Dating back to the 16th century, spouses were not deemed to be competent to testify evidence against their spouse. The reasons were a lot simpler than they are today. Anyone with a perceived interest in litigation was deemed to be biased and therefore unfit to testify. Under common law spouses are considered to be one and the same. Since the 16th century the issue of spouse’s and their ability to give evidence against their partners has become more and more complicated. Modern day courts rely more on preserving the sanctity of the marriage than preserving the incompetence standard.
The ability to block spousal testimony does not however apply to all couples under the law. Those in common law relationships are not considered to be one and the same and these spouses’s are able to give testimony about events that occurred during the relationship. Ultimately, because the issue falls under common law the question of whether a husband or wife to can be compelled to give evidence against there spouse was at the justices discretion. Most justices are more likely to compel spousal testimony in cases of violence and domestic abuse. The majority of these offences are committed on a one on one basis with either no one to witness the abuse, or a child incapable of being called as a witness. The testimony evidence of the spouse is often the only proof that an offence occurred.
In R. v. McGinty, Justice McLachlin concluded that competence included compellability and added a new policy dimension to the analysis. She observed: “policy interests favoured compelling testimony in cases of domestic violence. Competence without compellability would more likely [contribute to] family discord than prevent it.”
In the matter of appearance, she noted that: “fair-minded persons generally find it abhorrent that persons who commit crimes go un-prosecuted. The state’s duty to protect the safety of its citizens, underlies the testimonial competence in cases of violence against a spouse, also dictates that the spouse be complellable.”
Fundamentally the main factors facing a Justice in their decision is the matter of public safety and the harmony of the marriage. Compelling a spouse to testify against their partner is in direct conflict with that ideology. Therefore divorced or legally separated couples do not fall under this category. In R. v. Bailey it was determined that spousal incompetence does not survive divorce. Justice Morden observed that: “The modern policy justification for the rule in question is that is supports marital harmony.
For the purpose of the paper, I will summarize the facts and leading events of the case of Elenita L and Romer N. Fajota. As reading through this trial I discovered that judges don’t always make the right decision for families or individuals. Likely in this case it is presentably true. Elenita and Romer got married in June 2005 and have three minor children together. As their marriage progressed, in the beginning of the year 2006, Romero became physically violent against Elenita. Romer committed various acts of violence against her and stated in court that it continued “even while pregnant with their second child”. But however, from 2006 to 2008 the violence continued against Elenita and her children. As the domestic violence continued, Elenita filed a
The reason being, the Supreme Court found that the expert evidence was not only useful, but was required to have a more in-depth understanding of the issues surrounding battered women. The rationale was, without expert testimony most people would be ignorant to spousal abuse. It was thought that without expert testimony, jurors would make assumptions about the stereotypes that may have been popularized by society as well ignore the importance of previous events that led up to the incident. Moreover, the trial judge charged the jurors properly, explaining that as long as there is some admissible evidence to establish the foundation for the expert 's opinion, he cannot subsequently instruct the jury to completely ignore the testimony. The judge also warned the jury that the more the expert relies on facts, not proven in evidence the less weight the jury may attribute to the opinion. Furthermore, expert evidence does not and cannot usurp the jury 's function of deciding whether, in fact, the accused 's perceptions and actions were reasonable. But fairness and the integrity of the trial process demand that the jury have the opportunity to hear that
There are certain standards that the courts use to determine competency. In order to find the accused competent, a court should find out by a preponderance of evidence that the defendant has remarkable ability to consult with his lawyer with a reasonable degree of rational indulgence. The def...
The question raised in the Hawthorne v. State amicus was related to the expert testimony of Dr. Lenore E. Walker, a Clinical Psychologist with extensive involvement in the study and research of “battered woman syndrome.” Amicus indicated Dr. Walker’s testimony would provide the Trier of facts with expert opinion on a battered woman’s belief that resorting to the use of deadly force against her husband was required, if the woman had perceived imminent death or bodily hard to herself and/or her children. Dr. Walker would clarify battered woman’s syndrome to the jury including clarifying all the relevant stages, cycles of violence, symptoms and reasons why women choose to stay with the abuser.
Stark (2006) would suggest that thirty years of research has failed to produce a consensus as to what constitutes a case of domestic violence considering that 90% of women who report the abuse have no physical injuries. Methods of coercive control do not meet the criminological viewpoint rather, control extends to financial, emotional, and psychological aspects of subjugating the partner thus no physical violence occurs. If only violent means are reported, then the reported number of victims would perhaps change thus creating a more gender symmetrical pattern. Until operational definitions are defined throughout the disciplines with consistency then there will continue to be discrepancies and opposing views. However, integrative theories of feminist views are being explored which investigate the intersection of not only male dominance as a form of oppression but the use of race, class, national origin, age, sexual orientation, and disability and their impact on intimate partner violence as stated by McPhail and colleagues
Gottman (1999) conveys that the integration of active listening and conflict resolution techniques is not sufficient to safeguard marriages from a probable divorce. Due to that couples who develop throughout the years a high level of
Divorces are easy to obtain in the United States but the decision needs to be carefully examined. According to statistics, “divorce makes sense in the 10 percent to 15 percent of troubled marriages that involve high-level and persistent conflict with severe abuse and physical violence” (Dafoe 1). In the other 85 to 90 percent of marriages, the marriage can and should be reconciled. Many couples simply take the easy way out, find a lawyer, and end the marriage without ever trying to examine whether or not a conclusion can be reached other than divorce.
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A key problem with the current divorce law is that if a couple has simply fallen o...
DISCUSS THE EXTENT OF PROTECTION FOR WOMEN AGAINST MALE VIOLENCE BY THE STATE. For this essay I am going to look at Domestic Violence against women and what the State is doing to protect them. Domestic Violence is now a well-known global occurrence affecting not only women but also their children too. Violence against woman has been around since the dawn of time. We have all seen cartoon pictures of the caveman dragging his mate behind him by her hair. It was just something that men did. Woman had no protection against men especially if they were married to their attacker. For the first 75 years of the 20th century women were seen as meek and subservient to their men and were also owned by those men. Men had a social right to keep their women under control. Things began to change from the late 1960’s early 1970’s. As feminism became more popular the feelings that men owned their women began to subside. But this change in society did not so much to change the occurrence and violence of violence in the home. So what exactly is domestic violence? “ Domestic Violence is usually defined as physical, emotional, sexual and other abuse by someone (usually but not always a man) of a person (usually not always a woman) with whom they have or have had some form of intimate relationship such as marriage, in order to maintain power and control over that person. It may include threats to kill or harm the woman and/or her children or other family members” (Barron 1992) Lists of typical injuries sustained by victims include: § Bruising § Bleeding § Hair loss § Knife wounds § Scratches to body and face § Concussion § Broken/loss of teeth This list could go and on. Injuries do not have to include physical but also mental. The cause of domestic violence against women can never fully be documented. There is the Liberal approach that violence against women is a rare occurrence and that it is only a small number of men who will abuse. They blame social backgrounds that form a cycle of abuse. If the father used violence against the mother then the child will see it as normal. They also feel that to push a man as far as to commit an assault sexual frustration should also be taken into consideration. But the criticisms against this approach include the notion that not all men who come from a broken home go out and commit rape and systematic abuse. They see that the women have to...
A divorce fraud case, Sands v. Sands, involves a misappropriation of assets, which involved the legal ramification of the husband losing 100% of the misappropriated assets and it being awarded to the wife including being held liable for seventy percent of the wife’s attorney fees due to the husband’s fraudulent acts discovered within the court proceedings. Divorce fraud is governed by state laws and considered the laws that preserve the rights of this case. The case does detail the evidence admitted or expert witness testimony; however, common evidence used under these circumstances as fraudulent documents include an analysis of household income, bank accounts statements, couple’s tax return, credit card statements, property appraisal and
... policies have to be able to effectively deal with the crime. The results of this study can be used to formulate policy in the state and in other states. The study plays an important role in understanding the nature of domestic violence, and how enforcement of stricter laws against it will affect its prevalence in the community.
The divorce act requires the court to verify weather there seems to be any chance of reconciliation between the parties. The court may even ask for a marriage councilor to attempt a reconciliation.
“One woman is beaten by her husband or partner every 15 seconds in the United States” (Stewart & Croudep, 1998-2012). Domestic violence can interfere with the husband-wife relationship because one spouse is always in constant fear of the other. This violence could vary from physical abuse to ps...
...Available By: Acker, James. Contemporary Justice Review, Sep2008, Vol. 11 Issue 3, p287-289, 3p; DOI: 10.1080/10282580802295625