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.

The African Criminal Court: An African Solution for African Problems?

At the African Union (AU) Summit meeting in July, the African Heads of State are expected to finalize and adopt the creation of the African Criminal Court. The creation of such a regional criminal court is unprecedented and may come into conflict with the existing International Criminal Court (ICC), but the question is: is an African owned justice process, outside the hand of “western” influences, what is needed to foster security and peace on the Continent?

The African Court of Justice and Human Rights (aka the African Criminal Court) will be the result of the merger of two existing AU legal structures—the African Court on Human and People’s Rights and the Court of Justice of the African Union—and will have three sections: general affairs, human rights, and international criminal law. The jurisdiction envisioned for the court will include the categories already covered under the Rome Statute of the ICC – genocide, crimes against humanity, and war crime – but will also include crimes of particular relevance to African, including piracy, terrorism, mercenary activity, corruption, money-laundering, human/narcotic trafficking, and illegal exploitation of resources. This comprehensive list of indictable crimes aims to combat some of African’s biggest problems through criminal justice, in hopes that this will subsequently promote regional peace and security. While its adoption is anticipated at the July AU Summit, the new court will not enter into force until it is ratified by 15 member states.

The African Union has been very vocal regarding its feelings of contempt for the present system of international criminal justice. Since, to date, the ICC has only taken on African cases, there is a general feeling that the Court biased, determined only to seek out and prosecute African violators of international criminal law. It is important to note, however, that out of the 18 cases the ICC is currently handling, 12 were referred to the ICC by the respective countries and only 6 were the result of a UN Security Council directive. While the President of the ICC maintains that is ICC is not a political entity and acts impartially within the strict legal framework provided for by the Rome Statute, the fact that the only Security Council directives have been for African fugitives while other violators in international criminal law have thus far escaped indictment, questions the degree of independence by which the ICC operates. It is in this context that the African Union has sought to create their own system to bring about African justice by and African hand.

One of the biggest problems with the ICC and its indictments in Africa is that it does not take into consideration the context in which their indictments have been rendered. For example, the ICC has indicted, tried, and convicted Congolese perpetrators of crimes against humanity in the midst of the enduring conflict in the Democratic Republic of Congo. In this way, the ICC acted with a strictly judicial understanding: an individual has committed an indictable crime under the Rome Statute and therefore must be brought to justice. Such a mindset does not take into consideration the large implications of such an indictment on the longer term peace and security of the region. Justice, while an important aspect in post-conflict reconstruction and an essential component of any democratic society, renders hard-line, black and white decisions—either convicting or acquitting an individual; in the midst of a conflict the circumstances surrounding an individual’s actions are hardly ever black and white. There is a lot of grey area that the ICC does not have the mandate to take into account. Justice creates clear winners and losers and, in doing so, can negatively impact the reconciliation and post-conflict reconstruction process. In extreme cases, this creation of winner and losers can prove the grievances upon which future violence is founded. The interest of peace and security is the reason why the AU has called for the postponement of trials against AL-Bashir, not wanting trials Given this, is would an African owned judicial system be more understand of the context in which it operates and make greater strives towards achieving regional peace and security?

The creation of the regional criminal court is completely unprecedented under international law and consequently, its interaction with the ICC is uncharted charted territory. For one, there is no hierarchy of treaties under international law; everything is on the same level. Currently, the ICC has agreements with national court, surrendering jurisdiction to the national level if the state is willing and able to carry over prosecution, but it has not such mechanism to deal with the creation of a regional court. Thus, if a state is partied to both the African Criminal Court and the ICC, there is no clear cut why of determining which court will have jurisdiction. This will pose a conflict in terms of jurisdiction among those African countries which have ratified the ICC Charter and which seek to ratify the statute of the African Criminal Court.

If the United Nation’s coordination of peacekeeping missions with the African Union serves as precedence than there may be some guidance in the construction of the AU/ICC road-map. More and more, there is a movement towards African led peacekeeping mission that are supported by the UN. The African Union Mission in Somalia (AMISOM) is an example of this. The goal then would be to create a relationship between the African Union and the ICC in which the African Union has primary jurisdiction over cases, but is supported by the ICC and has the discretion to refer cases to the ICC. The exact details of this suggested relationship remain unclear at the present moment. However, in order to avoid future conflict and headaches, the relationship between the ICC and the African Criminal Court should be fleshed out in more detail before the African Criminal Court enters into full force.

Jolene Hansell is a Master’s Candidate of Conflict Resolution at Georgetown University. Her specific area of focus is transitional justice and rule of law. Currently she is in Arusha, Tanzania, working as a Legal Intern for the United Nations International Criminal Tribunal for Rwanda. You can email her at jah340@georgetown.edu or follow her on twitter @joleneh340