The notion of domestic assault is horrific. The idea that a person can become so enraged at someone they love(d) that they turn to violence is difficult to imagine. Committing an act of violence is always wrong. Doing that to your spouse, to the parent of your children, often in the presence of your children, is just simply wrong. The police in most North American jurisdictions have developed a ‘zero tolerance’ policy in ‘domestic’ dispute situations and if they are satisfied there has been an assault or a serious threat they will immediately arrest the perpetrator. Has this ‘zero tolerance’ policy created more problems than originally contemplated? Why is there a zero tolerance policy? Is there a solution to the ongoing problems created by zero tolerance?
It is widely held that the impetus for zero tolerance is related to those instances where, with or without a prior history of violence, a spouse is killed by his or her wife or husband. Certainly this has occurred and continues to occur. The issue though is whether the ‘zero tolerance’ policy of the various police jurisdictions influences the outcome of these terrible situations?
How do the police and the courts balance the need to protect women and men from violent, abusive and controlling spouses with the need to protect wives and husbands from those who manipulate the police and the criminal justice system in order to achieve a personal and selfish end; usually the removal of the spouse from the family home with the intention of preventing him or her from being able to occupy the house, preventing him or her from seeing the children, and attempting to grasp some perceived advantage in the divorce court.
Does this work. Sadly, it often does in the short term – from a few months to close to a year. Does it work in the long term. To an extent it can and at times it does. Here is an example of what often occurs. A husband and wife have an argument. Usually one of a long series of arguments that have escalated over time in intensity and emotion. Someone pushes the other, or someone grabs the others hand or arm. The police are called. One or both tell the police she or he has been assaulted and is afraid for her or his safety. Perhaps even afraid for their life. The police arrest one of the spouses and take her/him to jail. This person spends the night in jail and the next morning must enlist the assistance of parents or friends to show up and post bail. Can he or she go home? No. Can he or she see their children? Not likely without a further and expensive court order. Can they access their own belongings? Only with the assistance of a police escort to the matrimonial home. The conditions of release (bail order) will include a restraining order that prohibits him or her from coming near his/her spouse, the house, the spouse’s place of business and often the children and the children’s school. Mission accomplished.
There have been family court judges who have recently begun to recognize in their decisions that the criminal system has been misused and manipulated in this way and they have imposed sanctions on the men and women who have done this. Unfortunately that continues to be rare. Unfortunately in the early stages and often throughout the family court proceeding the arrested spouse gets painted just as the other intended. As a violent person incapable of controlling their temper, incapable of parenting the children, incapable of even being in the children’s presence unless fully supervised. This falls under the category of our courts “erring on the side of caution”.
What can we do to correct this terrible injustice? How do the police separate a real threat of harm from a manufactured and staged sham. I don’t know. And the reason I don’t know is because when the police arrive it is usually in the middle of a real argument where both people’s emotions and tempers are in full play. It is impossible in many cases to know who is telling the truth and who is lying. That is why the police usually end up arresting someone.
Really though. Is the only solution to arrest and charge one of the spouses, ban them from their home. prevent him/her from seeing the children. Surely there are more reasonable solutions. It used to be the case when people were stopped for drunk driving that the police had no discretion but to arrest them. Now depending on the level of impairment the police have been given the discretion to suspend their license for 48 hours and take their car away during that time frame. Why can’t the police be given a similar discretion in these domestic dispute situations. Why shouldn’t the police be able to impose a cooling off period and them leave it up to the family court judges to determine issues of custody, residency and access.
Surely we must believe that the police can devise a set of criteria to assist them in properly exercising their discretion. I believe this is an important issue creating serious and unnecessary problems for thousands of men and women. It requires and deserves our courts and our police taking the time and making the effort to develop a new and more balanced process.
STEVEN M. BOOKMAN is the managing partner at BOOKMAN LAW PROFESSIONAL CORP, a boutique law firm that specializes in family and estate litigation. Steven can be reached at 416-488-2243 or at [email protected]