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Legal experts say Crown questioning credibility of domestic abuse victim is ‘dangerous strategy’

Ottawa Citizen with Elizabeth Sheehy 16 August 2018

The child-assault case of a woman who was granted a conditional discharge after a judge ruled she was the victim of partner abuse should offer some “crucial lessons” to the court system, according to legal scholars and advocates for survivors of domestic violence.

The woman was charged in June 2017 with assaulting a child after her husband secretly filmed the incident on hidden cameras he placed around the home daycare she operated. He turned the tape over to authorities once she left him in early 2016, about nine months after the incident. In court, she described the relationship as abusive. 

The woman was granted a conditional discharge last month when Ontario Court Justice Peter Doody ruled the assault was “an aberration” that happened in part because of the stress she had suffered from domestic abuse. (Her former husband has denied ever abusing his wife.) 

Elizabeth Sheehy, University of Ottawa law professor emerita, acknowledged the “complicated” nature of the woman’s case, and said she could understand why the Crown would proceed with the assault charge at first, since it involved a child.

But she questioned whether it was in the public interest to pursue a conviction once court was presented with evidence of domestic abuse and it became clear the woman “is actually the victim.”

The Ministry of the Attorney General declined to comment on specifics of the case, saying the matter remains within the appeal period.

In granting the woman a conditional discharge, Justice Doody levelled criticism at the Crown for its aggressive cross-examination of the woman, as prosecutors questioned her credibility on the witness stand, suggesting her claims of abuse should not be believed because she had delayed in reporting the abuse to police.

Sheehy said she was “sadly” unsurprised the Crown would challenge the woman’s credibility.

She has written volumes on the prosecution of battered women who fight back, in some cases killing their abusers, and said Crown attorneys will “vigorously” prosecute the women, often questioning their credibility on the basis of non-reporting, “even though they are all-too-familiar with the risks of women reporting (abuse) to police.”

In this case, Sheehy said, there is already ample evidence that the estranged husband may have exhibited “coercive control,” which she listed as one of the top three risk factors of intimate femicide. 

Sheehy said that even without physical evidence of abuse, the text messages presented in court and court hearing that the woman’s husband was surveilling her and interfering with her job prospects raises the possibility of a coercively controlling and dangerous man.

She said it was “shocking” the Crown would continue to challenge the woman’s credibility after it became evident the woman had in fact reported the alleged abuse to the police.

She called it “disturbing” that prosecutors would further suggest the alleged abuse the woman suffered was “irrelevant” to the sentence she should receive at trial.

“Thankfully, this judge rejected the Crown position,” Sheehy said.

But Sheehy said despite the judge’s ruling, aspects of the case could still serve to embolden abusers while further dissuading victims of domestic violence from seeking help through police and the courts.

“When state actors side with abusers, whether championing their claims or fulfilling their threats that no one will believe them, they unwittingly increase the danger for battered women,” said Sheehy. “Their abusers feel empowered and entitled. … They may escalate their violence or threat when at the same time (their victims) feel even more disempowered in terms of asking state actors for help.”

Leighann Burns, family lawyer and executive director of Harmony House, a shelter for battered women, said it is “extremely common” for abusive men to attempt to enlist institutions — including police, the Children’s Aid Society and the courts — to tip the balance of power in their favour.

“You can see why women fear coming forward,” Burns said. “Even the appearance they are on his side, whether or not they actually are, is extremely effective in deterring women from reaching out for assistance.”

Burns called this case a “failure” on the part of those institutions to properly assess and respond to what was “clearly a domestic violence case.”

Had they done so, Burns said, “They would have correctly identified the person in control and the person who likely ought to have been charged.”

The woman’s husband has denied abusing his wife. He has no criminal record and has not been charged by police. The woman and her lawyer said the abuse, including recent text messages containing alleged death threats, have been reported to authorities.

“Many women already know the system fails them and many have abandoned trying to access help via (police and the courts). Others, who are not aware, get quite a disappointing shock when they discover that the system they encounter is nothing like what they expect or what it ought to be. And, all of this, of course, endangers women and children,” Burns said.

“Police, Crown attorneys, child welfare, family court assessors, lawyers — all professionals — should routinely screen for violence against women and when it’s identified, should act accordingly,” said Burns. “When they discover a background of abuse and coercive control they ought to seriously consider not laying charges at all, or at least consult with the Crown about the appropriate way to proceed.”

Speaking generally, the Ministry of the Attorney General said Crown attorneys carefully consider a number of factors when making sentencing submissions, “including the available evidence, the circumstances of the case, the background of both the accused and the victim, the nature of the relationship between the accused and the victim, and any concerns for the safety of the victim and the protection of the public.”

Ministry spokesman Philip Klassen noted the provincial standard Crown Prosecution Manual contains directives related to intimate partner violence and offences against children.

“Crowns also receive ongoing training in relation to these particular topics,” Klassen said.

University of Ottawa law professor Blair Crew called the Crown’s tactics in this case “a dangerous strategy … that could turn around to bite them in other cases.”

Crew said while much of the recent legal discussion over non-reporting has focused on victims of sexual violence, he said the same dynamics often apply in the context of domestic abuse.

“Clearly one the circumstances of the offender (which the Crown should consider) is whether or not he or she themselves have experienced abuse and violence in the past,” said Crew. “And particularly in domestic situations, the Crown frequently understands those are exactly the circumstances that do serve as aggravating or mitigating factors on sentencing.”

Like Burns and Sheehy, Crew questioned why the Crown would pursue a conviction against the woman, instead of investigating the possibility of charges against the husband.

“There seems to be evidence the texts at least meet the threshold for (a criminal charge of) uttering threats,” Crew said. “Particularly in light of some of the text messages that were quoted (in court), I’m astounded that they’re not suggesting to police that charges could be laid against him.”

Ottawa police declined comment for this story, citing a policy preventing them from speaking about domestic violence cases “so as not to further victimize.”