CHAPTER 7 - VIOLENT CRIMES COMMITTED AGAINST WOMEN AND CHILDREN
This chapter deals with crimes of violence against women and children.
Specifically, it concentrates on sexual assault; battering of spouses, cohabitants
and the parents of one's children; and child and elder abuse. This chapter
discusses the legal definitions of each of these violent acts, and gives information
on the legal, medical and counseling resources available to survivors of such abuse.
RAPE AND OTHER FORMS OF SEXUAL ASSAULT
Rape is one of the most dehumanizing crimes of violence. The outrage of rape is often compounded by other violent, sexually assaultive types of crime, such as
forced oral copulation, forced sodomy and rape by instrumentality. This chapter
discusses California law defining rape, including rape by a spouse, and other forms
of sexual assault. It details legal procedures a victim of sexual assault may take,
and describes medical and counseling services available to rape victims. Also
included is a list of precautions for safety at home and on the street to help women
try to reduce the risk of rape and other forms of sexual assault.
Many people have the wrong idea about sexual assault. They mistakenly believe
that rapists are overcome with sexual desire or that a woman who is raped may
have dressed too seductively or "asked for it" in some manner. These ideas
assume that rape is only a sexual act, a crime that is motivated by desire. It is not.
Rape is a violent crime, a hostile act, and an attempt to hurt and humiliate another
person. Sex is used as a weapon, and rapists use that weapon against women,
strangers and acquaintances of all ages, races and body types.
Women are attacked by men in the vast majority of incidents of sexual assault
involving an adult man and woman. Most men who are sexually assaulted are
assaulted by other men. A proportionally small number of sexual assaults involve a
women attacking a man or another woman. Therefore, this section is addressed
primarily to women who have been attacked by men. However, most of the
information in this section is applicable to all forms of sexual assault, regardless of
the gender of the assailant or victim.
If You Are Attacked
Literature differs on the best way to protect yourself during an assault. All agree,
however, that the first thing to do is to TRY TO GET AWAY -- SCREAM, BLOW A
WHISTLE, MAKE NOISE, RUN TO SOME PLACE WHERE THERE ARE PEOPLE OR
WHERE YOU WILL BE SAFE.
If you are unable to get away immediately, try to stay calm until you can find an
opportunity to escape. Be familiar with your limitations. Do not resist a man who
is wielding a knife, gun or other weapon. Do not worry about "winning" - worry
about staying alive and getting away.
Active Resistance
If, by using your body as a weapon, you decide you can escape, do it. Self-defense
experts warn that you MUST ACTUALLY DISABLE your attacker if you want to
escape from him, not merely cause pain. Aim for his sensitive areas -- eyes, nose,
groin. Your teeth, arms, feet, fingernails, and fists can be effective weapons. You
may be able to use pepper spray or tear gas if you have been trained or licensed to
use it. Avoid other weapons - weapons you carry yourself can be taken away and
used against you.
Passive Resistance
If you are unable to escape and are afraid to resist by fighting back or screaming, a
more passive type of resistance may defuse the violence of the attacker. There are
several things you can do:
Try to calm the attacker. Talk to him and try to persuade him not to
carry out the attack. If you win his confidence, you may be able to
escape.
Claim to be sick or pregnant. Tell him you have venereal disease (VD),
acquired immune deficiency syndrome (AIDS) or herpes. This may
deter the attacker.
If possible, vomit to repel your attacker.
Try to discourage the rapist. Some women pretend to faint, some cry
hysterically, and others act insane or mentally incapacitated.
If you are at home, tell the attacker that you are expecting someone --
a boyfriend, husband or friend.
Remember: There is no single right way to stop an attack. Try to do what you can, but the most important thing is to survive.
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Legal Definitions of Sexual Assault
Rape
Rape, a felony, is defined by Penal Code section 261 et seq. as an act of sexual
intercourse, including sexual penetration, no matter how slight, with a person who
is not the spouse of the rapist, under any of the following circumstances:
Where a person is incapable of giving legal consent because of a
mental disorder or developmental or physical disability and the rapist
knows, or should know it.
Where it is accomplished against a person's will by means of force,
violence, duress, menace or fear of immediate and unlawful bodily
injury on the victim or another.
Where a person is prevented from resisting by any intoxicating or
anesthetic substance, or any controlled substance,(1) and this condition
was known, or reasonably should have been known by the accused.
Where the person is unconscious of the nature of the act and the
rapist knows it, either because she is unconscious or asleep or
unaware that the act occurred or not cognizant of the essential
characteristics of the act because of the rapist's fraud.
Where the person submits under the mistaken belief that the rapist is
her spouse and the rapist intentionally induced that belief.
Where it is accomplished by the rapist threatening to retaliate in the
future against the victim or anyone else, and there is a reasonable
possibility that the rapist will carry out the threat (threatening to
retaliate means a threat to kidnap or falsely imprison or to inflict
extreme pain, serious bodily injury or death).
Where it is accomplished against a person's will by threatening to use
the authority of a public official to incarcerate, arrest, or deport the
person, and the person has a reasonable belief that the perpetrator is a
public official. The perpetrator does not actually have to be a public
official. A public official is defined as a person employed by a
governmental agency who has the authority to incarcerate, arrest or
deport another.
Rape by A Spouse
Rape by a spouse is a crime in California. Spousal rape is defined as an act of
sexual intercourse accomplished against the will of the other spouse by means of
force or fear of immediate bodily injury on the spouse or on another; where a
person is prevented from resisting by any intoxicating or anesthetic substance or
any controlled substance, and this condition was known or reasonably should have
been known by the rapist; where a person is incapable of resisting because
unconscious, asleep, unaware that the act occurred, or not cognizant of the
essential characteristics of the act, due to the rapist's fraud; where the rape is
accomplished by threatening to retaliate in the future against the spouse or any
other person, and there is a reasonable possibility that the rapist will execute the
threat; or where the act is accomplished against the spouse's will by threatening to
use the authority of a public official to incarcerate, arrest or deport the spouse, or
another, and the spouse has a reasonable belief that the rapist is a public official.
As with the general definition of rape, the word retaliation means a threat by the
rapist to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury,
or death. (Pen. Code, § 262(a).)
In order to have a spouse arrested or prosecuted for rape, the spousal victim must
report the rape to medical personnel, a member of the clergy, an attorney, a shelter
representative, a counselor, a judicial officer, a rape crisis agency, a prosecuting
agency, a law enforcement officer or a firefighter within one year after the rape.
(The reporting requirement does not apply if the victim's allegation of rape is
corroborated by independent evidence that would be admissible at trial.) (Pen.
Code, § 262(b).)
If probation is granted upon a conviction of spousal rape, the conditions of
probation may include, in lieu of a fine, one or both of the following requirements:
1) that the rapist make a payment to a battered women's shelter of up to a
maximum of $1,000 (unless to do so would impair the ability to make direct
restitution to the victim or to pay for court-ordered child support); or 2) that the
rapist reimburse the spouse for reasonable costs of counseling and other reasonable
expenses that are the direct result of the rape (the separate property of the rapist
shall be exhausted before community property is to be used for this restitution.)
(Pen. Code, § 262(e).)
Both spousal and non-spousal rape are punishable by imprisonment in state prison
for three, six or eight years. In addition, the judge may assess a fine of up to $70,
depending on ability to pay, that will be used for AIDS education. (Pen. Code, §
264.)
Rape by A Date or Ex-spouse
Where consent is an issue in certain rape prosecutions, a current or previous dating
or marital relationship is not sufficient to show consent to sexual intercourse. (Pen.
Code, § 261.6.)
Code of Civil Procedure section 372 allows a minor 12 years or older to appear in
court without a guardian, counsel, or guardian ad litem, to seek a protective order
against a person with whom she is having a dating or engagement relationship.
(See also Fam. Code, § 6301, which provides that minors can be granted
restraining orders.)
Protecting Yourself Against Acquaintances
It has been estimated that in over half of all cases of sexual assault, the rapist is an
acquaintance of his victim. So, you need to be cautious, even with people you
know.
Do not assume that you are safe, solely because you are with
someone you know.
Consider having dates, especially first and second dates, take place in
public places.
Trust your instincts; if you feel uncomfortable in a situation, do
something about it.
Remember you have a right to say NO to unwanted sexual advances.
Communication to use condom or other birth control device. In certain rape
prosecutions, evidence that the victim suggested, requested or otherwise
communicated to the rapist that he use a condom or other birth control device,
standing alone, is not sufficient to constitute consent. (Pen. Code, § 261.7.)
Rape By A Foreign Device Or Instrument
It is unlawful to force even the slightest penetration of the genital or anal opening
of another person by any foreign object, instrument, substance, device, or any
unknown object, including a bodily part, such as the penis, or to cause another
person to do so for the purpose of sexual arousal, gratification or abuse under all of
the circumstances that cause sexual penetration to be rape. This crime is
punishable by a sentence of one to eight years in state prison or county jail,
depending on the circumstances. (Pen. Code, § 289.)
Forced Oral Copulation
Forced oral copulation is a crime. Oral copulation is the placing of the mouth of
one person on the sexual organs or anus of another person or assisting someone
else to do so. It is a crime under all of the circumstances that cause sexual
penetration to be rape. This crime is punishable by a sentence of one to eight years
in state prison or county jail, depending on the circumstances. The judge can also
impose a fine of up to $70 for AIDS education, depending on ability to pay. (Pen.
Code, § 288a.)
Forced Sodomy
Forced sodomy is a crime. A person is guilty of the crime of sodomy if he uses his
penis to penetrate, however slightly, the anus of another person under all of the
circumstances that cause sexual penetration to be rape. This crime is also
punishable by a one-year jail sentence or a three to eight-year state prison term,
depending on the circumstances. The judge can also impose a fine of up to $70 to
be used for AIDS education, depending on ability to pay. (Pen. Code, § 286.)
Attempted Assault With Intent to Commit Rape
Attempted assault with intent to commit mayhem, rape, rape by instrumentality,
forced sodomy or forced oral copulation is illegal and punishable by imprisonment in
state prison for two, four or six years. (Pen. Code § 220.)
Sexual Battery
Sexual battery is a crime. A person is guilty of sexual battery if he touches the
intimate parts (sexual organ, anus, groin, or buttocks of any person, or the breasts
of a woman), either directly or through the person's clothing, or causes that person
to masturbate or touch the intimate parts of another where:
The victim is unlawfully restrained by the accused or by an
accomplice, and if the touching was against the victim's will, for the
purpose of sexual arousal, gratification or abuse; or
The victim is institutionalized for medical treatment and is seriously
disabled or medically incapacitated, if the touching is against the
victim's will and for the purpose of sexual arousal, gratification or
abuse; or
The victim is unlawfully restrained, either by the accused or another,
or is institutionalized for medical treatment and is seriously disabled or
medically incapacitated; and the touching or masturbation is against
the victim's will and for the purpose of sexual arousal, gratification, or
abuse.
This crime is punishable by fines of from $2,000-$10,000 or by imprisonment in
prison or the county jail for six months to four years, depending on the
circumstances. If convicted of a felony for sexual battery or attempted sexual
battery, the offender will be ordered to register as a sex offender. (Pen. Code, §§
243.4 and 290.)
Teenage Pregnancy Prevention Act of 1995
The Legislature enacted the Teenage Pregnancy Prevention Act of 1995, that
prescribes punishment for unlawful sexual intercourse with a minor, and makes an
adult who engages in an act of unlawful sexual intercourse with a minor liable for
civil penalties. (Pen. Code, § 261.5.)
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What You Can Do If You Are Sexually Assaulted
Many women are initially overwhelmed at the prospect of facing the medical and
legal procedures that follow a rape. Rapists know this and hope their victims will
not report the crime. However, often victims who do report the rape feel stronger
by taking positive action to aid law enforcement officers in capturing and
prosecuting the rapist. Nonetheless, if you feel you are unable to report the rape to
the police, you should take some steps to protect your own mental and physical
well-being and that of other potential victims.
The following are law enforcement, medical and counseling resources you can turn
to for help after being sexually assaulted.
The Police
If you are sexually assaulted, you can call the police and receive immediate
assistance. Statistics show that rapists repeat their crimes, so by calling the police
after a rape, you may help catch and imprison a rapist before he rapes someone
else.
When you call the police emergency number and report that you have been raped,
you can expect to be asked the following questions by the police dispatcher over
the phone:
Your name and location.
Whether you need emergency medical assistance.
How long ago the assault occurred.
A brief description of the rapist, his car or other form of
transportation, and the direction he was last seen traveling.
If the rapist had a weapon. This is for the officer's safety in case of
an immediate apprehension, and for your own future safety.
If you feel that it would be easier for you to discuss the attack with a woman, ask
the police to send a woman investigator to see you. Most law enforcement
agencies in California will try to provide a female officer for a rape victim upon
request. You may also be able to have a friend, relative or counselor from a rape
crisis center (See Chapter Nine, Directory of Services, at the back of this handbook)
accompany you during the police interview. (Pen. Code, § 679.04 and Evid. Code,
§ 1035.2.) Bilingual officers may also be available.
The police department will send an officer to your location to talk to you. The
officer will ask you only general questions about the attack, unless you want to
make a complete statement at that time. They will gather as much evidence as
they can. As part of a follow-up investigation, a police investigator will be assigned
to your case to collect evidence and work with you to try to arrest the man who
assaulted you. You may request that one of the investigators on your case be a
woman. You will be asked to describe the attack and your assailant in detail. You
do not have to discuss your past sexual history. You do have to discuss past
sexual relations you may have had with the man who raped you. However, that
alone cannot be used as evidence of consent. You should not be asked if you
enjoyed the assault or had an orgasm. You have a right to ask the officers to
explain why they are asking you certain questions. You may be asked to view
pictures (mug shots) of several men to try to identify the man who raped you.
The police cannot require you to take a polygraph test (lie detector test). (Evid.
Code, § 351.1.)
Medical Help
It is very important that you get immediate medical care. Even if you cannot see
any visible signs of injury, you may be suffering from serious internal injuries. Also,
you may have contracted venereal disease from the rapist or you may be pregnant.
Currently, AIDS tests involve testing for the AIDS antibody, that may not appear
until six months after infection. Therefore, if you are worried that you may have
contracted AIDS from your assailant, you may want to have an AIDS test done six
months after being sexually assaulted. The chance of getting AIDS from a single
heterosexual contact with a man is anywhere from 1 in 200 to 1 in 2,000.)(2)
There are new California laws that permit you to request that your assailant be
given a test to see if he is infected with the human immunodeficiency virus, or HIV,
or with AIDS, when the court finds, after a hearing, or finds that there is probable
cause to believe (where no hearing is required) that the accused committed the
offense, and that there is probable cause to believe that the HIV virus might have
been transmitted to the victim by the accused. In all cases in which the person has
been charged with a crime or is the subject of a juvenile court petition alleging the
commission of a crime, the prosecutor shall advise the victim of his/her right to
make the request, and shall refer the victim to the local health officer for
prerequisite counseling. The local health officer shall have the responsibility for
disclosing test results to the victim and the accused, subject to applicable
confidentiality provisions, although no positive test results shall be disclosed
without providing or offering professional counseling. The victim may disclose test
results as needed to protect his/her health and safety, or the health and safety, of
his/her family or sexual partner. The results of a blood test pursuant to Penal Code
section 1524.1 cannot be used in any criminal or juvenile proceeding as evidence of
either guilt or innocence. (Pen. Code, §§ 1202.1 and 1524.1.) If the accused is
incarcerated, copies of the test shall be sent to the officer in charge and the chief
medical officer of the facility where the accused is incarcerated or detained.
(Health & Saf. Code, § 121055.)
Another reason to get immediate medical care is that valuable medical evidence
should be collected within 12 hours of the assault, although it can be collected up
to 72 hours after the attack. You do not have to give the medical personnel all of
the details of the assault. However, you do have to say you were sexually
assaulted, in order to receive proper treatment. Even if you decide not to make a
police report, the doctor treating you will collect all possible evidence in case you
later change your mind, although you do not have to consent to an examination for
evidence of sexual assault, nor is denial of consent grounds for denial of treatment
of injuries or for possible pregnancy or venereal disease. (Pen. Code, §
13823.11(c)(3).)
If you report the rape to the police and they take you to the hospital or make
arrangements to meet you there before the examination, the police department,
county, or local governmental agency will pay all or most of the expenses for the
medical tests needed for legal evidence. (Pen. Code, § 13823.95.)
Other expenses, such as major medical or hospitalization costs, wages lost from
inability to work, and psychological counseling, may be reimbursed by filing under
the Aid to Victims of Violent Crimes Act. (Gov. Code, § 13959 et seq.; see
discussion, infra.)
You should not wash yourself or your clothes before going for medical treatment.
Your first instinct after being raped by your assailant might be to cleanse yourself
completely and to wash away the entire incident. DO NOT DO THIS. Washing
your body may remove vital evidence needed for possible conviction of your
assailant. While waiting for the police and a counselor from a crisis center to
arrive:
Do not wash any part of your body, including your mouth, and do not
douche.
Do not change your clothes. (If you feel you must change your
clothes, place each item of clothing removed in a separate bag.)
Do not clean or straighten your house or any other area, if it was the
scene of the assault.
Do not touch areas that the rapist may have touched.
Do not destroy or discard your clothing, your underclothes, or sheets
and towels you may have used. These items could contain valuable
evidence.
You are not required to make a police report to receive emergency medical
treatment. But every physician, health practitioner employed in a health facility,
clinic, physician's office, local or state public health department or clinic in
California is required by law to report to a local law enforcement agency, by
telephone and writing, the name, address, type of assault, nature and extent of
injury and identity of any person allegedly responsible for the injury for each victim
of violent crime that they treat. (Pen. Code, § 11160, et seq.) This does not mean
that a formal police report is filed. The police cannot take action on your case until
a report of the rape is made by you.
You may be able to have a person of your choice present during the medical
examination. (Pen. Code, § 679.04.) Such a person may be a friend or an
advocate from a rape crisis center. Local law enforcement is required to notify the
local rape victim counselling center whenever a rape victim is transported to a
hospital for examination, if the victim approves of that notification. (Pen. Code, §
264.2.)(3)
You will undergo a general physical examination (blood pressure, weight,
temperature, ears, eyes, mouth, heart, etc.), a pelvic examination (external pelvic
and internal genital), and tests for venereal disease and pregnancy. The clothing
you wore during the assault will be examined, along with foreign materials revealed
by examining the clothing. (Pen. Code, § 13823.11.) The doctor may offer you
the "morning after pill" (diethylstilbestrol, or DES) or large doses of a birth control
pill to terminate a possible pregnancy. However, you should inquire as to possible
side effects from DES.
You may be asked to provide an account of the sexual assault, which shall include
the circumstances of the assault, physical injuries reported, sexual acts reported,
whether or not ejaculation is suspected, whether or not a condom or lubricant was
used, and a record of relevant medical history. (Pen. Code, § 13823.11(d).)
The doctor or police may want to take pictures of your injuries as evidence. They
will usually want to wait 24 hours in order for the full effect of the bruises to
develop. You can decide who will take the pictures--a social worker, rape crisis
advocate, doctor, nurse, or police officer. (Pen. Code, § 13823.11(c)(1)(c).)
You will be asked to sign a release of evidence form, consent forms, police reports,
etc. If you do not understand what is in the documents, you should ask to have
them explained to you. Do not be afraid to ask questions. You have a right to
know what you are signing. (Pen. Code, § 13823.11(c)(1) and (2).)
Rape Crisis Centers
Rape crisis centers are organizations that help women who have been victims of
rape or other violent crimes to get medical assistance and counseling to help cope
with the emotional and physical trauma.(4) (See Chapter Nine, Directory of Services,
at the back of this handbook.) You can get the name and phone number of the
rape crisis center or similar organization in your area from the police, emergency
hospital, or your local directory assistance operator.
When you call the rape crisis center, tell them what happened to you. These
centers generally provide 24-hour telephone counseling, as well as in-person
counseling and referral services during normal business hours. Their services are
generally free to rape victims. Most centers also provide victims with counselors or
advocates who will accompany a rape victim during police interviews, medical
examinations, and court proceedings. (Pen. Code, § 13823.15(b).) You have a
right to be accompanied by two persons, one of whom may be a witness, who are
either friends, relatives or counselors from a rape crisis center, during court
proceedings. One of them can accompany you to the witness stand, while the
other can remain in the courtroom. (Pen. Code, §§ 868 and 868.5.)
If you do not want to report the rape to the police, a rape crisis center can do it for
you, without involving you specifically. That way, the police can be alerted to the
presence of a rapist in your area.
Note: You do not need to have been raped recently to call a rape crisis center, nor
do you need to be a woman. Most rape crisis centers offer support services to all
survivors of sexual assault: female and male victims, and often to the survivors'
spouses or lovers, as well.
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The Psychological Impact of Rape
Most rape victims suffer physical and emotional reactions that continue for months
after the rape occurred. Rape counselors have noted three stages of a "rape
trauma syndrome" that affect most rape victims. In the first state (lasting
anywhere from one week to three months), victims often feel loss of control,
shame, fear of dying, physical pain, inability to sleep, depression, and other
symptoms of severe trauma. The second stage, or reorganizational phase, may last
a year or longer. It is often characterized by minor or major adjustments in
lifestyles, that are motivated by fear (changing jobs, quitting school, moving). The
third stage is the reintegration stage. (See description in People v. Bledsoe (1984)
36 Cal.3d 236, 241-243.)
Many rape victims have been helped by mental health professionals and counselors
to overcome most of their negative symptoms and reactions after a rape. It is
important for any victim of a rape or other violent crime to seek all available help.
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Financial Assistance is Available to Victims of Rape and Other
Violent Crime
Under the Aid to Victims of Violent Crimes Act, the state provides compensation of
up to $23,000 to victims of violent crimes,(5) their dependents, family members, or
persons in close relationship with the victims, if they suffer monetary losses
incurred as a result of the crime for which they will not be reimbursed from any
other source for medical or medically-related expenses; out-patient psychiatric,
psychological or other mental health counseling-related expenses; loss of income or
support; nonmedical remedial care and treatment; or family psychiatric,
psychological or mental health counselling. Funds for retraining are also available.
(Gov. Code, § 13965 (a)(4).) An application must be filed with the Board of
Control within one year after the date of the crime, or one year after the victim
attains the age of 18 years, whichever is later. (Gov. Code, § 13961(c).) A higher
amount may be payable if matching federal funds are available. Attorneys' fees of
up to 10% of the award or $500, whichever is less, for each victim or derivative
victim, may also be available. (Gov. Code, §§ 13960 and 13965.) Attorney's fees
may also be awarded pursuant to Government Code section 13969.1.
To receive this state compensation, you must have suffered physical or emotional
injury as a result of a violent crime. Generally, you must have been a California
resident when the crime occurred, or be military personnel, or be living with military
personnel stationed in California. (Gov. Code, § 13960.) However, nonresidents
who suffer monetary losses as a direct result of criminal acts occurring in California
may also be compensated, if there are federal funds available. (Gov. Code, §
13960.5) Emergency awards of up to $1,000 may be made if the victim incurs
loss of income or support or requires emergency medical treatment. (Gov. Code, §
13961.1.) In cases of a victim's death, the heirs may have rights to this
compensation for financial losses to the deceased.
Courts can order income deductions and issue bench warrants for failure to pay
fines and restitution, and order the obligor to be imprisoned until the money is paid.
(Gov. Code, § 13967.2 and Pen. Code, § 1205 et seq.)
A victim of any crime, including domestic violence, may not receive compensation
if he/she refuses to cooperate with the police in apprehending and prosecuting the
assailant (Gov. Code, § 13962(c)), or if he/she is a convicted felon who has not yet
been discharged from parole or probation (Gov. Code, § 13960.2), or if he/she
knowingly and willingly participated in committing the crime in connection with
which he/she is seeking compensation. (Gov. Code, § 13964(c).)(6) You are
entitled to have support persons attend the board hearing held to determine if you
are entitled to this compensation if the application the board is considering is the
result of a crime against a minor, a crime of sexual assault, or a crime of domestic
violence. (Gov. Code, § 13963.1.)
Information and application forms for compensation to victims of violent crimes
may be obtained from the state Board of Control in Sacramento, a local victim
witness assistance program, or the police, sheriff's department, or other law
enforcement agency involved.
For more information, contact:
Victims of Violent Crimes Division
California Board of Control
630 K Street
Sacramento, California 95814-3301
P.O. Box 3036
Sacramento, California 95812-3036
(916) 322-4426
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The Legal Process
A prosecuting attorney in the district attorney's office will be assigned to review
your case. The attorney can explain the legal procedures for prosecution to you
and will tell you what testimony you would be required to give and how often you
might have to appear in court. Counselors and lawyers with rape crisis centers and
victim witness assistance programs can also explain legal procedures to you.(7)
If you were attacked by your spouse or someone you know, you can have a
temporary restraining order issued, if you are afraid your assailant will continue to
harass you. (Code Civ. Proc., § 527.6; Fam. Code, §§ 6215 and 6218 et seq.)
If the Suspect is Arrested
If your attacker is arrested, the deputy district attorney will decide whether to issue
a formal complaint against him. This decision is based on the strength of the
evidence against the suspect.
The suspected rapist has a right to a defense attorney during all legal proceedings.
The suspect may be assigned an attorney from the public defender's office to
represent him on the case. The public defender may assign an investigator to work
on the case.
You are not obligated to speak with the defense attorney or his/her investigator, or
anyone else about your case until you are in court. (Walker v. Superior Court
(1957) 155 Cal.App.2d 134, 139-140.) However, your name and address must be
disclosed to the defendant and the defense cannot be precluded from contacting
you in the absence of a showing of good cause (threats or possible danger to the
safety of the victim or witness, possible loss or destruction of evidence, or possible
compromise of law enforcement investigation, or actual harassment). (Reid v.
Superior Court (1997) 55 Cal.App.4th 1326.) If you choose to answer an
attorney's or investigator's questions, you may have another person present with
you, if you wish. (Pen. Code, § 679.04.) You should also notify the deputy
district attorney. You should always ask for identification and an explanation of the
purpose from anyone contacting you about the case.
If the Suspect is Charged with Rape
Once the suspect is formally charged, he is called a defendant. Before the actual
trial, the court, through a magistrate, conducts a hearing, called a preliminary
hearing, to determine whether the prosecutor has enough evidence to show that
the rape was committed and that the defendant is probably the one who committed
the rape, so that he may be tried for the rape. (Pen. Code, § 859, et seq.)
Proposition 115 (the Crime Victims Justice Reform Act), that became effective
June 5, 1990, allows certain hearsay testimony by law enforcement officers having
specified experience or training to be introduced at the preliminary hearing to show
probable cause to try a person for rape. This portion of Proposition 115, (that
amended Evid. Code, § 872(b)), was upheld against a constitutional challenge in
Whitman v. Superior Court (1991) 54 Cal.3d 1063. Thus, your testimony may not
be needed at the preliminary hearing. The deputy district attorney prosecutes the
case on behalf of the people of California and not on behalf of you directly, because
a rape, like any other violent crime, is considered a crime against the state. The
decision to prosecute, accept a plea bargain or drop the case is up to the district
attorney, not the victim.
After the evidence is heard at the preliminary hearing, the magistrate will decide
whether to send the case to superior court for a trial. If the judge does not believe
there is enough evidence, the charges will be dropped, and the suspect will be
released. (Pen. Code, § 859, et seq.)
The Trial
If there is a trial, it may take place several months after the rape. The prosecutor
will contact you to prepare you for trial.
At the trial, witnesses are permitted in the courtroom only when they are testifying,
if the defense attorney has asked that witnesses be excluded from the courtroom.
The judge shall also order the witnesses not to converse with each other until they
are all examined, and may order, where feasible, that the witnesses be kept
separated from each other until they are all examined. (Pen. Code, § 867.)
You may ask the district attorney to request that you be allowed not to give your
name, address and telephone number when you testify, except that your name
must usually still be provided to the defense during discovery proceedings before
trial. (Pen. Code, §§ 1054-1054.7.)(8) (Cf. People v. Watson (1983) 146
Cal.App.3d 12.) Penal Code section 293.5, that allows the complaining witness in
a sex crime case to testify anonymously, if necessary to protect her privacy and if
it will not unduly prejudice the prosecution or the defense, has been held not to
violate the defendant's constitutional rights by the Court of Appeal in People v.
Ramirez (1997) 55 Cal.App.4th 47. (See also Evid. Code, § 352.1.)
You have a right to have two persons of your choosing at the trial, one of whom
may be a witness, to provide you with moral support. One can accompany you to
the witness stand, while the other can remain in the courtroom. (Pen. Code, §§
868 and 868.5.)(9)
At the trial, you will be questioned by the deputy district attorney and the
defendant's attorney. They will be able to ask you about any prior sexual relations
you may have had with the defendant. (Over half of all rapes are committed by a
man known to the victim.) However, they will not be able to ask you questions
about your sexual conduct with persons other than the defendant in order to prove
you consented to the defendant's acts. Your prior sexual history with persons
other than the defendant is not admissible to prove consent, although it may be
admitted into evidence if the defense attorney convinces the court that it is relevant
to your credibility. (Evid. Code, §§ 780, 782 and 1103.) The defendant's attorney
cannot order you to submit to a psychiatric or psychological examination for the
purpose of assessing your credibility. (Pen. Code, § 1112.)(10) The Ninth Circuit
upheld a court's refusal to compel juvenile victims of sexual assault to undergo
psychiatric evaluations. (Gilpin v. McCormick (9th Cir. 1990) 921 F.2d 928.)
Newly enacted Evidence Code section 1108,(11) allows evidence of past sexual
offenses of the defendant to be used in court to show the defendant's propensity
to commit the sexual assault, if the value of the evidence is outweighed by its
prejudicial effect on the defendant. (See also People v. Zack (1986) 184
Cal.App.3d 409, 413-414, (court held that prior uncharged assaults on the same
victim are admissible for the purpose of establishing motive for murder and identity
of murderer); and People v. Linkenaugher (1995) 32 Cal.App.4th 1603, (evidence
could be admitted of prior abuse incidents to establish identity of accused
murderer).)
If the defendant is found not guilty, he will be released immediately. A finding of
not guilty means that there was not enough evidence for the jury, or the judge, if it
was not a jury trial, to believe that the rapist was guilty "beyond a reasonable
doubt."
If the defendant is convicted, he will be sentenced approximately 30 days later at a
sentencing hearing. (Pen. Code, §§ 12-13 and 1191.)
After the trial, the deputy district attorney should call you and tell you the outcome
of the case and what will happen to the defendant.
If the defendant is convicted, you may be contacted by a probation officer, so that
your comments about the rapist can be reported to the judge at the time of
sentencing, although the court may direct the probation officer not to obtain your
statement if you testified at any of the court proceedings. (Pen. Code, § 1203(h).)
If you desire, you, or up to two of your parents or guardians, if you are a minor,
may be allowed to testify in person at the sentencing hearing to express views
concerning the crime, the person responsible, and the need for restitution. The
court shall consider these statements and state on the record its conclusion
concerning whether the person would pose a threat to public safety if granted
probation. (Pen. Code, § 1191.1.) Under certain circumstances, these statements
may be videotaped or recorded by other means. (Pen. Code, § 1191.16.)
The prosecutor, the victim, and specified relatives of the victim have the right to
appear in person at the defendant's parole hearing or by video teleconference.
(Pen. Code, §§ 3041.7, 3043, 3043.2 and 3043.25.)
The probation officer shall provide adequate notice to the victim or his/her parents
or guardians or next of kin, where relevant, of all sentencing proceedings regarding
the defendant, and shall also provide information concerning the victim's right to
civil recovery against the defendant, the requirement that the court order restitution
for the victim, the victim's responsibility to furnish information regarding her losses,
and the victim's opportunity to be compensated from the Restitution Fund, if
eligible. (Pen. Code, § 1191.2.)
Inmates released on parole shall not be returned to within 35 miles of the victim's
or witness's place of residence if the victim or witness has requested the additional
distance, and there is a need to protect her life, safety, or well-being. (Pen. Code,
§ 3003 (f).) Victims are also required to be notified of an inmate's release date,
placement in a reentry or work furlough program, or of his escape from a
Department of Corrections facility. (Pen. Code, §§ 3058.8 and 11155.)
California has a Sexually Violent Predators Act (Welf. & Inst. Code, § 6600 et
seq.), which provides that certain violent sexual predators can be locked up
indefinitely in mental hospitals after they finish their prison sentences, if they have
a diagnosed mental disorder. The United States Supreme Court recently upheld the
constitutionality of a similar statute in the case of Kansas v. Hendricks (1997)
U.S. ____, 117 S.Ct. 2072. The constitutionality of the California statute will be
decided by the California Supreme Court, which has accepted several cases on this
issue.(12)
Top of Section
Precautions
Unfortunately, no one can prevent rape, but listed below are some general
precautions women can take to reduce the risk of being a victim of a rape or other
violent crime. If you are a victim of rape or other violent crime, there are people to
help you.
Protecting Yourself At Home
Keep all exterior doors and windows securely locked.
All entrances and hallways should be well-lighted.
Hang curtains and/or blinds on all windows.
Be aware of places attackers might hide, both inside and outside.
Never open the door to a stranger. Install a peephole in your front
door.
If you live alone or with other women, don't put your full name on
your mail box or in the phone book; use your first initial only. Avoid
publicizing that you live alone.
Keep your garage locked.
Leave a light on when you go out.
When you return home, if there is any sign of an intruder or forced
entry, seek help. DO NOT ENTER ALONE.
Take a self-defense class or a class in the use of tear-gas or pepper
spray. There are many self-defense classes designed for women.
Protecting Yourself On The Street
Walk in well-lighted areas.
Avoid walking alone.
Walk at a steady pace - look confident and purposeful. Know where
you are going. Do not look lost.
Be familiar with your own frequently used route. Vary your route
home.
Try to keep your hands free.
Listen for footsteps and voices nearby. Be alert to discover if
someone is following you. If you think someone is following you,
cross the street or walk in the middle of the street, stay near street
lights, or go into a store or office where people are working.
If you fear danger, scream loudly or yell "FIRE." ("Fire" is a threat to
which almost everyone will respond.) Get to a lighted place fast. Run
and yell.
Carry a whistle wrapped around your wrist or on your key chain. Use
it.
If you are walking outside, stand in a balanced position. Be suspicious
of cars that pull up near you or keep passing you.
If a car is following you, turn around and walk in the reverse direction.
Dress for freedom of movement. Wear sensible shoes that allow you
to run.
Walk on the outside of the sidewalk, away from possible hiding places.
Have your car key out and ready to use when you go to your parked
car.
Check the interior of your car before you get in. Always keep car
doors locked when parked and driving.
Always carry enough money for an emergency whenever you go out.
Carry a flare in your car for emergencies.
Drive to a police station if you are threatened while in your car.
Protecting Yourself In Your Neighborhood
Pursuant to the federal "Megan's Law," local police departments may disclose to
the community the criminal background of a registered sex offender considered to
be a continuing danger. (42 U.S.C. § 14071(d).)(13) The New Jersey version of
Megan's Law has been upheld against a constitutional challenge arguing that it is
an ex post facto law, that it constitutes double jeopardy, that it is an unlawful bill
of attainder, that it constitutes cruel and unusual punishment, and that it violates
the registrant's constitutional privacy rights, although the court indicated that a
hearing must be held before the public is notified, in order to protect the
registrant's due process rights. (Doe v. Poritz (Sup.Ct. N.J. 1995) 662 A.2d 367.)
The Second Circuit Court of Appeals upheld New York's and Connecticut's versions
of Megan's Law against ex post facto constitutional challenges. (Doe v. Pataki
(2nd Cir. 1997) 120 F.3d 1263, and Roe v. Office of Adult Probation (2nd Cir.
1997) 125 F.3d 47.) The First Circuit Court of Appeals upheld New Jersey's
version of Megan's Law against an ex post facto challenge and a double jeopardy
clause challenge. However, the court held that requirements that schools,
community organizations and persons likely to come into contact with an offender
be notified violate the due process clause unless the offender is given an
opportunity to challenge the notification and prosecutors during a hearing can prove
by clear and convincing evidence that such notification is required. (E.B. v.
Verniero (3rd Cir. 1997) 119 F.3d 1077.) The Ninth Circuit recently upheld
Washington state's version of Megan's Law, finding that paroled sex offenders
suffered no additional punishment when the public was told of their whereabouts.
(Russell, et al. v. Gregoire, et al. (9th Cir. 1997) 124 F.3d 1079.)
In 1947, California implemented the nation's first sex offender registration program
to help track the whereabouts of persons convicted of specific sex crimes. The
registration requirement is for life, unless the offender is relieved of this
responsibility through legal processes. In 1996, California enacted its own
version of "Megan's Law to implement the federal law," that provides the public
with photographs and descriptive information on serious sex offenders residing in
California, who have been convicted of committing sex crimes and are required to register their whereabouts with local law enforcement. The cost for calling 1-900-463-0400 is a flat rate fee of $10 for information on up to two individuals. (Pen.
Code, §§ 290 et seq.)(14)
To use the 900 line, you must be at least 18 years of age, and you must provide
the following information about the person you are checking: the name of the
person and one of the following: an exact address or exact date of birth or
California driver's license number, identification number or social security number.
If you only know the person's name, you will need to provide a complete
description of the person.
The Megan's Law CD-Rom provides another means to obtain information on
California's more than 64,000 serious sex offenders. A CD-ROM, now available for
public viewing, provides the following information about serious sex offenders:
registrant's name, aliases, photograph (if available), sex, physical description,
including scars, marks and tattoos, registered sex offenses, county of residence,
and ZIP code, based on last registration. To view the CD-ROM, you must be 18
years of age or older, provide a California's driver's license or identification card,
sign a statement that you are not a registered sex offender, that you understand
that the purpose of the release of information is for the public to protect
themselves and their children from sex offenders, and that it is illegal to use the
information to harass, discriminate against or commit a crime against any
registrant, and state a distinct purpose for viewing the CD-ROM, if required by local
law enforcement. Contact your local law enforcement agency to obtain information
on where and when you can view the CD-ROM.
You may also receive information about serious sex offenders through your local
law enforcement agency or your neighborhood school, or view the Attorney
General's Home Page:
http://www.ag.ca.gov.
Protecting Yourself When Hitchhiking
Avoid hitchhiking whenever possible. Arrange a ride with a friend or borrow a
friend's car. Use public transportation, or join a car pool. If you must hitchhike:
Try to get a ride with a woman.
Avoid hitchhiking alone.
Check the license plate number and write it down before getting into
the car.
Check to see that no one is hiding in the car, and that the driver is the
only occupant.
Become familiar with the vehicle make, model, color, etc.
Be sure the door handle on the passenger's side works before getting
in.
Do not get into the back of a van or a 2-door car.
Do not get in the car of someone who you think has been drinking.
Ask the driver's destination and determine if it is where you want to
go.
Try to make sure it is a safe ride before putting any of your
possessions into the car or trunk.
Look closely at the driver so you can later identify him/her.
Do not talk openly about yourself or give your home address or
telephone number.
Do not allow the driver to take you to your home; get out of the car at
least a block away.
Hitchhike in an area where there is ample pull-off space.
If you feel uncomfortable about the situation, do not get into the car.
Top of Section
STALKING
Any person who willfully, maliciously, and repeatedly follows or harasses another
person and who makes a credible threat with the intent(15) to place that person in
reasonable fear for his/her safety or the safety of his/her family, is guilty of the
crime of stalking. This crime is punishable by imprisonment in county jail for not
more than one year or by a fine of not more than $1,000, or by both that fine and
imprisonment, or by imprisonment in state prison. The defendant, if convicted of
felony stalking, may be required to register as a sex offender. If probation is
granted, the defendant must usually participate in a counselling program. (Pen.
Code, § 646.9.)
When there is a conviction for this crime, the court must consider issuing an order
restraining the person convicted from any contact with the victim for up to ten
years.(16) Any person who violates such an injunction or order shall be punished by imprisonment in state prison for two to four years. The fact that the person is in
jail shall not be a bar to prosecution for this crime. (Pen. Code, § 646.9 (b).)
Civil Code section 1708.7 establishes a tort (civil law claim) of stalking, that
subjects a stalking defendant to liability for general damages, special damages, and
punitive damages. While prosecutors will not directly use this statute, it is
important to advise the victim that one option is a civil suit under this section.
Penal Code section 1270.1 provides that a hearing is required before a person
charged with a specified stalking offense is released on bail that differs from the
bail set in the uniform county-wide bail schedule, or is released on his/her own
recognizance. The Department of Corrections, county sheriff, or director of a local
department of corrections is required to give a 15-day notice to a victim, victim's
family member, or witness to the offense, of the release from state prison or
county jail of a person convicted of stalking. (Pen. Code, § 646.92.)
Advice to Stalking Victims
- Stop all contact with the stalker.(17)
- Don't use any third party to intervene, unless it's law enforcement.
- Obtain a restraining order.
- Get a new unlisted phone number and change your old number, or
keep it attached to an answering machine to collect evidence of the
stalking.
- Alter work hours, routes to and from work, and parking places.
- Advise your employer and co-workers of the problem and provide a
picture of the defendant. If he shows up at work, call the police and
avoid contact with him.
- Keep a diary of any and all attempts to contact you. Note dates,
times, and the presence of any other witness. If the defendant is
violating a restraining order, call the police immediately and make a
report.
- Save all evidence, including notes, letters and phone messages.
- If hang up calls are being made to your number at home or work,
consider asking for installation of a phone tap or call-back feature, that
will indicate the phone number of the person calling. (If the caller has
not asked that his caller identification number be blocked, this may
also enable you to identify him.)
- Avoid places the defendant knows you frequent.
- If you have children in common, arrange through the court for the
exchange of custody or visitation through a third party.
- If possible, move to a new address with a roommate and have the bills
placed in the roommate's name; ask that your address be kept
confidential by the Department of Motor Vehicles, pursuant to Vehicle
Code section 1808.21.
- Discuss with an investigator, advocate or district attorney a specific
safety plan, if the defendant finds you.
Safety Plan
The safety plan should include the following:
- Police emergency phone number and numbers to crisis hotlines.
- Lists and numbers of shelters and safe places where victims can stay.
- Restraining order information.
- Emergency cash, credit cards, checks, etc., on hand to allow for the
payment of emergency needs.
- Clothing and personal items packed and ready to go at all times. Make
sure that important papers are included, such as children's birth
certificates.
- A second set of keys.
- Systems and codes to be used with family, friends, professionals,
neighbors, etc. These will warn them that you need help.
- Change locks on doors and windows.
Top of Section
GENDER-BASED HATE CRIMES
The Ralph Act
The Ralph Act, Civil Code sections 51.7 and 52, provides that it is a civil right to
be free from violence or the threat of violence to the person or to property because
of a person's sex, inter alia. It provides for civil penalties of up to $25,000 for
perpetrators, civil remedies to victims of up to three times actual damages, but no
less than $1,000, punitive damages, injunctive relief and attorneys' fees. It is
enforced by the Department of Fair Employment and Housing, the Fair Employment
and Housing Commission, the California Attorney General's office, any district or
city attorney, and private attorneys.
The Bane Act
The Bane Act, Civil Code section 52.1, provides protection from interference by
threats, intimidation, or coercion or for attempts to interfere with someone's state
or federal statutory or constitutional rights, on the basis of sex, among other bases.
It provides for civil penalties for perpetrators, civil remedies to victims of up to
three times actual damages, but no less than $1,000, punitive damages, injunctive
and other equitable relief and attorneys' fees. It is enforced by the California
Attorney General, any district or city attorney or, a private attorney.
Various other penal code statutes provide for punishment for gender-based hate
crimes. Penal Code section 422.6(a) provides that it is a misdemeanor to interfere
by force, or the threat of force, with a person's constitutional rights because of her
gender, inter alia. The penalty is up to a one-year jail sentence or a $5,000 fine, or
both. Penal Code section 422.6(b) provides that it is a misdemeanor to damage a
person's property because of her gender, inter alia. (This carries the same penalty
as the preceding section.) Penal Code section 422.7 provides that actions that are
normally misdemeanors can become felonies if committed because of the victim's
gender, inter alia. (The penalty is up to one year in jail or prison and/or a $10,000
fine.) Finally, Penal Code section 422.75 provides for sentencing enhancements of
one to three years for certain bias motivated felonies against a person on the basis
of her gender, inter alia.
Violence Against Women Act of 1994
The Violence Against Women Act of 1994(18) (VAWA, Pub. L. 103-322) established for the first time a federal civil right(19) to be free from crimes of violence motivated by gender, and provided a cause of action in either federal or state court to any
victim of gender-motivated violence for unlimited compensatory (20) and punitive
damages, injunctive relief, declaratory relief, attorneys' fees, and whatever else the
court deems appropriate, such as counseling for the abuser.
The VAWA also provides a variety of measures designed to produce safe streets
and homes for women, and equal justice for women in the courts.
In addition to its civil rights provisions, the VAWA does the following:
- Increases federal penalties for sex crimes and repeat sex offenders and
imposes mandatory restitution for federal sex crimes enforceable through
suspension of federal benefits;
- Provides $1.62 billion through the year 2000 for a variety of programs to
combat violence against women, including funding for battered women shelters;
- Creates new evidentiary rules to determine the admissibility of the alleged
victim's past sexual behavior or alleged sexual disposition; (21)
- Authorizes the U.S. Attorney General to develop model legislation to
protect confidentiality between victims of sexual assault or domestic violence and
their counselors;
- Requires the U.S. Postal Service to protect the confidentiality of the
addresses of domestic violence shelters and abused persons;
- Authorizes the creation of a national domestic violence hotline;
- Creates model programs and demonstration programs to educate youth
and help communities fight domestic violence;
- Facilitates the creation of databases, statewide and national, on the
incidence of sexual and domestic violence and stalking;
- Provides for education of the state and federal judiciary to eliminate
gender bias and to make the judiciary more aware of the issues specific to gender-based violence;
- Permits battered immigrant spouses and children of U.S. citizens and legal
residents who have immediate relative status to self-petition for legal resident
status and public benefits, and to proceed with their petition without the
cooperation of the battering U.S citizen spouse if they no longer live with the
batterer and public assistance is necessary for their survival;(22)
- Provides for pretrial detention in sex offense cases;
- Provides for increased penalties for sex offenses against victims younger
than 16;
- Provides for testing for sexually-transmitted diseases for victims of
sexual offenses and limited HIV testing of defendants;
- Contains measures to reduce domestic violence and stalking;
- Creates interstate protections for victims of domestic violence by
providing that permanent, temporary and ex parte restraining orders from one state
are enforceable in all 50 states if the order provided the defendant with reasonable
notice and an opportunity to be heard in a manner consistent with due process (18
U.S.C. § 2265); and
- Provides that federal criminal penalties can be obtained against a person
who travels across state lines (or leaves or enters an Indian reservation) with the
intent to injure his spouse or intimate partner and then does so, (18 U.S.C. §
2261(a)(1); or who causes, by force, coercion, duress or fraud, an intimate partner
or spouse to cross state lines (or leave or enter an Indian reservation) if the force or
coercion leads to physical harm to the victim (18 U.S.C. § 2261(a)(2)); or to cross
state lines (or leave or enter an Indian reservation) with the intent to stalk or harass
another person, that placed the victim in reasonable fear of death or serious bodily
injury to herself or a member of her immediate family (18 U.S.C. § 2261A); or to
cross state lines (or leave or enter an Indian reservation) with the intent to violate a
valid protection order and to actually violate an order protecting the victim against
credible threats of violence (18 U.S.C. § 2262(a)(1); or to cause an intimate partner
or spouse to cross state lines (or leave or enter an Indian reservation) by force,
coercion, duress or fraud during which, or as a result of which, there is bodily harm
to the victim in violation of a valid order of protection (no showing of specific intent
is required) (18 U.S.C. § 2262(a)(2). (Penalties for violations of sections 2261,
2261A and 2262 hinge on the extent of bodily injury to the victim; terms of
imprisonment range from five years for bodily injury, and up to life if the crime of
violence results in the victim's death.)
By far the most important section of the VAWA is Subtitle C, the Civil Rights
Remedies for Gender-Motivated Violence Act, that declares that all persons within
the United States have the right to be free from "crimes of violence" motivated by
gender. (42 U.S.C. § 13981 et seq.) "Motivated by gender" means a crime of
violence committed because of gender or on the basis of gender and due, at least in
part, to an animus based on the victim's gender.(23) Although the name of the bill
implies otherwise, the VAWA covers gender-based violence affecting both men and
women.
The VAWA defines "crimes of violence" as an act or series of acts that would, under either state or federal law, constitute a felony against the person or against
property if the conduct presents a serious risk of physical harm to another. (24) The
kinds of crimes that could be covered include rape, sexual assault, nonsexual
assault, and domestic violence, if the violence rises to the level of a felony.
It does not matter, under the VAWA, whether or not the gender-motivated violent
acts have actually resulted in criminal charges, prosecution, or conviction, and
whether or not those acts were committed on federal lands. Random violent acts
that are unrelated to gender, as well as acts that cannot be demonstrated by a
preponderance of evidence to be gender-motivated, are not covered.
Under the VAWA, the victim of gender-motivated violence can pursue a civil cause
of action against the assailant (including a person acting in an official capacity of
any state) in state or federal court. The VAWA does not confer on federal courts,
however, jurisdiction over marital dissolutions, alimony, equitable distribution of
marital property, or child custody. Also, the VAWA does not provide grounds for
removal to federal court for civil actions already filed in state court.
The VAWA contains a four-year statute of limitations. In other words, plaintiff
must file her complaint within four years of the commission of the abuse.
(However, the abuse must have occurred after the effective date of the VAWA,
which was enacted September 13, 1994.)
Return to Chapter 7
DOMESTIC VIOLENCE
Domestic violence is a major concern in California and in the United States. In
1988, according to the federal Bureau of Justice, 53% of female homicide victims
were killed by their male partners. Domestic violence is the single major cause of injury to women, causing injury more frequently than auto accidents, rapes and muggings combined.(25)
It has been reported that thirty percent of all women will suffer from some form of
violence in an adult relationship.(26) A 1997 study released by the United States
Justice Department indicates that, in 1994, a quarter-million people were treated
for injuries inflicted by an intimate partner.(27) Domestic violence is particularly
harmful to children. Fifty percent of batterers are violent to their partner during
pregnancy.(28) Approximately 10 million children may witness their mother being
assaulted every year in the United States.(29) When women are murdered by their
husbands, children are present in approximately 25% of the cases.(30)
What is "domestic violence?" It is recognized by state law to be "criminal
conduct." (Pen. Code, § 13701.) It is defined in Penal Code § 243(e)
(misdemeanor battery), Penal Code § 273.5 (spousal and cohabitant battery)(31),
Penal Code § 12028.5 (confiscating firearms), Penal Code § 13700 (law
enforcement response); and Family Code § 6211 (Domestic Violence Prevention
Act.) While each statute contains a slightly different description of domestic
violence, the following is a good working definition:
"Domestic violence means intentionally or recklessly causing or
attempting to cause bodily injury to a family or household member or
date or placing a family or household member or date in reasonable
apprehension of imminent serious bodily injury to himself or herself or
another."
Each of the above-referenced statutes requires that a special relationship exist
between the victim and the defendant. All include current spouses and cohabitants
of the opposite sex. They differ in their inclusion of former cohabitants,
cohabitants of the same sex, dating or engagement relationships, co-parents,
parents, children and other relatives and household members.
Domestic violence includes a husband or ex-husband who beats his wife or ex-wife,
a wife or ex-wife who beats her husband or ex-husband, an unmarried person who
is beaten by the person with whom she/he lives or has lived, or has or had a child
or dates or has dated, and a parent, guardian or other family member who sexually
assaults or physically abuses a child in the family. (Also included are elderly
parents or dependent adults who are beaten by their children or grandchildren or
caretakers.)
SPOUSAL, DATE OR INTIMATE PARTNER ABUSE
Much of the information in this section applies to victims of spousal, date or
intimate partner abuse, as well as child abuse. However, because there are issues
that separate the two, they are divided into separate sections.
Also, this section focuses on women who are battered by men, because that is the
norm. However, it is not unheard of for women to abuse men or for one partner in
a same-sex relationship to physically abuse the other. Much of the information in
this section is relevant to any case of domestic abuse, including same-sex abuse.
What To Do If Your Spouse, Date or Intimate Partner Beats You (Or Your Children)
Call the police immediately. The police are obligated to protect you
and arrest your attacker. If a police officer does not arrive within a
few minutes, call again.
When the police arrive, insist on filing a police report, whether or not
you intend to press charges.
Write down the officer's name and badge number.
If the police arrest the batterer, he may be released in a short period of
time. Take immediate steps to protect yourself and your children from
future abuse, such as obtaining a protective or restraining order from
the court.
Save all the evidence of what happened to you. Save the clothing you
were wearing when you were attacked. Take color pictures of your
injuries. If you required medical attention, get a copy of the medical
record. Ask for a copy of the police report.
Make sure you are safe from another beating. Call friends, relatives,
neighbors or a battered women's shelter to help you. (See Chapter
Nine, Directory of Services, at the end of this book for how to contact
a shelter near you.) Tell the counselor at the shelter exactly what has
happened to you. Most emergency shelters for battered women keep
the shelter address a secret so that an attacker cannot find a woman
who goes to the shelter. A person from the shelter may be able to
arrange to meet you and your children at a neutral place to take you to
the shelter. You will be asked to keep the address of the shelter
confidential. The shelter may be able to assist you with finding a
temporary shelter for any pets you may have. If the shelter is full,
however, you will need to consider other resources, such as friends or
family.
Your Rights If You Have Been Attacked
Battered Women's Syndrome
You have a right to defend yourself. However, the force you use must be only
enough to stop the attacker. (Pen. Code, § 692 et seq.) If you use greater force
than the law feels is necessary, you may be accused of attacking the man. It is
important that you know that some women who have killed their abusive partners,
reportedly in response to domestic violence, have been convicted of murder and
sent to prison. (People v. Macioce (1987) 197 Cal.App.3d 262.)
However, evidence of "battered women's syndrome" is admissible to allow the jury to determine whether a woman believed that she had to kill her attacker to protect
herself, and whether that belief was reasonable. (See discussion of case and
statutory law, infra, and see Walker, The Battered Woman, New York, Harper Row
(1979).) The syndrome is a term for the wide variety of controlling mechanisms
that a man (although it can be a woman) uses on a woman (although it can be a
man) and for the effect that these control mechanisms have. It has been defined as
a "pattern of responses and perceptions presumed to be characteristic of women
who have been subjected to continuous physical abuse by their mate[s]." (People v.
Romero (1994) 8 Cal.4th 728, 735, n.1.)
Battered women often employ strategies to stop being beaten, including hiding,
running away, counterviolence, seeking the help of friends and family, going to a
shelter, and contacting police. Nevertheless, many battered women remain in the
relationship because of lack of money, social isolation, lack of self-confidence,
inadequate police response, and a fear (often justified) of reprisals by the batterer.
The battering man may make the battered woman depend on him and generally
succeeds, at least for a time. A battered woman often feels responsible for the
abusive relationship and she can't figure out a way to make him stop beating her.
In sum, it is the physical control of the woman through economics and through
relative social isolation, combined with the psychological techniques employed by
the man, that make her so dependent.
Many battered women go from one abusive relationship to another and seek a new
controlling partner to protect them from the previous abuser. With each successful
victimization, the person becomes less able to avoid the next one. The violence
can gradually escalate, as the batterer keeps control, using ever more severe
actions, including rape, torture, violence against the woman's loved ones or pets,
and death threats. Battered women sense this escalation. In the case of battered
women who kill their abusers in self-defense, it is usually related to their perceived
change of what is going on in a relationship. They become very sensitive to what
sets off batterers. They watch very carefully. Anybody who is abused over a
period of time becomes sensitive to the abuser's behavior and when she sees a
change begin in that behavior, it tells her that something is going to happen.
The traditional cycle of violence includes phases of tension-building, violence, and
then forgiveness-seeking, in which the man promises not to batter the woman any
more and she believes him. During this period, there are occasional good times.
That is one of the things that leads a victim not to change her circumstances.
Intermittent reinforcement is the key. But after a while, the violence begins again.
A woman is often afraid to flee because she feels he will find her, as he has in the
past. He reinforces her belief that she can never escape him. Unless her injuries
are so severe that something absolutely has to be treated, she will not seek medical
treatment. That is the pattern of her life. (See expert testimony recounted in
People v. Humphrey (1996) 13 Cal.4th 1073.)
Evidence Code section 1107 provides that, in a criminal action, expert testimony
may be presented by the prosecution and/or the defense regarding battered
women's syndrome, including the physical, emotional, or mental effects upon the
beliefs, perceptions, or behavior of victims of domestic violence, except when
offered against a criminal defendant to prove the occurrence of the act or acts of
abuse that form the basis of the criminal charge. The California Supreme Court
recently decided, in the case of People v. Humphrey, supra, 13 Cal.4th 1073, that
evidence of the syndrome may be introduced so that the jury can understand the
circumstances in which the defendant found herself at the time she killed her
husband, and judge the reasonableness and the existence of her belief that the
killing was necessary.
In a recent opinion, a Court of Appeal ruled that expert testimony concerning a
battered woman's mental state on the night she murdered her batterer was properly
excluded from the trial. The court reasoned that Penal Code section 29 prohibits
the use of expert testimony to prove whether a criminal defendant has the requisite
fear for her life at the time of the crime, and Evidence Code section 1107(a) was
intended only to codify existing rules concerning how battered women's syndrome
affects the perception of its sufferers, not to create an exception to Penal Code
section 29. (People v. Erickson (1997) 57 Cal.App.4th 1391.)
Protective Orders That Can Be Obtained
There are several different types of orders that can be obtained to protect you and
your family members in domestic violence situations. If necessary, through the
police, you can get an emergency protective order (EPO) by telephone when courts
are not in session, such as on nights and weekends, to protect you from abuse by a
family member until the close of judicial business on the fifth court day following
the day of its issuance or the seventh day following the day of its issuance,
whichever is earlier. (Fam. Code, § 6250-6257.)
Before a court will issue an EPO, there must be reasonable grounds to believe that
an adult is in immediate and present danger of domestic violence or that a child is
in immediate and present danger of abuse by a family or household member. The
judicial officer must also be satisfied that an EPO is necessary to prevent the
occurrence or recurrence of domestic violence or child abuse. This order must be
served on the restrained person, if that person can reasonably be located. A copy
must be given to the protected person, and a copy must be filed with the court as
soon as practically possible. (Fam. Code, §§ 6240-6273.) Law enforcement may
make a warrantless arrest for violation of an EPO. (Pen. Code, § 836(c)(1).) The
law enforcement officer who requested the protective order shall use every
reasonable means to enforce it (Fam. Code, § 6272) and shall carry copies of the
order while on duty. (Fam. Code, § 6273.)
Such orders are now registered with the Department of Justice, pursuant to Family
Code section 6380, et seq.(32) A willful and knowing violation of a protective order
is a crime punishable by a fine of not more than $1,000 or by imprisonment in a
county jail for not more than a year, or by both a fine and imprisonment. (Fam.
Code, § 6388; Pen. Code, § 273.6.) Law enforcement personnel can arrest a
defendant for violation of a Domestic Violence Protective Order (DVPO) without a
warrant. (Pen. Code, § 836(c)(1).) Law enforcement must maintain data bases
available to any officer responding to a scene of domestic violence. (Fam. Code, §
6383.) The district attorney has the primary responsibility to enforce these orders.
(See discussion in Domestic Relations section of the Handbook, supra.) A court is
now required to consider the issuance of a stay-away order in all domestic violence
cases.(33) (Pen. Code, § 136.2(g).)(34)
You can get an ex parte DVPO if you fear an attack against you or your children, or
you fear a person has the intent to abduct your child and flee the court's
jurisdiction. (These are temporary restraining orders, or TROs, given without notice
to the person being restrained.) A showing by the applicant of a reasonable proof
of past acts of abuse is sufficient to get this type of DVPO. You can get such an
order by filling out forms available at the county court. If you have an attorney,
he/she can help you get such an order, or call a battered women's shelter for help.
(See Chapter Nine, Directory of Services.)
The court can issue a DVPO to your husband, or the man you are living with or
dating, ordering him not to molest, attack, strike, stalk, threaten, sexually assault,
batter, harass, telephone, destroy personal property, contact (either directly or
indirectly, by mail or otherwise), come within a specified distance of or disturb you
peace, and on good cause shown, other named family or household members. (See
Fam. Code, §§ 240-246, 2045, 4620, and 6300-6327.) You can also ask for an
order excluding a party from the family dwelling, your dwelling, the common
dwelling of both parties, or the dwelling of the person who has care, custody, and
control of a child to be protected from domestic violence for the period of time and
on the conditions the court determines, regardless of which party holds equitable or
legal title or is the lessee of the dwelling. (Fam. Code, §§ 6321 and 6340.)
Finally, you can get an order enjoining other behaviors necessary to carry out any of
the previously-mentioned orders. (Fam. Code, § 6322.) (See also Welf. & Inst.
Code, § 213.5, that provides for an order enjoining a parent, guardian, or former
household member from molesting, attacking, striking, sexually assaulting or
battering a child, or excluding them from the dwelling, or prohibiting them from
engaging in other behavior likely to disturb the child.)
The court may restrain any person from transferring, encumbering, concealing, or in
any way disposing of any property, except in the usual course of business, or for
the necessities of life. When any of these ex parte orders are issued, the matter is
returned to court within 20-25 days with an order to show cause why a permanent
order should not be granted.
Orders that can be issued ex parte can also be issued after notice and hearing,
pursuant to Family Code sections 6340-6345.(35) An order issued after a hearing
can last for three years, and can be renewed without a showing of any further
abuse since its issuance. (Fam. Code, § 6345.) Other relief available after a
noticed hearing includes restitution to a victim of domestic violence, an order that
either or both parties participate in counseling (Fam. Code, § 6343; each party shall
bear the cost of his/her own counseling separately, unless good cause appears for a
different apportionment) or a batterer's treatment program, and attorneys' fees in
domestic violence cases. When protective orders are issued in domestic violence
cases, the respondent is prohibited from purchasing or receiving a firearm. (Fam.
Code, §§ 6218 and 6389.) The court must advise the person so restrained of this
when he appears at a hearing. (Fam. Code, § 6304.)(36) A violation of this order is
punished pursuant to Penal Code section 12021(g). An acquisition or attempt to
acquire such a firearm within ten years of certain misdemeanor convictions (such as
for spousal battery) is punishable by a one-year jail or prison sentence or a $1,000
fine, or both. (Pen. Code, § 12021(c).)
A judge can also issue an order against interfering with a witness, including a
victim witness, who is testifying in a domestic violence case. (Pen. Code, §
136.2(g) and (h)). A violation of this order is a misdemeanor, and is charged
pursuant to Penal Code section 136.1. Recently enacted Penal Code section
14020 et seq. sets forth the Hertzberg-Leslie Witness Protection Act, a program
intended to provide relocation and other protective services to witnesses in
criminal proceedings who are in danger of retaliatory violence because of their
testimony.
You are entitled to have a support person accompany you to any proceeding to
obtain a protective order to enjoin specific acts of abuse, such as stalking,
harassing, and destroying property, to exclude a person from a dwelling, and to
enjoin other specified behavior. (See Code Civ. Proc., § 527.6(f) and Fam. Code, §
6303.)
The court also may determine who will have temporary possession of property that
you own together, and who will have temporary custody of and visitation rights
with your children. (Fam. Code, §§ 6323-6325.) The fact that a husband has
beaten his wife may be relied upon by a court to deny him custody of his children,
lest they develop a pattern of learned helplessness that could make them
susceptible to abusive relationships later in life. (In re Heather A. (1996) 52
Cal.App.4th 183.)
Whenever custody or visitation is ordered in cases involving domestic violence, the
order should specify the manner of transferring the child between parents in order
to limit the child's exposure to potential domestic conflict or violence. The court
should consider whether visitation or custody should be limited to third-party
arrangements, or whether it should be suspended or denied. A minor may be
removed from his home, or the court may order that the offending parent or
guardian be removed from the home, or the court can consider allowing the
nonoffending parent or guardian to retain custody, as long as she can demonstrate
to the court that she can protect the child from future harm. (Welf. & Inst. Code, §
361.) If one party is in a shelter or other confidential location, the court's order for
time, day, place and manner of transferring the child should not disclose that
location. (Fam. Code, §§ 3031, 3100 and 6323.) A party is entitled to have a
support person attend any mediation session concerning child custody held
pursuant to Family Code section 3021, if a protective order has been issued. (Fam.
Code, § 6303.)
Whenever a summons is issued in a dissolution action, the summons contains
another order available under the Family Code, the automatic temporary restraining
order (ATRO) (See Fam. Code, §§ 231-235; see discussion in Domestic Relations
section of this handbook.)
Finally, you can also obtain civil anti-harassment orders, even if you do not have a
domestic relationship, pursuant to Code of Civil Procedure sections 527 and
527.6.(37) These orders are enforceable under Penal Code sections 166 or 273.6.
On the request of the petitioner, these orders are to be served on respondent by
any law enforcement officer on the scene. The officer is required to verify the
existence of the order if the protected person cannot produce a copy of it, notify
the respondent of its terms and enforce it. The violation of all protective orders can
be prosecuted under Penal Code section 166 or Code of Civil Procedure section
1209.
Pressing Charges
Call The Police
When the police arrive, insist on filing a police report, even if you do not want to
press charges(38). The police report is crucial for your future protection. It will
support you if you are attacked again and want to press charges, seek to gain
custody of your children, or wish to obtain an EPO or a TRO against your attacker.
You Can Have Your Attacker Arrested
There are two ways for you to have your attacker arrested: police arrest and
citizen's arrest. Also, the police may issue a misdemeanor citation against your
attacker in less serious situations, unless the arresting officer determines that there
is a reasonable likelihood that the offense will continue or that the safety of
persons or property would be endangered, in which case the person will be arrested
and taken before a magistrate. (Pen. Code, § 853.6 et seq.; see discussion, infra.)
Police Arrest
When the police answer your call, you should tell them if you want your attacker
arrested. The police can usually only arrest the attacker if they have an arrest
warrant, or if they have no warrant, if he commits a crime in their presence; he
committed a felony, though not in their presence; or if they have reasonable cause
to believe that a serious attack (felony) has been committed. (Pen. Code, § 836
(a).) Felonies are more serious attacks and threats, while misdemeanors are less
serious.
However, if a peace officer is responding to a call alleging a violation of a domestic
violence protective or restraining order issued under the Family Code, section 527.6
of the Code of Civil Procedure, section 213.5 of the Welfare and Institutions Code,
or section 136.2 of the Penal Code, or of a similar order issued by the court of
another state, tribe, or territory, and the peace officer has reasonable cause to
believe that the person against whom the order is issued has notice of the order
and has committed an act in violation of the order, the officer may arrest the
person, whether or not the violation occurred in the presence of the arresting
officer. The officer should, as soon as possible, check that a true copy of the
protective order has been registered with the Domestic Violence Protection Order
Registry, unless the victim provides the officer with a copy of the order. (Pen.
Code, § 836(c).)
In situations where mutual protective orders have been issued under section 6200
of the Family Code, the peace officer should attempt to arrest the primary
aggressor, or the person determined to be the most significant, rather than the first
aggressor. (Pen. Code, § 836(c)(3).)
If a person commits an assault or battery upon his/her spouse, upon a person with
whom he/she is cohabiting, or upon the parent of his/her child, the peace officer
may arrest the person without a warrant where he has reasonable cause to believe
that the person to be arrested has committed the assault or battery, and where he
makes the arrest as soon as reasonable cause arises to believe that the commission
of the assault or battery has occurred. (Pen. Code, § 836(d).)
To help the police decide whether to arrest the attacker, you should:
Describe the attack to them, telling them the amount of force used.
Describe your injuries.
Tell the police if a weapon was used or threatened to be used against
you. (Pen. Code, § 12028.5 allows certain law enforcement
personnel at the scene of an incident of domestic violence involving a
threat to human life or physical assault to take custody for no less
than 48 hours of any firearm or deadly weapon in plain sight or
discovered pursuant to a consensual search, as necessary for the
protection of the peace officer or other persons present.)
Penal Code section 12028.5 sets forth a procedure whereby, if a law enforcement
agency has reasonable cause to believe that the return of a firearm or other deadly
weapon would be likely to result in endangering the victim or the person reporting
the assault or threat, the agency can advise the owner of the firearm within ten
days of the seizure, and file a petition in superior court to determine if the firearm
or other deadly weapon should be returned.
A police officer has a duty to listen to your statement and to make a police report.
You may take the name and badge number of the officer for your own record.
Citizen's Arrest
If the police do not arrest your attacker, you may make a citizen's arrest. Every
citizen can arrest another person who has committed a crime or attempted to
commit a crime in his/her presence, who has committed a felony, even if not in
his/her presence, or when a felony has been committed, and she reasonably
believes the person to have committed it. (Pen. Code, § 837.) A law enforcement
officer has a duty to inform you of your right to make a citizen's arrest and how to
do so safely when he/she responds to a domestic violence call. (Pen. Code, §
836(b).) Any time you are hit, beaten or assaulted, the attacker is committing a
crime in your presence. You should tell the police if you want to make a citizen's
arrest and have your attacker taken away. You have a legal right to make a
citizen's arrest and once the arrest is made, the police have a duty to take your
attacker into custody.
If the officer refuses to take him into custody, call a battered women's shelter for
advice. (Pen. Code, §142 provides that any peace officer who has the authority to
receive or arrest a person charged with a criminal offense who willfully refuses to
do so, is subject to a fine of $10,000 or by imprisonment in the state prison, or by
a one-year sentence in the county jail, or by both the fine and the imprisonment.)
You Can Press Charges, Even If No Arrest Was Made or Citation
Issued
If your attacker was not arrested or cited, and you have decided to press charges,
you must file a police report. The police will then go to the district attorney's office
with a copy of this report. (In some locations, misdemeanors are prosecuted by the
city attorney instead of the district attorney.) To proceed, the district attorney
must be convinced that a crime probably was committed and that the person
accused probably committed it. If you have any evidence of the crime, you should
give it to the police and request that they take it to the district attorney's office. It
is helpful to get color photographs of your injuries for use at the trial. To
encourage prosecution, you may have to convince the district attorney that you are
willing to file the complaint and that you will not later refuse to testify.(39) You
should telephone the district attorney's office and make an appointment to talk
with a deputy district attorney. Some district attorney's offices have special
programs to assist victims of domestic violence. If the district attorney decides to
prosecute your attacker for a crime or crimes, the case will go to preliminary
hearing (if a felony) and a trial. (Pen. Code, § 859 et seq.)
After An Arrest
Even if your attacker is arrested and taken to the police station, he may be free to
return home in a short period of time after his arrest. The police may issue a
misdemeanor citation (similar to a traffic ticket) and let him go, unless he demands
to be taken before a magistrate, or unless the arresting officer determines that
there is a reasonable likelihood that the offense will continue, or that the safety of
persons or property would be endangered, in which case he will be taken before a
magistrate. (Pen. Code, § 853.6 et seq.) At most, a few hours after he is taken
before the magistrate, his bail will be set and, if he has money, he can post bail and
be released, although bail may be denied in certain circumstances such as where
the defendant used a firearm, violated a restraining order,(40) poses a danger to the
public, used alcohol or a controlled substance, has a previous criminal record, has a
mental condition, or has a record of failure to appear. (Pen. Code, § 1275.)
Penal Code section 1270.1 provides that a hearing is required before a person
charged with a felony domestic violence is released on bail which differs from the
bail set in the uniform county-wide bail schedule, or is released on his/her own
recognizance (his promise to return for a formal hearing, to obey all reasonable
conditions imposed by the court or magistrate, to promise not to leave the state
without leave of the court, to agree to waive extradition if he fails to appear as
required and is apprehended outside California, and to acknowledge that he has
been informed of the consequences and penalties applicable to a violation of the
conditions of his release) and the hearing should address the issue of any threats
made against victims or witnesses.
If your husband has no money but has friends or relatives who will vouch for him,
he may be released on his own recognizance. (Pen. Code, § 1318.)
You must be prepared for the fact that your attacker may return soon after he has
been arrested. He may return home in an angry, violent mood. On the other hand,
the arrest may make him realize how serious his actions were.
If you believe your attacker will return home to beat you in revenge, arrange to stay
with friends or relatives, or call a women's shelter immediately to arrange a safe
place for you and your children to stay until you make new plans, or seek a
protective order from the court. The district attorney's office can request a stay
away order that prohibits your husband from contacting you with the intent to
annoy, harass, threaten or commit acts of violence, or the court can issue the order
on it own. (Pen. Code, § 136.2(g) and (h).)
Criminal Prosecution
After an Arrest
After your attacker is arrested, the police report is sent to the district attorney to
draw up a complaint for prosecution.(41) The district attorney may ask you to come to the district attorney's office for an interview. If the crime is a felony, the district
attorney will sign the complaint. If the crime is a misdemeanor, and if there was no
police officer at the scene of the beating who saw the crime and can testify as a
witness at trial, the district attorney may ask you to sign the misdemeanor
complaint, although many district attorney's offices have a policy of never asking
victims to sign complaints. (Pen. Code, § 740 et seq.) The district attorney often
will refer you to a family violence victim advocate to assist you through the
prosecution process.
If a citizen's arrest was made after the beating, you will have to go the district
attorney's office the next day to make a formal citizen's complaint. Some district
attorneys may be reluctant to prosecute the batterer if it appears that you are not
firm in your decision to press charges and if you appear unwilling to testify against
him. However, newly-enacted Evidence Code section 1109 allows prosecutors to
introduce past evidence of domestic abuse (if it was not more than 10 years before
the offense) to prove that a defendant was guilty of domestic abuse again, so they
may decide to proceed against the person even without your cooperation.
Prosecutors may also make use of spontaneous statements made by the victim to
the police shortly after the domestic violence occurred, even if the victim does not
testify. (Evid. Code, § 1240; People v. Hughey (1987) 194 Cal.App.3d 1383.)
Once the district attorney has filed a formal criminal complaint on behalf of the
state, only the district attorney can withdraw it.
You will be served with a subpoena to testify as a witness in court. (Pen. Code, § 1326.)(42) Statistics show that a large number of domestic violence victims refuse
to testify. Prosecuting a criminal case is time-consuming and costly to the state.
Therefore, district attorneys may be reluctant to file complaints if they believe that
you will not testify voluntarily. If you are serious about pressing charges and
testifying, you should emphasize these intentions to the district attorney to
encourage prosecution. Your medical records may also be subpoenaed or obtained
through a search warrant. (Pen. Code, §§ 1524 and 1543.)
An arraignment will usually be held a few days after the arrest. The arraignment is
a hearing before a judge where the defendant is told of the criminal charges against
him. (Pen. Code, § 976 et seq.) Bail will be set at this hearing. (Pen. Code, §
1273 et seq.)
You may ask the judge, as a condition of bail, to order your husband to stay away
from you. (Pen. Code, § 136 et seq.) If such an order is issued as a condition of
bail, and a party breaks the order by going to see you, his bail may be revoked and
he could be jailed.
The Trial
First, there may be a preliminary hearing. If the attack was serious enough to be
deemed a felony, you may be required to testify at a preliminary hearing (although
see discussion in the Violence Against Women section of the handbook, supra, on
use of police hearsay testimony at this hearing instead.) At the preliminary hearing,
the district attorney must present enough proof to show that you have been
attacked by the suspect. If called to testify, you will have to answer questions
from your attacker's attorney. If you are unwilling to testify, the charges may be
dropped and the prosecution may end. (Pen. Code, § 871 et seq.)
Whether the case involves a felony or a misdemeanor, you will probably be required
to testify against your attacker at trial.(43) At the trial, the district attorney will ask
you about your relationship with the attacker, the attacker's personality and
treatment of you,(44) the argument or events that preceded the attack, the time and
place of the attack, the pain and injuries you suffered, and the steps you have
taken to protect yourself.(45)
You will be cross-examined by the defense attorney. The defense attorney may
challenge the truth of your statements, and may accuse you, rather than the
defendant, of being at fault. You may bring up to two persons to court with you
who can give you moral support and encouragement, one of whom can be a
witness. You may also bring staff from a women's shelter with you. Only one of
the support persons may accompany the you to the witness stand, although the
other may remain in the courtroom during your testimony. Support persons may be
excluded under certain circumstances. (Pen. Code, §§ 868 and 868.5.)
When you finish testifying and are dismissed from the witness stand, you are free
to leave the courthouse. You may wish to do so immediately, to avoid seeing the
defendant and to prevent him from following you to your home or shelter when the
trial is adjourned for the day. If you fear your attacker will be released and then
follow you and beat you to get even with you for pressing charges, ask the police
to escort you safely home, or seek a protective or restraining order from the court.
Evidence Code sections 1037-1037.7 provide a privilege that protects confidential
communications between the victim and a domestic violence counselor. There are
two exceptions, death of the victim and the waiver of the privilege by the victim.
A court is permitted to compel disclosure of the privileged information under certain
circumstances.
It is possible that your children may be called as witnesses. The district attorney
can make a motion that the court appoint a representative for a child witness in a
domestic violence case pursuant to Code of Civil Procedure section 187. A child
may also be entitled to have a support person who is not a witness present. (Pen.
Code, § 868.5.) The court can also issue orders to protect the child from the
defendant. (Pen. Code, § 136.2(g) and (h) and Code Civ. Proc., § 128(a)(5).)
To find your attacker guilty, the district attorney must convince the judge or the
jury that the defendant is guilty beyond a reasonable doubt. If the defendant is
found not guilty, he will be released immediately.
Sentencing
Penal Code section 273.5 specifies that any person who willfully inflicts bodily
injury resulting in a traumatic condition (a wound or external or internal injury,
whether of a minor or serious nature, caused by a physical force) upon his/her
spouse, a person with whom he or she is living , or a person who is the mother or
father of his/her child, is guilty of a felony and can be sentenced to state prison for
up to four years, to county jail for not more than a year or by a fine of $6,000, or
both. If probation is granted, the court shall require participation in a batterer's
treatment program as a condition of probation, pursuant to Penal Code section
1203.097. The conditions of probation may also include, in lieu of a fine, one or
both of the following requirements: 1) a payment to a battered women's shelter up
to a maximum of $5,000 or 2) that the batterer reimburse the victim for the
reasonable costs of counseling and other reasonable expenses that the court finds
are the direct result of the batterer's offense. The defendant will not be ordered to
make payments to a shelter if this would impair his ability to pay restitution or
court-ordered child support. All separate property of the offending spouse must be
exhausted before community property can be used to pay restitution.
If probation is granted, or the execution or imposition of a sentence is suspended
for any person who previously has been convicted of spousal, cohabitant or
parental battering for an offense that occurred within seven years of the offense of
the second conviction, it shall be a condition thereof that he be imprisoned in a
county jail for not less than 96 hours, except for good cause shown, and that he
participate in, for no less than one year, and successfully complete, a batterer's
treatment program.
If probation is granted, or the execution or imposition of a sentence is suspended,
for any person convicted of spousal, cohabitant or parental battering who
previously has been convicted of two or more violations for offenses that occurred
within seven years of the most recent conviction, it shall be a condition thereof that
he be imprisoned in a county jail for not less than 30 days, except for good cause
shown, and that he participate for no less than one year, and successfully
complete, a batterer's treatment program.
Penal Code section 1203.097 provides that if a person is granted probation for a
crime of domestic violence, the terms of probation shall include all of the following:
1) a minimum period of probation for 36 months; 2) a criminal court protective
order; 3) notice to the victim of the disposition of the case; 4) booking the
defendant within one week of sentencing, if not already booked; 5) payment of a
minimum of $200; 6) successful completion of a batterer's program or other
appropriate counseling program for a period of not less than a year; 7) performance
of a specified amount of appropriate community service; and 8) enrollment in a
chemical dependency program, where appropriate.
Any person who personally inflicts great bodily injury under circumstances involving
domestic violence in the commission or attempted commission of a felony shall
have the punishment enhanced by an additional term of three to five years. (Pen.
Code, § 12022.7.)
Assembly Bill 102 added section 1170.6 to the Penal Code, effective January 1,
1998. This section will require that, in specified cases of domestic violence, where
the defendant is or has been a member of the household of a victim or of a minor,
or has some other specified relationship to the victim or to the minor, and the
offense occurred in the presence of or was witnessed by the minor, the court shall
consider this fact as a circumstance in aggravation of the crime.
Penal Code section 243(e) provides that the penalty for misdemeanor battery is
higher if the victim has a certain relationship to the defendant. The victim must be
the defendant's noncohabiting former spouse, fiance, or a person with whom the
defendant has, or previously had a dating relationship. In such cases, the penalty is
$2,000 or up to one year in jail, or both. Upon a second conviction, the person
shall be imprisoned for not less than 48 hours, unless the court, upon a showing of
good cause, elects not to impose the mandatory minimum imprisonment. The
subsection also mandates batterer's counseling for one year if probation is granted,
or the execution or imposition of the sentence is suspended.
In lieu of a fine, the court may order the defendant to make a payment to a
battered women's shelter, up to a maximum of $5,000, and/or order the defendant
to reimburse the victim for reasonable costs of counseling and other reasonable
expenses that the court finds are the direct result of the defendant's offense.
Other statutes providing penalties relevant to domestic violence cases include Penal
Code section 653m (harassing phone calls), Penal Code section 601, which defines
trespass, and Penal Code sections 136 and 422 (intimidating a victim or a witness).
A person may be guilty of vandalism of community property (People v. Kahanic
(1987) 196 Cal.App.3d 461) and burglary of a spouse's residence (People v.
Davenport (1990) 219 Cal.App.3d 885).
Penal Code section 273.55 increases punishment in situations where there is a
prior conviction history. A felony conviction for Penal Code section 273.5 that
occurs within seven years of a previous conviction for specified assaults is
punishable by imprisonment in the county jail for not more than one year, or by
imprisonment in the state prison for two to five years and a fine of up to $10,000.
Pursuant to Penal Code section 273.56, if the defendant is convicted under section
273.5 and sentenced under 273.55, it shall usually be a condition of probation that
the defendant be imprisoned in a county jail for not less than fifteen days. Further,
as a condition of probation, the defendant must participate in for no less than one
year and successfully complete a batterer's treatment program. The court may
delete the mandatory imprisonment and/or batterer's treatment program upon a
showing of good cause. If probation is granted or the execution or imposition of a
sentence is suspended for any person sentenced under 273.55 because the person
was convicted previously for two or more offenses that occurred within seven
years of an offense designated in section 273.55(a), the person shall be imprisoned
in a county jail for not less than 60 days and shall participate in for no less than
one year and successfully complete a batterer's treatment program, except for
good cause shown. Conditions of probation can also include a payment of up to
$5000 to a battered women's shelter and reimbursement to the victim for
counseling and other costs.
A conviction under Penal Code section 273.6, violating a domestic violence
restraining order or other order issued by the court to prohibit further contact, is a
misdemeanor. If the violation results in a physical injury, the offender shall be
imprisoned in the county jail for not less than 30 days nor more than one year. (The
court can reduce or eliminate the mandatory incarceration time if the defendant has
spent at least 48 hours in jail.) A subsequent conviction within seven years of a
prior conviction for a violation of a similar order and involving an act of violence or
a credible threat of violence is punishable by imprisonment in a county jail not to
exceed one year or in state prison. A subsequent conviction for an act in violation
of an order, that occurs within one year of the prior conviction, and results in
physical injury to the same victim is punishable by a fine of up to $2000,
imprisonment in a county jail for not less than six months nor more than one year,
or by both fine and imprisonment, or by imprisonment in state prison. (The court
can reduce or eliminate the mandatory incarceration time if the defendant has spent
at least 30 days in jail.) The court can also order the person convicted to undergo
counseling and, if appropriate, a batterer's treatment program.
If probation is granted, the terms of the probation are identical to those provided
pursuant to Penal Code section 273.5.
The victim of any crime, or the victim's parents or guardians where the victim is a
minor, or the next of kin of the victim if the victim has died, have the right to be
notified of the final disposition and sentencing proceedings in a case. These
persons should be notified of their right to appear at the sentencing proceeding and
to reasonably express their views. Their statements are to be considered by the
court, as set forth under Penal Code section 1191.1. The court is required to state
on the record its conclusion concerning whether the person would pose a threat to
public safety if granted probation. The victim or the next of kin of the victim, if the
victim has died, also has the right, upon request, to be present at any parole
eligibility hearing to express her views and to have her statement considered. (Pen.
Code, § 679.02(a)(6).) When a defendant has been convicted of a violent offense,
the victim or the next of kin, if the victim has died, has a right to request notice
from the Board of Prison Terms and the Department of Corrections to be notified of
the date of the defendant's release, escape or death, and under certain
circumstances, the community to which he will be released. (Pen. Code, §§
679.03, 646.92, and 3058.8.)
Penal Code section 3053.2 was recently added to authorize the parole authority to
impose conditions on the parole of a person released from prison for a domestic
violence offense, including participation in or successful completion of a batterer's
program, and, upon request of the victim, the issuance of protective orders.
Trespass
Penal Code section 601 provides that any person is guilty of trespass who makes a
credible threat to cause serious bodily injury to another and within 14 days,
unlawfully enters upon specified identified property with the intent to execute the
threat against the individual. This crime is punishable as a felony or as a
misdemeanor.
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Spouse Convicted of Attempted Murder Loses Rights
When a spouse is convicted of attempting to murder the other spouse, the injured
spouse is entitled to an award of 100% of the community property interest in the
other spouse's retirement and pension benefits, plus reasonable attorneys' fees and
costs. No temporary or permanent award of spousal support or medical, life, or
other insurance benefits or payments will be made from the injured spouse to the
other spouse. (Fam. Code, §§ 274, 782.5 and 4324.)
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Civil Action
A victim or her next of kin if she has died, may also bring a civil action for recovery
of damages suffered as a result of domestic violence. The time for commencement
of this action is within three years of the date of the last act of domestic violence.
(Code of Civ. Proc., § 340.15.)
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Federal Firearm Offenses Relevant to Domestic Violence
It is a federal crime, under the Brady Bill, to ship or transport in interstate or foreign
commerce or possess a firearm or receive a firearm shipped or transported in
interstate or foreign commerce while subject to a valid protection order restraining
such person from harassing, stalking, or threatening an intimate partner or the child
of an intimate partner. The protection order must have been issued following an
evidentiary hearing as to which the defendant had notice and an opportunity to be
heard, and must state either that the defendant poses a credible threat to the
physical safety of the victim, or that the defendant is not allowed to use any force
that would reasonably cause injury to the victim. (Law enforcement officers are
not subject to this law.) (18 U.S.C. § 922(g)(8).)(46)
It is a federal crime to possess a firearm after conviction of a state misdemeanor
crime of domestic violence. (18 U.S.C. § 922(g)(9).) The crime must have as an
element the use or attempted use of physical force, or the threatened use of a
deadly weapon, and the defendant's conviction must have been obtained after he
had the advice of counsel and notice of his right to a jury trial.(47)
The penalty for a violation of 18 U.S.C. §§ 922(b)(8), 922(g)(8), 922(d)(9) or
922(g)(9) is a ten-year term of imprisonment.(48) (See discussion, supra, on
Violence Against Women Act as it pertains to domestic violence; see also 42
U.S.C. § 10401 et seq., which provides federal funding for family violence
prevention and services.)
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Written Policies By Law Enforcement Agencies Regarding
Domestic Violence Calls
According to Penal Code section 13701, every law enforcement agency should
have developed, adopted and implemented written policies and standards for
officers' responses to domestic violence calls by January 1, 1986. They shall
reflect existing policy that a request for assistance in a situation involving domestic
violence is the same as any other request for assistance where violence has
occurred. These policies shall be in writing and available to the public upon request
and shall include specific standards for the following:
- Felony arrests;
- Misdemeanor arrests;
- Citizen arrests;
- Verification and enforcement of TROs when the suspect is present and
when the suspect has fled;
- Verification and enforcement of stay away orders;
- Cite and release policies;
- Emergency assistance to victims, such as medical care, transportation
to a shelter, and police standby for removing personal property;
- Assisting victims in pursuing criminal options;
- Furnishing written notice to victims at the scene concerning the
restrained person's possible release, the availability of shelters and
other services, the option of filing a criminal complaint, the right to ask
for various orders, the right to file a civil suit, where applicable, names
and locations of rape victim counseling centers and 24 hour phone
numbers, and proper procedures to follow after a sexual assault; and
- Writing of reports.
Penal Code section 13702 requires law enforcement agencies to adopt and
implement written policies and standards for dispatchers' responses to domestic
violence calls that rank calls reporting threatened, imminent or ongoing domestic
violence and the violation of any protection or restraining order among the highest
priority calls.
Penal Code section 13730 requires each agency to have in place a system for
recording domestic violence-related calls. These records should include whether
weapons were used, whether the abuser was under the influence of alcohol or a
controlled substance, and whether a previous call had been made involving
domestic violence.
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Alternatives to Criminal Prosecution
Recognizing the hardships on victims and families when criminal prosecution is
involved, some district attorneys' offices set up alternatives to criminal prosecution.
Under these alternatives, the attacker does not go to trial and is not sent to jail.
Instead, efforts are made to help the parties work out their differences through
peaceful means to preserve the family.
Citation Hearing
One of the noncriminal procedures that is used to reconcile disputes instead of
punishing the attacker is called a citation hearing. A citation hearing provides a
setting where both parties can present their feelings about the reasons for their
dispute, rather than only presenting evidence about the attack, as they would at a
trial. The success of a citation hearing usually depends on the cooperation of the
attacker, his recognition of the seriousness of his offense, and the desire of both
parties to preserve their relationship. If you believe that the citation procedure is
not useful, inform the district attorney of your conclusion and reasons, and
emphasize your intention to stand by the prosecution and testify against your
attacker.
If the crime was a serious one, if a dangerous weapon was used and/or you were
seriously injured, the district attorney will be more willing to prosecute and less
likely to suggest the citation procedure. Contact the district attorney's office for
more information. (Pen. Code, § 853.6 requires that all domestic violence
perpetrators subject to mandatory arrest be taken into custody, not merely cited
and released, unless the arresting officer determines that the violator would not
pose a danger to public safety and would no 