Female Victims of Abuse—Morally Blameworthy for Offenses Committed Under Duress?

Cross Posted from GuiltyNotGuiltyBlog.com

(follow this blog for a critical analysis of Canada’s legal justice system)

Duress cases often arise in situations of intimate partner violence—a woman commits a criminal offense because her usually male abuser threatens her. In the last 30 years, the law of self-defence has evolved in the context of abusive relationships. For example, a woman who kills or injures her abusive partner is excused from criminal punishment, even when her partner was not advancing at the time she injured him.[1]

Yet, the law still has difficulty recognizing how an abuser could compel his victim to commit a criminal act. Or rather, the predominately white, male judiciary is unconsciously biased against the defendant whose abuser compels her to commit a criminal act.

What Is Duress?

When someone is forced to do something against their better judgment, they are acting out of duress. The law excuses criminal action when someone acts under duress because their actions are not morally blameworthy—they only committed the criminal offense because they were forced to do so. The moral culpability of a person acting under duress is not comparable to someone acting voluntarily. As a result, while the individual admits their criminal conduct, they are excused from criminal punishment because they acted out of duress.

When Is the Duress Defense Available?  

The duress defense is a complicated area of criminal law because it can be accessed by way of either statute or the common law. Section 17 of the Criminal Code outline the statuary defense; Canadian courts have defined the common law defense over the time.

The statutory and common law duress defenses have many common elements:[2]

  • A threat of death or bodily harm;
  • The defendant’s reasonable belief that the threat will be carried out;
  • No safe avenue of escape;
  • A close temporal connection between the threat and the harm threatened;
  • The harm the defendant caused cannot be greater than the harm threatened;
  • The defendant did not conspire to commit the offense

The statutory duress defense only applies when the person who commits the offense is themselves threatened. For example, Mr. Exx threatened to kill Ms. Y if she does not commit an offense. The statutory duress defense does not apply when a third-party is threatened. For example, Mr. Exx threatens to kill Ms. Y’s mother if she does not commit an offense. If a third-party is threatened, defendants can use the common law duress defense.[3]

The statutory duress defense cannot be used if the defendant commits any of the crimes listed in section 17 of the Criminal Code. These include, but are not limited to, murder/attempted murder, sexual/aggravated assault, forcible abduction, robbery, hostage taking, or arson.[4] Recently, the Ontario Court of Appeal found excluding murder from the section 17 defense unconstitutional.[5] The Supreme Court denied leave to appeal, making this decision the leading case in Ontario on the interpretation of section 17.

Is Duress Available for Female Defendants Who Are Victims of Abuse?

The Ryan decision is often erroneously cited to mean duress is not an available defense for women in abusive relationships.[6] The duress defense is available if a reasonable person in the defendant’s situation would have been compelled to commit the offense the defendant committed.[7] This is a modified objective legal test. This analysis requires not only determining whether a reasonable person would have committed the offense under threat. The analysis must also consider the defendant’s individual circumstance to decide if committing an offense was reasonable.

Where a defendant was compelled by her abuser to commit a criminal offense, the defendant’s relationship with her abuser must be considered when determining how a reasonable person would have responded to the threat. As Professor Sheehy notes:

Batterers deploy additional methods when women attempt to separate: promises to change, apologies, and declarations of love; efforts to further isolate women from familial and social supports; and escalating threats to kill them should they leave. These men seek total surrender, which they achieve by forcing women to violate their own boundaries and moral codes, participate in their own humiliation, or sacrifice others – children, family, friends.[8]

Is an Expert Testimony Needed?

Unfortunately, expert testimony is needed for women advancing the defense of duress after experiencing intimate partner violence. In the last 30 years, Canada’s legal system has made significant strides in addressing the unique challenges women face in the criminal justice system. For example, a series of legislative reforms now prevent a women’s sexual history to undermine a victim’s credibility during a sexual assault trial.[9]

The law, however, continues to struggle with applying the modified objective standard to unique female experiences. The duress defense requires judges to determine if the defendant’s actions were reasonable considering the defendant’s circumstances. Reasonableness is supposed to be a completely objective standard but many judges are unconsciously biased—the more defendant who looks and acts like them, the more likely the judge will find her actions reasonable.[10]

Studies, however, suggest that courts are only willing to incorporate the defendant’s physical attributes into the reasonableness standard, not their mental attributes.[11] This is particularly problematic in intimate partner violence cases where abuse is verbal, not physical, and therefore show not physical signs. In these cases, courts cannot easily attribute the defendant’s mental state to the duress defense.

While 90% of intimate partner violence victims are women, only 30% of federally appointed judges are female.[12] Worse, only 2% of Canadian federal judges are visible minorities.[13] The criminal justice system disproportionately targets minority women, yet the Canadian judiciary remains extremely white.[14] Whether the female defendant is a white or a visible minority, an expert witness can help the judge understand why the defendant’s act was reasonable in her abusive circumstances.

Calling expert witnesses, however, takes time. The defense must give the Crown 30-day’s notice if it intends to call an expert witness.[15] Depending on when the defense receives disclosure, if the client being held in pre-trial detention pending trial, or if defense counsel has inherited the client from another lawyer, calling an expert witness can delay proceedings. Defense counsel must then weigh the value of calling an expert witness to strengthen the defense’s case against the impact that delaying proceedings will have on their client. The decision is rarely an easy one.

Other Defense Options for Female Defendants who are Victims of Abuse?

Where an expert witness is not feasible to establish the duress defense, defense counsel can also attempt to demonstrate that the defendant, having experienced abuse, lacks the necessary mens rea to be found guilty of the offense.

A defendant cannot be convicted of a criminal offense where they lack the mens rea necessary for the commission of the offense. Mens rea is the defendant’s intention to commit a crime. A defendant is not guilty of a crime he or she did not intend to commit unless their actions were so reckless that they should have foreseen committing a crime as inevitable. If a defendant committed an offense under duress, it may be possible to argue that they lacked the necessary mens rea to be convicted of the offense.

Historically, a criminal act committed under duress has not undermined the defendant’s mens rea—the defendant has the adequate mens rea to commit an offense but is excused from criminal liability because they lacked the moral blameworthiness to be convicted.[16]

More recent case law, however, seems to revisit this argument. In Rochon v R, the Quebec Court of Appeal (affirmed by the Supreme Court of Canada) overturned Ms. Rochon’s conviction for producing a schedule II substance (cannabis). In this case, Ms. Rochon entrusted her son with her cottage property in her absence and, upon returning, discovered a marijuana plantation on her land. Ms. Rochon asked her son twice to get rid of the marijuana plants, saying she did not want to report him to the authorities. The Court found that Ms. Rochon’s failure to report her son to the authorities did not constitute the actus reus (criminal act) of participating in the production and possession of marijuana; nor did it constitute the mens rea (criminal intent) since she had no intention to aid her son in the production and possession of marijuana.[17]

It’s easy to imagine a duress case with facts similar to the Rochon case. The defendant’s boyfriend set up a marijuana grow operation in her apartment. The defendant does not report her boyfriend but objects to the grow op. The police discover the grow op and charge the defendant with producing marijuana. In this set of facts, the defendant could argue she did not form the requisite mens rea to be convicted of producing marijuana.

The Way Forward

While the duress defense is available for defendants who have experienced abuse, the need for statutory restrictions on this defense and the need for expert witnesses makes the successful use of this defense difficult.

How can we make this defense more accessible to victims of abuse?

First, judicial education is needed. Judges need to be able to place themselves in the shoes of the defendant to understand why their actions were reasonable given her experiences. They need to be open to the fact that what they find reasonable and what was reasonable for the defendant may be different, but that does not necessarily mean the defendant is more morally blameworthy. Justice Rothman agreed that courses on gender bias should be part of judges’ continuing education at all stages of their careers.[18]

Second, more female judges are needed. Former Supreme Court Judge Bertha Wilson noted that women do not accept male perceptions and interpretations of events as the norm or as objective reality.[19] And, history has shown this to be true. Strong female judicial voices have historically been instrumental in advancing feminist legal issues and laying the foundation for female equality in the judiciary. Justice L’Heureux Dube’s dissents on consent in sexual assault cases eventually became Canadian law.[20] And, Justice Wilson herself was instrumental both getting the Supreme Court to accept that prohibition on abortion violated a woman’s constitutional right to security of a person and in getting the criminal justice system to recognize battered women’s syndrome as a defense for women who injure or kill their abusive partners.[21]

With judicial education and more female and minority voices in the law, the duress defense will become more widely available for intimate partner violence victims who lack the moral blameworthiness to be convicted of a criminal offense.

[1] R v Lavalle, [1990] 1 SCR 852: 10 WCB (2d) 101.

[2] R v Ryan, 2013 SCC 3 at para 81; [2013] 1 SCR 14. See also Criminal Code, RSC 1985, c C-46, s 17.

[3] R v Ruzic, 2001 SCC 24 at para 83; [2001] 1 SCR 687;

[4] Criminal Code, RSC 1985, c C-46, s 17

[5] R v Aravena, 2015 ONCA 250; 323 CCC (3d) 54.

[6] See Canadian Encyclopedia Digest

[7] R v Ryan, 2013 SCC 3 at paras 47-53; [2013] 1 SCR 14

[8] Elizabeth Sheehy, Defending Battered Women on Trial: Lessons from Transcripts (Vancouver: UBC Press, 2014) at 3.

[9] Criminal Code, s 276. See also Liat Levanon, “Sexual History Evidence in Cases of Sexual Assault: A Critical Re-evaluation,” (2012) 62 UTJL.

[10] Cynthia Lee, Murder and the Reasonable Man, (New York: New York University, 2003) at 204-206

[11] Cynthia Lee, Murder and the Reasonable Man, (New York: New York University, 2003) at 210.

[12] Kirk Martin, “Gender Imbalance: Appointments of Female Judges Under Harper’s Tories” (11 Nov 2011), The Globe and Mail online: <http://www.theglobeandmail.com/news/politics/appointments-of-female-judges-slump-under-harpers-tories/article4183464/&gt;.

[13] Nicolas Keung, “Few Visible Monitories Among Canadian Judges, Study Finds” (27 June 2012), The Toronto Star online: <https://www.thestar.com/news/gta/2012/06/27/few_visible_minorities_among_canadian_judges_study_finds.html&gt;

[14] Pascale Fournier, “The Ghettoisation of Difference in Canada: ‘Rape by Culture’ and the Danger of a ‘Cultural Defense’ in Criminal Trials” (2003) 29 MB L J.

[15] Criminal Code, section 657.3(3)

[16] R v Hibbert, [1995] 2 SCR 973; 40 CR (4th) 141.

[17] Rochon c R, 2011 QCCA 2012 at para 14.

[18] Melvin Rothman, “Prospects for Change in Canada: Education for Judges and Lawyers” In Martin & Maloney, Equality and Judicial Neutrality (Toronto: Carswell, 1987) 3 at 421-427.

[19] Bertha Wilson, “Will Women Judges Really Make a Difference?” (1990) 28(3) Osgoode LJ 507 at 519.

[20] See R v Park, [1995] 2 SCR 836, 39 CR (4th) 287; R v Ewanchuck, [1995] 1 SCR 330, 169 DLR (4th) 193.

[21] See R v Morgentaler, [1988] 1 SCR 30, 63 OR (2d) 281; R v Lavalle, [1990] 1 SCR 852: 10 WCB (2d) 101.

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Never Again? Rather, Never Until Next Time…

Twenty years ago today the world stood by while 1 million Tutsis we slaughtered in the 1994 Rwandan genocide. Then, the world pledged those famous words—never again, the same words spoken after the Jewish Holocaust. Here we are twenty years later and the words never again seem to carry little weight. Our international system continues to value state sovereignty over humanitarian intervention and while its does, we continue to have spurs of genocide like that in the Darfur region of Sudan or more recently in the Central African Republic (CAR).

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In the past ten years, with increased pressure from the human rights community, there has been a push towards the adoption of the Responsibility to Protect (R2P). This doctrine rests on three pillars: (1) a states responsibility to protect its citizens from genocide, war crimes, and crimes against humanity; (2) the international community’s responsibility to assist states in protecting their citizens; and (3) the responsibility of the international community to intervene with coercive measure when a state fails to protect its citizens. Some would say this is an emerging international norm, one that, with time, will become the new standard of international relation. However, this norm struggles for supremacy with state sovereignty, and state sovereignty almost always wins.

So when does the internationally community choose to intervene? Principally when state sovereignty is violated. The February 2014 Russian invasion of Crimea exemplifies this. When Russia sent military troops over the Ukrainian border to Crimea without the consent of Ukraine, it inexplicably violated Ukraine’s sovereignty. The international community immediately jumped to attention imposing sanctions, condemning Russia’s actions, and calling for an immediate withdrawal of Russian military troops from the Ukraine. This violation of state sovereignty sparked an immediate international reaction and underlines the weight given to a state’s sovereign integrity. With such a strong weight on sovereignty, it then follows that internal state affair remain just that, internal. Regardless of how many people are dying, states are incredible hesitant to violate this principle of state sovereignty.

So, does what happens within a countries border remain the internal affair of a state? Legally yes. But then you have the quick reaction by the international community to the 2007 political violence in Kenya, an internal Kenyan affair. The outbreak of violence following the 2007 Kenyan election was referred to as genocide by the then US Secretary of State, Condoleezza Rice, who visited the rift valley region in Kenya in the weeks following the outbreak of violence. Approximately 1,000 people were killed and 600,000 were displaced. While theses numbers are not insignificant, they do not compare to the death count of the Rwandan genocide, and yet, this outbreak of violence immediately spurred international attention. The Panel of Three Eminent Persons, headed by Kofi Annan was put by the African Union to address the conflict, and a opposing parties were quickly forced into a mediation process. Three months after the outbreak of violence a peace agreement was signed that included a power sharing agreement before the two contested victors of the December 2007 election. Disaster averted by the international community.

The question here is why did the international community choose to intervene in Kenya after the 2007 electoral violence? Some scholars would call this a case for the Responsibility to Protect and point to it as state action supporting this emerging international norm. But, if that is the case, why have we not intervened in the CAR or in Syria, where fighting and violence persists. The conflict in the CAR barely grabs any media attention and the fighting in Syria has been so drawn out that it now falls on deaf ears.

What’s the connection here between the international community’s engagement in Kenya and the Ukraine? When does the international community act? Unfortunately, politics continues to be the driving factor of state action. Kenya and the Ukraine are both of strategic political interest to the world’s powers, namely the United States, and this strategic political interest prompts reaction. Kenya is the international hub in eastern Africa—many international operations based their headquarters there, Eastern Africa foreign aid is transferred through there, and in 2007, Kenya was a strategic US partner in the global war on terrorism. These are strong pull that prompted quick and swift international reaction at the outset of violence. The same can be said about the Ukraine: Russia’s involvement and access to eastern European oil are two very strong pull that forced an international reaction. Unfortunately, there are no pulls prompting a reaction to the CAR Crisis, just like there were no pulls prompting an reaction to genocide in the Darfur region of Sudan or Rwandan genocide in 1994.

In spite of what we would like to believe never again has never really had any political weight. It is was promise made out of anguish and regret for not prevent, mitigating, or stopping mass atrocities, but it is dangerously lacking in political will. The phrase is probably more accurately put as: never again so long as there is this political interest. Having travelled to Rwanda and having met with the victims and perpetrators of the genocide, it’s astonishing to think that the world could left it all happen again somewhere else, turning a blind eye like it did in 1994.

Have the lessons from Rwanda really be embodied by the international community? No. Can we really continue to proclaim never again. Again no. So where do we go from here? How to we ensure there isn’t a next time for genocide when the political cards seem stacked against the odds? These are all questions that remain unanswered by the currently framework of international relations.

 

Jolene Hansell is Conflict Resolution Practitioner and Communications Specialists. She has an MA in Conflict Resolution from Georgetown University and a Bachelor (Honours) of International Development from the University of Ottawa. Her specific area of expertise is transitional justice and rule of law. You can email her at jah340@georgetown.edu or follow her on twitter @joleneh340

 

Tracking Reconciliation?

Monitoring and Evaluation is one of the fastest growing areas in the fields of international development, conflict resolution, and project implementation in general. It provides the basis for determining the effectiveness of a given project and allows for changes and adjustments to be made in order to ensure that the project is reaching its intended outcome. For certain projects this is can more easily be done than for others. Take for example a small-scale development project where the project is to build a medical facility in a given community. This process is fairly systematic. A plan is developed, funding is secured, the project is put into action, and the medical center is continuously monitored to ensure that it is meeting its community health objective. In this case, monitoring and evaluation is someone of a checklist. Is “x” working; yes or no?  What about “y”? And so on and so forth. The same cannot be said when it comes to monitoring an evaluation of projects involving reconciliation.

Reconciliation is a deeply personal process. It involves a change within each individual, a decision to let go of the pain and atrocities that they have endure, a decision to more forward, to let the past be the past. This is a primary concern in the conflict resolution field. How do we get conflicting parties to set aside their differences and at best live and work together or at least civilly tolerate one another? Some projects focusing of this area have sought to bring conflicting parties together on neutral territory with a neutral activity using sports, dance, music, art, farming, community work, or some other cultural activity that would allow both parties to participant. The hope of this activity is that through working/playing together, through having contact with one another, the conflicting parties come to realize that humanness of the other and begin to remove any preconceived conceptions they may have had. But how can we monitor and evaluate this process? How do we tell if someone’s hatred for another has diminished, if there fear of the other is lessened, if they are more apt to work with and along side of someone traditionally considered to be from the outgroup? How do we monitor and evaluate something so personal, someone’s soul?

Simon Wiesenthal‘s book The Sunflower demonstrates the complexity of forgiveness in his true account of a Nazi solider (Karl) who asks Jewish concentration camp detainee (Simon) for forgiveness on his deathbed for killing another Jewish family. The questions of forgiveness that Wiesenthal addresses are thought provoking, prompting the reader to question his or her own beliefs. Can forgiveness be granted ion someone else’s behalf? Karl is not seeking Simon’s forgiveness for a grievance caused to Simon, but rather is seeking forgiveness for the murder of another family. Since Karl cannot seek forgiveness from the dead, he asks for Simon’s forgiveness instead. If the circumstances had been different, if the family Karl wronged remained alive, would Karl have still asked Simon to forgive him for his wrongdoings? And if so, would Simon have been able to grant forgiveness on behalf of the family? The probable answer is no. If Karl could have sought forgiveness from the family he murdered, he would have done so and Simon would have no right to grant forgiveness on the family’s behalf. Should these circumstances be different if the wrongdoing resulted in death and the forgiveness of the wronged person cannot be granted? There are some circumstances in which the bereaved victims do grant the perpetrator forgiveness (this can sometimes be seen in murder trials), but to give anyone this right would dishonor the dead. Thus, Simon did not have the right to forgive Karl the atrocities Karl committed, as they were not inflicted on Simon, and Simon does not have the right to grant forgiveness on someone else’s behalf.

With an issue as complex as forgiveness, how can an organization seek evaluate progress made in their reconciliation efforts? The Spirit and Education Movement (SEM), a South-East Asian organization working in the area of post-conflict reconciliation, uses surveys to help bridge this gap. They conduct surveys before the project is implemented and after the project is implemented in an attempt to gage the ‘feelings’ of those who participated in the process. Although this is one why to capture how someone is feeling, is only captures their feelings on a particular moment in time, a feeling that could be swayed by multiple factors ranging from the weather outside to problems at home or at work. In spite of having conducted these surveys, SEM recognizes that monitoring and evaluation what it comes to questions of reconciliation is extremely difficult. So the question remains, can it be done?

The reality is that reconciliation is a process, an extremely long and sometimes incredibly painful process at that. It takes time and cannot be constricted on single project or activity. There is an old saying that goes “time heals all wounds”, note the word time. Consequently, monitoring and evaluation of reconciliation efforts should be carried out in the long-term, not the immediate aftermath.