SARAH HAMPSON, Globe and Mail
April 24, 2008 at 9:48 AM EDT
The charges were eventually dropped, and his criminal record expunged, but the action had the desired effect. He was traumatized. She had exacted her revenge.
They had been married for 20 years when she discovered, through an e-mail account, that he was having an affair.So she hit him with the atomic bomb for warring spouses – false allegations of abuse – the proliferation of which alarms professionals in the divorce industry. It is, in essence, an abuse itself, not only of the charged spouse but also of the criminal justice system.
The father doesn’t want his name used for fear his children would be identified. He is a well-known Canadian actor and he is still trying to repair the damage. His ex had involved their son, then 8, in the allegations of physical violence, saying that he not only witnessed the encounter between them, but that he had been beaten on several occasions, too. The Crown attorney eventually dropped all of the charges, but not until the divorce proceedings had been finalized.
His experience is just one of several that readers of this column have brought to me, complete with legal documentation, and they suggest why many lawyers saw the judgment by the Ontario Court’s Mr. Justice Bruce Pugsley a few weeks ago as a welcome acknowledgment that some discrimination is needed about when charges of alleged assault are made and pursued.
In Judge Pugsley’s courtroom in Orangeville, Ont., the case involved Stephen Edward Shaw, who had laid assault charges against his wife, Alison. He had waited a month to make the accusation after she allegedly punched him in a tavern. She was arrested, and bail conditions immediately barred her from the family home and stripped her of custodial rights of their two children. He then tried to establish the new arrangement as the status quo upon which permanent custody should be determined.
In his judgment, Judge Pugsley restored the mother’s access to her children, noting how “rote treatment of all matters of domestic assault can lead … to concocted or exaggerated claims of criminal behaviour.”A separation involving allegations of abuse is complex. “In many ways, it’s dealing with Rashomon, there are so many different sides to the story,” says family lawyer Marvin Kurz , invoking the famous work of fiction about differing perceptions of an event. “Abuse is the hot chili pepper on a meal that is pretty indigestible anyway.”
Still, because no one wants to minimize the gravity of possible domestic abuse, there’s a zero tolerance approach from law enforcement officials.”It’s charge first, think later,” says Linda Meldrum, a family lawyer in Toronto who has handled several cases involving false allegations of abuse. “We have erred too far on the side of caution,” she warns, adding that in an acrimonious divorce proceeding, the ease with which one partner can accuse the other allows him or her “to hijack the whole family law proceeding.”
Abuse charges are an effective way to evict the other spouse from the matrimonial home and get sole custody of the children. They can also be a handy way to express the roiling mix of emotions that come with domestic discord.Earlier this month in Toronto , Noellee Mowatt was jailed to ensure she would testify against her boyfriend after laying charges of abuse against him. She later testified that she tried to withdraw charges because she had made up the allegations “to teach him a lesson.”
And while fathers’ rights activists like to make the point that more men than women are charged, anecdotal reports from lawyers – there are no official statistics on false charges of domestic abuse – suggest that men are as likely to lay false charges as women.
“It’s a complete perversion of the whole criminal justice system,” says Robert Rotenberg , a lawyer who has handled several abuse charges laid against wives and husbands. To make matters worse, he says, the criminal justice system is underfunded, which means it can take months, even years, before the charges are dropped. “It’s absolutely scandalous to bring in zero tolerance – arrest everyone, charge everyone, hold them in the bail system – and then not properly fund it. If you’re going to force people to go through the sledgehammer process of the criminal justice system, at least give them the dignity of being able to go through it rapidly, ” Mr. Rotenberg points out.
Even when the accused party is eventually exonerated, the damage is significant.The Canadian actor mentioned earlier describes the process as “completely humiliating.” When he was brought to the police station to be charged, he was fingerprinted, and for his mug shot, “I was slotted between a drug dealer and a hooker. My ex couldn’t have done anything lower. It was all about control.”
He had to live with the charges for two years. In therapy with his children, it emerged that his son felt he had to support his mother in her allegations. He got many well-known Canadian entertainment personalities to write character references. It was agreed that all charges would be dropped, once their divorce was granted, a further indication of how criminal and family law are often inappropriately intertwined.He now sees his children regularly (his son is almost 14 and his daughter 16) although they don’t talk about the accusations. “The best I can do is keep putting out unconditional love to the kids,” he says, his voice breaking. “It was the most horrible, horrible thing to have happened.”
Hugo Aguirre of Ottawa says he was the victim of false allegations of abuse, including sexual abuse, of his daughter. He was later exonerated in court and eventually won unsupervised access to his daughter Saturday until Wednesday every week, plus holidays, birthdays and activities. “I did not have a bad experience with the judges,” he says. “Some radical activists, here in Ottawa , do not like [it] when … I talk about the judges in good terms because I am not a ‘good example’ of the biased judicial system.”
Still, the consequences of what he calls “an abuse of power” cause many men, including himself, to suffer depression, loss of income, friends and social status. His experience pushed him to start up a fathers’ support group. His advice? Fight to clear your name.”It’s like the rug has been swept out from under them,” says Riki Kwinta, a social worker in Toronto who often deals with spouses in the divorce process who have been falsely accused of assault. “It’s the stuff of TV and movies, but they are unable to turn it off. They are living it. As adults, we feel that we have control over our lives. In essence, that control has been stripped away when someone is falsely accused. Their life is upside down. The devastation is huge,” she says.
Of course, the worst part is that the people who are most affected by such allegations are the children. That’s the greatest crime. No warring parent ever thinks about those they purport to be protecting.