Navigating the criminal justice system for domestic violence

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Domestic violence is a criminal offence. This means that abusers should be charged and prosecuted for violence against their partners.

But for a survivor of domestic violence, going through the criminal court system may be one of the most stressful and intimidating events she will endure. She may fear that her partner will seek revenge if he is charged. She may not be able to afford legal advice, and not know where to begin.

But there are many supports in place for women in abusive situations who are navigating the criminal justice system. Here’s some information about the system and the help that’s available.

Mandatory charging

Ontario has a mandatory charging policy, which means it’s up to the police to lay charges, not the person experiencing violence. If the police are called to a domestic violence situation, the police officer must lay a charge against the abuser if reasonable grounds exist. Women may not have the charges dropped. The Crown prosecutor then prosecutes the case through the courts.

On the surface, the mandatory charging policy may seem like a good step in helping those who are experiencing domestic violence. However, while it intends to demonstrate the seriousness of domestic violence, it does not always work in the abused person’s favour.

Domestic violence is a gendered issue that disproportionately affects women. In the vast majority of domestic violence cases, it’s those who identify as women who experience violence perpetrated by men.

When a police officer arrives at the scene of a domestic disturbance, they are trying to determine who the dominant aggressor is. As a result, sometimes women who may be defending themselves against their abuser may be unfairly arrested, and charges can be laid against both the abuser and the person being abused.

In addition, the decision whether or not to lay charges is at the discretion of the police officer, which means that whether “reasonable grounds” exist is still open to interpretation. In many cases, this may mean that charges are still not laid despite the mandatory charging policy.

For those experiencing domestic violence, it can be very important to document every instance of violence if possible to do so safely. If it’s safe for a woman to do so, writing down the date, the details of what happened, as well as any witnesses that are present, can help the Crown attorney to better prosecute the case.

Obtaining legal representation

Finding legal representation can be a big challenge. A woman living with abuse may not have the financial means to afford a lawyer. She may fear having to represent herself in court, be reluctant to put her children through the court process, be faced with filling out complex legal documents, and be forced to face her abuser in court with no support. Newcomer women may also fear that they or their partner will be deported.

But there is help available. At Interval House and other shelters, there are Counsellor Advocates to help support women navigate the court system. Our shelter helps women obtain Legal Aid services through Legal Aid Ontario, and refers women to agencies like the Barbra Schlifer Clinic and Luke’s Place for representation and support.

Restraining orders:

One option for women in abusive relationships is to get a restraining order (also called a protective order) against the abuser. A restraining order prevents an abuser from contacting a woman. It provides a list of rules that the abuser must adhere to, such as:

  • staying away from the woman
  • not contacting her by phone, email, or other means
  • not coming to her home
  • not coming to her workplace
  • staying away from her children’s school
  • staying away from places she visits often.

However, getting a restraining order is not a guarantee. Applications for restraining orders can be denied, and even when in place, it’s not a promise that the abuser won’t break the law. Abusers can be cunning, and can violate the restraining order in ways that make it difficult to collect evidence and prove that the restraining order has been violated. While it’s not required to have a  lawyer to apply for a restraining order, it is recommended to have one.

Navigating the criminal courts

Ontario has a Domestic Violence Court specifically for domestic violence cases. Police, Crown attorneys, the Partner Assault Response program, and Victim/Witness Assistance program staff and other community agencies all work together to provide support and prosecute these cases successfully.

However, going through the criminal court process can be extremely intimidating for survivors of domestic violence. A Family Court Support Worker will help women navigate the process and provide support. They will provide information about the court process, help her prepare for court proceedings, and even go with her to court dates. To ensure her safety and that she can get to and from court safely, they will also help her put together a safety plan. They also provide referrals to other community services.

The courts have a Victim/Witness Assistance program, which can support her through the process, prepare her for the court date, provide emotional support and other services. The Child Victim/Witness Assistance program is available to help children who have been abused or witnessed domestic violence to navigate the court process.

When it comes to domestic violence, navigating the criminal justice system isn’t easy. Calling the police, getting a restraining order or going through the criminal court system a personal and difficult choice for survivors of domestic violence to make. Whatever a survivor’s decision, there are supports available to help her.

Image credit: Brian Turner, Creative Commons Attribution 2.0