Friday, November 2, 2012
Isabel Grant and Joanna Birenbaum (University of British Columbia - Faculty of Law and affiliation not provided to SSRN) have posted Taking Threats Seriously: Section 264.1 and Threats as a Form of Domestic Violence (Criminal Law Quarterly, Vol. 59, January 2013) on SSRN. Here is the abstract:
An alarming number of women are in abusive relationships where violence and threats of violence pervade their lives. This article examines the offence of uttering threats in the Canadian Criminal Code, using the Manitoba Court of Appeal decision in R v O’Brien as a backdrop. We make two arguments. First, we argue that, in intimate relationships, threats of death and bodily harm are a form of domestic violence, often used by men in concert with physical violence and other forms of intimidation to control and dominate women. The Canadian criminal justice response to charges of uttering threats in intimate partner relationships must fully account for the cumulative, ongoing and dynamic nature of abuse, as well as abused women’s complex and varied responses to abuse. Second, we examine the history of s.264.1 of the Criminal Code and the case law to argue that the courts have applied the elements of the offence improperly and in a manner that is inconsistent with the statutory language and legislative intent. In so doing, the judgments incorrectly burden abused women with testifying to their fear in response to threats by their abusers, despite the fact that such evidence is unnecessary to prove the offence. This error reflects the continued privatization of domestic abuse and violence against women more generally. Compelling abused women to testify to their fear risks exposing women to increased physical violence and threats and ignores the complex considerations which drive abused women’s decision to co-operate in the prosecution of their partners or to support their defence.