Does our justice system discriminate against men?

Being roughed up by a woman is an embarrassment few men are anxious to disclose, even to family and close friends. Which makes it all the more remarkable that a Kamloops, B.C., man has willingly revealed to the general public the details of a March 2003 incident in which he alleges his smaller, common-law wife pushed him against a wall, threw a stack of CDs at him, then began to pummel him. But Scott Crockford maintains in a written account of the incident that when he defended himself, and in the process wrenched his wife's arm, RCMP officers later charged only him. Those charges were eventually stayed. But Crockford's encounter with the justice system convinced him to file a human rights complaint against the B.C. Ministry of the Attorney General.

Crockford's complaint, filed in April of 2003, is that in B.C., as in other Canadian provinces, police and Crown prosecutors routinely discriminate against men in domestic disputes. Specifically, he charges that government spousal-assault policy is so biased that men are routinely charged and prosecuted in marital spats, even when the evidence points overwhelmingly to a woman being at fault. In July of last year the B.C. Human Rights Tribunal dropped Crockford's complaint against the RCMP, which, as a federal body, is exempt from its provincial jurisdiction. In September 2003, it agreed to hear Crockford's complaint against B.C.'s attorney general, but in April the province's lawyers intervened, asking the Supreme Court of B.C. to end the proceedings. A court hearing is not expected for several months. In the meantime, federal Justice Minister Irwin Cotler has announced plans to introduce new legislation aimed at reducing spousal abuse. Many critics point out, however, that whenever governments decide to get tough on spousal abuse, it boils down to one thing: prosecuting more men.

It's indisputable that spousal assault is a big problem in this country; but the fact is, despite the traditional stereotypes offered up by feminist theoreticians and much of the mainstream media, domestic violence is hardly an exclusively male phenomenon. While a review of sentencing records published in Statistics Canada's Family Violence in Canada, released this year, showed males accounting for 92 per cent of persons convicted of spousal assault, its 1999 General Society Survey--which relied on telephone interviews, not court records--found females comprising only 55 per cent of the victims in a reported 1.1 million lifetime cases of spousal violence.

It used to be that only the most serious cases of spousal assault were prosecuted in Canada, the rest being considered mere domestic or social problems. Under guidelines introduced by many provinces throughout the 1990s, police and prosecutors were compelled to make an arrest every time they answered a call about a domestic dispute that involved a hint of violence, even if both complainants later asked police not to lay charges. This must-charge, must-prosecute policy created an unanticipated problem. In B.C., for example, men were consistently charged by police, even when there was little evidence to support a conviction. Prosecutors' hands were tied, too, and they were forced to process cases right up until the trial, at which time about half of all spousal-assault charges ended up being dropped. The only measurable outcome of the new procedures appeared to be a monumental waste of time and resources, prompting B.C. Attorney General Geoff Plant to order a review of the policy in 2002. In May 2003--just a month after Crockford was charged--he announced he was giving prosecutors more discretion in the laying of charges.

A visit to the B.C. Ministry of the Attorney General's website, however, makes it easy to see that there remains a presumption, in that province at least, that spousal assault is a strictly one-sided problem. One policy, tellingly titled Violence Against Women in Relationships Policy, maintains that "it is important that criminal justice system personnel recognize the power imbalance and the dynamics which operate to prevent a woman from taking steps to end abuse. A rigorous approach to arrest, charge and prosecute, as promoted by this policy, is necessary to help eliminate violence within relationships." Only a single footnote mentions that the "violence against women" policy is also intended "to prompt action to eliminate violence against males in homosexual relationships, against vulnerable males in heterosexual relationships, and against women in lesbian relationships." Attorney General Plant was not available to answer questions about the policy, or about his ministry's intervention in the Crockford case. But tribunal documents show that counsellors for the Crown have sworn they were not influenced by the "must-charge, must-prosecute" policy in their decision to charge Crockford.

Yet Judith Doulis, the Vancouver lawyer representing Crockford, says her client believes that the spousal abuse laws discriminated against him because of his gender. "There certainly seems to be evidence that there's a disproportionate number of men who are charged under this policy, compared to women," says Doulis. And the case has been embraced by the Canadian arm of Fathers 4 Justice, an international group whose members have staged high-profile demonstrations in support of equal treatment of men in child custody cases. (In mid-September, one member, garbed in a Batman costume, eluded security to climb onto a ledge at Buckingham Palace. And in New Westminster, B.C., two weeks later, several costumed protesters scaled a bridge and displayed pro-fathers signs.) "Any case that highlights the gender inequities in this kind of issue is a positive development," says the group's national co-ordinator, Steve Osborne of Saint John, N.B. "Any action that is related to domestic violence completely ignores the fundamental principles of justice." In these particular cases, he says, "the accused's intent--which is half of the element of any criminal defence--is irrelevant. For example, if the woman says she was afraid, then the intent of the party they were supposedly afraid of is irrelevant. And that is completely eroding the criminal justice system in this country."

But Irene Tsepnopoulos-Elhaimer, manager of the Vancouver office of Women Against Violence Against Women, says that without strong regulatory and legal support structures, women will be afraid to come forward to report spousal abuse. Men's-rights activists, she claims, are attempting to distort reality. "This is what's really disturbing," she says, "that they are trying to do a reversal, that it is somehow women who are assaulting men." She stands by the assumption that the overwhelming majority of spouse-on-spouse violence is caused by males. "This is not 'violence against men,' it's violence against women. This is a problem that has existed and is continuing now. We're talking about the power and control, and the power imbalance in our society. Women continue to be raped, violated, abused in their relationships, harassed sexually on the job. We are not in power and crimes of assault are about power and control."

Still, Montreal clinical psychologist Jonathan Davis says his experience in three decades of counselling is that "must-charge" policies only undermine relationships and hurt men. "It creates an extreme power imbalance in those couples where the woman understands what she can get away with," Davis says. "Somehow the justice system has been imbued with feminist ideology, that men are power hungry, controlling beasts, and that to protect women, you need these laws." In reality, though, "the most careful psychological research shows that, if we look at hitting, it's initiated approximately equally often--actually a little bit more often by women than by men," he says. That may not jibe with the prevailing theories espoused by high-profile feminist groups, the mainstream media and many politicians, he says. And while that may make it an uncomfortable fact, if legislators genuinely want to protect all victims of spousal abuse from further pain and suffering, it's one they'll eventually have to confront.