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| Serena Eshaghurshan |
In this article, I will discuss the interplay between family violence and the pandemic, and why current jurisprudence and legislative protections do not adequately safeguard at-risk populations against gender-based violence.
Family violence: ‘A shadow pandemic’
Family violence is a component of gender-based violence, which encapsulates a multitude of offences, such as domestic violence, sexual assault, sexual harassment and sex trafficking. Given that family violence typically occurs against historically marginalized groups, such as women (especially women in disadvantaged populations), it represents a tangible access to justice issue, as these groups face greater difficulty in accessing the legal system and related social supports.
Women are disproportionately represented as victims in family violence offences. On average, over 3,400 women and 2,700 children sleep in shelters each night, with an average of 300 turned away due to capacity limitations. Family violence also has a trickling down effect, as children who witness domestic violence have twice the rate of psychiatric illnesses than their non-affected counterparts.
These statistics are further pronounced in particularly vulnerable groups, such as Indigenous women. Indigenous women are six times more likely to be murdered than their non-Indigenous counterparts. Domestic violence rates among Indigenous women are three times higher than their non-Indigenous counterparts, and Indigenous women are also more likely to experience more severe forms of family violence than non-Indigenous women.
Reasons for such disparity can be attributed to various social factors, such as marginalization, the systemic victimization of Indigenous women and other systemic barriers that serve as obstacles to accessing social and legal resources.
While these statistics are grim, they do not fully represent the current reality of family violence. Research has demonstrated an increase in the average rates of femicides during the pandemic. Prior to the pandemic, a woman was murdered by her intimate partner every six days. In 2020, a woman was murdered by her intimate partner every 2.5 days. On a national level, domestic-related calls increased by almost 12 per cent between March and June 2020, as compared to the same timeframe in 2019.
In 2020, the rate of violent female deaths was segregated by gender, as male perpetrators accounted for more than 90 per cent of these murders.
Furthermore, in a national survey of agencies that worked alongside victims of gender-based violence, almost 50 per cent of respondents noted changes in the severity and prevalence of violence during the pandemic, with 82 per cent noting the violence became more severe and frequent. A fifth of respondents noted the means of violence changed during the pandemic, including a higher prevalence of strangulation cases.
While correlation does not equal causation, there are several viable explanations for the increase in family violence during the pandemic.
First, the very essence of an emergency may result in increased levels of conflict and aggressive behaviour. Public health orders have resulted in many victims being forced to stay at home with their abuser. Second, economic instability and other uncertainty created by the pandemic are associated with an increase in aggressive and antisocial behaviour. Third, many victims are unable to fully access and utilize vital social supports, such as family, friends and social services.
State of the law
Family violence is encapsulated by several distinct offences pursuant to the Criminal Code. These include assault, kidnapping and forcible confinement, trafficking in persons, homicide, sexual assault, etc. However, the scope of what legally constitutes a domestic-related offence is limited and does not account for situations where victims are subjected to controlling or coercive behaviour.
Victims who are subjected to this type of abuse are in a state of legal limbo, as judicial recourse is limited. There is an elevated risk of violence, as such behaviours are often precursors to physical abuse. Failure to adequately safeguard against such gaps can have fatal and tragic consequences.
Recent proposed legislation aims to create a novel “coercive control” offence. If approved, coercive behaviour that causes a victim to fear they will be physically abused would constitute as a viable criminal offence. Behaviour that causes a victim’s mental health or day-to-day functioning to decline would also be included.
In effect, the law would focus primarily on preventing family violence, rather than having to wait for physical violence to occur. It would also provide victims with greater recourse and avenues to escape an abusive situation.
In conclusion, family violence constitutes as a significant access to justice barrier, especially in marginalized and vulnerable populations. Policy makers and members of the judiciary have an ethical and moral duty to protect society’s most vulnerable. The famous saying “an ounce of prevention is worth a pound of cure” is highly applicable to the proposed legislative reforms and will ultimately save many lives.
Serena Eshaghurshan is 2021 J.D. candidate at the University of Calgary. Prior to law school, she received a bachelor of arts in psychology at the University of Calgary.
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