“Stalking is one vicious manifestation of a broader spectrum of violence against women, one part of a multifaceted whole, intricately linked to the systemic social, economic and political inequalities experienced daily by Canadian women. The statistics detailing the extent of violence against women in Canada provide horrifying evidence of the “brutal face of inequality.” – Rosemary Cairns Way
Intimate Partner Criminal Harassment Through a Lens of Responsibilization
by Isabel Grant
Feminist scholars have demonstrated the gendered nature of intimate violence, and the tendency to put the responsibility on women to avoid both sexual and physical violence. The degree to which this responsibility is based on stereotypes about the “good victim” has been well documented in the context of sexual assault. This paper applies these insights to the context of intimate partner criminal harassment. All available statistics suggest that intimate partner criminal harassment is committed overwhelmingly by men against former female intimate partners. This crime affects thousands of women annually and can have devastating implications for their physical and mental health. Using criminal harassment decisions over the past decade, this paper argues that the elements of the offence – specifically the requirements that the accused cause the complainant to fear for her safety, that this fear be reasonable, and that he intend to harass her – feed into the tendency towards responsibilization. Women are disbelieved if they fail to report the harassment promptly to police, fail to obtain a restraining order, fail to demonstrate their fear in predictable ways, or fail to communicate to their harassers that the harassment is unwanted. The accused’s behaviour, by contrast, is never subjected to a standard of reasonableness. After analyzing the case law on criminal harassment, and reviewing the approach taken in other jurisdictions, the paper concludes that legislative reform is a necessary step towards providing an adequate criminal justice response to this serious problem.
Introduction
One of the primary contributions of feminist scholarship to criminal law has been to establish the gendered nature of intimate partner violence. Intimate partner violence and sexual assault, for example, are committed overwhelmingly by men against women. In this paper I explore how intimate partner criminal harassment is also a gendered crime and how judicial decisions reflect the same biases and assumptions that other gendered crimes reveal. Specifically, I will argue that, as with sexual assault, the law of criminal harassment has been influenced by assumptions about how women should respond to male violence and how they are responsible for changing their lives in order to avoid it. This tendency to put responsibility on women to avoid gendered violence has hindered effective law enforcement of these crimes. In the context of criminal harassment, this tendency is facilitated both by the legislative requirements of criminal harassment and the judicial interpretation thereof.
The Supreme Court of Canada has had many opportunities to deal with gendered crimes in recent years and has fallen short. Emma Cunliffe has demonstrated, for example, that equality is rarely given serious consideration in recent sexual assault cases in the Supreme Court. With respect to sexual assault prosecutions more generally, women are often criticized for their inadequate expressions of non-consent or for other behaviours which may have “encouraged” the violence against them.5This paper demonstrates that the same phenomenon is seen in criminal harassment cases. The very definition of the crime requires that the Crown prove that the complainant, who, in intimate partner harassment, is almost always a woman, was afraid for her safety or that of others and that her fear was reasonable in the circumstances. The response of the victimized woman is scrutinized and may be found wanting, thus preventing successful prosecution. Her life may be significantly disrupted by the harassment, she may have to change much of her day-to-day routine, she may be unable to work because of the harassment, but if she was not afraid for her safety in a way that is judged by others to be reasonable, the law does not recognize the harassment. At no time is her harasser held to a standard of objectively reasonable behaviour.
Section 264 of the Criminal Code sets out the definition of criminal harassment in Canada:
No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.
The conduct mentioned in subsection (1) consists of:
- repeatedly following from place to place the other person or anyone known to them;
- repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;
- besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or engaging in threatening conduct directed at the other person or any member of their family.
The offence is a hybrid offence punishable by a maximum 10 years on indictment and six months on summary conviction. This section was enacted in 1993 in response to a number of murders of women by former intimate partners after a period of criminal harassment. Section 231(6) was also added to the Criminal Code in 1997 providing that murders which take place in the course of criminal harassment are punished as first-degree.
The first section of this paper presents a brief description of what we do know about intimate partner criminal harassment in terms of its incidence, its impact on the women harassed and the criminal justice response to this crime. This is followed by a summary of the theoretical literature on the concept of “responsibilization” as informed by the work of feminists in the areas of sexual assault and intimate partner violence. After setting out this context, the paper turns to an analysis of the case law on intimate partner harassment, focusing on three elements of the offence: the requirement that the complainant be afraid for her safety or the safety of others, the requirement that the fear be reasonable and the requirement that the accused know that his conduct is harassing. The focus of this paper is the judicial discourse around the elements of criminal harassment and how this discourse perpetuates problematic assumptions about gendered violence and women’s responsibility to avoid it.
The study, Intimate Partner Criminal Harassment Through a Lens of Responsibilization, is published in Osgoode Hall Law Journal and is forthcoming in print.
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