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The Criminal Courts

In previous chapters, we explored gaps in Family Court and police practices that have compromised the safety of the women featured in our case studies. We also identified some examples of good practice which we suggest should be built upon. In this chapter, we draw upon the case studies for examples of gaps and best practices that arise within the criminal court context. Having discussed the approaches to charging of offenders and bail practices in the police chapter, this chapter will focus on sentencing for domestic violence–related offences. Even though battered women are sometimes admonished for failing to follow through with criminal prosecutions, several of the women in our case studies were willing witnesses for the Crown and yet ultimately found the criminal court outcomes inadequate when measured against the further trauma and risks they experienced. Rather than the provision of meaningful protection for the women and the communication of strong messages to their abusers that domestic violence would not be tolerated by the criminal justice system,589 the experience of participating in prosecutions left each of these woman feeling further victimised and, as Rachel described it, “voiceless.”

Meaning of “Success” in Criminal Prosecutions

Prior to analysing our women’s experiences of the criminal courts, it is useful to consider what

“success” might entail for victims of domestic violence participating in this system. This is not simply a theoretical question. Domestic violence advocates have long debated whether the criminal justice system can usefully be employed to help women achieve safety and autonomy from their abusers.590 The patriarchal roots of that system are all too obvious. For example, it took until 1986 in New Zealand for rape within marriage to be construed as a crime.591 As well, we know that the “success” of a criminal court intervention for an abuse victim cannot solely be evaluated in terms of whether a guilty verdict is obtained or whether the offender is not subsequently re-arrested for a further crime of violence.592 We have seen from our case studies how often the police fail to arrest or charge perpetrators and, as a result, how often women give up trying to action their protection orders and/or just stop calling the police.

As we shall see throughout this chapter, what the women in our case studies wanted from the criminal courts was safety for themselves and their families, accountability and deterrence in respect of the offender, and clear judicial messages denouncing his use of violence. These aims are totally congruent with the section 7 purposes of the Sentencing Act 2002 and, in our opinion, can provide valid reasons for women to participate in criminal prosecutions. For example, section 7(1) expressly states the purposes of sentencing are:

(a) to hold the offender accountable for harm done to the victim and the community by the offending; or

(b) to promote in the offender a sense of responsibility for, and an acknowledgment of, that harm; or

(c) to provide for the interests of the victim of the offence; or (d) to provide reparation for harm done by the offending; or

589 Hanna, C. (1996). No right to choose: Mandated victim participation in domestic violence prosecutions. Harvard Law Review, 109, 1850-1910, at p. 1863.

590 See, for example, Lewis, R., Dobash, R. E., Dobash, R. P., and Cavangh, K. (2001).

Law’s progressive potential: The value of engagement with the law for domestic violence . Social and Legal Studies, 10, 105-130. Abstract available at http://sls.sagepub.com/cgi/content/abstract/10/1/105.

591 A result not achieved in the UK until 1994.

592 McMahon, M., & Pence, E. (2003). Making social change: Reflections on individual and institutional advocacy with women arrested for domestic violence. Violence against Women, 9(1), 47-74.

(e) to denounce the conduct in which the offender was involved; or

(f) to deter the offender or other persons from committing the same or a similar offence; or

(g) to protect the community from the offender; or

(h) to assist in the offender’s rehabilitation or reintegration.

It is our belief that the section 7 purposes can be used as a benchmark to evaluate the “success”

of criminal court sentences or outcomes for the women in our case studies. We will do this by utilising the following set of questions, all based on those purposes.

How has the safety and protection of women been enhanced by their participation in criminal cases? Have the messages conveyed by the judgments and sentences clearly and unambiguously signalled that the criminal courts will neither condone nor minimise domestic violence? Have abusers been held accountable for the harm they have done, and have their sentences deterred them from committing further harm? Is there a consequence for every act of violence, and do subsequent acts of violence engender greater consequences? Is the abuser’s sentence congruent with the degree of harm suffered by the victim?

A myriad of factors determines whether there has been a “successful” outcome for battered women as a result of a criminal prosecution. As a minimum, a woman must sense that her truth has been heard, that a clear message has been given from the Bench that she should not have been abused, and that her abuser is held accountable for his violent behaviour commensurate with the degree of harm that she has experienced. Primarily, her safety must be enhanced. The risk of further harm to her from the offender must be reduced, if not eliminated, for the outcome of the prosecution to be “successful”. Professor Emily Sack, the author of Creating a domestic violence court has stated:593

As knowledge about domestic violence has grown during this period, it has become clear that the most effective response is created when all parts of the justice system coordinate their operations and function in a collaborative effort to address the problem. The court is a crucial part of this system, bearing the ultimate responsibility for case outcomes. Moreover, the court has the opportunity to leverage this interaction in many ways: it can address the needs of the many victims coming through its doors, providing them links to services; monitor the behavior of perpetrators and mandate them to appropriate interventions; and use the authority of the judge to demonstrate publicly the commitment that the system has to ending domestic violence.

Instead, for those women in our case studies whose partners went through the criminal justice system and were convicted, most felt that the sentences imposed were, in Patti’s words,

“ridiculous”. In her case, Tim received nine months’ supervision for his first conviction for male assaults female against her and was required to attend an anger management programme for his second assault conviction. He never completed the course but no consequences ensued. Patti commented:

That’s so ridiculous … It’s just like giving them a slap and sending them on their way.

Patti’s perspective was echoed by Amy, now a domestic violence advocate, who has dealt with numerous ethnic women’s domestic violence cases. She commented:

It seems to me the law system is protecting the criminal. In China, raping, beating up the child, beating up the wife, you get a big sentence. You don’t get community service. Community service … It’s nothing.

593 Sack, E. (2002). Creating a domestic violence court: Guidelines and best practice. San Francisco, CA: Family Violence Prevention Fund, at p. 4.

As Professor Cheryl Hanna, a former San Diego domestic violence prosecutor, has stated:594 Conviction rates, recidivism rates, deterrence, effective communication of strong symbolic messages and meaningful protection of victims are all possible criteria for measuring the success of a prosecution strategy.

This chapter is about the issue of “success”. Its aim is to compare and contrast the impact of the violence sustained by these women (including the emotional costs to them of participating in criminal prosecutions) with the impact of the sentence on the offender. We will attempt to analyse who benefits from the current sentencing approaches and why.

Women’s Experiences of the Criminal Processes

One significant problem with the criminal court processes for women in our case studies involves the delays encountered between the commission of the offence and its prosecution. Lengthy delays exposed the women in our case studies to manipulation, intimidation and threats. This is not a problem limited to the New Zealand legal system. The National Council of Juvenile and Family Court Judges has recently commented, “Delays undermine battered women’s ability to

‘play their part effectively’ in the legal system.”595 In the final analysis, delay colludes with perpetrators’ attempts to escape accountability for their actions. For example, John, Hilda’s ex-partner, became an expert at the tactics of delay. He also defended every action taken against him, both in the Family Court and in the criminal courts. These tactics seriously impacted on Hilda’s resolve to see John held accountable for his violence. For example, she commented:

“[The criminal court case] took an awful long time. John delayed and delayed. It took a year before we got through the court the first time. In terms of the Family and District Court, it would be months and months. Psychologically it was like a sword over my head all the time.

Hilda’s psychological exhaustion led to her deciding not to testify and the police withdrawing a breach charge against John just six weeks before the final hearing of John’s male assaults female charge. The breach charge was a representative charge; it related to various times when John was found to be waiting in places where he knew Hilda would be. As he always did, John pleaded not guilty to the charge.

Hilda was already psychologically drained from her participation in the Family Court proceedings where John had applied to have the protection order discharged. She had been subjected to extensive cross-examination about what she saw as “lies about my character”. She was also drained from the year-long male assaults female prosecution as well as the Employment Tribunal proceedings. Hilda mistakenly believed that John “would learn a lesson” as a result of the sentence he would receive for the male assaults female prosecution. Ironically, she probably took the right step. It would have been surprising had John received a sentence in addition to the 150 hours he was given for his male assaults female conviction. If that were so, the breach would have been a “freebie” for John (that is, consequence-free). Needless to say, his breach was far from a freebie for Hilda.596

594 Hanna, C. (1996). No right to choose: Mandated victim participation in domestic violence prosecutions. Harvard Law Review, 109, 1850-1910.

595 Mentaberry, M., Dunford-Jackson, B., Sheeran, M., & Tucker, J. (2005). A guide for effective issuance and enforcement of protection orders. Reno, NV: National Council of Juvenile and Family Court Judges.

596 This is because ss. 57 and 84 of the Sentencing Act 2002 create rebuttable presumption in favour of concurrent sentences for two or more convictions. John had already been sentenced to a term of 150 hours’ community service.

Had he been convicted of the breach of Hilda’s protection order and sentenced to another term of community work, s. 57(1) would have required that the community work sentences be served concurrently unless the court directed that they were to be served cumulatively. In terms of section 84, when dealing with sentencing for two or more offences, s. 84(2) and (3) states: “(2) Concurrent sentences of imprisonment are generally appropriate if the offences

Indeed, just recently, the same conundrum presented itself to Hilda again: to report or not to report John for his most recent breach. As she explained it, he sent her another email, filled with

“rubbish” poetry.

Except for the very last line that said, he doesn’t know what he did wrong, nor does he care, all he needs is something, something from the pretty rose. He still doesn’t believe what he has done, and he is still testing the waters to see if I want him back.

What went through my head is, “If I don’t report this, the breaches might escalate”

which I have seen happen before. “If I do report it, I have to go through the whole process all over again.”

In the end, Hilda decided not to report the breach. Going through another court case seemed just too much. As well, she had already lost one job through missing work to deal with her earlier proceedings against John and could not afford a repeat.

Katrina also talked about her experiences of delay in the criminal court processes. However, she also emphasised the intimidation that she experienced. For example, Katrina talked about Rana’s constant harassment and stalking while he was on bail awaiting trial for breaching her protection order. He was never charged for any of his pre-trial actions. She said:

… when it came to having to have to use my protection order, I used it, but it didn’t happen the way I thought it would happen. The drama of the court, the having to tell the story, the trying to remember what happened – and it took a long time to get it to court. [Rana] was still out on bail. He was still stalking me, harassing me, bothering me, making me run away. I had to leave my home. In and out of refuge.

Patti also remembers her fear when Tim was charged with male assaults female. She was eight and a half months’ pregnant and was assaulted in the street after telling Tim that her lawyer had refused to help her discharge her protection order. She remembers:

… and [Tim] just started bashing me in the middle of [town name] … A lady in one of the buildings saw it and called the police and then the police came down and tried arresting him, and I just said that “Nothing had happened” and you know, “There was nothing wrong and I didn’t want to talk to them and the rest of it”, because before he even got in their car, he turned around and said “Don’t say anything.”

In this case, Patti did not press charges but the woman who had witnessed the incident was prepared to testify against Tim. As a result, the police laid the male assaults female charge and Tim was convicted. The outcome of this “successful” prosecution: Tim was sentenced to attend an anger management course, which he started but did not complete. As in many of our case studies, Tim faced no consequences for his failure to complete the mandated programme.

Stephen used intimidatory and sadistic tactics against Elizabeth during delays in the various criminal prosecutions against him. For example, once when Stephen was facing charges of male assaults female and breach of her protection order and Elizabeth was in a psychiatric ward, Stephen phoned her and threatened her:

He was ringing to ask me if anyone had come to see me about going to court next week. He said that I won’t get my fuckin kids back because I’m mental. I started shaking when he said this … He said once these charges are dropped, we can move out of town and get things sorted out.

That was just one of the four occasions that Stephen had charges against him withdrawn because of his intimidation before trial. Each time he was charged, he was able to pressure Elizabeth to not give evidence against him through phone calls, letters or direct contact while he was on bail.

for which an offender is being sentenced are of a similar kind and are a connected series of offences. (3) In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the court may consider—(a) the time at which they occurred; or (b) the overall nature of the offending; or (c) any other relationship between the offences that the court considers relevant.”

One time, his mother acted for him. Elizabeth was at court to give evidence against Stephen. Just before the hearing started, Elizabeth went to the toilet. She was accompanied by a court victim advisor. On the way, Stephen’s mother intercepted Elizabeth and handed her an envelope, telling her, “These are what you wanted.” Inside were pictures of her recently still-born twins, with their footprints and handprints, and written on the back was a message from Stephen: “Elizabeth, don’t do this, I love you” and his phone number.

As she recalls, Elizabeth was “very fragile” when she took the stand. She managed to give her evidence-in-chief but became increasingly distraught under cross-examination as Stephen’s lawyer began to suggest that she had brought charges against Stephen just to get back at him for causing the car accident which caused the twins’ deaths. After an adjournment and a lawyers’ meeting in the judge’s chambers, the prosecutor explained to Elizabeth that Stephen’s lawyer was going to concentrate his cross-examination on the twins’ deaths and her sense of vindictiveness towards Stephen as a result. According to the advocate, “Elizabeth just crumbled.” She could not go on and the charges against Stephen were (again) withdrawn.

In the face of the psychological cost to her of this experience, Elizabeth’s willingness to continue to call the police and to have Stephen charged needs to be applauded. Indeed, Stephen was eventually successfully prosecuted three times after this incident. Twice the police did not need Elizabeth to testify because of their proactive investigative practices. The third prosecution, however, did require Elizabeth to testify, but on that occasion, Stephen was not granted bail. He was remanded in custody until the defended hearing and supports for Elizabeth were put in place at the trial. The prosecution requested that, given the history of intimidation, Elizabeth be screened from Stephen while she testified. The court refused her request but a woman’s advocate sat in the court in the line of sight between her and Stephen. According to the police officer in charge of the case, Elizabeth “lost it” only when Stephen mouthed at her “I love you.” Stephen was convicted and sentenced to six months’ imprisonment

None of the men mentioned in this section faced any additional consequences for the pre-trial intimidation of their witnesses except Steve, Lyla’s partner. He was the one charged with perverting the course of justice. He had written seven letters to Lyla with the promise of marriage if she did not give evidence against him in respect of the various assaults he faced Alternatively, he threatened to bring up things from her past if she did testify. The police summary states that Steve specifically told Lyla that it would be better for both of them if she disappeared on the day of the court hearing. Then they could be together again.

Steve was sentenced to four and a half years’ imprisonment. This was his total sentence for his convictions for breaching Lyla’s protection order twice, two convictions for male assaults female, one conviction for wilful damage, one for injuring with intent to injure and one conviction for perverting the course of justice. The maximum sentence for one conviction for injuring with intent to injure is ten years, the maximum for intimidating witnesses under section 117 of the Crimes Act 1961 is seven years.

As part of ensuring that Lyla would appear in court to provide evidence against Steve, she was summonsed to appear and the police collected her from her house on the morning of the hearing. She remembers that Steve “was present in the courthouse and making eyes at me.”

When we asked her what that meant to her, she told us he was telling her, “You better not get me locked away again.”

Lyla’s experiences, as with the other women mentioned above, reinforce the need for victim advocacy. (See recommendation 12 and Chapter 8.) Indeed, victim advocacy was crucial to Elizabeth’s ability to testify. Having the support of a victim advocate might have meant that Hilda was not quite so “alone” in the criminal court. A victim advocate working with Katrina might have helped to ensure that Rana’s breaches of his bail were addressed. We think the