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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 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.
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.
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.
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:
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.
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:
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.)
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.)
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.
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.)
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 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 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 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 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:
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.)
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.)
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.
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:
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.)
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:
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 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.
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.
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
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 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.
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.)
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)
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.
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.
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:
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.)
The safety plan should include the following:
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, 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.
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:
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.)
"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.)
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.
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.)
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.
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.
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.)
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:
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.)
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.)
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).)
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.
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.
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.
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.
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.)
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.)
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:
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.
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.
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 not be a flight risk.)(49)
Newly enacted Penal Code, § 1377 ends the option of civil compromise for misdemeanor domestic violence cases (allowing the victim and the defendant to negotiate satisfaction of a claim for damages by the victim in exchange for dismissal of the criminal action). It requires prosecution of persons who strike or otherwise endanger their spouses, which can lead to penalties and jail time.
Alternative resolution hearings may occur in lieu of filing formal charges or as a way of settling charges already filed. They should be limited to cases involving a minor incident where there is an insignificant or non-existent history of abuse or violence, and where the suspect has not been involved in an alternative resolution or citation hearing within the previous 12 months. These hearings are held before a person who has received training in domestic violence and who will counsel the parties separately.
The domestic violence diversion program was repealed by the Legislature in 1995, except as a condition of probation. (Pen. Code, § 1203.097.)
For details on how to obtain a dissolution of marriage, see Chapter Six on Domestic Relations. You will not be charged with desertion or lose any of your community property rights.
Although victims of violent crimes should not be asked their citizenship or legal status,(50) you may wish to protect yourself from possible immigration problems before reporting the attack. Call a battered women's shelter and/or an attorney to help you decide what is best for you.
Department of Corrections
515 S Street
Sacramento, California 95814
P.O. Box 942883
Sacramento, California 94283-0001
Child abuse is any act or lack of action that puts a child's physical or emotional health and development in danger. Child abuse can take the form of physical abuse, sexual abuse, emotional abuse, emotional deprivation, physical neglect, or inadequate supervision. (Fam. Code, §§ 6203 and 6211.)
Corporal punishment as a form of discipline (spanking) is legal, but may become child abuse, depending on the manner and severity of the discipline. Corporal punishment can become abusive when a parent (or teacher, scoutmaster, adoptive parent, neighbor) uses extreme or inappropriate forms of corporal punishment. When corporal punishment is administered in an out-of-control way, out of anger and frustration, with a high degree of force, or when forms of corporal punishment are used that are not in relation to the child's developmental age, or with objects, such as belts, cords or brooms, it is child abuse.(51)
The Child Abuse and Reporting Act requires specified individuals, such as child care custodians (including teachers, counselors and nannies), health practitioners, and clergy members, to report known or suspected instances of child abuse to child protective agencies. A violation of this reporting requirement is a misdemeanor. The Department of Justice maintains an index of child abuse reports. (Pen. Code, § 11160 et seq.)
There is also federal law requiring certain covered professionals (such as physicians, social workers, teachers, child care workers, law enforcement personnel, foster parents, and commercial film and photo processors), while engaged in a professional capacity or activity on federal land or in a federally-operated facility, to report suspected incidents of child abuse to a designated federal agency. (42 U.S.C. § 13031 et seq.) Failure to do so is punishable as a misdemeanor, pursuant to 18 U.S.C. § 2258.
Child abuse is a crime. A person convicted of child abuse can be jailed and fined. It does not matter whether the abusers are parents who are married or parents who are divorced or separated. Any parent is responsible for the physical and emotional health of his/her child. Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts unjustifiable physical pain or mental suffering on them, or willfully causes or permits their health to be injured, or willfully causes or permits them to be placed in a situation where their health is endangered may be punished by imprisonment in a county jail for not exceeding a year or in the state prison for two to six years. (Pen. Code, § 273a; see also Pen. Code, §§ 647.6 and 11165.6.)(52)
If a person is convicted of violating Penal Code section 273a and probation is granted, the court shall usually require the following minimum conditions of probation:
If the act constituting a felony violation of Penal Code section 273a was female genital mutilation,(53) the defendant shall be punished by an additional term of imprisonment in the state prison for one year. (Pen. Code, § 273.4; see also Health & Saf. Code, § 124170, which authorizes education, preventative and outreach activities focusing on new immigration populations that traditionally practice this and on the medical community that serves them.)
Section 273ab of the Penal Code provides that any person, who, having the care or custody of a child who is under eight years of age, assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child's death, shall be punished by imprisonment in the state prison for 25 years to life.
Penal Code section 273d provides that any person who willfully inflicts upon a child any cruel or inhuman corporal punishment or injury resulting in a traumatic condition is guilty of a felony and shall be punished by imprisonment in state prison for two to six years, or in a county jail for not more than one year, or by a fine of up to $6,000, or by both the imprisonment and the fine. Any person found guilty of violating the above section can receive a four-year enhancement for a prior conviction of that offense. Probation can be granted upon the same conditions as for Penal Code section 273a.
The Evidence Code has been amended to allow hearsay to be used in a child abuse cases (i.e., child's statement made to police officer in police report) if the victim declarant is under the age of twelve and there is corroborating evidence of the abuse or neglect. (Evid. Code, § 1360.) Evidence Code section 1253 also allows the statement of a child under 12 made for the purpose of medical diagnosis or treatment to be used as evidence in a criminal child abuse case. (See also Pen. Code, §§ 1346-1347, that provide for introduction of videotaped testimony of a child 15 or under, and for examination of a witness 10 years or younger via closed-circuit television.)(54)
Expert testimony may be allowed at trial to explain a child abuse victim's initial refusal to disclose the incident, later inconsistent accounts, and denial of some of the acts, all of which are symptoms of the Child Abuse Accommodation Syndrome. (People v. Gray (1986) 187 Cal.App.3d 213.)
The California Supreme Court recently held that a defendant does not have a Sixth Amendment right to have the trial court review, in camera and before the trial, privileged records sought from a psychologist of an under fourteen year-old victim of lewd and lascivious conduct by a defendant. (People v. Hammon (1997) 15 Cal.4th 1117.)
A child representative may be appointed in child abuse or molestation cases. (Pen. Code, § 1348.5.)
An abused child can be removed from an unsafe environment and from an unfit parent or guardian. Any person under the age of 18 can be placed under the juvenile court's jurisdiction if the child:
This means that the court can decide if the child should be made a dependent of the court. To protect such a child from more abuse or neglect, a police officer may, without a warrant, take a child into temporary protective custody. If abuse is suspected, the officer may transport the child to either a hospital or special holding facility, with or without parental consent.
If a child is found to be a victim of abuse or neglect, the court will determine what steps should be taken to protect the child. Such steps may include keeping the child at home under the supervision of the local welfare or social services department, or placing the child with relatives, in foster care, or in other child care facilities (Welfare & Institutions Code, § 300 et seq.), or enjoining a parent, guardian or former household member from molesting, attacking striking, sexually assaulting or battering the child; excluding them from the dwelling; or prohibiting them from engaging in other behavior likely to disturb the child. (Welf. & Inst. Code, § 213.5.)
In any civil action for recovery of damages suffered as a result of childhood sexual abuse, the time for commencement of the action is within eight years of the date the victim reaches the age of majority, or within three years of the date the victim discovers or reasonably should have discovered that psychological injury or illness occurring after the age of majority was caused by the sexual abuse, whichever occurs later. (Code of Civ. Proc., § 340.1; the California Supreme Court held that this statute applied retroactively to victims' claims in Tietge v. Western Province of the Servites, Inc. (1997) 55 Cal.App.4th 382.)(55)
18 U.S.C. § 2251 et seq. sets forth penalties and provides a federal civil remedy for sexual abuse and other exploitations of children. The federal government also shares funds and information to combat child abuse, pursuant to the terms of the Child Abuse Prevention and Treatment and Adoption Reform Act, 42 U.S.C. § 5101 et seq.
If your spouse, a person you are living with, or anyone you know is abusing a child, you should contact one of the following to get help:
If you do not want to identify yourself, reports may be made anonymously to these agencies. For investigation and follow-up, it is preferred, but not required, that the name and address of the reporter be volunteered. The most important thing, however, is the immediate protection of the abused child.
If you, as a parent, caretaker, foster parent, guardian, or babysitter, feel you need help in dealing with the children for whom you are responsible, contact:
Parental kidnapping of children is considered to be a form of domestic violence and child abuse. If your child is kidnapped by its other parent, you should call the police. By law (Pen. Code, § 14200 et seq.), the officer must take the report and enter it into the National Crime Information Center (NCIC) within four hours, listing the child as "at risk," if the kidnapper had no right under a custody or visitation order. The law also requires that a "Be on the Look-out" bulletin be broadcast without delay within the jurisdiction. Seek help from the section of your local district attorney's office that deals with child abduction cases and ask it to help you obtain an order granting you sole physical custody of your child, if you do not already have one.
If there is no custody order regarding the child in effect, the kidnapper violated Penal Code section 278, which provides that in the absence of a custody order, the taking, detaining, concealing, or enticing away of a child by a parent, maliciously and without good cause(56), with the intent to deprive the other parent of his/her equal right to custody is a wobbler (it can be treated as a felony or misdemeanor), with a four-year maximum sentence, or a fine of up to $10,000, or both. Section 278 also applies when a relative, such as a grandparent, aunt or uncle, or stepparent, commits an abduction.
If the parents had a custody and visitation order regarding the child, the kidnapper could be charged with a violation of Penal Code section 278.5, which provides that where there is a custody order giving each parent a right of physical custody or visitation, taking, detaining, concealing or enticing away a child with the intent to deprive the other of the right to custody or visitation is a wobbler, with a three- year maximum sentence, and a fine of up to $10,000, or both. In this scenario, the police should take a report, but an NCIC entry may not be made and the case will not get priority handling by the police. (Fam. Code, §§ 3130-3135 mandate district attorney involvement in cases where a petition to determine custody has been filed or where a custody order is in place.)
If it reasonably appears to a law enforcement officer that a parent will flee the jurisdictional territory with a child, the officer can take the child into custody under Penal Code section 279.6 to prevent an abduction.
See also the Federal Parental Kidnapping Act, 28 U.S.C. § 1738A, which provides that full faith and credit is to be given to the custody order of another state.
Child abuse often leaves lasting scars. Moreover, people who were abused as children are more likely to abuse their own children than people who were not abused as children. For your own sake and to help break the cycle, you might want to see a private therapist, or look in your local phone book for organizations that counsel or sponsor group sessions for survivors of child abuse.