family, violence, child abuse, law, criminal law, spousal violence, imminent danger, reasonable force, assault, provocation, self-defence, Nova Scotia, judges, Unified Family Court, Law Reform Commission
It seems appropriate at the onset to set out something of what the disciplines of law, medicine and social work know about family violence and when, during recent years, this knowledge came to the attention of professionals, the public and legislature. We can then, perhaps, judge whether our existing laws, rules of evidence and procedure take this information adequately into account in dealing with cases of violence within the family. Whilst solving these problems takes time, and law often lags behind the behavioural sciences, the question arises whether the lag is too long and whether differences between experts in the behavioural sciences have become an excuse for inactivity. Moreover, many ostensibly neutral legal rules have differential impact on the family members. For example, in the field of spousal violence if the existing criminal law rules on self defence and provocation, with their emphasis on imminent danger, reasonable force, the dignity to retreat and immediacy of response, do not provide women with as useful a defence to a woman who commits an assault following repeated assaults by her partners as they do a man who finds his partner having sexual relations with another person and seriously injures or kills either or both of them. The existing rules arose in a different age when it was judged appropriate to make allowance for assaults between males done in "the heat of the moment."' The obvious solution of excluding violent husbands and fathers from the family home has been beset, in Nova Scotia and some other provinces, by the problem of constitutional restrictions on Provincial Family Court Judges' powers to make the necessary orders. In an attempt to overcome this difficulty, the Report of the Nova Scotia Court Structure Task Force recommended the creation of a Unified Family Court, a view recently approved by the Law Reform Commission of Nova Scotia. The Law Reform Commission's recommendation shows how interlinked are the needs of children and parents in cases of family violence.
Alastair Bissett-Johnson, "Family Violence-Investigating child abuse and learning from British Mistakes" (1993) 16:1 Dal LJ 5.