Criminal Justice Outcomes in Intimate and Non-intimate Partner Homicide Cases

3. THE PRESENT STUDY

This study builds upon earlier research by Dawson (2004) by examining the resolution of homicide cases in Toronto, Ontario, from 1997 to 2002. The collection of this more recent data allows for an examination of trends over time in court outcomes for one type of violent crime for a period of close to three decades – 1974 to 2002. The primary goal is to determine if intimate partner homicides are treated differently than non-intimate partner homicides and, if so, has this treatment varied over time. These are important research questions because the way in which the courts in Canada and other developed countries respond to intimate partner violence has been the subject of much debate in the past several decades. The next section outlines the advantages of using homicide as the unit of analysis in research on violence and criminal justice.

3.1 Homicide as one type of violent crime

Homicide as a unit of analysis has been criticized for being too narrow a crime category because a large number of closely related violent offences (e.g. assaults) are omitted (see Simon, 1996b). However, selecting homicide as a focus in criminal justice research offers a number of advantages, including primarily that unreported cases of homicide are assumed to be less common than unreported cases for any other violent crime category. For example, the majority of criminologists explain the enforcement of criminal law in terms of a ‘crime funnel’ (Gomme, 1998). From this perspective, all crime is potentially knowable, but most crime remains undetected: the ‘dark figure.’ As a result, the number of crimes committed is much higher than the number of cases in which a sentence is finally imposed (Roberts & Cole, 1999). There may be a number of reasons for this, not the least of which is that victims and witnesses often fail to report criminal activities to the authorities. As a result, only a small number of crimes come to the attention of criminal justice officials. Of the crimes that are reported, the majority of cases may never be prosecuted because they are funneled out at various stages of the criminal justice process. For example, some Canadian data indicate that only two to five percent of reported crimes result in a conviction and, consequently, in a sentencing hearing (Dutton, 1988; Roberts & Cole, 1999).

Official homicide statistics, however, are generally viewed as a reasonably reliable indicator of the actual number of killings that have taken place in a given year and of the characteristics of the individuals who commit them. One reason for this, as already noted, is that most homicides are reported to the police and, therefore, potential problems created by reporting bias are minimal. Moreover, compared to other reported crimes, homicides are generally investigated with particular thoroughness due to the severity of the offence, making available information more accurate and detailed. Finally, because of societal consensus about the gravity of homicide, the majority of perpetrators are prosecuted and punished to some degree.[5]

A final advantage of focusing on homicide as one type of violent crime is that cases are, in general, similar in offence seriousness and the degree of harm caused to the victim (i.e. a death has resulted from the crime). Using homicide as the unit of analysis controls, to some degree, for the type and severity of violence. There are situations, however, when one person kills another but the individual is never charged with, or convicted of, a homicide. This situation arises because there are two types of homicide: Culpable and non-culpable.[6] In this study, only culpable homicides are examined. While focusing on culpable homicides does, on the surface, control for offence seriousness by keeping to a minimum the number of variables that differentiate among the types of homicide, the law does recognize that there are different degrees of culpable homicide. Within each of the categories of culpable homicide, variation in degree of harm and the degree of accused culpability still exists along a number of dimensions (see Box 2).

Box 2: Culpable homicide and the law

Section 222(4) of the Criminal Code of Canada (the Code) includes three types of culpable homicide: Murder, manslaughter and infanticide. The distinction among the three offences is important because each is subject to different penalties. With the abolition of capital punishment in 1976 (Bill C-105), murder now may be first or second degree. First-degree murder involves one or more of the following components: (1) It is planned and deliberate; (2) It involves the death of a police officer(s), a custodian(s), or prison personnel while on duty; or (3) It is committed during the commission of certain other criminal acts (e.g. hijacking, kidnapping, forcible confinement, criminal harassment, or sexual assault). Homicides that do not meet these requirements are classified as second-degree murder. While the line separating first- from second-degree murder is often obscure (Boyd, 1988), what is usually at issue is the degree of planning and deliberation undertaken by the accused prior to the killing (Grant et al., 1998).

In Canada, first-degree murder, as a proportion of all culpable homicide charges laid by police, increased between 1977 and 1990, but has since leveled off, representing about half of all reported homicides (52 percent) in 2002 (CCJS, 2003a). Conversely, homicides classified by police as second-degree murder have decreased during the same period and currently represent about one-third (37 percent) of all homicides (CCJS, 2003a). Traditionally, however, only about five percent of those charged with culpable homicide have been subsequently convicted of first-degree murder and approximately 30 percent have been found guilty of second-degree murder (Boyd, 1988). Section 235 of the Code stipulates that everyone convicted of murder, both first- and second-degree, will be sentenced to life imprisonment. However, a conviction of first-degree murder carries a mandatory minimum 25-year parole ineligibility period whereas this period may range from 10 to 25 years for a second-degree murder conviction.

Culpable homicide that is not murder may be manslaughter (s.234 CCC). Manslaughter is "culpable homicide that would otherwise be murder" except that "the person who committed it did so in the heat of passion caused by sudden provocation" (s. 232(1) CCC). A wrongful act or insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is sufficient provocation to reduce a charge to manslaughter if the accused acted on it "on the sudden and before there was time for his passion to cool" (s. 232(2) CCC). In general, Canadian criminal law has used the mental element as the crucial factor in distinguishing between murder and manslaughter. As a result, the decision about the degree of accused culpability or blameworthiness has not only been influenced by the presence of provocation, but also by other factors such as intoxication (Grant et al., 1998). Despite annual fluctuations, about 10 percent of all culpable homicides are initially classified by police as manslaughter (CCJS, 2003a). Traditionally, however, more than 60 percent of all convictions for homicide are for manslaughter (Boyd, 1988). Manslaughter is subject to a maximum of life imprisonment, but carries no mandatory minimum sentence.

The last type of culpable homicide under the Code is infanticide. This offence refers to the killing, whether by willful act or omission, of a newborn child by the mother. The child must be under one year of age and the mother must not have fully recovered from the effects of childbirth (i.e. mental disturbances or postpartum disorders that arise as a consequence of giving birth). Infanticide is punishable by a maximum of five years imprisonment. The most recent figures indicate that about one percent of all culpable homicides are classified as infanticide and this has remained relatively stable over time (CCJS, 2003a).