Can Emotional Abuse be a Criminal Act?
In this interview with Philip Enright, Assistant Crown Attorney, Ministry of the Attorney General, Government of Ontario, the conditions where emotional abuse can be either prosecuted, or used as additional evidence to determine the outcome of violent charges are discussed.
What forms of emotional abuse are covered under the criminal code?
Emotional abuse is a pretty wide term. The criminal law doesn't prohibit people from being rude, insulting and disrespectful to one another. The criminal law only enters when remarks become violent, threatening or they cause the complainant to fear for her or his safety. To use an example, the criminal law prohibits someone from uttering threats of death or bodily harm to another person. Threats could include, "you are making me so mad I am going to break your leg", or "I am going to slit your throat". If it is spoken with the intention of intimidating the recipient then it is a criminal offence, and the criminal court will punish the accused if it can be proven.
Depending on the situation, an abuser may also be charged with Criminal Harassment, or "stalking". If as a result of (usually repeated) communications, a person fears for her or his safety, then a charge of criminal harassment could be laid. In this case, there is a history to consider, and the very fact that communication is being made causes a woman to fear for her personal safety. For example, if an abuser has ten convictions for assaulting a woman, and phones her up and says something emotionally abusive like, "Hello babe, I hope you're looking over your shoulder", and hangs up or just does heavy breathing over the phone, she is fearful. This emotional abuse is clearly covered by the Criminal Code. It really depends on the particular circumstances. However, in the majority of cases, Criminal Harassment charges will only be laid when the woman has experienced a history of physical violence or threats.
An application for a Peace Bond can also be made by a complainant that is being emotionally abused and who as a result fears for her safety. If the Justice of the Peace is satisfied that what is alleged or reported falls under this category, then a summons will be served upon the defendant to appear in court at a future date. The abuser will then have to "show cause" why he should not be required to enter into a peace bond recognizance. The conditions of the peace bond are usually applicable for a period of one year, with terms that he "keep the peace" and "be on good behavior". He also can be charged for breaching the recognizance, which is a separate criminal offence. Application for a Peace Bond can be one avenue for a complainant when the abusive conduct falls short of actually amounting to a criminal offence.
Can emotional abuse be considered a risk factor at bail hearings?
Emotional abuse is relevant if it poses a threat to a woman. If in her police statement, she gave additional information beyond the physical assault, such as a history of alcohol or drug use as a factor, or emotional abuse, then it is relevant for consideration by the Crown in the bail court. An assessment at bail court is made to determine whether or not the defendant [abuser] should be held in custody, or whether he will be released with conditions. If a woman has been emotionally abused for years, then it is usually a good indicator of things to follow. The Justice of the Peace should be told about emotional abuse, but it will not be the determining factor.
How about emotional abuse that the accused subjects the woman to in the course of a trial, by lying and slandering her character? Can he be charged with perjury?
In every trial, there will be two diverging views. The victim will give her account as to what happened and then the accused if can call evidence and gives his version if he chooses to do so. Usually, they are diametrically opposed. The judge then has to make a decision, and if the judge's finding is that the victim was telling the truth, then she/he necessarily finds the accused has lied – effectively perjuring himself. But at the conclusion of trials we do not charge the convicted accused with perjury. Practically speaking, if the accused is caught in a lie and the judge gives a scathing judgement, it will impact the accused at sentencing. If the judge finds the accused has needlessly put the complainant through trial, has not shown one iota of remorse or respect, and just doesn't get it, then the consequences will be more severe. Whereas a judge may have considered probation and counselling, the judge may give them a wake up call and send them to jail as well.
Will emotional abuse be considered at sentencing?
At sentencing, if a woman wants the judge to know there is more than the assault to consider, then she has the option of preparing a "Victim Impact Statement", where she can describe the emotional abuse which presumably lead up to the assault. This information is relevant at sentencing, as it is at this time that the accused's character is an issue. If the defense denies the abuse, she will have to come forward and testify under oath. Depending on the circumstances, it may not be worth the outcome for a woman to do so.
This project has received support from the Ontario Women's Directorate and does not necessarily reflect the view of the Government of Ontario.