University, School of Criminology. She was
additionally advised that any participants would be assured anonymity. On that basis, and after confirming
support of the planned interviews with the Executive Director of Ishtar Transition House Society, the manager
agreed to facilitate access to the interviewees.
In preparation for the interview, the manager identified interviewees by canvassing other service providers within
the Ishtar Transition House Society who were providing group counselling to domestic violence survivors.
Approximately one dozen women identified their interest in participating; however, only two women were able
to attend for the scheduled interview on March 16, 2011. The manager explained that six of the women had
been unable to manage commitments in their personal life to make the scheduled interview session. Another six
women had indicated interest; however, they did not respond to requests for confirmation of attendance and in
the end, they did not appear for the interview.
On the interview date, the Program Manager introduced me to the women as “Inspector Richard Konarski from
the Langley RCMP.” My role and introduction had been discussed with the manager with the intention of
reinforcing my part as a graduate researcher. I attributed the introduction in my police role as a function of the
frequency of interaction I had with the manager in that capacity. I spent some time with the participants
clarifying that while I was a police officer and had significant experience in the investigation of domestic violence
cases, my role during the interview was as a graduate student from Simon Fraser University. The women
accepted this explanation and the knowledge of my dual role did not seem to have an adverse impact on the
dialogue through the interview.
Both women were verbally made aware of the scope of the research and the assurance of anonymity. They
both consented to an electronic record of the interaction, with the understanding that it would be utilized
solely for the research project. In addition, a Stopping the Violence (“STV”) counsellor remained in the
boardroom through the course of the interview to provide any necessary support to the women during the
course of their detailing their experiences. In an unexpected turn, both women arrived with children. While
one pre-school aged child was taken to a play area, one of the participants brought her newborn infant into
the boardroom. Beyond providing emotional support to both women, the STV counsellor assisted with the
child care to the infant during the interview.
5.1.4
For the purpose of the study and the interaction during the interview, pseudonyms were used—Violet and
Rose. In anticipation of a group of eight women, a “talking stick” had been arranged to manage the
conversation during the focus group. In spite of only having two women to interview, it was introduced into
the interview session wherein a lily (provided by the Program Manager) would be passed around the table to a
participant when they wanted to speak. The use of the “talking stick” was explained in the general context of
restorative justice processes. The agreement within our group was to abide by this in order to ensure that
everyone would be respected and heard.
I commenced the interview in expressing my interest in exploring the phenomenon of recantation. This was
explained as victims either changing or denying their initial disclosure to the police or other criminal justice
officials. Both participants remained engaged throughout the interview and appeared animated and
interested in sharing their experiences. The majority of my interaction in the interview was limited to probing
questions following the themes and ideas expressed by the two participants. The interview was just over an
hour in duration and ended on a very positive note, with both participants expressing gratitude for being able
to share their experience and for being heard. The STV counsellor felt that the interview had been remarkable
and beneficial for both women. She found the ideas expressed by the women to not only affirm some of her
own beliefs and observations, but it also added to her own insights.
III.
A.
Findings
Intimidation
Both women experienced an alteration in the attention from their respective partner’s as a result of the
intervention by the police. In Violet’s case, where she was pursuing a peace bond application, the police
intervention amounted to a phone call to the offender instructing him to cease contact. Violet had taken the
proactive step of moving out of the marital home and was planning on severing the relationship permanently.
She described the response by her spouse in the following way:
Okay well I called the cops. A couple times, my husband, so I had to call the cops, and the
first time, like I got a nasty e-mail from his brother and cause we were separated cause we
have a child together and I was seven months pregnant. And I called the cops to give him a
warning and then that just upped the ampe [sic] he was told to leave me alone. No
contact, nothing. And then he started sending me e-mails. Like I got an e-mail, I got letters.
I kept getting letters, he had his mom calling. I was just constantly getting people
contacting me …
Rose was the victim of two assaults and noted after the first incident, her husband persistently communicated
with her in spite of a “no contact” order. She described her experience as follows:
I think more of it is, their partner, they get so manipulative, they try to change other
partner's mind and then cause for the sake of the family and you still have a trust and you
still want to, like the financial support and all that. Then yes, the person who made the call,
cancels it, because the other partner is so manipulative. And at that time, that partner gives
everything in your hand, in the other partner's hand. He even tells me, “You can’t control
my life too,” so all that and then thinking about the family and things and the kids. So the
other partner cancels it … and the law, what the law should do, they shouldn’t leave it.
As can be observed, in each case the actions by the police resulted in a change in behaviour by both offenders.
Violet’s husband was vigorous, persistent and used others to weaken his spouse’s resolve. In Rose’s case, she
felt her spouse became manipulative. The extent and scope of his actions are detailed further in other excerpts
of her interview.
5.1.5
B.
Escalation in Threats of Violence
Beyond acts of intimidation or repeated contact, both women had experiences that spoke to the concern
about the potential for violence escalation of real harm. These events appear to have clearly been triggered by
the intervention of agents of the criminal justice system, along with the positive steps taken by both women to
leave their abusive surroundings. As described by Rose:
[T]here are some other fears of the other partner is scaring the other, not like bribing or
something, scaring the other partner. About killing, that's what happened with me … and if
you did this, I’m going to kill you. And then you are scared. Okay you are suffering; at least
you are there for your kids. If you get killed, what’s going to happen with your kids? So, you
keep taking it. Just for your kid’s sake.
It was tragic to hear the complacency in Rose’s voice when she rationalized the situation in a very pragmatic
fashion in determining that an abused mother was better than a dead mother for her son.
In Violet’s experience the intimidation also took a more sinister twist:
And then I end up having to call the cops again because he came to a visit when we had our
child cause he wasn’t at the birth or anything cause we weren’t together and everything,
and he got, so he brought to one of the visits, a big huge binder and so he was, he just kept
upping the ampage [sic] to I’m never going to stop. We’re going to, like, you know, I’m not
giving up on us, we’re going to get back together and, and near the end, some the stuff
scared me so then I called the cops, like I said, called the cops again. He got called again.
Then that time he got the message.
Violet went on to add:
There was no violence or anything but like in a relationship like emotional, emotional abuse
and he did have a temper where he liked to throw things, slam, you know, he broke the lock
off our front door and stuff like that. So he did have a temper, so but it didn’t get to the
point of violence cause I left for before, before that happened, but I was scared at times
because of his throwing and stuff.
In Violet’s case, her estranged husband was involved in what appeared to be an illicit drug addiction. This
seemed to add intensity to her husband’s efforts to regain control over her. She describes what occurred as
follows:
Because I was mostly scared too, because of the with drugs and, and all that type of stuff I
didn’t know cause I don’t come from that type of world and I would’ve been, wouldn’t have
been with him if I would have known that. So I didn’t know that when you’re going
through withdrawals, cause he was talking about going through withdrawals and, and uhm,
and at the end he seemed very, because I wasn’t sending him any letters. I never responded
to any of the letters. I never called him. I never until months after he had been sending me
the letters, so he was starting to get angry, like or upset, because I wasn’t uhm, responding.
And so he was pouring himself out I guess and, and so he felt there was just uhm, he was
like don’t mess with, or he, or he was just because he was also saying that, like, I want to get
you away from your family. I want to like isolate me. So it, it scared me and if I would have
known it was the left time I seen you I would have tied you up. So I had fear that he was
going to, and also uhm, take, try to take our child, so cause he always said I really want a
child so, and because he had supervised visits.
It is noteworthy that Violet frames her experience as non-violent, yet the acts being described about throwing
items, slamming things, and breaking the lock off a door suggests her husband was in some form of a rage.
More significantly, her husband asserts that if he had understood the certainty of the ending of their
relationship, he was prepared to physically restrain her by tying her up.
5.1.6
C.
Response to Breaches of “No Contact”
As described by the women, their partners were instructed by the police to refrain from having any contact.
While this was delivered as verbal direction on Violet’s behalf, the direction to have no contact in Rose’s
situation was backed by a court order. When contact was made in spite of the “no contact” order, Rose
described what happened as follows:
Nothing happened. Nothing happened. First time, when I called the first time, like with the
first incident, I even phoned the Police Officer who was involved, no phone calls returned
and nothing happened. Nothing happened. This time I called the Prosecutor, the Criminal
Court and they told me right away to, we can talk to his uhm, lawyer. He needs to get
something done, but you won't be uhm, blamed for it. But ah, nothing happened at the
end. Like he stopped calling me but there’s nothing on the papers.
Rose was then asked how this made her feel in light of the implied promise made by the police to intercede if
there was any contact. She summarized her feelings in stating:
Frustrated and I feel very unsafe. Then I, I think, nothing is happening now and if you get
killed, then okay your life is gone, system will get into it, they’ll do research. A waste of
money, waste their time, but your life is gone and no use taking actions at that time. So
they should take action seriously before.
D.
Family—Relationships, Finances, Religion, and Culture
During the course of the interview, a number of concepts in relation to the phenomenon of recanting became
intertwined. At the core of the concern for these women was the concept of their family. The issues included
in these passages are important, yet tangential to the central concern with family. With Rose’s affirming
sounds in the background, Violet captured some of the complexities encountered by women who might
contemplate recanting:
Uhm, I think that, like why people would change their story is like the same as, as ah Rose
because people, like they, you want to give them another chance, right? And you, because
you, especially when you’ve children. You want to be a family. You have this ideal family
unit picture in your head … Uhm, so I think in that type of circumstance I might, a woman
might change her story because they want to save their marriage or their relationship or
their family.
Violet carried on with her detailing of the situation in noting that these issues become more complicated
when religion and/or culture factors are added to the mix:
There’s maybe family pressures like because of like Rose’s situation, uhm the culture, like a
cultural dynamic. Uhm, when certain cultures, women are taught that they have to listen
to their husband, that uhm, no matter what happens you have to stick through it. Or
religion—because I come from a Christian background, it’s, so that’s a hard thing too.
When you come from a spiritual background you’re taught that okay, you’ve, you got to
stick it through.
The sanctity and importance of the family, particularly surrounding children seemed to resonate with both
women. Rose continued the conversation in detailing the impact of financial concerns in decision-making:
I think financial burden too. Especially when you have a little child and you think
financially, your child is so little you’re breast-feeding so now how can you go back to work
and then okay. If you can go back to work, you’re leaving your child somewhere you can’t
spend time with your child. So it’s so much for you to handle on your own and also for
sure. And there are other people that they can tell you that you cannot do it alone. People
do make mistakes. You have to go through ups and downs so he has learned a lesson and
he is being so like showing you that he has acknowledged it, so he’s going to try to change it,
so all these things make you look
5.1.7
at, okay let’s work it out so that it’ll be easier for you and then yeah, you want to keep your
kid in one environment. You don’t want to split it for your child. Then okay, you try to
work it out I think.
E.
Manipulation of the Court System
In the course of the interviews, Rose expressed frustration with the apparent disconnect between the criminal
court and the family court system. She described her experience in this way:
I think he abused the court for three months. Every other week he’s in the court and then
no communication with the Family Court and with the criminal court. Like they’re dealing
with the same person’s mentality. They should be. So what he did, he asked for extension
from the criminal court every time there was a fam, every time when there’s a Family Court
date closer. So he wanted to pa [sic], he didn’t wanted [sic] to have the criminal court and
then that have an extension and then deal with the Family Court. And then we go to the
Family Court and then we'll get just 10 days or two weeks [extension]. They say okay, and
so, we’ll wait for the criminal court. So why not talk and then finish with the criminal court
so you can continue with the Family Court? That way, like you, not costly for the system,
not, not wasting anybody’s time. Makes more sense too.
F.
Pro-Arrest and Pro-Charge Policy
The women were made aware that when the police respond to domestic violence cases, if the evidence exists
of an assault, the police are expected to proceed with charges and in most instances, arrest the assailant or
offender. This prompted a discussion about criminal sanctions and more specifically, the utility of sending
offenders to jail. Rose had the following observations:
The charges, police does charge people for this and for that, but the charges on those
people, it doesn’t really fix the problem. I think those people, they’re screwed up already.
They get more screwed up because they’ve got, they’ve got a criminal record. They’ve got a
criminal record on their history. So I think they get even more frustrated. So there should,
there should be charges, but more there should be some kind of treatment and therapies.
Both women did have further observations on the utility of arrest. Violet related the following:
It was all about me and our relationship and about that he wasn’t giving up, that he was like
going to keep going on and like I'm the only one and, and, so it was like obsessive. And so I,
like if, if it would've got to the point I would’ve been okay too because I knew that he was
told to leave me alone and he’s not respecting the law so therefore I mean like I said I don’t
want to say earned that he deserved. I don’t know what the proper word is but to get
arrested.
As Rose’s circumstance dealt with an actual assault, the police were more constrained with their discretion.
She recalled her experience in the following way:
But after my statement they told me right away, “Okay, we have to go out and arrest him.”
And I’m like, “Whatever you guys do, do it.” But I don’t want to deal with him and I want to
have my son back from him and I don’t want to live with him in the same house or away,
like in a different place, but I don’t want to live with him.
This action by the police was affirmed in Rose’s mind when she learned of some previous acts of interpersonal
violence outside of their relationship from the police investigators. She remarked:
So, they said, it’s repetitive, cause he did this before. “We have a report before, but nothing
happened before, so it’s repetitive. We have to arrest him and he has to go by the, uh, go
ahh, to the Court for it.” So I think that was a good that they keep a record of it. Ya. Cause
otherwise you say it, I can say it that he did that before, but you don’t have proof, right? So at
least they have the record, so I think that was good.
5.1.8
G.
Changing Their Minds
While neither woman recanted their statements, both veered away from their initial path during their
interaction with the criminal justice system. As noted, Violet was pursuing a peace bond to manage her safety,
while Rose was the victim of assaults on two occasions. Her situation was more convoluted in that after the
second assault, the investigation surfaced allegations of child sexual abuse involving her husband and their son.
Violet explained her decision-making in the following way:
I was in the process, sorry, of getting a peace bond and then I called the cop back and, and I
told, she, and she specified to me that I could because at that time I thought that me and
my husband would be reconciled. Maybe possibly reconciling and so I didn’t want to have a
peace bond right because I made contact with him. I took the peace bond. So I removed
the peace bond … I said that uhm, that because he was improving his life and he would, and
he was in rehab and getting lots of counselling that I thought that circumstances could’ve
been different because he was because he is trying to improve his life, so I seen it that, I
didn’t, I wasn’t as scared.
Rose also took steps to reach an early resolution to the criminal process when her husband voluntarily
undergoing counselling. She detailed her thought process in this fashion:
That’s what I did the first time too, so I got everything back from the court, from police
went to the court, then I got because he was very, I was so inexperienced with the system,
how it works. It’s even with him too, even though I was living with it, seen it again and
again. So he apologized. He agreed to do the therapies so he felt sorry about it; he showed
that he’s going to be very caring and respectful. He [was] being very manipulative. So I
thought okay, he has learned his lesson. He will change so okay, I will take everything back.
As can be seen, both women were engaged with the criminal justice system to use it as a leverage to achieve
change in their personal circumstances. Both intended on reconciling and continuing in their relationship
with their respective partners; however, as noted in Rose’s remark about manipulation and in the related
experience by Violet, their partners were putting on whatever face would be needed in order to maintain the
relationship.
H.
Dealing with Recantations
In light of their observations, the women were provided with a hypothetical situation where a woman came
forward and wanted to take back or recant a previous statement. They were asked how agents of the criminal
justice system should respond. Rose stated:
Yeah, best thing would be um, give an appointment for about … or ask Rose that as a Police
Officer I do need to sit down with you, talk you, you in the person, so that we, at the same
time say, yes, we do respect what you’re saying, okay we believe you, but we do need to sit
down and talk with you. So you should talk to Rose, give an appointment, a couple days a
week appointment. So don’t go to the house. Maybe neighbours are watching. Neighbours
can tell your partner, that yes your wife did contacted somebody, somebody came by, so it
can get more suspicious, right, get worse. So no, talk to Rose, so where would be a safe place
and when would you like to talk? We just need to talk about it, so then I can put it in the
writing that you called, so it’s okay for you. Maybe at that interview, if Rose feels safe,
nobody is watching … And nobody will find out that Rose came to talk to the Police Officer,
maybe Rose can open up, tell the truth what's behind it. What made Rose to change it.
And Rose needs to … make sure that the Police Officer that went up or whatever, we were
talking about it, it will stay in here. [Violet: Confidential]. Nobody is going to find out, your
husband’s not going to find out about it.
5.1.9
Rose elaborated on some of the dynamics that might lead to a recantation in noting:
When Rose phones me, “We’re okay, so I want to change my story.” Maybe Rose phoned
yes, Rose wasn’t by herself. But you don’t know maybe the abuser or the person has made
her, standing with her, told her, “Okay, make this phone call and say it.” And Rose can do
nothing about, it right. So I think it’s better to talk again about it.
Violet was in agreement with the notion of speaking to a woman contemplating recantation; however, she
added additional perspective in relation to her experience with the police:
Like my, my Police Officer that I dealt with, she talked to me and she said “Well we could
still keep the peace bond, you could just talk about your child. So you could have contact
to do with that. Um, and also she also told me, so she said that, my police officer was very
good. She said that and then she also, like she also said … that and then she also said that
“Are you sure like you want to do this?” And she talked to me and she really explained and
made sure that I knew the process. So my police officer was very good at that. She explained
what I could have done instead. Like am I sure and really talked to me about it.
IV. Discussion
The observations and experiences of the women in this study are powerful and insightful in providing an
intimate and personal context to their experience in dealing with the system. It is in sharp contrast to much of
the literature that focuses on the system’s narcissistic and self-absorbed annoyance with victims who are not
“on board with the program.” These women did not recant their statements to the authorities. In listening to
their experiences, it was clear they remained engaged with the criminal justice system as long as it served some
functional purpose for them. This appears consistent with research that found when women interacted as
legitimate partners with powerful social control agents and the victims’ needs were incorporated into the
response, the experience could be empowering to the victim and a key to the prevention of future violence
(Miller, 2003).
Both victims understated or normalized the abusive behaviour that they were experiencing. Violet did not
equate smashing property or forcibly breaking locks as acts of violence. She was also appeared desensitized at
the notion that her estranged husband was prepared to physically tie her up in order to prevent her from
leaving him. Rose focused on problems of being repeatedly contacted by her assailant, but she too seemed
matter of fact that she might be the victim of a homicide. This mirrors other research that suggests that while
women will cooperate with authorities, they will often underestimate the gravity of the violence that they are
experiencing (Erez & Belknap, 1998). Further, turning to the criminal justice system can trigger violence and
increase in the risk to the victim (Cattaneo L. B., Goodman, Epstein, Kohn, & Zanville, 2009). This was the
experience for both Violet and Rose. Understating the nature and scope of the violence, is a common reason
for victims to oppose prosecution (Hare, 2006).
Both victims experienced an unexpected consequence of turning to the criminal justice system for assistance.
In both cases the victims experienced acts of intimidation in an effort to dissuade them from proceeding with
criminal proceedings. Their partners became extremely persistent in increasing the extent and intensity of
contact with them, often turning to relatives and other parties to do their bidding. This echoes the experience
of other victims in that the offender will endeavour to recapture his victim (Corsilles, 1994). This persistence,
combined with a sense of vulnerability and exposure as a result of the offender’s familiarity with the victim’s
personal life, has a destabilizing impact on victims (Rutledge, 2009). In Rose’s experience, her husband’s
wanton disregard for the “no contact” order made her feel frustrated and unsafe. This highlights the notion
that the criminal justice system enters into an implied contractual arrangement with the victim in that there is
an expectation that she will receive safe conduct through the navigation of the system (Cretney & Davis, 1997).
5.1.10
Both women, through their interaction with the criminal justice system, resulted in their spouses entering some
form of rehabilitation in an attempt to demonstrate their commitment to change their behaviour. With Violet,
her spouse entered an addictions treatment program. In Rose’s case, her husband voluntarily sought out
counselling. When their spouse’s behaviour appeared to change, both felt that they had reached a satisfactory
resolution and they were both able to disengage from the criminal process. This is a preferred pattern with
other domestic violence victims in that while reluctant to go through the trial process proper, they are
interested in using the system to pressure their assailants to undergo some form of rehabilitation (Hare, 2010).
It is interesting to note that the experience of these two women were somewhat atypical from many victims in
that they were able to negotiate equitable outcomes in relation to their circumstances. The inability to
effectively communicate with criminal justice system personnel is a more common experience with
uncooperative victims (Hare, 2010). The need for a flexible and inclusive approach in determining an equitable
case outcome appears critical for victims (Ford D. A., 1991). In a most interesting initiative, the Victim-Informed
Prosecution Project paired victims with articling law students. They acted as advocates and interpreters for the
victims interfacing with other Criminal Justice System personnel (Cattaneo L. B., Goodman, Epstein, Kohn, &
Zanville, 2009). This may suggest that recantation is not a distinct phenomenon in domestic violence; rather, it
may represent the extreme end of options that victims use in negotiating what they see as fair and equitable
outcomes with the criminal justice system.
Rose noted her frustration with the manipulation of the criminal and family court system by her husband. It
was evident throughout her narrative that their child played a significant role in her decision-making. The
absence of communication between the criminal courts and the family court has been identified in other
research. Specifically, offenders will use the family courts and litigation in relation to child custody as a means
to intimidate and gain power over their victimized partners (Hester, 2005). Rose’s lament about the
inefficiency and duplication of this two court system resonated in a study on the utility of the New York’s one
judge—one family domestic violence court (Aldrich & Kluger, 2010). The remarks from both victims that they
struggled with the tension between keeping the family together and enduring the violence was reinforced in
other studies of the impact of family in victim decision-making (Rhodes, Cerulli, Dichter, Kothari, & Barg,
2010).
Both victims asserted that the victim’s request to recant should not be received and accepted at face value.
They both identified that recantation is indicative of a call for help and that criminal justice personnel should
spend time to probe for the underlying issues. This aligns itself with research that suggests that prosecutors
should meet with victims under these circumstances and maintain the lines of communication (Gauthier,
2010). The nature of this interaction, particularly with the prosecutor who remains at the centre of the court
power dynamic, needs to be extended beyond the narrow scope of the “facts” to a more comprehensive
consideration of the victim’s story (Cattaneo & Goodman, 2010). This support needs to include other
representatives of the criminal justice system in order to provide a supportive environment (Erez & Belknap,
1998). Other research suggests that the victim’s perception of case attrition will be closely aligned with her
safety (Hester, 2005). Ultimately, it would seem that victim retraction or recantation should not be considered
in absolute terms; rather, it should be a warning sign to the Criminal Justice System that there is a need to
bridge a service gap (Robinson & Cook, 2006).
V.
Conclusion
The experiences of the victims interviewed in the focus group seemed to align with the dynamics detailed in
previous research. It is important to note that both victims interviewed terminated their relationships. While
it is assumed that this would make them more inclined to remain involved with the criminal justice system,
further research would be helpful to determine if some differences do exist.
Two most interesting findings were the intensity of the offenders’ efforts to “recapture” their victims in spite of
and in defiance of the criminal justice system. This has important implications for the criminal justice system
to respond to any breaches of this kind without delay. Second, there is a
5.1.11
suggestion that recantation may not be an outlier of victim response to the system, but rather, an extreme of a
continuum with full cooperation at the other end. The range of victims’ reactions may simply be a function of
the ability to successfully engage and negotiate with the system.
The focus group was planned for six to eight women with more expressing interest. In the end, only two were
present for the interviews. This was discussed with the Victim Services Program Manager and she explained
that the other women were unable participate because of family commitments and responsibilities. While the
timing of the interview was planned in consultation with the Program Manager, the victims’ needs were not
fully considered. When I reflect on what happened, it strikes me that this was simply another example of a
“system” that failed to fully appreciate the needs of the victim. While both the Program Manager and I are
strong advocates for domestic violent victims in our professional lives, this was a stark reminder that even the
best intentioned and supportive agents of the system must constantly be mindful of the victims’ perspective.
Even with the best of intentions, not appreciating or adapting to the complexity of a domestic violence
victim’s needs and life circumstances may effectively silence their voices.
5.1.12
VI. References Cited
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