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Woman Abuse Consultation: A report on Concerns about the Legal System's Response to Woman Abuse (1992)

Introduction

During the summer of 1992, the Public Legal Education and Information Service of New Brunswick (PLEIS-NB) finalized a draft document entitled A Legal Rights Handbook for Abused Women. After an initial review by legal professionals for accuracy, the Handbook was distributed to transition houses around the province, a provincial immigrant women's organization and other interested parties. Representatives from these organizations were invited to comment on: (1) the usefulness of the information (2) any omissions (3) common roadblocks encountered by abused women in dealing with the legal system (4) any discrepancies in what the law states and what happens in practice and (5) other suggestions to increase the relevance of the information.

A PLEIS-NB summer law student, and on occasion the executive director, interviewed many of the reviewers. All transition houses in the province had the opportunity to review the Handbook. Staff at the transition houses in Sussex, Fredericton, Moncton, Saint John, Woodstock, Edmundston and Campbellton were also interviewed.

The purpose of this consultation was two-fold. First, PLEIS-NB wanted to be sure that the information about the law presented in the Handbook was consistent with the experiences of abused woman when they deal with the police, the court, Crown Prosecutors and others in the legal system.

Second, as a member of an Ad Hoc Committee on Woman Abuse organizing a woman abuse conference for late November 1992, PLEIS-NB felt that the information gained through these consultations would provide a valuable focus for discussion at the conference. Such information would facilitate dialogue on issues and concerns pertaining to woman abuse and access to information about legal remedies and services.

This report is not intended to be an exhaustive review of the issues. It presents some qualitative information based on "just-so" statements, rather than hard scientific data. Nevertheless, it adds to the general body of information on woman abuse issues. Whether the comments and concerns expressed in the report reflect isolated incidents or common occurrences, they deserve to be heard. For this reason, PLEIS-NB wanted to share the information with the relevant stakeholders and formally report on the notes taken during our woman abuse consultation. This report should be of interest to police, victim-service officials, Crown Prosecutors, the judiciary, legal aid officials, and others who have an interest in hearing some of the current concerns regarding the legal system's response to woman abuse which are being expressed by those who work so closely with abused woman on the front lines.

Notes on the Woman Abuse Consultation

The following comments and suggestions are based largely on consultations with transition house workers around the province. They have been organized into a number of categories.

Common-law Couples

· Women need to better know and understand the distinction between common-law couples and legally married couples. Women often assume that they do not have the right to ask for child or spousal support because they are not legally married. This is a complicated issue because both provincial and federal laws apply to family and criminal matters. What rights and remedies apply or do not apply if a person is not legally married?

Custody

· Kidnapping is a major concern of women in transition houses. The issues of custody, parental rights and interim custody orders are unclear to transition house workers and to the women they counsel. Abused women must be aware of custody issues, child protection and other related information.

· We heard of some cases where lawyers attempted to obtain ex parte orders to expedite interim custody when there was fear of violence and kidnapping. However, the lawyers were told by the judge that the evidence to support the fear had not been shown even though their clients were in a transition home.

· Women are often paralyzed by fear when it comes to child custody. They may fear losing their children if they leave an abusive partner who threatens to take the children. They may also fear losing their children if they stay with an abusive partner because child protection authorities might take the children away from the violence in the home. Women should have more information about the affects of violence on children and the role of child protection officials in family violence cases.

Dealing with the Police

· The Legal Rights Handbook for Abused Women says that the police are trained to treat domestic violence seriously. Several stories were relayed about recent incidents where the police arrived and asked the woman who was being beaten such questions as: "So what did you do to make him hit you?". Transition house staff wonder how much training had actually gone on because there did not seem to be a great awareness of the Woman Abuse Protocols. Very little has changed in the past two years since they were introduced.

· Abused women also fear that the police may think that frequent calls are pestering. Sometimes this is based on their experience from past encounters with the police. It was suggested that maybe PLEIS-NB could help to alleviate this fear by disseminating good information to women. They suggest, however, that the police need to be better trained and informed about the protocols so that, if women are told the police will take them seriously, the police will do so.

· There were many concerns expressed about the delay of the police in responding to calls about woman abuse. This was of particular concern in rural areas. It sometimes seemed that the length of time it took the police to arrive related more to a reluctance to go to the scene than in being occupied elsewhere. Some instances were recalled where several calls were placed before officers arrived.

· Abused women who have called the police to escape from violence in the home have been told that the police are not a taxi service. In one case we were told that a transition house worker called police and asked them to pick up a scared woman whose husband was waving a gun at her. The police were reluctant to go and suggested that a taxi be sent out. Finally the police agreed to get the woman and drop her at the city limits where transition house staff could pick her up.

· Women often have to leave their homes very suddenly without the opportunity to take clothing and other necessities. In some areas the police were very accommodating about returning with the woman if she was fearful about going back to pick up belongings. However, there were many stories of the police refusing to accompany a woman who wished to return to her home to get her things. In some cases, the police went along but refused to go into the home with her fearing civil action by the spouse if they entered the house. In other instances the woman had to obtain an order from the Sheriff's Office before she could go back and get her belongings.

· It is common, we were told, for transition house clients to be stalked by their husbands or boyfriends. Police do not seem to be able to do very much about it. Even with a peace bond, the man will follow the woman everywhere. As one commenter noted: "He doesn't do anything but the women are very frightened and intimidated." The police have been called where a peace bond is in effect and have asked the woman if her partner has contacted her or threatened her. When the woman reported that he was just following her, she was told that nothing could be done since "this is a free country". Stalking it would seem is a frequent occurrence. Because it is very harassing to the victim, it should be considered a breach of the peace bond when it is clear that there is a purposeful pattern. One transition house staff explained that the fear of being stalked is often linked to fear of having the children abducted by the partner.

Peace Bonds

· Women have tried to obtain peace bonds because of fear of personal harm and the police have insisted on evidence for a peace bond. To what extent must a woman prove her "fear of serious injury to herself or her children" (s. 810 Criminal Code) and must she fear for her life before she is eligible to apply for a peace bond? What can transition house staff do to help a woman who has been refused a peace bond and charges are not being laid?

· Women often do not want criminal charges laid against their abusive husbands or boyfriends and will instead ask for a peace bond. Under New Brunswick's new Woman Abuse Protocols, police are instructed to lay a charge when there is evidence of violence. Police in New Brunswick are consequently discouraging the use of peace bonds. However, if the police feel that the peace bond is not the appropriate remedy and a charge does not result from the alleged assault, then no remedy is found.

· Transition house staff say they understand why the police will not accept an application for a peace bond where the appropriate remedy is a charge. Police should explain why they are suggesting a charge instead of a peace bond. However, in reality charges do not always result from assaults and other criminal offences. In such cases it is not clear why the police sometimes refuse to accept an application for a peace bond. What protection is there for the woman's safety?

· The policy of mandatory charging does not seem to be as effective as it should be. Even where there are clear indications of violence, it seems the police usually do not lay charges if the woman is reluctant to make a statement. Transition house staff have been told that the police are reluctant to charge where the woman is being uncooperative because the Crown cannot be bothered with such cases since the possibility of conviction is slight. Or, it has been said, the Crown is already overloaded with cases and domestic assault cases are not viewed favourably. They just get thrown out eventually because everyone is reconciled by the time the case comes to trial.

· Are there alternatives to mandatory charging? The alternative which seems to be arising informally, and one which is not necessarily in the best interest of the abused women, is to do NOTHING.

· Many transition house reviewers noted that women tend to think that peace bonds are a joke because police do not stringently enforce them. We were told of instances where women had peace bonds and the husband showed up at the transition house. The police were called but only came and "shooed" him away. They did not arrest him for breaching the conditions of the peace bond. Explanations for this ranged from familiarity in small communities discouraged arrest ("everybody, including the police, are your friends and neighbours"), to a feeling that police inaction relates to the Crown's reluctance to charge and prosecute peace bond violations.

Legal Aid

· Women need better information on legal aid and legal representation. It must be made clearer to transition house workers what legal assistance is available and how it can be accessed. Under what circumstances is legal aid available in New Brunswick for abused women? How much evidence of abuse is required? What if an abused woman has joint assets but cannot access them immediately, will she be able to get assistance and reimburse legal aid? If a woman is in financial need, is residence in a transition house sufficient evidence of abuse?

· In what matters can women be legally represented in civil procedures under the Family Services Act by the Crown Prosecutors in the Court of Queen's Bench Family Division? This information would be extremely helpful for transition house workers.

· In some areas of the province, transition house staff described a very good relationship with their legal aid office. However, in other areas it was reported that the relationship was poor and abused women were treated in a demeaning manner. Almost all complained about the paucity of lawyers who accept legal aid certificates and the fact that women feel they do not get the same quality and level of attention and service from their legal aid lawyers as the so-called paying clients.

· A recent change in procedures for applying for legal aid was pointed out. If an abused woman is applying for legal aid, transition house staff are able to expedite this process by sharing information on a client if release forms have been signed by that client. Not all transition houses are doing this.

· Women who must seek legal aid assistance for custody often feel as if their legal problems are not given the same priority by their lawyer as his/her other clients. This is particularly distressing when a women is fearful that her abusive partner plans to kidnap the child.

Legal System

· Abused women wonder why they must leave the home and the abuser gets to stay there. The burden is always on the victim to get away to safety. Why is it that remedies such as exclusive possession are so unusual and rare? Why are judges reluctant to award an abused woman the marital home for a period of time? Can the process of getting exclusive possession be expedited so that children are not uprooted for months waiting for a court hearing to decide about exclusive possession?

· Women in transition houses usually want to completely by-pass the legal system. They are deterred by such things as dealing with the justice system, particularly the lengthy periods involved to resolve problems. Almost every step in the legal system is time consuming. Women need to be given realistic time frames when taking legal action against their abusers.

· Women need to feel that there will be some support for them as they deal with the system over time. For example, women can only remain in transition houses for a relatively short period of time - usually not longer than six weeks. They may be hesitant to apply for a peace bond because it will take longer than 6 weeks to go court and they fear harassement by their partner while they are waiting for the hearing.

· Abused women are not always aware that their opinions may be considered in the rendering of sentences, the conditions of peace bonds, and in other court procedures and remedies. Women should be encouraged to think of conditions they would like to have put in the peace bond or to make recommendations about the sentencing of their husband or boyfriend. For example, they may wish to recommend no contact with the victim or mandatory offender treatment be part of the sentence.

· Many abused women are afraid to take legal action because they hope to return to their spouses and perhaps go together for counselling. Abused women must be aware that if a conviction results from a criminal charge, the judge can include mandatory counselling, as well as other remedies, in the sentence given to their husbands or boyfriends . Rehabilitation of the abuser was expressed as a particular concern of aboriginal women who note that their husbands or boyfriends are often victims of abuse themselves.

· Abused women often want to have general information about the law. However, many are afraid or reluctant to go to a lawyer. For example, abused women often wonder under what circumstances and after which procedures their husbands or boyfriends will have a criminal record. Sometimes it is difficult, even for transition house staff, to get general information about the law to help clients make informed choices. General information about the law might encourage women to seek legal remedies for their problems.

· It is believed, almost everywhere in the province, that the sentences that are being handed out to men who assault their wives and girlfriends are too light. There is a deep conviction, despite statistics which suggest that the sentences for domestic assault are coming into line with sentences for assaults involving strangers, that husbands are not receiving the same kinds of sentences as other people who commit assault. It was felt that there are too many absolute discharges and fines.

· Many comments were received about the negative experiences of abused women with the court system. Women go through lengthy and traumatic periods of disruption in their lives during trials and adjournments. "And to what end when the sentences handed out after a conviction are ridiculous?" Reviewers commented that light sentences seemed to reflect a concern for the husband and his role as breadwinner, rather than with punishment for his crime. This is seen to deter women from cooperating even in serious cases of assault. What are the alternatives? Why can't men serve their sentences on weekends so that they do not lose their jobs and can pay support?

· Abused women often feel judged (and condemned) by those they encounter in the legal system, including their own lawyers, the police and the judicairy. It is common for a woman to be told: "I can't believe you didn't leave him?" or "My wife would never have put up with behaviour like that!"

· Smaller communities have signalled a need for increased public awareness of domestic violence. One way to increase public awareness is through trials. When abusive men are charged, they sometimes plead guilty to a lesser charge, common assault rather, for example, rather than sexual assault. This avoids the necessity of going to trial. However, the more trials which result from charges of domestic violence, the more the community becomes aware of the scope of the problem. It may also be rehabilitative for an offender to make a court appearance.

Troubleshooting

· Transition house staff would like to see a "troubleshooting" or complaint registering mechanism available to them. Sometimes they are just not sure to whom or where to turn in order to help a client who feels that she is running into obstacles in dealing with the legal system. Other times staff say that certain things happen so often that they would spend all their time on the phone complaining so they just do not bother to report many everyday problems. It would help transition houses to know what to do and whom to contact when the legal system does not work the way it should. And the legal system might become more effective if everyone in the system was aware of what happens in the field. (It was suggested that this could be explored at the upcoming conference.)

Victim Services

· Abused women will usually come into contact with victim services' officials if a charge has been laid in their case. This means that many abused women are not aware of what help can be provided by municipal or provincial victim services officials because they did not either call the police or charges were not laid. There should be more general information for abused women about victim services and the programs provided to help them when they go to court. Women should know about the time limit to contact the provincial victim services to apply for criminal injuries compensation. Such information might help abused women decide to cooperate with the police when charges are suggested.

· In some areas, we were told that victim services officials seem to be reluctant to award compensation to abused women because many women return to their abusive relationships. Sometimes their position can be construed as denying compensation to an abused woman for physical injuries not covered by medicare since she might return to the abuse, thereby sustaining further injury which may require further compensation.

· Many women are interested in receiving counselling or requesting mandatory counselling for their spouse. Most are not aware that counselling may be requested, rather than asking for relief for physical injury, when applying for compensation to the Crime Compensation Fund .

· In one transition house, the staff were not aware of victim impact statements. Where they knew about them they encouraged women whose partners had been charged to fill out victim impact statements. They noted that women are generally very pleased that they have been given an opportunity to share their concerns and contribute to the type of sentence that is handed out. It is seen as a means of empowering women by giving credibility and importance to their experience. Judges have read from these written statements in court when rendering the sentence. Women can also write victim impact statements on behalf of their children.

· Many abused women in transition houses must apply for income assistance to meet their basic needs. Cash compensation received from the crime compensation fund may affect their eligibility or level of funding. The possibility of applying this compensation to counselling should be spelled out clearly to victims.

Native Women

· The legal concerns of native women are very different from those of non-aboriginal women. The statistics show a much higher rate of woman abuse on reserves than off reserves. There are no transition houses on Indian reserves in New Brunswick, therefore that vital source of safety, counselling and information is lost to aboriginal women who are abused. The first native women's transition house will soon open.

· Native women have explained that they want more information about alternatives to mandatory charging, and are concerned with a holistic approach to the problem of domestic violence which treats everyone as a victim and seeks to offer community as well as individual remedies and solutions.

· The policing on reserves is different from those systems off reserves, since each band has its own local constable service. Provincial legislation often is void ab initio under the Indian Act, so sections of the New Brunswick Marital Property Act, the New Brunswick Family Services Act, for example, do not apply to natives reserves. Legal information for aboriginal women is therefore specific and complex. Aboriginal women need more information about what to do in case of abuse and what their legal options are with respect to dealing with the police, marital property, custody, and so on.

Rural Women

· Rural women, having fewer information sources than do urban women, need better access to services. Sometimes rural women have no access to buses, cable television, newspapers, etc. Consequently, many rural women are unaware of the existence of transition houses, victim services, public legal education services, etc.

Immigrant Women

· Immigrant women who are abused also require particular legal information. They sometimes fear that they or their husbands will be deported if they leave their abusive husbands. This fear arises because immigrant women are often sponsored by their husbands for entry to Canada. The sponsorship period usually lasts for ten years even though the woman may become a Canadian citizen during that time. Unable to obtain language training, employment or income assistance, the perils of being alone without help or community connections often outweigh those of leaving an abusive marital home. Immigration officers could benefit from better information sources to explain legal options to immigrant women who are abused.

Young Women

· Younger women who are abused can sometimes fall through the cracks of the system. Some transition houses have minimum age requirements (ranging from 16 years to 19 years). Women who are abused at home by their partners can be younger than this minimum age. They may be experience abuse at home with their parents as well. Young victims of woman abuse need information about how to access services available to them despite their age.

Public Legal Education and Information Service of New Brunswick (PLEIS-NB) is a non-profit organization. Its goal is to provide New Brunswickers with information on the law.

PLEIS-NB receives funding and in-kind support from the Department of Justice Canada, the New Brunswick Law Foundation and the Office of the Attorney General of New Brunswick.

We gratefully acknowledge the New Brunswick Coalition of Transition Houses and Centers for their role in facilitating discussion on women abuse issues and the individual transition houses around the province for their willingness to share with us their concerns about the legal system's response to woman abuse. We would like to thank everyone who participated in interviews or provided comments.

Published by:
Public Legal Education and Information
Service of New Brunswick
P.O. Box 6000
Fredericton, NB
E3B 5H1
CANADA
(506) 453-5369
November 1992
ISBN 1-55048-977-1

 

 

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