By Christina Iannozzi, Western Law School
Broad policy changes to the criminal justice system at all levels have positively impacted the number of domestic violence cases in which the system can intervene. Entry into the system is victim-initiated, and it has historically been under-used. To address these problems, one of the many changes to policy and practice over the past two decades has been the introduction of specialized criminal courts. There were three main goals in the creation of domestic violence courts (“DVCs”): (i) accelerate the court process; (ii) increase victim co-operation; and (iii) deliver appropriate sentences that are in the best interests of the victims.
There are three core principles that interact with and underlie DVCs. The first is early intervention for low-risk offenders. Early intervention can be achieved through a number of different procedures. Some DVCs require the accused to plead guilty before attending batterer intervention programs: some stay the proceedings with a peace bond; and others use judicial review, in which the accused must periodically return to court to review their compliance with treatment. Court-mandated behavioural-change programs for violent men are statistically more effective than traditional criminal sanctions alone, and can lead to reduced recidivism.
The second principle, vigorous prosecution, emphasizes Crown attorneys working with police and victims to ensure the strongest prosecution effort possible. The goal here is to permit prosecutors to be less dependent on the victim’s willingness to testify, when it becomes necessary. Other forms of evidence such as 911 tapes, medical reports, and the victim’s original statement are all gathered and emphasized in the attempt to gain a conviction.
Lastly, rehabilitation and treatment is an important principle in the sentencing patterns of judges in DVCs. Court-mandated treatment has become the most frequent disposition in a number of jurisdictions. For example, in Nova Scotia’s DVC program, options range from five-week and ten-week educational programs, to a 25-week therapeutic program. The accused’s attendance at the program is monitored by the Court, and their participation in the program is taken into consideration during sentencing. This principle dovetails with early intervention.
The emphasis on treatment is not limited to convicted offenders, but also for the accused, in the hope of having charges dropped. Research has shown sentencing patterns have changed dramatically when a local DVC is introduced. Without specialization, the most common sentences for convicted offenders were conditional discharge, probation, or fines. Through DVCs, the most common outcomes of a conviction are incarceration and supervised probation, most often with a condition to receive treatment.
Specialized DVCs have been effective in resolving some of the major prosecutorial problems that have been plaguing domestic violence cases for years. For example, about 34% of accused plead not guilty at first appearance, followed by an average wait of 32 weeks for the trial to begin. During this time, the accused may, or may not, receive treatment and victim cooperation may become problematic. The top three reasons for dismissal are victim recanting (32%), an inability to locate the victim (32%) and insufficient evidence (14%). However, victims are 50% less likely to recant their testimony in a DVC than in a traditional trial court. Studies have found that victims who use advocacy programs and protection orders are much more likely to testify, or have their cases completed in court. Domestic violence cases are especially sensitive to time constraints, and if DVCs can streamline the process enough to ensure more victims make it to trial, comfortably, that is a measurable benefit.