The way Canadian law defines criminal harassment puts women victims in a difficult spot, finds a new study from the University of British Columbia. The comparison of case law in Canada and other jurisdictions shows Canadian courts are putting an undue focus on a victim’s response to harassment rather than on the behaviour of the accused.
Courts seek to determine whether or not the victim adequately demonstrated her fear and whether she has communicated it to the accused. Isabel Grant, the study’s author and Allard School of Law professor, says this creates the same kind of disincentives for women about going to police that have long existed for sexual assault.
In this Q&A, she explains why the law should change and what the courts can do better to protect women.
Why aren’t Canadian laws governing harassment by former intimate partners sufficient?
The legislation and the judicial interpretation of intimate partner criminal harassment are flawed. Under current law, the accused has to know he is harassing the complainant. For example, a man who believes his 200 daily text messages and phone calls are being sent in romantic pursuit, rather than harassment, cannot be convicted. The onus is often put on the victim to communicate to the accused that she feels harassed. They are put in a “Catch-22” situation – she has to speak to him because he has to know he is harassing her, but if she does speak to him, courts may be less likely to believe that she was really afraid of him.
Furthermore, the legislation requires courts to judge whether a woman is afraid for her safety and whether that fear is reasonable. This indicates that only one response on the part of the complainant is adequate – fear for safety. It is not uncommon for courts to look to the complainant’s behaviour and question if she was truly frightened, why she didn’t go to the police more quickly, why a restraining order wasn’t sought, or why she spoke to her former partner in the midst of harassment. But criminal harassment is a highly stressful experience to which women respond differently depending on their circumstances.
What kind of legislative reform is needed to properly address the problem?
We could start by getting rid of the requirement that a woman be afraid for her safety and that her fear be reasonable in the eyes of the court. We could also recognize that criminal harassment can have significant impacts on a woman’s life other than causing fear.
Women are more likely to withdraw from all relationships and to isolate themselves if a former intimate partner is harassing them. Women subjected to harassment are at increased risk of becoming depressed and some studies suggest that there is an increased risk of self-harm. Our current legislation doesn’t recognize any of these responses.
If the current legislation were to be changed, what might a new law look like?
A new law enacted in England criminalizes harassment that has a significant impact on the daily life of the complainant. The legislation’s guidelines suggest that behaviour such as, changing a route to and from work, putting extra security in a home, moving residence, and deteriorating work performance due to stress could all be considered. We need to recognize that criminal harassment is harmful in and of itself, not only if it leads to physical violence by the accused.
The study, Intimate Partner Criminal Harassment Through a Lens of Responsibilization, is published in Osgoode Hall Law Journal and is forthcoming in print.