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JustResearch no. 12
Sentencing Outcomes: A comparison of family violence and non-family violence cases
Research in Profile (cont'd)
Sentencing Outcomes: A comparison of family violence and non-family violence cases [1]
By
INTRODUCTION
Despite recent decreases in police-reported rates of spousal violence and homicide, violence against intimate partners continues to affect a considerable number of Canadians. According to the 1999 General Social Survey (GSS) on victimization, about 8% of women and 7% of men who were either in a current relationship or who had been in a marital relationship in the past five years had experienced either physical or sexual violence by a current or previous spouse/partner. [4]While family violence against children and seniors is less prevalent than spousal violence, police-reported data suggests that rates of family violence against children and seniors have grown recently (Brzozowski, 2004). In short, family violence remains an important issue for the criminal justice system in Canada.
The way in which the criminal justice system has responded to family violence has evolved over the last few decades. Once considered a private matter, charging and prosecution policies in the 1980s moved to treat family violence "like any other crime"
(Brown, 2000). While these policies intended to achieve equal treatment, they often failed to recognize the distinct differences between violence involving family members and those involving friends, acquaintances, or strangers. Unlike other crimes, violence within the family often means that the offender and victim share a home and are emotionally and financially attached to one another. In addition, the cyclical and recurrent nature of family violence suggests that spouses, children, and senior family members are often fearful of the offender's reprisal (Felder, 1996). Together or separately, these factors make the prosecution and sentencing of family violence cases very different and often more challenging than other violent crimes.
Recognizing the need for a more appropriate approach to dealing with family violence, a number of criminal prosecution policies and programs have been put into place. For instance, specialized family violence courts have been created in a number of jurisdictions to focus on the unique nature of family violence. [5]The principal aim of these courts is to expedite domestic violence cases for the safety of the victim, introduce early intervention for first time offenders, allow for effective investigation, prosecution and sentencing of family violence cases and ensure offender accountability (Trainor, 2002). Also, the Criminal Code was amended in 1996 to oblige the courts to consider the abuse of a spouse or a child as an aggravating factor in sentencing.
It is under the current system that a demonstration study on the differences in the court's response to family violence and non-family violence cases was undertaken. The primary purpose was to identify the role of the victim-offender relationship on sentencing outcomes. That is, are there differences in the sentences handed down to offenders convicted of family violence compared to other violent offenders? This study explored this question for three forms of family violence: spousal violence, child abuse, and senior abuse. The study also aimed to examine the impact of other offender and victim characteristics on sentencing decisions.
METHOD
The Adult Criminal Court Survey (ACCS) contains information on criminal cases, including charge and offender information, but does not capture victim characteristics, nor the relationship between the victim and the offender. Therefore, court data alone do not identify family violence cases. Consequently, it was necessary to link court records to the more detailed police records. In particular, the Canadian Centre for Justice Statistics (CCJS) linked, for the first time, the incident-based Uniform Crime Reporting Survey (UCR2) and the ACCS. By doing so, it was possible to examine the court's response to family violence cases as compared to cases of non-family violence, while taking into account factors such as the relationship between the victim and offender, the gravity of the offence and the age and sex of both the victim and the accused.
This demonstration study used data for the years 1997 to 2002 and focused on 18 selected urban areas where both UCR2 and ACCS data are collected. As a result, the study cannot be considered nationally representative. For this study, data from the urban areas are rolled-up to produce an aggregate presentation of results.
To analyze sentencing outcomes, such as the probability of receiving a prison sentence, it was necessary to limit this descriptive analysis to single conviction cases for two reasons. First, the number of convictions in the case can influence the severity of the sentence imposed, and therefore, any variation in the number of convictions between family and non-family members may distort the effect of relationship on sentencing. Second, it is only possible to directly relate a sentence to a specific offence in single-conviction cases.
RESULTS
Spousal violence
Offenders convicted of violence against their spouse less likely to receive prison
According to the linked police-court file, offenders convicted of spousal violence [6] were less likely than other convicted violent offenders to receive prison (19% versus 29%) (see figure 1). When examining specific offences, the difference in the probability of prison between spousal violence offenders and other violent offenders still exists but is smaller. For common assault, the most frequently occurring offence, 17% of convicted spouses received prison, compared to 21% of other violent offenders. The difference was similar for aggravated assault: 32% for family violence offenders and 36% for other violent offenders.
Criminal harassment was the only violent offence where spousal violent offenders were more likely to be sentenced to a term of imprisonment. In particular, results from the linked database reveal that the courts imposed prison on 32% of spouses convicted of criminal harassment, while the same was true for 26% of non-spouses. This difference may be partly explained by the fact that judges often recognize the potential seriousness of criminal harassment among spouses, since it can culminate into other more serious violent offences. Indeed, the first criminal harassment legislation was introduced in 1993 in response to high profile cases of women being murdered by their estranged partners following periods of harassment (Gannon, 1999).
Variations in incarceration inherently mean that there will be differences in the distribution of other dispositions, such as probation, conditional sentences, and fines. Consistent with research findings from specialized domestic violence courts (Ursel, 2003), probation was by far the most common sentence handed down to spousal violence offenders. In particular, three-quarters (72%) of convicted spouses received probation as the most serious sentence. This compares to 69% of other family members, 55% of convicted friends or acquaintances, and 42% of strangers.
Both conditional sentences and fines were rarely used for violent crimes. However, certain offences and victim-offender relationships increased their use. While conditional sentences were imposed in only 2% of spousal violence cases and 4% of non-spousal cases, convictions for sexual assault, particularly when directed against spouses, were much more likely to result in conditional sentences. For instance, conditional sentences were handed down in one-quarter (24%) of sexual offences committed by spouses and 15% committed by non-spouses. For fines, its imposition was more prevalent in cases of common assault and those involving non-family members. This is likely due to the fact that a fine may punish an already victimized and possibly impoverished family (Ruby, 1999).
Incarceration rate higher for spouses who are male, young, and estranged
Particular characteristics of spousal violence offenders elevate the likelihood of imprisonment. As with non-spousal violence cases, men convicted of violence against their spouses were more likely than their female counterparts to be sentenced to prison (20% versus 7%). This was the case for a range of violent offences. The use of harsher sentences for male spouses may not be surprising, given that data from the GSS reveal that men are more likely than women to inflict serious and repeated forms of spousal violence.
The probability of imprisonment further increased for men who were estranged from their spouses. Over one-quarter (28%) of estranged male spouses received prison, compared to 19% of current male spouses. Marital status did not appear to impact the sentence for women convicted of spousal violence. These results may be partly explained by the court's assessment of future risk. More specifically, previous research has shown that female ex-partners were more at risk of being killed, than were current female spouses (Hotton, 2001). According to the Homicide Survey, this is particularly true in the first two months of separation (Mihorean, 2004). Thus, courts may determine that a term of imprisonment for estranged male spouses is more appropriate than for current male spouses. The heightened risk of homicide following separation was not found for men and may partly explain why there was no difference in incarceration rates between female ex-spouses and female current spouses.
The offender's age also seems to impact the probability of imprisonment. Results indicate that the chances of incarceration were highest for spousal violence offenders aged 18 to 24, and then consistently decline as the offender's age increases. This increased likelihood of imprisonment for young persons may be related to judges knowledge that the risk of spousal homicide is greatest among younger couples (Gannon, 2004).
Child abuse
Family members convicted of child sexual abuse more likely to get prison than those convicted of physical violence
Overall, family members convicted of assaulting their children are less likely to receive a term of imprisonment than are those who commit violent acts against non-family members. According to the linked police-court file, only 15% of convicted family members received a term of imprisonment, compared to 28% of friends or acquaintances and 23% of strangers. These results support previous research that has indicated that offenders who are related to the victim often receive less harsh sentences than those who are non-family (Daly, 1989).
However, when offence type is taken into account, the difference in the probability of a term of imprisonment between family and non-family members does not hold true in the case of sexual violence against children. Almost one half of family members who were convicted of sexually assaulting a child received prison, compared to just under 4-in-10 convicted non-family members (39%). The reason for this sentencing pattern may be predicated on the nature of family sexual violence against children. Rarely is child sexual abuse within the family an isolated incident, but rather something that continues over a period of time.
Similar to cases of spousal violence, the use of conditional sentences in cases of family-related child abuse was relatively rare, although its use was a bit more common in cases of child abuse than spousal violence (5% versus 2%). Also consistent with cases of spousal violence, the use of conditional sentences was much more common in cases of family-related sexual violence against children than cases of physical violence (24% versus 3%). Moreover, among those convicted of child sexual abuse, family members (24%) were more likely to receive a conditional sentence than were friends/acquaintance (18%) or strangers (8%).
Given the relative infrequency of the use of imprisonment and conditional sentence in cases of convicted child abuse, it is not surprising that probation was imposed in almost two-thirds (62%) of cases of child abuse (67% of physical violence and 38% of child sexual abuse convictions). While family members were more likely than non-family members to receive probation in the case of physical abuse (78% versus 58%), the reverse was true in the case of child sexual abuse, whereby family members received a term of probation in 29% of convicted cases, compared to 43% of non-family related cases.
In addition to sentencing variation based on type of offence, the family relationship to the child also impacts sentencing outcomes. In general, parents convicted of child abuse were half as likely to be sentenced to prison as other family members (11% versus 25%). However, this does not hold true in the case of child sexual abuse where parents were more likely than other relatives to receive a term of imprisonment (52% versus 44%).
Those convicted of family-related child abuse against girls and the very young more likely to get prison
Both the sex and age of the victim have an effect on sentencing outcomes in cases of family-related child abuse. Cases involving female victims were more likely to result in a period of imprisonment as compared to male victims (18% versus 11%). The main reason for this finding is that a higher proportion of girls are sexually assaulted by family members, a crime that tends to result in harsher sentences. Even among cases of sexual assault against children, cases involving girl victims are more likely to get prison than cases involving boy victims (48% versus 37%).
Analysis also reveals that age has an impact on the severity of the sentence imposed by the courts. For example, family members who abused children considered to be the most vulnerable, those under the age of 3 years, were about twice as likely to be handed a term of imprisonment (30%) compared to assaults against children aged 3 to 11 (16%) and children aged 12 to 17 (14%) (see figure 2). This difference is especially pronounced in cases of family-related physical violence against children where police data show that children assaulted under the age of 3 are much more likely to sustain a major injury compared older children (Brzozowski, 2004). In addition, it may be recognized that there is a risk that the violence may escalate if not dealt with harshly by the courts, as homicide data indicate that the risk of being killed is highest for children under one year (Gannon, 2004).
Senior abuse
Non-family more likely than family members to be convicted of serious offences against seniors
Similar to both spousal violence and family-related child abuse, family members convicted of violence against seniors were generally less likely than non-family to be handed a prison sentence (22% versus 36%). This can be largely explained by the fact that a greater proportion of non-family than family accused were convicted of serious types of offences, including major assault (27% versus 20%) and robbery (15% versus 1%).
When controlling for offence type, differences between family and non-family offenders remained. For example, in the case of major assault, family members were still less likely than non-family to get prison (22% versus 34%). A possible explanation for this difference in sentence gravity may be that pleas of guilt are more common in family-related convictions than non-family related convictions (95% versus 86%).
Among family members convicted of senior abuse, children are the most likely to get prison
While probation was the most frequent sentence imposed on offenders convicted of violent acts towards senior family members (see figure 3), sentences varied depending on the type of family relationship. Concerning the most harsh sentence (i.e., imprisonment), adult children were most likely to receive this sentence (38%) compared to other family members (30%) and spouses (7%). Even after controlling for offence type, the differences in disposition remained, as adult children consistently received the harshest sentences.
The likelihood of being handed a term of imprisonment was especially great if the victim was the mother of the accused. This is despite the finding that family members convicted of committing an act of violence against senior females were less likely to be given prison than those convicted of committing an offence against older males (21% versus 25%). Adult children convicted of violence against their mothers were more likely to be sentenced to prison than those who were violent towards their fathers (42% versus 32%).
DISCUSSION
The findings from this demonstration study represent the first direct comparison of sentencing outcomes between family violence convictions and other violent convictions. While it shows that, in general, the courts were less inclined to impose prison on offenders convicted of family violence, it is essential to bear in mind that sentencing is a complex process involving the consideration of a number of aggravating and mitigating factors. For instance, when faced with a family violence case, judges often must take into account a number of factors specific to family violence, such as the victim's desire for reconciliation or financial dependence on the offender. This type of consideration, along with other factors, could not be controlled for in this study.
In addition, although the tendency for harsher sentences for non-relatives was true for most violent crimes, there were two exceptions: criminal harassment of spouses and child sexual abuse. In these two cases, the courts were more likely to hand down a term of imprisonment to family members than non-relatives. The possible risk of violent escalation for criminal harassment and the long-term nature of child sexual abuse may provide some explanation for the court's increased use of imprisonment for family members convicted of these crimes.
The value of these findings, which are based on linking police and court records, encourages continued record linkage activities. It is hoped that such activities will pave the way for tracing offending behaviour throughout the criminal justice system, including the police, courts, and corrections. In other words, it will allow for a better assessment of a family violence offender's criminal career, by providing an understanding of repeat contacts with the police, progression of offending, offending while on bail, and convictions. This information would assist in not only informing the general Canadian population about the interaction of family violence offenders with the criminal justice system, but it will also serve to inform policy makers and those working in the criminal justice system, so that they can better understand the impact and effectiveness of the system's response and interventions.
