WORKING WITH BATTERED WOMEN: A Handbook for Health Care Professionals


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Appendix B

ABUSE AND THE SASKATCHEWAN
CRIMINAL JUSTICE SYSTEM RESPONSE


(See also Legal Info)

Not all abusive behaviors can be termed criminal. Verbal abuse such as name-calling is not a crime. Physical and sexual abuse are, however, prohibited by the Criminal Code. This distinction is important because it is possible for the police to intervene when a woman is assaulted.

A. ASSAULT DEFINED

Assault is a general term used to describe the intentional use of force by one person against another. The definition of assault includes threats to use violence. There are several categories of assault—the actual charge will vary depending upon how serious the injury to the woman is. There are separate categories for sexual assaults and for assaults where weapons are used.

Actions such as slapping, shoving and scratching are assault. Thus a woman can complain to the police about such actions and her complaint can form the basis of a criminal charge of assault against her partner.

Actions that cause serious cuts, broken bones and/or internal injuries are termed assault causing bodily harm. The more serious the nature of the injury caused, the more severe the penalty imposed will be. Police are also more likely to arrest the man if the injury is a serious one.

Uttering threats to injure or kill, whether this is done in person or over the telephone, is also criminal behavior, as are threats to destroy property.

Sexual assault is a term used to describe any act of a sexual nature done without consent. Forced intercourse is a serious crime whether or not the man and the woman are married.

B. WHO CAN LAY CHARGES?

Generally, the police will be responsible for initiating charges of assault. The process starts with a complaint from the woman or someone on her behalf. In order to proceed with charges, the police will require evidence. This can be the woman's story or the evidence of a witness to the assault. The courts do not consider an assault that occurs between partners to be a private matter. Therefore, a woman who has made a complaint to the police does not have the right to drop charges against her husband.

C. WILL THE MAN BE ARRESTED IF THE WOMAN COMPLAINS OF AN ASSAULT?

In urban centres where court hearings occur daily, the man will probably be arrested and held overnight. Where court is held less frequently it is unlikely that an actual arrest will occur unless the assault is of a very serious nature. It is more usual for the police to serve the man with documents requiring him to attend court and answer to the charge at a later date. The longer the time is between the assault and when it is reported to the police, the less likely the police are to arrest the man. Thus, if the neighbors hear fighting and call the police, it is more likely the man will be arrested than if the woman attends at a doctor's office several days later, and then, after her injuries are treated, reports the assault to the police.

D. WHAT HAPPENS IN COURT?

The first time the man appears before a Judge on an assault charge he may do one of three things. He may ask the Judge for an adjournment in order to allow him the opportunity to see a lawyer. He may plead guilty or he may plead not guilty. If he pleads guilty, he may be sentenced immediately, or some time later.

E. THE TRIAL

When a man enters a not guilty plea the case is adjourned for a trial. This will be 4 to 16 weeks away from the first appearance in court. The woman will be given a subpoena to appear in court by the police. A lawyer, referred to as a prosecutor, handles the case against the man. The woman will describe the assault to the court after being sworn to tell the truth. Other evidence may also be given and a judge will decide the guilt or innocence of the man. The man's lawyer will have a chance to ask her any questions that are relevant. The man is able to tell his side of the story under oath and he will be questioned by the prosecutor. If the woman refuses to testify, she can be found to be in contempt of court. This is a charge for which she can be sent to jail.

F. OTHER EVIDENCE

A woman's courtroom testimony is sufficient to prove an assault. However, since it is possible that the accused man will deny the assault and the woman may not be believed, it is useful to have additional evidence. Thus any medical information that confirms her injury is important. Medical evidence is often the testimony of the doctor or nurse who examined and/or treated the woman. This evidence can also be introduced through documents such as notes made on charts, emergency forms, etc. Medical personnel are usually not required to appear in court except in serious cases. Any statement or admission made by the man may also be introduced into evidence. Any witness who observed the assault will usually be required to give evidence in court as well.

G. WHAT SENTENCE WILL HE RECEIVE IF FOUND GUILTY?

The type of sentence will depend upon the seriousness of the assault and the criminal record of the man. The Judge has three types of sentences that he or she may impose. The offender can be ordered to pay a fine. He can be sent to jail or he can be ordered to sign a probation order, which is a promise to be of good behavior and must be followed. The probation order will have terms such as refraining from the use of alcohol, seeking alcohol treatment or attending a batterer's treatment program. An obligation to keep the peace and be of good behavior is always part of a probation order and this necessarily means refraining from the commission of further crimes such as assault. The Judge may also impose a combination of two of the types of sentences, such as jail followed by a one-year probation period.

H. DOES LAYING CHARGES ENSURE THE WOMAN'S SAFETY?

Probably not. Her degree of safety will depend upon whether her partner is arrested and what kind of order the Judge released him on. Many men who are charged with assaulting their partners are required by law to stay away from the woman until a Judge has decided the guilt or innocence of the man. But it must be remembered that a court order is only paper and the police can only intervene if they know the order has been broken. If a woman is afraid her partner will harm her or her children while awaiting his trial, she should be sure to tell the police this. If the police are far away or she believes her partner is not likely to live up to a court order, she should consider taking emergency shelter at a transition or interval house.

I. WHAT HAPPENS IF AN ASSAULT IS REPEATED AFTER CHARGES HAVE BEEN LAID?

Once a man has a criminal record for assaulting his partner, a second conviction will be dealt with more harshly by the court. A jail term is often imposed.


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