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Kirk Makin won the
2003 Justicia award for print journalism for this piece. We offer
him our congratulations.
The scales of injustice
By KIRK MAKIN, January 11,
2003, The Globe and Mail
The verdict
on zero tolerance is in and it isn't good. Designed to protect
women from abusive partners, the rigid, 'one-size-fits-all' strategy
too often ensnares couples who feel remorse after an argument
gets a little out of hand. 'Calling 911 is like pressing the
nuclear button. You cannot call the missiles back,' one lawyer
told Kirk Makin, who looks at the devastating impact of a policy
that wasn't meant to ruin lives and destroy marriages
After bickering all day Saturday,
the tension in the house as night fell was unbearable. As Gerald
and Elena prepared to put four-year-old Emma to bed, Elena finally
snapped.
"She started throwing
stuff and attacked me in front of my daughter," recalled
Gerald, a 41-year-old computer analyst. "It was a total
loss of control. My daughter was crying and I was scared. I panicked
and called 911."
Then he barricaded himself
in one of the bedrooms of his snug Toronto townhome and began
singing lullabies to calm his daughter. The child's crying seemed
to enrage Elena more. She grabbed the phone and told an 911 operator
that her husband intended to kill her.
Five minutes later, a disbelieving
Gerald was being dragged away in handcuffs. Officers at the police
station realized that his cut lip and neck abrasions backed up
his story. They returned to arrest Elena, a part-time store clerk
-- and take a thoroughly frightened Emma to sleep at a neighbour's
house.
Gerald spent two days behind
bars. His wife spent four. They were released only after agreeing
not to contact one another for any reason. The order obliged
Gerald and his elderly mother, who lived with them, to move out
of the family home immediately. For the next few months, they
slept on a relative's living-room floor.
Lawyers for the couple finally
persuaded the Crown last month that the assault charges would
not succeed. After not seeing one another in months, Gerald and
Elena stared across a Toronto courtroom as the charges were formally
dropped.
"We were traumatized and
thrown in jail," Gerald said. "It basically ruined
our lives and destroyed our marriage. I lost all my savings of
about $27,000.
"They created all this
animosity, pain, agony and humiliation -- and why? Because they
think every family is going to kill each other? I must have been
the most stupid person in the world to dial that 911 number.
I would never dial it again. I would rather that I had died."
Their story shows the devastation
that zero tolerance can wreak and why the opposition to it is
growing increasingly louder.
A couple of decades ago, there
was a widespread perception that domestic abuse was strictly
a private matter. That changed dramatically after a series of
inquests into slain spouses -- not to mention considerable lobbying
by concerned women's groups. Zero tolerance was born.
Although developed as a life
line for women unable to stand up to brutish spouses, critics
say zero tolerance is tying the hands of police officers at the
same time as it patronizes women and destroys their families.
They say it blithely reduces the complexity of crime and punishment
to a one-size-fits-all philosophy, indiscriminately entangling
both serious and small-time offenders in its dragnet.
"This is the area of my
practice where I see the greatest potential for injustice,"
says Robert Rotenberg, the lawyer who represented Mr. MacNeil.
"Whatever happened to our notion of people as individuals?
There is this underlying generalization that lumps every man
in with the most extreme cases. You can't run a justice system
through stereotypes."
Across the country, each province
developed its own strict guidelines for police and crown attorneys
to follow. The rigid measures of zero tolerance usually result
in:
Laying assault or threatening
charges virtually any time a woman makes an abuse claim, whether
or not she agrees to it.
Opposing bail for the accused.
Imposing orders that force
defendants out of the family home.
Keeping prosecutions going
even after spouses have resolved their differences. No one denies
the need to treat domestic abuse seriously; 69 men and 16 women
were charged with killing their partners last year alone. But
critics of zero tolerance point to a long line of marginal cases
that lawyer Melvyn Green lumps into a single category: "Single-instance,
minor transgressions by immediately remorseful husbands."
These cases typically start
late at night, after an argument rages out of control. "Many,
many, many domestic assaults are a very brief encounter at the
end of a verbal fight," Mr. Rotenberg says. "The man
grabs his wife and says: 'You're not going out!' "
The defendant sits in jail
until Monday morning -- and several days longer if the court
lists are too clogged. It makes no difference whether the complainant
weeps and cajoles the Crown until she is blue in the face: The
machinery is in motion.
"Most people don't know
that calling 911 is like pressing the nuclear button," Toronto
defence lawyer Alan Gold remarks. "You cannot call the missiles
back."
Obtaining bail often means
forgoing contact with one's wife or children, which many men
agree to rather than face months in jail or a costly bail review
at the Superior Court level.
"For the first 72 hours,
I would say every man who contacts me is in extreme shock and
depression," Mr. Rotenberg says. "A lot of them are
suicidal. These are normal people who love their children. Their
lives have been ripped apart. The criminal justice system is
a sledgehammer. When it gets involved in people's lives, it is
as if you've dropped a bomb into their marriage. You have marriages
ending after 18 years because someone reached out and grabbed
an arm."
Lawyer Dan Brodsky says the
no-contact orders are often imposed without the complainant even
being warned. The defendant is given 20 or 30 minutes to remove
his belongings from the home, while a police officer stands guard.
They are able to take only a few personal items, lawyers say.
The complainant doesn't have to let him in, and any disagreement
over property is usually resolved in her favour.
A defendant who has rebuffed
offers from the Crown to plea-bargain often gains no comfort
months later if he is acquitted.
"He hasn't had contact
with his family for eight, 12 or 16 months," Mr. Rotenberg
says. "The kids don't know who he is any more. The wife
ends up keeping the house and kids. So, you have a man who is
not guilty of anything, but loses everything. I've had clients
who wanted to plead guilty just because they couldn't take the
conditions, the delays."
Mr. Brodsky says that unless
a defendant or the complainant pays for a lawyer and privately
commission a psychiatric report to show the presiding judge,
"it is almost impossible to fight a no-contact order."
Another Toronto lawyer, Tanya
Kranjc, has managed to overturn five no-contact orders on behalf
of complainants. She says her clients were fortunate enough to
have one thing in common: They did not fit the stereotype.
"Most of them are middle-aged,
educated, professional women who do not fit what I think is their
[the prosecution's] image of a victim," Ms. Kranjc says.
"They were not doing this out of fear, but mostly because
of their children. They said they had no idea when they called
the police that their husband would be charged. They all just
wanted the case to go away."
Ms. Kranjc says the women also
had the advantage of resources. "The only way to do it is
to get a lawyer, fork over a couple of thousand dollars, and
hope for the best."
Maria's gaze did not waver
as she lit a fuse under the Crown's case one morning recently
in a court exclusively set aside for domestic assault cases.
"I didn't really want
to bother with the courts," she testified. "If I had
a choice, I wouldn't have come. I had a problem with my marriage
-- like everyone else. But everything has been blown out of proportion.
It has been a nightmare."
Initially a mainstay in her
husband Vince's prosecution for uttering death threats to her,
Maria had long since switched sides. She now expressed shame
and sympathy for a man who had caught his wife with an apparent
suitor.
"Sorry to use the expression,
but I realized he just wanted to have me in bed," she told
Ontario Court Judge Brent Knazan. "It was while my husband
was in jail that I came to my senses."
Wearing the resigned air of
one who had seen it all before, Crown counsel Erin Winocur noted
that a police videotape made hours after the altercation showed
Maria expressing fear of her husband. Had she been intimidated
into changing her story?
"I swore at him,"
said Maria. "I called him a bad name. He called me one back.
That was all. I was sick at the time and said things I shouldn't
have said. He's innocent. I don't think I was ever afraid of
my husband."
Lacking other evidence to prove
the charge, Ms. Winocur reluctantly withdrew it. Just two people
would ever know whether Maria was a recanting victim cowed by
a repressive husband or a tough-minded woman unwilling to bow
to the uncompromising demands of zero tolerance.
Mr. Brodsky traces the notion
that women are too helpless to be believed back to a 1987 Supreme
Court of Canada ruling in Regina v. Lavallee that created the
so-called battered woman's defence. The defendant in that case,
an abused woman, was acquitted of murder on the grounds that
she had a right to defend herself against an unspeakably brutal
spouse.
"The concept that arose
out of it was that most of the time, women can't speak for themselves,"
says Mr. Brodsky, who helped defend Ms. Lavallee. "Isn't
that insulting? We never expected that zero tolerance would be
put in place because of Lavallee."
It is still impressed on prosecutors
that zero tolerance is a vital tool that saves lives. The Ontario
Crown Policy Manual, a bible for Ontario prosecutors, states
emphatically that whether or not the complainant agrees, "all
such assaults shall be prosecuted with vigour." One women
in 10 is physically abused by a partner, the manual states unequivocally,
and each is likely to have been previously assaulted as many
as 30 or more times in the past.
The statistics are infamous
among defence lawyers, many of whom doubt their accuracy and
believe they are used to rationalize harsh measures against small-time
offenders.
"The figure is now dated,"
acknowledges Peter Jaffe, director of the London Family Court
Clinic and a high-profile advocate for abused women. "But
in general, it is true to say that when a case comes to the attention
of the police, there tends to be a pattern."
But Edmonton lawyer Brian Beresh
believes zero tolerance been seized on by victim advocacy groups
who stand to reap financial benefits. "They have tied themselves
to police forces. After an arrest, the police immediately take
[complainants] to these groups."
Yet, surprisingly, some of
those with reservations about zero tolerance are in the victims
movement itself.
"Since zero tolerance
came into being a few years ago, I really feel we should take
another look at it," says Sharon Rosenfeldt, chairwoman
of the Ontario government's Office of Victims of Crime. "Every
case is different, and every victim responds differently. We're
learning more and more about where there are problems. We should
do some research."
There is also an unexpected
meeting of minds between some feminists, victim advocates and
defence lawyers who see zero tolerance as preventing women from
expressing their independence.
Eileen Morrow, director of
the Ontario Association of Interval and Transition Houses, says
it has proved tough to create a system that protects women while
at the same time "providing control to women who are caught
up in the system against their will.
"Many women will say:
'I wish I had never called the police. I didn't get justice,
I just got revictimized,' " Ms. Morrow says. "The criminal
justice system needs to respond to women and be sensitive to
their concerns about losing control."
She says the real problem is
not so much zero tolerance as the lack of social services available
to women whose lives are disrupted by a prosecution.
"Governments see this
as a victims' rights and crime-control problem," she says.
"But it is more than that. It is about who is going to look
after your kids? How are you going to eat? The criminal justice
system is a very small part of this."
While Dr. Jaffe defends zero
tolerance as a necessary response to years of inaction by police,
he says that "the solution wasn't to turn the pendulum to
the other extreme."
He says the "blunt instrument"
of the criminal law is now being overused at the expense of other
programs to reduce spousal violence and help victims. Stringent
bail conditions and the lack of discretion vested in police and
Crowns are causes for concern, he says.
"Judges have become like
neurosurgeons operating with a hammer and chisel," Dr. Jaffe
says. "I think we have a lot of work to do. The system needs
retooling and retraining."
An Ontario prosecutor who has
dealt with many domestic abuse cases agrees. She says the bad,
old days of not treating domestic abuse seriously "have
been replaced by the troubling assumption that if it happened
this time, it probably happened before -- 32 times, we are told,
to be precise -- and that she is a helpless victim with no free
will or insight."
Sadly, the policy may be defeating
its aims, says the prosecutor, who stresses that she remains
a strong believer in prosecuting "gendered violence."
"A coercive process that,
once engaged, cannot be abandoned for any reason, may discourage
many complainants from coming forward," she says. "Many
of the protocols that have cropped up around zero tolerance are
themselves offensive -- for example, videotaping statements of
complainants so they can't successfully recant down the road.
This is not merely coercive, but it involves ancillary insults."
To criticize zero tolerance
is to invite instant attack from its advocates - particularly
if the criticisms focus on the way men are treated under the
policy. Mr. Rotenberg said he is so fed up that he no longer
cares who attacks him for telling the truth.
"There is zero tolerance
for men, but there is no zero tolerance for women," Mr.
Rotenberg asserts. "Police are reluctant to charge women.
In fact, I can't remember a women being charged unless there
was a physical injury. Whereas, men are charged all the time
without there being a physical injury."
Cases where the custody of
children are part of the backdrop can be particularly unfair,
Mr. Rotenberg says. An unproved allegation of domestic abuse
against a mother is bound to devastate the chances of a father
gaining custody or favourable visitation rights, he says.
"That's the secret undercurrent
in all this," he says. "When a man faces even the most
minor charge, it puts an enormous cloud over his head in all
the family proceedings. There are definitely wives who are told
by their family lawyers that if you have grounds to charge your
spouse, it will be a great advantage to them in the custody battle.
There is no doubt this happens a lot."
A Toronto couple who went to
Mr. Green for help, however, represented the flip side of the
coin. The woman, who holds a senior media job, and her husband,
who works in publishing, wanted to stay together.
"Their relationship had
been strained for some time," Mr. Green says. "It was
never anything physical, but the tension was palpable. It came
to a head that Saturday night, when their barbed exchanges --
chiefly about parenting -- led to a single push."
They gave police precisely
the same account. "She had wanted to draw a line,"
Mr. Green says. "He understood, and was ashamed. But to
her amazement, police told her they had no choice but to arrest
her husband. Despite her protests, they did just that. Because
it was a holiday weekend, he was held until Tuesday morning for
a bail hearing."
Mr. Green advised the wife
to retain her own lawyer. Together, he said, they could lean
on the prosecutor to consent to bail. It worked -- but only after
the wife agreed to sign a legal paper authorizing her to withdraw
her consent at any time.
"She hated this piece
of paper," Mr. Green says. "She hated being deputized;
being an agent of the state. She came to hate the way the entire
process patronized her and treated her as a 'victim.' "
In the end, the husband pleaded
guilty to common assault largely to spare his wife having to
testify. He got a conditional discharge. "They have done
some counselling, and they're still together," Mr. Green
says. "But it would take a monstrous act for her to ever
call 911 again." Domestic assaults have always been a wearying
reality of police life.
"On a given night, we
have six or seven [defendants] come through here," says
a 23-year veteran of the Toronto Police Service. "Five of
them may be domestics. We have to lay charges. The government
has made me throw out a net that catches everybody in it.
"Say you piss off your
wife one night and she decides to call the cops to say: 'He assaulted
me.' If there is any redness on the side of her face, I no longer
have any discretion. I shall charge you. You're going to be in
jail until Monday and you'll be living in your car after that.
Imagine how your life is going to change?"
If he were free to use his
discretion, the officer estimates that he would let 20 per cent
of the people he charges off with a lecture. They would be the
cases where an angry wife has called 911 to jolt her husband,
he says, or where the repercussions of a criminal charge clearly
outweigh the actual allegations.
"We have women who go
back to court and say: 'I want him to come back because I still
love him' or -- if they are more honest -- because he is the
sole breadwinner," the officer says. "That happens
quite a bit. The Crown just sits there and says it's not acceptable."
In a case two years ago, CBC
radio reporter Robert Rowbotham was charged with assaulting his
girlfriend, Valerie Phillips. His parole on a drug-importing
sentence was revoked.
Ms. Phillips quickly recanted,
saying she had fabricated the story in a drunken attempt to pay
Mr. Rowbotham back for breaking up with her. She even pointed
to her criminal record for perjury. Several months later, the
Crown conceded that it had nothing to back up her account and
a judge acquitted Mr. Rowbotham.
"How they could take my
story seriously is beyond me," Ms. Phillips said disgustedly
at one point in her quest to end the prosecution.
The Toronto police officer
says it is not hard to understand why police were stripped of
their discretion in domestic abuse cases, since a single error
in judgment can have devastating results.
"The government said:
'Let's take the power away from the cops so they can't make a
mistake.' But my bottom line is: Give me the tools to do the
job. Don't handcuff me."
Mr. Rotenberg says the problem
is that "everybody is covering their posterior. The police
officer has to lay a charge. The Crown has to run a bail hearing
instead of agreeing to bail. And the JP doesn't want to be the
one who has blood on his hands if something goes wrong."
Mr. Gold, the Toronto defence
lawyer, calls it "Coroner's Inquest Syndrome" -- a
condition he defines as the fear of having to testify at the
next coroner's inquest into a slain spouse.
"A thousand people will
be kept in custody to prevent the one-in-a-thousand or the one-in-ten-thousand
who might commit a serious crime," Mr. Gold says. "It
is the very antithesis of justice, which involves the individualized
consideration of each case."
However, some police remain
true believers. "I've had prosecutors say they didn't want
to proceed, but that it came down to the police pushing them,"
says Mr. Beresh, the Edmonton lawyer.
He says some prosecutors in
the Prairie provinces have told him privately that they would
have withdrawn or reduced charges if they felt they had the leeway
to do so.
"If you step outside the
guidelines, you have to justify it in a major way," Mr.
Beresh says. "There is an absolute fettering of their discretion
as to which cases should be prosecuted and which shouldn't."
There are few cases that can
worry a judge as much as a domestic abuse case. The motives of
husbands and wives are often hard to decipher, and a wrong word
can instantly launch a formal complaint or a public denunciation.
"A judge in domestic assault
court said to me recently, 'They want to make me a social worker,'
" Mr. Beresh says. The judge added that many of the cases
she sees don't belong in the criminal courts.
It is not a sentiment any judge
is likely to state publicly. From the lobbying of groups like
the Toronto Woman Abuse Council to the vitriol of columnists
like The Toronto Star's Michele Landsberg, the domestic abuse
victims network has a powerful presence that silences most critics.
A tactic known as "court-watching"
arrived in Canada recently to add to the pressure on judges.
Based on a U.S. model, Women's Court Watch is funded largely
by the Ontario government's Trillium Foundation. Its administrators
are paid, but those who sit in courtrooms to note how cases progress
and what judges say are volunteers -- usually abused women or
students.
Women's Court Watch co-ordinator
Anya Kater notes that the presence of court-watchers is equally
useful in reminding prosecutors that they must not shrink from
taking a hard line.
"There is a kind of creative
tension between us and Crowns, because there is a perception
that we're judging them," she says. "It's good to keep
them on their toes too."
The statistics the group compiles
may be wildly unscientific, but that didn't stop a sprinkling
of reporters from lapping it all up at a recent press conference
to publicize 179 cases the group had observed.
Among the information Ms. Kater's
group provided was a rating of judicial comments made during
trials which the group rated as "positive," "negative"
or "neutral." Other observations included judges who
improved their scores by offering Kleenex to emotional complainants
or making sympathetic eye contact in order "to send them
a message that they are welcome in the courtroom."
Vivian Green, director of the
council, told the press conference that judges consistently downgrade
the value of prosecutions where a complainant has recanted or
doesn't wish to testify. "Judicial independence cannot be
an excuse for lack of accountability towards abused women,"
she said.
Ms. Kater criticizes judges
for administering too many "slaps on the wrist." In
addition, she says, abused women and their advocates are not
paid enough heed in the courtroom.
Still, Ms. Kater found some
rays of hope. "In half the abuse cases, offenders were held
in custody until their trial," she says. "That is very
positive, and we would like to see more of that."
But critics of zero tolerance
maintain that those caught up in many first-time domestic offences
would often be better off diverted into marital counselling,
anger management or substance abuse programs.
"I see money being spent
on legal fees that should be spent elsewhere," Mr. Gold
says. "After tens of thousands of dollars in legal fees,
a charge gets dropped. As lawyers, it is certainly not in our
financial interest to see changes dropped -- but we would rather
take smaller fees and see it dealt with intelligently."
Ms. Morrow, the director of
the Ontario Association of Interval and Transition Houses, says
it is dispiriting to watch governments throw money into domestic
abuse prosecutions while they starve transition houses and programs
that provide welfare, social housing or other social services
to women who are suddenly rearing children on their own.
"Things are often put
in place by a system that just wants to get people off its back,"
she says. "If they are put in place by people who don't
actually understand what people want, it can actually cause more
trouble.
In reality, the number of domestic
abuse cases that end in a conviction is not very high, Ms. Morrow
said. Even if it were, she said, "let's face it -- he is
not going to jail forever. That is not the solution, anyway.
Many women feel the process doesn't really change his behaviour
or keep them safe."
Kirk Makin writes on legal
affairs for The Globe and Mail.
Copyright © 2002 Bell
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Truth can never be
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