There is a great deal of difference between what is morally wrong and what is legally wrong. That distance between the two is arguably the crux of the matter for many men and for society as a starting point in reducing family violence.

There is a great deal of confusion in the public’s mind when it comes to understanding the difference between natural law and what’s moral and fair, and Legal Positivism which holds that there is no necessary connection between law and morality. Thus for people that believe the law is in force to uphold good morals and that it stems from social mores, are often disappointed with legal outcomes. The general public does not have the background to understand the difference between morality and the justice system, which is frequently reflected in people’s perceptions of fairness of legal outcomes. As noted by the Supreme Court of Canada, the “public” are reasonable, and well-informed, but are not legal experts with in-depth knowledge of our criminal justice system . In ordinary day to day life it is easy to believe that the public would morally understand perpetrator as a person who starts, initiates or brings something to happen. In jurisprudence a perpetrator is someone who has broken a law. In natural law a breach of trust is generally an immoral action, although legally speaking only some breaches of trust are illegal. A realistic look at the law demonstrates it has the force that it does, because of what legislators, barristers and judges do with it.

In an upcoming paper in the Yale Law Review, Law Professor, Scott Hershovits writes that “Our legal practices do not generate rights and obligations that are distinctively legal. At best, they generate moral rights and obligations, some of which we label legal.” The statement is reflected in the Pandora’s box that is family violence. According to the Canadian criminal code, an offence of domestic violence is an assault that has the aggravating factor of violating the obligation of trust. One should be able to trust that your intimate partner will not be violent, it’s an obligation. As a result, the aggravating factor in a domestic assault is the breach of trust aspect, but provocation is paradoxically - a right. Provocation is a right with no legal repercussion, because in the present interpretation of the criminal code there are no mitigating factors in family violence, unless the violence results in death. In instances of family violence that result in death, mitigating factors come into play as evidenced in the battered woman defence . That paradox is best framed in critical legal theory where the thesis states that the law is largely contradictory, and can be best analyzed as an expression of the policy goals of the dominant social group . The policy goals of the B.C. government are to focus on physical harm reduction, not on an overall reduction in family violence. A realistic example of what judges do with the law is demonstrated in a case where a B.C. Supreme Court judge noted that physical perpetration against a man is less serious, “[Mr C ]was much larger and stronger, could very easily have been able to diffuse and take control of the physical attacks that I am satisfied Ms. C. sometimes made against him early in their marriage.” The statement reflects a clear case of a domestic assault taking place and a dismissive legal attitude because there was no harm done; it also reflects the law is largely contradictory under the theory of Critical Legal Studies of jurisprudence. Although there was a breach of trust which is clearly an aggravating factor as the husband was the victim of the assault, the legal position was dismissive because there was no harm. Analogously, one could argue that impaired driving is wrong but because there was no harm there is no liability. That demonstrates the contradictory nature of law as is argued in Critical Legal Studies of jurisprudence. That contradictory nature is often a source of frustration and anger for men who are involved in family violence as victims. The research shows that men are as likely to be victims of family violence as women are but due to the policy of harm reduction there is very little if any legal recourse for men as they are less likely to show signs of physical injury and are less likely to show signs of emotional damage. Emotional damage is one of the guiding principles of defining who is perpetrator of family violence. The person who police determine to have more emotional damage is the victim according to B.C. policy.

The B.C. policy guide on family violence does not mention the word perpetrate anywhere in the 93 page document. The policy is not perpetrator focused, it does focus on primary aggressor and essentially defines primary aggressor through physical characteristics, which unremarkably parallels male physiology. The practical difference between research and policy is not the meaning of the word perpetrator, but whether was there any harm in the perpetration. Again, there is a clear distinction of responsibility between moral culpability (no visible harm) and legal culpability (clear visible harm).

Recommendation: Recognise that harm reduction policy is often responsible for a great deal of frustration for male victims. It leaves them with no outlet or support to be taken seriously by police, courts or service providers. Service providers should be able to articulate the contradictory nature of the harm reduction policy and its impacts in order to explain to men their perceived injustices of the law v moral justice in order to help men understand their role as victims.