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Challenging the Efficacy of No-Drop Prosecution Policies in Domestic Violence Cases

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Challenging the Efficacy of No-Drop Prosecution Policies in Domestic Violence Cases Challenging the Efficacy of No-Drop Prosecution Policies in Domestic Violence Cases: A Comparative Legal Analysis Patrícia Pais (Sónia Patrícia Esteves Pais da Fonseca) Law Degree Master in Management of Development A thesis submitted for the degree of Doctor of Philosophy at The University of Queensland in 2016 {TC Beirne School of Law} 1 Abstract Domestic violence against women is regarded as a serious violation of human rights. The United Nations and regional organizations such as the Organization of American States and the Council of Europe have adopted binding instruments that address violence against women, which includes domestic violence. These conventions require effective enactment and enforcement of laws that criminalize domestic violence at the national level. State Parties are under an obligation to investigate and prosecute such acts of violence against women and ultimately to punish wrongdoers. This thesis evaluates the endorsement and use of mandatory criminal proceedings also known in the language of the UN Framework for Model Legislation as no-drop prosecution policies, ie, once the law and legal system are triggered the prosecution cannot be “dropped” even if the complainant herself wants to withdraw the case. No-drop prosecution policies are grounded in the consistent evidence that for a number of reasons domestic violence complainants often withdraw from legal proceedings after initiating them. The main goal assigned to no-drop prosecution policies is to send a message to society that domestic violence constitutes a serious crime, while also ensuring the safety of the victim. However, domestic violence is a crime like no other. By recognising the distinctive features of domestic violence, and examining the socio-political and historical legal backgrounds that shape the diverse criminal justice systems, this thesis invites a debate on the significance of endorsing no-drop prosecution policies on an international level and its effectiveness in preventing and combating domestic violence on the national level. This thesis presents an evaluation of no-drop prosecution policies through doctrinal and empirical comparative research undertaken in Portugal and the Canadian Province of Manitoba. The thesis combines an analysis of official statistical data on domestic violence in both jurisdictions, qualitative interviews with key professionals, and, in the case of Portugal, a detailed review of samples of case files. These comparisons provide a basis for understanding how international law may translate into law in practice. The empirical data shows that no-drop prosecution policies have catapulted domestic violence into the public arena with sizable changes in reporting, charging, prosecution and conviction. Yet, the analysis of qualitative data that complements the quantitative data reveals that victims’ involvement and cooperation carry a cardinal weight in prosecuting and securing a conviction. For that reason, the structure of the adversarial system in Manitoba, which incorporates the principle of opportunity and specificities of 2 evidence law, allows the system to accommodate the interests of the victim in a manner that improves the probability of prosecution and conviction through the mechanism of plea bargaining and a guilty plea. Such a mechanism is alien to the Portuguese structure of criminal procedural law given its telos within the criminal justice system. And since the (reluctant) victim’s interests do not intersect with the interest of the state in prosecution and the ultimate goal of truth-finding at that point in time, the majority of reported cases are dismissed at the prosecution level. Finally, the question of deterrence remains an open question in both jurisdictions. Both long term trends on domestic violence crime and available data on recidivism do not suggest that the no-drop prosecution policies have a deterrent effect. In the final section, the thesis refines its contribution to the international debate on the implementation of no-drop prosecution policies to address domestic violence. It argues that, for a number of seminal reasons, the duty of due diligence in adhering to international law standards should be challenged and questioned as it may become part of the problem. Firstly, the international standards have been built upon the universal ideal of human rights, with little insight into the specificities of distinctive criminal justice regimes which reflect each State’s philosophical conception of justice, and thus affect the operation of such standards. Secondly, the effect of the use of no-drop prosecution policies in relation to deterrence remains controversial. Finally, there is potentially a normative conflict between international obligations, arising from the obligation to pursue prosecution and the protection of women from revictimization. 3 Declaration by author This thesis is composed of my original work, and contains no material previously published or written by another person except where due reference has been made in the text. I have clearly stated the contribution by others to jointly-authored works that I have included in my thesis. I have clearly stated the contribution of others to my thesis as a whole, including statistical assistance, survey design, data analysis, significant technical procedures, professional editorial advice, and any other original research work used or reported in my thesis. The content of my thesis is the result of work I have carried out since the commencement of my research higher degree candidature and does not include a substantial part of work that has been submitted to qualify for the award of any other degree or diploma in any university or other tertiary institution. I have clearly stated which parts of my thesis, if any, have been submitted to qualify for another award. I acknowledge that an electronic copy of my thesis must be lodged with the University Library and, subject to the policy and procedures of The University of Queensland, the thesis be made available for research and study in accordance with the Copyright Act 1968 unless a period of embargo has been approved by the Dean of the Graduate School. I acknowledge that copyright of all material contained in my thesis resides with the copyright holder(s) of that material. Where appropriate I have obtained copyright permission from the copyright holder to reproduce material in this thesis. 4 Publications during candidature E-Book Chapter Patrícia Pais, ‘Challenging the Efficacy of Ex officio Prosecution of Domestic Violence Offenses: A Comparative Analysis’ in Júlia Tomás and Nicol Epple (eds), Sexuality Oppression and Human Rights (Inter-Disciplinary Press, 2015) 27. Publications included in this thesis No publications included. 5 Contributions by others to the thesis No contributions by others. Statement of parts of the thesis submitted to qualify for the award of another degree None. 6 Acknowledgements There is no better life than the one one shares with those who dare to dream. Thank you Catarina Downey and David Letichevsky — you inspire me to dream and to pursue such dreams. Also my immense appreciation to Dr Clare Cappa and Dr Robin Fitzgerald. They are the “dynamic duo” whose combined strengths and inputs made an indelible impression on my work. I enjoyed every moment of this voyage with them aboard. Any shortcomings in this thesis are mine and mine alone. My unending gratitude to my mother for her unconditional support and to my sister who has taken her place in a male-dominated profession. The acknowledgments that follow are ordered to reflect the progression of this voyage: Thank you Blendi Bushati, Dr Suzanne Belton and Professor Heather Douglas for their endorsement in the application process. To Althaf Marsoof, Marina Lostal and my own countryman Guilherme Vasconcelos Vilaça, who immediately befriended me when I arrived at the University of Queensland - “bohoma isthoothi”, “muchas gracias”, “muito obrigada”. Their importance in the course of my research was three-fold: they provided critical input to my early work, engaged in refreshing debates on numerous issues, and offered their friendship with the consequent emotional support. They have left for greener pastures but their place in Brisbane remained untaken. As I continued my research I requested the support and participation of Portuguese institutions. Without delay the Portuguese Attorney General Office led by the Honourable Joana Marques Vidal acknowledged the significance of my thesis and assisted in many ways. Consequently I was able to collect data from the files of Porto’s Departamento de Investigação e Acção Penal [Public Prosecutor’s Office]. Porto’s justice officers and prosecutors provided vital support. Equally, I was aided by the Portuguese Parliamentary Historical Archive, and the Portuguese Directorate-General for Justice Policy. On the personal side, thank you to my Portuguese friends of old, Rute Moura and Rosana Pedreira for always making me feel so loved when I return home; and to the not so old friends Bruno Cima and Rui Ah Lima for their vibrant life stories. Also obrigada Luciano Fernandes for your unyielding caring when I venture into new projects. As I flew across the Atlantic to continue my empirical and doctrinal research in the Great White North the extraordinary Professor Jane Ursel welcomed me with open arms. 7 My visit to Winnipeg exceeded my expectations in every possible way due to the combination of her kindness and knowledge - to Jane my enormous gratitude. What I have learned
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