Aggravating factors: Sentencing for male intimate violence against women

By Yves Faguy August 16, 201816 August 2018

Aggravating factors: Sentencing for male intimate violence against women

 

Isabel Grant examines, in the latest issue of the Canadian Bar Review, sentencing for male intimate partner violence against women (MIPVW) since the Criminal Code provision made it a mandatory aggravating factor where the offender was in a spousal or common-law relationship with the victim.

The provision, section 718.2(a)(ii), was adopted in response to a growing recognition that courts were typically trivializing violence within intimate relationships. Grant aims to study whether the provision, over the last 22 years, has made a difference.

Acknowledging that the vast majority of the cases under study (94 per cent) involved male offenders being violent against female victims, Grant concludes that appellate courts are generally taking MIPVW seriously – though less so where sexual assault is committed. What’s more, at trial, myths about women who stay in abusive relationships are still hard to shake:

By contrast, stereotypes about intimate violence were more prevalent in the context of sexual assault, particularly at the trial level. In the context of sexual violence, myths about women who stay in abusive relationships linger. Would she have stayed if he had really sexually assaulted her? Would she have consented to subsequent sexual intercourse if the previous incident had been nonconsensual? These stereotypes are operating subtly because the fact of conviction should have settled the non-consent issue. The message in these cases is that sexual assault within an intimate relationship is less serious than outside of such relationships. This is particularly true for level I sexual assaults. It is only where cases involve considerably more violence, beyond that inherent in the sexual assault, that courts seem to grasp the seriousness of these offences. More needs to be done by judges, Crown and defence counsel, at the trial level and on appeal, to avoid stereotypes about whether it was “a real sexual assault” and to acknowledge the insidious harm done by MIPSVW. The sexual assault cases in this study demonstrate the ongoing need for a statutory aggravating factor such as s 718.2(a)(ii).

Grant also insists that courts will have to give greater thought to the systemic problem of intimate violence against Indigenous women, where “s. 718.2(a)(ii) tends to fade in significance,” when sentencing male offenders.

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