Michael Ford (post until Oct. 31/19)
Criminal

Understanding why some domestic complainants recant

The reasons why domestic assault complainants recant their statements is an issue that deserves further exploration to ensure everyone has access to justice, Oshawa criminal lawyer Lawrence Forstner tells AdvocateDaily.com.

“In these cases, a recantation happens when a complainant has made a report or given a statement that itemizes incidents such as assault or mischief. And then, days, weeks or even months later, she wishes to change her statement,” he says. 

Forstner, principal of Forstner Law, notes that a recantation, in other less “politically fraught” cases, would likely mean the withdrawal of charges.

“In the domestic context, most recantations are disbelieved by the Crown,” he says.  

“In the criminal justice system, a complainant who recants is, unfortunately, seen as persona non grata. Defence lawyers fear talking to them, and Crown prosecutors disbelieve that they are telling the truth when they change their story."

Forstner says that while it should be a simple thing to ‘tell the truth,’ it’s far too facile an approach to take in the realm of domestic abuse.  

“Over the last 30 years, society has come a long way towards understanding the real nature of domestic abuse. It is an extremely complicated psychological playing field,” he says.

“So when a ‘victim’ recants, suddenly the police and the Crown will begin to treat her as a nuisance, and see a nuanced situation in black and white terms. But that’s what happens.”

Defence lawyers also don’t want to be blamed by the recanting witness for advising them to "yell it to the rooftops," only for the complainant to then be charged with public mischief or obstructing justice, Forstner says.

“In the result, the complainant who changes their story discovers that no lawyer will talk to them,” he says.

“They’re told by their partner's lawyer to ‘seek independent legal advice’ but they frequently find it difficult to find counsel willing to take the case. It's a no-win situation.

"There is no formal role in the criminal justice system for a complainant’s lawyer, and they know equally well that the prosecution and police may well charge the recanting witness, so they do not want to be seen as someone that walked their client into a criminal charge.  

“Inevitably, the only advice the complainant is given, therefore, is ‘Tell the truth, and talk to the Crown.’ But of course, they’ve already tried that to no avail.

"My belief is that we need to take a much stronger look at what is actually driving complainants to recant.”

Forstner says a couple of his recent cases illustrate some of the limitations of the criminal justice system when it comes to the prosecution of domestic offences.

“What the complainants see is that their partners are locked up, charged, made to have onerous bail conditions, and told that they cannot contact their wife or girlfriend for the long foreseeable future,” he says.

“Many complainants are shocked at the draconian effects of reporting a domestic event. 

"In both of my cases, the complainants made repeated and detailed attempts to change their initial reports. Both said they had either exaggerated or outright fabricated events, due to the strain they were under at the time.”

Forstner says problems often arise once “the system” takes over and the parties themselves lose all sense of control.

“The major issue that arises really falls out of the political context in which domestic cases are now seen,” he says. “Many years ago, the police were not well trained, and society tended to take the view that what happens behind closed doors is nobody’s business. That all changed over the last few decades. 

"Now, as one judge recently remarked to me, if the police are called out to a report of a domestic, ‘somebody is being arrested.’ He added, ‘If the Crown withdraws this charge, it’s going to be the Crown and the judge wearing it if the guy then goes and kills his wife down the road.’

“Domestic situations are laden with political considerations for justice system participants that supersede many other issues.”

Police dread leaving a scene without arresting someone, only to be called back to the house two hours later to find a homicide on their hands, Forstner says. 

“There is just no incentive for them to exercise any discretion,” he says.

“Equally, if a Crown prosecutor receives a recantation or a judge hears about it in a judicial pre-trial negotiation they cannot risk focusing only on the accused and the complainant without comparing their case to the nightmare scenario in their head in which they agree to a diversion or quick withdrawal of the charges, only to have a domestic homicide in the same matter a few weeks or months later.”

Forstner says the justice system needs to devote more resources to fully understand the facts of domestic abuse cases and the individuals involved early on in the process. 

“In most prosecutions, the lawyers only get completely conversant with the facts when the matter goes to trial, perhaps 12 to 15 months after the charges are laid,” he says.

“That means if a complainant has recanted a week after a charge, the judges and lawyers are not necessarily going to assess that recantation for 15 months. Meanwhile, the accused and the complainant are kept apart.”

There has to be a better way, Forstner adds. 

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