What if an assault victim doesn’t want to press charges?

If someone calls the police and says they were assaulted, officers will be looking to lay charges when they arrive to investigate. They take any credible claim of assault seriously and someone usually ends up in handcuffs.

Once any assault investigation begins, the complainant’s wishes are not a prime factor in determining whether charges will be laid. Likewise, if the victim later requests that charges be dropped against the accused, their request will carry little weight since only the Crown Attorney’s office has the power to stop the process.

Charges may be withdrawn if there is no reasonable prospect of conviction, or if it is not in the public interest.

Trials do not depend on the victim’s wishes

When a complainant changes their mind and no longer wants to testify against the accused, the Crown has various options, including subpoenaing the complainant into court and compelling them to answer questions as a hostile witness. Even though the complainant does not want to take the stand, they are obliged to do so and to answer questions truthfully, or else they can face criminal charges for perjury.

Where the victim of the assault is no longer available for trial or will not attend, it is still possible for the Crown to pursue a conviction without the victim’s testimony. The Crown can also draw on evidence such as the testimony of witnesses who saw the offence or medical records detailing the injuries suffered during the incident. If the victim called 911 and reported the assault, the tape recording of that call may also be used as evidence.

According to a document released by the Public Prosecution Service of Canada, it is common for victims in domestic assault cases to “demonstrate reluctance or unwillingness to participate in the criminal justice process … if the complainant refuses to testify, Crown counsel should consider whether other admissible evidence is sufficient to prove the domestic violence offence.”

A statement from the Department of Justice warns people from drawing assumptions about the reasons why someone is recanting their testimony.

“When interpreting a ‘victim’ recant in a criminal case, one should resist the assumption that a criminal recant necessarily demonstrates that the ‘victim’ was not telling the truth about the violence in the original statements made to police,” it reads.

“Informed conclusions about validity or lack of validity of original claims can only be made after considering all of the evidence and surrounding circumstances, including the degree to which the evidence is consistent or inconsistent with the particulars of each statement, and after examining the circumstances surrounding the recant, including full particulars of any direct or indirect contact between the ‘victim’ and the accused.”

Mandatory charging with domestic assaults

When it comes to allegations of domestic assault, the police, Crown Attorney’s office and the courts enforce a zero-tolerance attitude. Domestic abuse is a real problem in Canada and it creates a power imbalance, particularly in cases where a male is abusing a female. These types of assaults also negatively affect children living in the home. As well, there is a risk the attack will increase in severity if not dealt with in a timely manner.

This hardline approach to domestic violence began almost four decades ago, according to a report by the University of Ottawa’s Department of Criminology. It states that “mandatory charging introduced by the federal Solicitor General in 1982, came into use across Ontario over the following decade as one component of an aggressive criminal justice response to intimate partner violence (IPV). This policy places the onus on police officers to lay charges against violent partners where there are reasonable and probable grounds to do so thus removing this decision from victims.”

The report adds that “one-quarter of women who contacted the police (27%) did not want charges laid, 36% wanted charges laid, and 34% were unsure (the remaining 3% did not say) … police were also more likely to lay charges in cases where women had suffered physical injuries at some point in the relationship.”

The courts and KGB statements

The Supreme Court of Canada (SCC) recognized that high rate of victim recantation in a 1993 case where the judgment noted: “[there is a] well-recognized phenomena among victims of sexual abuse or domestic violence as recantation of the reported assaults and delay in reporting which also, if weighed without knowledge of the particular context in which they occur, reflect negatively on the credibility of the witness."

Principles governing the use of statements made to the police in trials were established by a 1993 SCC case, R. v B. (K.G.).  Since that time, this form of evidence is commonly called a KGB statement.

According to Department of Justice documents, “in connection specifically with the domestic violence context and the high rate of ‘victim’/complainant recant in these cases, courts are conducting careful comparative analysis of similarities and differences between the content of KGB statements and other evidence, in an effort to: 1) distinguish true from false claims and 2) to prevent the success of false ‘victim’/witness recant.”

A 2013 Supreme Court case established the conditions when a KBG statement can be used. After reviewing the value of seeing and hearing the witness in assessing credibility, the court ruled that KGB statements are acceptable if: “the statement is made under oath or solemn affirmation following a warning as to the existence of sanctions and the significance of the oath or affirmation, (ii) the statement is videotaped in its entirety, and (iii) the opposing party … has a full opportunity to crossexamine the witness respecting the statement.”

What leads people to recant?

According to a 2015 Globe & Mail story, “experts say about half of domestic violence allegations are recanted.”

There are many reasons why assault victims later recant allegations against their attackers. In some situations, it’s the fear of more violence in the future if the person is acquitted or the charges are dropped, or after the person is released from jail. Or perhaps the complainant expects to reconcile with the accused and is looking to end the prosecution process so they can get on with their lives.

Victims may also face external pressure to recant when their attacker plays a significant role in their life. For example, if a husband is the sole income earner for the family, the wife may recant the assault allegation when she realizes the household income is in peril.

Some victims recant out of a sense of guilt, often prompted by their attacker making themselves out to be a victim of the criminal justice system. In a study of jailhouse conversations between domestic violence perpetrators and their victims, researchers saw a pattern of the attackers minimizing the situation, then appealing for sympathy and, ultimately, asking the victim to recant.

Often there is a degree of intimacy between offenders and victims, especially in domestic assault situations. Even if the two parties live in separate residences there is a good likelihood of contact between them as they await trial, especially if there are children involved who may be shuttling from one home to the other.

The complainant may find themselves under pressure by other family members or mutual friends to recant their testimony and to give the other party a chance to make amends.

Studies examine reasons for recanting

According to a Canadian Department of Justice document, four international research studies shed light on why people recant, even in high-risk cases. One study analyzed tape-recorded telephone calls of alleged perpetrators held in jail pending serious domestic violence cases in Milwaukee. That study found high levels of harassment, intimidation and manipulation of victims in these calls.

Another U.S. study, which included less serious domestic violence charges, found a pattern of manipulative interaction between alleged perpetrators and complainants that often resulted in the retraction of domestic violence, with similar behaviour noted in Canadian and U.K. studies.

As the Canadian Department of Justice document notes, “Although additional research on the issue is warranted, it seems likely that many ‘victim’ recants in criminal domestic violence cases are false.”

This is a time for legal counsel

Those charged with assault possibly face years behind bars, compounded by the shame and exposure the trial will bring. If you find yourself in that situation, you need to have an experienced defence lawyer at your side to advise you about your best options. Contact me for a free consultation so we can start planning your best defence.

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