Enhancing Safety: When Domestic Violence Cases are in Multiple Legal Systems
(Criminal, family, child protection)
A Family Law, Domestic Violence Perspective

Part 7: Potential for Lethal Outcome

7.1 Introduction

Screening for facts indicating the potential for lethal outcome is critically important in family and child protection cases, yet reporting rates to police are low.Footnote 81 Domestic violence research as a whole documents the existence of prior intimate partner violence in the majority intimate partner homicide cases (albeit not always known to police or recorded in arrest records).Footnote 82 While, in 2010, Statistics CanadaFootnote 83 reported the existence of records of prior family violence in the majority of cases in which spouses were accused of killing intimate partners, numerous studies and reports document the absence of prior police involvement and records in many lethality cases.Footnote 84 Moreover, since some of the indicators of potential for lethal outcome are non-criminal, in the absence of use of lethality indicators, police will not necessarily collect information relating to known indicators of potential for lethal outcome.Footnote 85 Family lawyers and service providers should keep in mind that the best source of information relating to risk of potential for lethal outcome is the person subjected to domestic violence.

7.2 Facts Associated with Potential for Lethal Outcome

Jacqueline Campbell has reported that approximately 15% of cases of homicidal domestic violence are not predictable using any current indicators or assessment tools.Footnote 86 Nonetheless, in the majority of homicide reviews the following facts, associated with domestic violence homicide, are remarkably consistent across death reviews and lethal outcome research studies, from jurisdiction to jurisdiction:Footnote 87

Particularly worrying are cases involving a collection of these indicators. A pattern or combination of such facts is known to compound the risk of lethality.Footnote 89

See the web link for access to and information about one of the most widely researched and respected risk assessment tools for assessing the potential for lethal outcome, constructed by Jacqueline Campbell and colleagues in the United States: http://www.dangerassessment.org/

When a collection of facts associated with the potential for lethal outcome is present, lawyers should also consider facts, if any, outlined in 7.3 below.

7.3 Additional Facts Associated with Lethality

Identified here are additional facts that are commonly, but not consistently, identified in homicide and Death Review studies. Other indicators of danger commonly identified in studies of lethal domestic violence outcome, include:

The facts outlined here contribute to risk of potential lethal outcome, particularly when associated with facts outlined in 7.2 above.

7.4 Mandatory Information Exchange: Potential for Lethal Outcome

When indicators of continuing physical risk are present (see Part 6 above), service providers, professionals, and lawyers, subject to professional rules associated with solicitor-client privilege and confidentiality, should be authorized and encouraged to share information pertinent to risk and safety across legal systems in order to enhance safety.

When a collection of indicators of the potential for lethal outcome are present, lawyers, including lawyers representing perpetrators, will wish to consider carefully the Code of Professional Conduct test of imminent harm. Swift exchanges of information across court sectors may be necessary in order to protect the lives of victims of domestic violence and their children.Footnote 91

In a family law or child protection context, consider special measures to enhance safety including: a civil protection order, immediate referral to mental health (for depression, suicidal thoughts) and substance abuse service providers; implementation of methods to monitor compliance as well as supervised or suspended access to children until safety can be assessed and assured. Follow up to ensure active participation in services.

Dr. Peter Jaffe, academic director of the Canadian Centre of Research & Education on Violence Against Women and Children, reports that an analysis of factors associated with the potential for lethal outcome in domestic violence death reviews has found no difference between the facts associated with lethal outcome for children and facts associated with lethal outcome for targeted adults.Footnote 92 The finding is consistent with observations of lethality literature. When indicators of the potential for lethal outcome are present, children as well as adults are in danger. Suspension of access until risk and safety can be assessed and assured is the safest course of action. Alternatively, if supervised access is contemplated, ensure that the supervised access centre has: complete knowledge of the continuing risk and the potential for lethal outcome; copies of protection orders and judicial findings, if any, relating to risk; specialized safety measures in place; a clear understanding of the type of supervision required; policies in place to prevent child abduction; and specialized training in the domestic violence field in connection with both parenting and indicators of potential lethal outcome. In addition, the supervisors should be culturally appropriate and should speak the language spoken by the perpetrator with the child.Footnote 93 Research studies of supervised access are indicating serious safety concerns in coercive domestic violence cases.Footnote 94

While the best option, even when indicators of danger are present, is the client's consent to the release of information, in the absence of client consent, lawyers will want to weigh carefully potential responsibility for serious, even lethal, harm to adults and children in the event of failure to reveal information relating to danger. As stated earlier, in connection with risk (see part 6.5 above), most Professional Codes of Professional Conduct authorize lawyers to reveal confidential information in the face of imminent risk of harm. That said, Rule 3.3.3 of the Federation of Law Societies of Canada (2012) Model Code of Professional Conduct, approved December 2012, allows (but does not mandate) release of confidential information (limited to that required) when the lawyer believes on reasonable grounds that "there is an imminent risk of death or serious bodily harm, and disclosure is necessary to prevent death or harm".

The advice in the commentary associated with Rule 3.3.3 of the 2012 Model Code may make it difficult for lawyers to respond in a timely fashion. The commentary suggests that such disclosures will be limited to "very exceptional circumstances." And, while the commentary tells lawyers to keep in mind that Smith v. Jones, [1999] 1 S.C.R. 455; 169 D.L.R. (4th) 385 states that serious psychological harm may constitute serious bodily harm if it interferes with health or well-being, it also advises lawyers to:

Although preservation of solicitor-client privilege is extremely important, from a domestic-violence safety perspective, a rule expressly enabling lawyers to convey information relating to the known indicators of potential for lethal outcome in domestic violence cases could help to save Canadian lives.

7.5 False Positives: Facts May Not Result in Death

The facts outlined above are associated with cases that have resulted in lethal outcome. The research does not prove that every domestic violator whose case includes a combination of these factors will kill. Nonetheless such factors indicate that the intimate partner and the child are in serious potential danger such that immediate preventative action to ensure safety is warranted.

7.6 Does Preventative Action Violate Rights?

In a family law context, consideration of the potential for lethal outcome operates in a preventative manner. The goal is to enhance safety, not to predict or to punish a domestic violator for something he or she might do.

In connection with family law matters: adults do not have a right to contact or to control former intimate-partners; access is a right of the child, not of parents. Provisions that limit a perpetrator's contact with a former partner or with a child until safety can be assured do not, therefore, violate rights. Instead such provisions can save lives -- including the lives of perpetrators.

7.7 Facts That Should Not be Taken Into Consideration

Facts that should not be taken into consideration when deciding whether or not to take preventative action to reduce the potential for lethal outcome include: socio-economic status, professional status, age, gender, culture, and ethnicity.

It is true that:

Nonetheless it is also true that domestic violence homicide with suicide crosses all genders, ages, socio-economic, professional and cultural boundaries.

7.8 Best Practices: Managing Risk and Danger

A number of jurisdictions have established cross- sector, integrated, community domestic violence oversight committees to coordinate services and to ensure the seamless exchange of information relating to danger in high risk cases.Footnote 95 In addition to participating on information exchange committees, family lawyers may wish to consider designing and implementing client consent forms authorizing the release of specified types of information relating to increasing risk and to a potential for lethal outcome in domestic violence cases.