Published In

Osgoode Hall Law Journal

Document Type

Working Paper

Publication Date

2015

Subjects

Criminal harassment; violence against women; intimate partner violence; responsibilization

Abstract

Feminist scholars have demonstrated the gendered nature of intimate violence, and the tendency to put the responsibility on women to avoid both sexual and physical violence. The degree to which this responsibility is based on stereotypes about the “good victim” has been well documented in the context of sexual assault. This paper applies these insights to the context of intimate partner criminal harassment. All available statistics suggest that intimate partner criminal harassment is committed overwhelmingly by men against former female intimate partners. This crime affects thousands of women annually and can have devastating implications for their physical and mental health. Using criminal harassment decisions over the past decade, this paper argues that the elements of the offence – specifically the requirements that the accused cause the complainant to fear for her safety, that this fear be reasonable, and that he intend to harass her – feed into the tendency towards responsibilization. Women are disbelieved if they fail to report the harassment promptly to police, fail to obtain a restraining order, fail to demonstrate their fear in predictable ways, or fail to communicate to their harassers that the harassment is unwanted. The accused’s behaviour, by contrast, is never subjected to a standard of reasonableness. After analyzing the case law on criminal harassment, and reviewing the approach taken in other jurisdictions, the paper concludes that legislative reform is a necessary step towards providing an adequate criminal justice response to this serious problem.

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