Chapter 7 - Violent Crimes Commited Against Women and Children
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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 AND OTHER FORMS OF SEXUAL ASSAULT
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Rape is one of the most dehumanizing crimes of violence. The outrage of rape is often compounded by other violent, sexually assaultive types of crime, such as forced oral copulation, forced sodomy and rape by instrumentality. This chapter discusses California law defining rape, including rape by a spouse, and other forms of sexual assault. It details legal procedures a victim of sexual assault may take, and describes medical and counseling services available to rape victims. Also included is a list of precautions for safety at home and on the street to help women try to reduce the risk of rape and other forms of sexual assault.
Many people have the wrong idea about sexual assault. They mistakenly believe that rapists are overcome with sexual desire or that a woman who is raped may have dressed too seductively or "asked for it" in some manner. These ideas assume that rape is only a sexual act, a crime that is motivated by desire. It is not. Rape is a violent crime, a hostile act, and an attempt to hurt and humiliate another person. Sex is used as a weapon, and rapists use that weapon against women, strangers and acquaintances of all ages, races and body types.
Women are attacked by men in the vast majority of incidents of sexual assault involving an adult man and woman. Most men who are sexually assaulted are assaulted by other men. A proportionally small number of sexual assaults involve a women attacking a man or another woman. Therefore, this section is addressed primarily to women who have been attacked by men. However, most of the information in this section is applicable to all forms of sexual assault, regardless of the gender of the assailant or victim.
If You Are Attacked
Literature differs on the best way to protect yourself during an assault. All agree, however, that the first thing to do is to TRY TO GET AWAY -- SCREAM, BLOW A WHISTLE, MAKE NOISE, RUN TO SOME PLACE WHERE THERE ARE PEOPLE OR WHERE YOU WILL BE SAFE.
If you are unable to get away immediately, try to stay calm until you can find an opportunity to escape. Be familiar with your limitations. Do not resist a man who is wielding a knife, gun or other weapon. Do not worry about "winning" - worry about staying alive and getting away.
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:
- Try to calm the attacker. Talk to him and try to persuade him not to carry out the attack. If you win his confidence, you may be able to escape.
- Claim to be sick or pregnant. Tell him you have venereal disease (VD), acquired immune deficiency syndrome (AIDS) or herpes. This may deter the attacker.
- If possible, vomit to repel your attacker.
- Try to discourage the rapist. Some women pretend to faint, some cry hysterically, and others act insane or mentally incapacitated.
- If you are at home, tell the attacker that you are expecting someone -- a boyfriend, husband or friend.
Remember: There is no single right way to stop an attack. Try to do what you can, but the most important thing is to survive.
Legal Definitions of Sexual Assault
Rape, a felony, is defined by Penal Code section 261 et seq. as an act of sexual intercourse, including sexual penetration, no matter how slight, with a person who is not the spouse of the rapist, under any of the following circumstances:
- Where a person is incapable of giving legal consent because of a mental disorder or developmental or physical disability and the rapist knows, or should know it.
- Where it is accomplished against a person's will by means of force, violence, duress, menace or fear of immediate and unlawful bodily injury on the victim or another.
- Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance,(1) and this condition was known, or reasonably should have been known by the accused.
- Where the person is unconscious of the nature of the act and the rapist knows it, either because she is unconscious or asleep or unaware that the act occurred or not cognizant of the essential characteristics of the act because of the rapist's fraud.
- Where the person submits under the mistaken belief that the rapist is her spouse and the rapist intentionally induced that belief.
- Where it is accomplished by the rapist threatening to retaliate in the future against the victim or anyone else, and there is a reasonable possibility that the rapist will carry out the threat (threatening to retaliate means a threat to kidnap or falsely imprison or to inflict extreme pain, serious bodily injury or death).
- Where it is accomplished against a person's will by threatening to use the authority of a public official to incarcerate, arrest, or deport the person, and the person has a reasonable belief that the perpetrator is a public official. The perpetrator does not actually have to be a public official. A public official is defined as a person employed by a governmental agency who has the authority to incarcerate, arrest or deport another.
Rape by A Spouse
Rape by a spouse is a crime in California. Spousal rape is defined as an act of sexual intercourse accomplished against the will of the other spouse by means of force or fear of immediate bodily injury on the spouse or on another; where a person is prevented from resisting by any intoxicating or anesthetic substance or any controlled substance, and this condition was known or reasonably should have been known by the rapist; where a person is incapable of resisting because unconscious, asleep, unaware that the act occurred, or not cognizant of the essential characteristics of the act, due to the rapist's fraud; where the rape is accomplished by threatening to retaliate in the future against the spouse or any other person, and there is a reasonable possibility that the rapist will execute the threat; or where the act is accomplished against the spouse's will by threatening to use the authority of a public official to incarcerate, arrest or deport the spouse, or another, and the spouse has a reasonable belief that the rapist is a public official. As with the general definition of rape, the word retaliation means a threat by the rapist to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death. (Pen. Code, § 262(a).)
In order to have a spouse arrested or prosecuted for rape, the spousal victim must report the rape to medical personnel, a member of the clergy, an attorney, a shelter representative, a counselor, a judicial officer, a rape crisis agency, a prosecuting agency, a law enforcement officer or a firefighter within one year after the rape. (The reporting requirement does not apply if the victim's allegation of rape is corroborated by independent evidence that would be admissible at trial.) (Pen. Code, § 262(b).)
If probation is granted upon a conviction of spousal rape, the conditions of probation may include, in lieu of a fine, one or both of the following requirements: 1) that the rapist make a payment to a battered women's shelter of up to a maximum of $1,000 (unless to do so would impair the ability to make direct restitution to the victim or to pay for court-ordered child support); or 2) that the rapist reimburse the spouse for reasonable costs of counseling and other reasonable expenses that are the direct result of the rape (the separate property of the rapist shall be exhausted before community property is to be used for this restitution.) (Pen. Code, § 262(e).)
Both spousal and non-spousal rape are punishable by imprisonment in state prison for three, six or eight years. In addition, the judge may assess a fine of up to $70, depending on ability to pay, that will be used for AIDS education. (Pen. Code, § 264.)
Rape by A Date or Ex-spouse
Where consent is an issue in certain rape prosecutions, a current or previous dating or marital relationship is not sufficient to show consent to sexual intercourse. (Pen. Code, § 261.6.)
Code of Civil Procedure section 372 allows a minor 12 years or older to appear in court without a guardian, counsel, or guardian ad litem, to seek a protective order against a person with whom she is having a dating or engagement relationship. (See also Fam. Code, § 6301, which provides that minors can be granted restraining orders.)
Protecting Yourself Against Acquaintances
It has been estimated that in over half of all cases of sexual assault, the rapist is an acquaintance of his victim. So, you need to be cautious, even with people you know.
- Do not assume that you are safe, solely because you are with someone you know.
- Consider having dates, especially first and second dates, take place in public places.
- Trust your instincts; if you feel uncomfortable in a situation, do something about it.
- Remember you have a right to say NO to unwanted sexual advances.
Communication to use condom or other birth control device. In certain rape prosecutions, evidence that the victim suggested, requested or otherwise communicated to the rapist that he use a condom or other birth control device, standing alone, is not sufficient to constitute consent. (Pen. Code, § 261.7.)
Rape By A Foreign Device Or Instrument
It is unlawful to force even the slightest penetration of the genital or anal opening of another person by any foreign object, instrument, substance, device, or any unknown object, including a bodily part, such as the penis, or to cause another person to do so for the purpose of sexual arousal, gratification or abuse under all of the circumstances that cause sexual penetration to be rape. This crime is punishable by a sentence of one to eight years in state prison or county jail, depending on the circumstances. (Pen. Code, § 289.)
Forced Oral Copulation
Forced oral copulation is a crime. Oral copulation is the placing of the mouth of one person on the sexual organs or anus of another person or assisting someone else to do so. It is a crime under all of the circumstances that cause sexual penetration to be rape. This crime is punishable by a sentence of one to eight years in state prison or county jail, depending on the circumstances. The judge can also impose a fine of up to $70 for AIDS education, depending on ability to pay. (Pen. Code, § 288a.)
Forced sodomy is a crime. A person is guilty of the crime of sodomy if he uses his penis to penetrate, however slightly, the anus of another person under all of the circumstances that cause sexual penetration to be rape. This crime is also punishable by a one-year jail sentence or a three to eight-year state prison term, depending on the circumstances. The judge can also impose a fine of up to $70 to be used for AIDS education, depending on ability to pay. (Pen. Code, § 286.)
Attempted Assault With Intent to Commit Rape
Attempted assault with intent to commit mayhem, rape, rape by instrumentality, forced sodomy or forced oral copulation is illegal and punishable by imprisonment in state prison for two, four or six years. (Pen. Code § 220.)
Sexual battery is a crime. A person is guilty of sexual battery if he touches the intimate parts (sexual organ, anus, groin, or buttocks of any person, or the breasts of a woman), either directly or through the person's clothing, or causes that person to masturbate or touch the intimate parts of another where:
- The victim is unlawfully restrained by the accused or by an accomplice, and if the touching was against the victim's will, for the purpose of sexual arousal, gratification or abuse; or
- The victim is institutionalized for medical treatment and is seriously disabled or medically incapacitated, if the touching is against the victim's will and for the purpose of sexual arousal, gratification or abuse; or
- The victim is unlawfully restrained, either by the accused or another, or is institutionalized for medical treatment and is seriously disabled or medically incapacitated; and the touching or masturbation is against the victim's will and for the purpose of sexual arousal, gratification, or abuse.
This crime is punishable by fines of from $2,000-$10,000 or by imprisonment in prison or the county jail for six months to four years, depending on the circumstances. If convicted of a felony for sexual battery or attempted sexual battery, the offender will be ordered to register as a sex offender. (Pen. Code, §§ 243.4 and 290.)
Teenage Pregnancy Prevention Act of 1995
The Legislature enacted the Teenage Pregnancy Prevention Act of 1995, that prescribes punishment for unlawful sexual intercourse with a minor, and makes an adult who engages in an act of unlawful sexual intercourse with a minor liable for civil penalties. (Pen. Code, § 261.5.)
What You Can Do If You Are Sexually Assaulted
Many women are initially overwhelmed at the prospect of facing the medical and legal procedures that follow a rape. Rapists know this and hope their victims will not report the crime. However, often victims who do report the rape feel stronger by taking positive action to aid law enforcement officers in capturing and prosecuting the rapist. Nonetheless, if you feel you are unable to report the rape to the police, you should take some steps to protect your own mental and physical well-being and that of other potential victims.
The following are law enforcement, medical and counseling resources you can turn to for help after being sexually assaulted.
If you are sexually assaulted, you can call the police and receive immediate assistance. Statistics show that rapists repeat their crimes, so by calling the police after a rape, you may help catch and imprison a rapist before he rapes someone else.
When you call the police emergency number and report that you have been raped, you can expect to be asked the following questions by the police dispatcher over the phone:
- Your name and location.
- Whether you need emergency medical assistance.
- How long ago the assault occurred.
- A brief description of the rapist, his car or other form of transportation, and the direction he was last seen traveling.
- If the rapist had a weapon. This is for the officer's safety in case of an immediate apprehension, and for your own future safety.
If you feel that it would be easier for you to discuss the attack with a woman, ask the police to send a woman investigator to see you. Most law enforcement agencies in California will try to provide a female officer for a rape victim upon request. You may also be able to have a friend, relative or counselor from a rape crisis center (See Chapter Nine, Directory of Services, at the back of this handbook) accompany you during the police interview. (Pen. Code, § 679.04 and Evid. Code, § 1035.2.) Bilingual officers may also be available. The police department will send an officer to your location to talk to you. The officer will ask you only general questions about the attack, unless you want to make a complete statement at that time. They will gather as much evidence as they can. As part of a follow-up investigation, a police investigator will be assigned to your case to collect evidence and work with you to try to arrest the man who assaulted you. You may request that one of the investigators on your case be a woman. You will be asked to describe the attack and your assailant in detail. You do not have to discuss your past sexual history. You do have to discuss past sexual relations you may have had with the man who raped you. However, that alone cannot be used as evidence of consent. You should not be asked if you enjoyed the assault or had an orgasm. You have a right to ask the officers to explain why they are asking you certain questions. You may be asked to view pictures (mug shots) of several men to try to identify the man who raped you.
The police cannot require you to take a polygraph test (lie detector test). (Evid. Code, § 351.1.)
It is very important that you get immediate medical care. Even if you cannot see any visible signs of injury, you may be suffering from serious internal injuries. Also, you may have contracted venereal disease from the rapist or you may be pregnant. Currently, AIDS tests involve testing for the AIDS antibody, that may not appear until six months after infection. Therefore, if you are worried that you may have contracted AIDS from your assailant, you may want to have an AIDS test done six months after being sexually assaulted. The chance of getting AIDS from a single heterosexual contact with a man is anywhere from 1 in 200 to 1 in 2,000.)(2)
There are new California laws that permit you to request that your assailant be given a test to see if he is infected with the human immunodeficiency virus, or HIV, or with AIDS, when the court finds, after a hearing, or finds that there is probable cause to believe (where no hearing is required) that the accused committed the offense, and that there is probable cause to believe that the HIV virus might have been transmitted to the victim by the accused. In all cases in which the person has been charged with a crime or is the subject of a juvenile court petition alleging the commission of a crime, the prosecutor shall advise the victim of his/her right to make the request, and shall refer the victim to the local health officer for prerequisite counseling. The local health officer shall have the responsibility for disclosing test results to the victim and the accused, subject to applicable confidentiality provisions, although no positive test results shall be disclosed without providing or offering professional counseling. The victim may disclose test results as needed to protect his/her health and safety, or the health and safety, of his/her family or sexual partner. The results of a blood test pursuant to Penal Code section 1524.1 cannot be used in any criminal or juvenile proceeding as evidence of either guilt or innocence. (Pen. Code, §§ 1202.1 and 1524.1.) If the accused is incarcerated, copies of the test shall be sent to the officer in charge and the chief medical officer of the facility where the accused is incarcerated or detained. (Health & Saf. Code, § 121055.)
Another reason to get immediate medical care is that valuable medical evidence should be collected within 12 hours of the assault, although it can be collected up to 72 hours after the attack. You do not have to give the medical personnel all of the details of the assault. However, you do have to say you were sexually assaulted, in order to receive proper treatment. Even if you decide not to make a police report, the doctor treating you will collect all possible evidence in case you later change your mind, although you do not have to consent to an examination for evidence of sexual assault, nor is denial of consent grounds for denial of treatment of injuries or for possible pregnancy or venereal disease. (Pen. Code, § 13823.11(c)(3).)
If you report the rape to the police and they take you to the hospital or make arrangements to meet you there before the examination, the police department, county, or local governmental agency will pay all or most of the expenses for the medical tests needed for legal evidence. (Pen. Code, § 13823.95.)
Other expenses, such as major medical or hospitalization costs, wages lost from inability to work, and psychological counseling, may be reimbursed by filing under the Aid to Victims of Violent Crimes Act. (Gov. Code, § 13959 et seq.; see discussion, infra.)
You should not wash yourself or your clothes before going for medical treatment. Your first instinct after being raped by your assailant might be to cleanse yourself completely and to wash away the entire incident. DO NOT DO THIS. Washing your body may remove vital evidence needed for possible conviction of your assailant. While waiting for the police and a counselor from a crisis center to arrive:
- Do not wash any part of your body, including your mouth, and do not douche.
- Do not change your clothes. (If you feel you must change your clothes, place each item of clothing removed in a separate bag.)
- Do not clean or straighten your house or any other area, if it was the scene of the assault.
- Do not touch areas that the rapist may have touched.
- Do not destroy or discard your clothing, your underclothes, or sheets and towels you may have used. These items could contain valuable evidence.
You are not required to make a police report to receive emergency medical treatment. But every physician, health practitioner employed in a health facility, clinic, physician's office, local or state public health department or clinic in California is required by law to report to a local law enforcement agency, by telephone and writing, the name, address, type of assault, nature and extent of injury and identity of any person allegedly responsible for the injury for each victim of violent crime that they treat. (Pen. Code, § 11160, et seq.) This does not mean that a formal police report is filed. The police cannot take action on your case until a report of the rape is made by you.
You may be able to have a person of your choice present during the medical examination. (Pen. Code, § 679.04.) Such a person may be a friend or an advocate from a rape crisis center. Local law enforcement is required to notify the local rape victim counselling center whenever a rape victim is transported to a hospital for examination, if the victim approves of that notification. (Pen. Code, § 264.2.)(3)
You will undergo a general physical examination (blood pressure, weight, temperature, ears, eyes, mouth, heart, etc.), a pelvic examination (external pelvic and internal genital), and tests for venereal disease and pregnancy. The clothing you wore during the assault will be examined, along with foreign materials revealed by examining the clothing. (Pen. Code, § 13823.11.) The doctor may offer you the "morning after pill" (diethylstilbestrol, or DES) or large doses of a birth control pill to terminate a possible pregnancy. However, you should inquire as to possible side effects from DES.
You may be asked to provide an account of the sexual assault, which shall include the circumstances of the assault, physical injuries reported, sexual acts reported, whether or not ejaculation is suspected, whether or not a condom or lubricant was used, and a record of relevant medical history. (Pen. Code, § 13823.11(d).)
The doctor or police may want to take pictures of your injuries as evidence. They will usually want to wait 24 hours in order for the full effect of the bruises to develop. You can decide who will take the pictures--a social worker, rape crisis advocate, doctor, nurse, or police officer. (Pen. Code, § 13823.11(c)(1)(c).)
You will be asked to sign a release of evidence form, consent forms, police reports, etc. If you do not understand what is in the documents, you should ask to have them explained to you. Do not be afraid to ask questions. You have a right to know what you are signing. (Pen. Code, § 13823.11(c)(1) and (2).)
Rape Crisis Centers
Rape crisis centers are organizations that help women who have been victims of rape or other violent crimes to get medical assistance and counseling to help cope with the emotional and physical trauma.(4) (See Chapter Nine, Directory of Services, at the back of this handbook.) You can get the name and phone number of the rape crisis center or similar organization in your area from the police, emergency hospital, or your local directory assistance operator.
When you call the rape crisis center, tell them what happened to you. These centers generally provide 24-hour telephone counseling, as well as in-person counseling and referral services during normal business hours. Their services are generally free to rape victims. Most centers also provide victims with counselors or advocates who will accompany a rape victim during police interviews, medical examinations, and court proceedings. (Pen. Code, § 13823.15(b).) You have a right to be accompanied by two persons, one of whom may be a witness, who are either friends, relatives or counselors from a rape crisis center, during court proceedings. One of them can accompany you to the witness stand, while the other can remain in the courtroom. (Pen. Code, §§ 868 and 868.5.)
If you do not want to report the rape to the police, a rape crisis center can do it for you, without involving you specifically. That way, the police can be alerted to the presence of a rapist in your area.
Note: You do not need to have been raped recently to call a rape crisis center, nor do you need to be a woman. Most rape crisis centers offer support services to all survivors of sexual assault: female and male victims, and often to the survivors' spouses or lovers, as well.
The Psychological Impact of Rape
Most rape victims suffer physical and emotional reactions that continue for months after the rape occurred. Rape counselors have noted three stages of a "rape trauma syndrome" that affect most rape victims. In the first state (lasting anywhere from one week to three months), victims often feel loss of control, shame, fear of dying, physical pain, inability to sleep, depression, and other symptoms of severe trauma. The second stage, or reorganizational phase, may last a year or longer. It is often characterized by minor or major adjustments in lifestyles, that are motivated by fear (changing jobs, quitting school, moving). The third stage is the reintegration stage. (See description in People v. Bledsoe (1984) 36 Cal.3d 236, 241-243.)
Many rape victims have been helped by mental health professionals and counselors to overcome most of their negative symptoms and reactions after a rape. It is important for any victim of a rape or other violent crime to seek all available help.
Financial Assistance is Available to Victims of Rape and Other Violent Crime
Under the Aid to Victims of Violent Crimes Act, the state provides compensation of up to $23,000 to victims of violent crimes,(5) their dependents, family members, or persons in close relationship with the victims, if they suffer monetary losses incurred as a result of the crime for which they will not be reimbursed from any other source for medical or medically-related expenses; out-patient psychiatric, psychological or other mental health counseling-related expenses; loss of income or support; nonmedical remedial care and treatment; or family psychiatric, psychological or mental health counselling. Funds for retraining are also available. (Gov. Code, § 13965 (a)(4).) An application must be filed with the Board of Control within one year after the date of the crime, or one year after the victim attains the age of 18 years, whichever is later. (Gov. Code, § 13961(c).) A higher amount may be payable if matching federal funds are available. Attorneys' fees of up to 10% of the award or $500, whichever is less, for each victim or derivative victim, may also be available. (Gov. Code, §§ 13960 and 13965.) Attorney's fees may also be awarded pursuant to Government Code section 13969.1.
To receive this state compensation, you must have suffered physical or emotional injury as a result of a violent crime. Generally, you must have been a California resident when the crime occurred, or be military personnel, or be living with military personnel stationed in California. (Gov. Code, § 13960.) However, nonresidents who suffer monetary losses as a direct result of criminal acts occurring in California may also be compensated, if there are federal funds available. (Gov. Code, § 13960.5) Emergency awards of up to $1,000 may be made if the victim incurs loss of income or support or requires emergency medical treatment. (Gov. Code, § 13961.1.) In cases of a victim's death, the heirs may have rights to this compensation for financial losses to the deceased.
Courts can order income deductions and issue bench warrants for failure to pay fines and restitution, and order the obligor to be imprisoned until the money is paid. (Gov. Code, § 13967.2 and Pen. Code, § 1205 et seq.)
A victim of any crime, including domestic violence, may not receive compensation if he/she refuses to cooperate with the police in apprehending and prosecuting the assailant (Gov. Code, § 13962(c)), or if he/she is a convicted felon who has not yet been discharged from parole or probation (Gov. Code, § 13960.2), or if he/she knowingly and willingly participated in committing the crime in connection with which he/she is seeking compensation. (Gov. Code, § 13964(c).)(6) You are entitled to have support persons attend the board hearing held to determine if you are entitled to this compensation if the application the board is considering is the result of a crime against a minor, a crime of sexual assault, or a crime of domestic violence. (Gov. Code, § 13963.1.)
Information and application forms for compensation to victims of violent crimes may be obtained from the state Board of Control in Sacramento, a local victim witness assistance program, or the police, sheriff's department, or other law enforcement agency involved.
For more information, contact:
Victims of Violent Crimes Division
California Board of Control
630 K Street
Sacramento, California 95814-3301
P.O. Box 3036
Sacramento, California 95812-3036
The Legal Process
A prosecuting attorney in the district attorney's office will be assigned to review your case. The attorney can explain the legal procedures for prosecution to you and will tell you what testimony you would be required to give and how often you might have to appear in court. Counselors and lawyers with rape crisis centers and victim witness assistance programs can also explain legal procedures to you.(7)
If you were attacked by your spouse or someone you know, you can have a temporary restraining order issued, if you are afraid your assailant will continue to harass you. (Code Civ. Proc., § 527.6; Fam. Code, §§ 6215 and 6218 et seq.)
If the Suspect is Arrested
If your attacker is arrested, the deputy district attorney will decide whether to issue a formal complaint against him. This decision is based on the strength of the evidence against the suspect.
The suspected rapist has a right to a defense attorney during all legal proceedings. The suspect may be assigned an attorney from the public defender's office to represent him on the case. The public defender may assign an investigator to work on the case.
You are not obligated to speak with the defense attorney or his/her investigator, or anyone else about your case until you are in court. (Walker v. Superior Court (1957) 155 Cal.App.2d 134, 139-140.) However, your name and address must be disclosed to the defendant and the defense cannot be precluded from contacting you in the absence of a showing of good cause (threats or possible danger to the safety of the victim or witness, possible loss or destruction of evidence, or possible compromise of law enforcement investigation, or actual harassment). (Reid v. Superior Court (1997) 55 Cal.App.4th 1326.) If you choose to answer an attorney's or investigator's questions, you may have another person present with you, if you wish. (Pen. Code, § 679.04.) You should also notify the deputy district attorney. You should always ask for identification and an explanation of the purpose from anyone contacting you about the case.
If the Suspect is Charged with Rape
Once the suspect is formally charged, he is called a defendant. Before the actual trial, the court, through a magistrate, conducts a hearing, called a preliminary hearing, to determine whether the prosecutor has enough evidence to show that the rape was committed and that the defendant is probably the one who committed the rape, so that he may be tried for the rape. (Pen. Code, § 859, et seq.)
Proposition 115 (the Crime Victims Justice Reform Act), that became effective June 5, 1990, allows certain hearsay testimony by law enforcement officers having specified experience or training to be introduced at the preliminary hearing to show probable cause to try a person for rape. This portion of Proposition 115, (that amended Evid. Code, § 872(b)), was upheld against a constitutional challenge in Whitman v. Superior Court (1991) 54 Cal.3d 1063. Thus, your testimony may not be needed at the preliminary hearing. The deputy district attorney prosecutes the case on behalf of the people of California and not on behalf of you directly, because a rape, like any other violent crime, is considered a crime against the state. The decision to prosecute, accept a plea bargain or drop the case is up to the district attorney, not the victim.
After the evidence is heard at the preliminary hearing, the magistrate will decide whether to send the case to superior court for a trial. If the judge does not believe there is enough evidence, the charges will be dropped, and the suspect will be released. (Pen. Code, § 859, et seq.)
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.
Protecting Yourself At Home
- Keep all exterior doors and windows securely locked.
- All entrances and hallways should be well-lighted.
- Hang curtains and/or blinds on all windows.
- Be aware of places attackers might hide, both inside and outside.
- Never open the door to a stranger. Install a peephole in your front door.
- If you live alone or with other women, don't put your full name on your mail box or in the phone book; use your first initial only. Avoid publicizing that you live alone.
- Keep your garage locked.
- Leave a light on when you go out.
- When you return home, if there is any sign of an intruder or forced entry, seek help. DO NOT ENTER ALONE.
- Take a self-defense class or a class in the use of tear-gas or pepper spray. There are many self-defense classes designed for women.
Protecting Yourself On The Street
- Walk in well-lighted areas.
- Avoid walking alone.
- Walk at a steady pace - look confident and purposeful. Know where you are going. Do not look lost.
- Be familiar with your own frequently used route. Vary your route home.
- Try to keep your hands free.
- Listen for footsteps and voices nearby. Be alert to discover if someone is following you. If you think someone is following you, cross the street or walk in the middle of the street, stay near street lights, or go into a store or office where people are working.
- If you fear danger, scream loudly or yell "FIRE." ("Fire" is a threat to which almost everyone will respond.) Get to a lighted place fast. Run and yell.
- Carry a whistle wrapped around your wrist or on your key chain. Use it.
- If you are walking outside, stand in a balanced position. Be suspicious of cars that pull up near you or keep passing you.
- If a car is following you, turn around and walk in the reverse direction.
- Dress for freedom of movement. Wear sensible shoes that allow you to run.
- Walk on the outside of the sidewalk, away from possible hiding places.
- Have your car key out and ready to use when you go to your parked car.
- Check the interior of your car before you get in. Always keep car doors locked when parked and driving.
- Always carry enough money for an emergency whenever you go out.
- Carry a flare in your car for emergencies.
- Drive to a police station if you are threatened while in your car.
Protecting Yourself In Your Neighborhood
Pursuant to the federal "Megan's Law," local police departments may disclose to the community the criminal background of a registered sex offender considered to be a continuing danger. (42 U.S.C. § 14071(d).)(13) The New Jersey version of Megan's Law has been upheld against a constitutional challenge arguing that it is an ex post facto law, that it constitutes double jeopardy, that it is an unlawful bill of attainder, that it constitutes cruel and unusual punishment, and that it violates the registrant's constitutional privacy rights, although the court indicated that a hearing must be held before the public is notified, in order to protect the registrant's due process rights. (Doe v. Poritz (Sup.Ct. N.J. 1995) 662 A.2d 367.)
The Second Circuit Court of Appeals upheld New York's and Connecticut's versions of Megan's Law against ex post facto constitutional challenges. (Doe v. Pataki (2nd Cir. 1997) 120 F.3d 1263, and Roe v. Office of Adult Probation (2nd Cir. 1997) 125 F.3d 47.) The First Circuit Court of Appeals upheld New Jersey's version of Megan's Law against an ex post facto challenge and a double jeopardy clause challenge. However, the court held that requirements that schools, community organizations and persons likely to come into contact with an offender be notified violate the due process clause unless the offender is given an opportunity to challenge the notification and prosecutors during a hearing can prove by clear and convincing evidence that such notification is required. (E.B. v. Verniero (3rd Cir. 1997) 119 F.3d 1077.) The Ninth Circuit recently upheld Washington state's version of Megan's Law, finding that paroled sex offenders suffered no additional punishment when the public was told of their whereabouts. (Russell, et al. v. Gregoire, et al. (9th Cir. 1997) 124 F.3d 1079.)
In 1947, California implemented the nation's first sex offender registration program to help track the whereabouts of persons convicted of specific sex crimes. The registration requirement is for life, unless the offender is relieved of this responsibility through legal processes. In 1996, California enacted its own version of "Megan's Law to implement the federal law," that provides the public with photographs and descriptive information on serious sex offenders residing in California, who have been convicted of committing sex crimes and are required to register their whereabouts with local law enforcement. The cost for calling 1-900-463-0400 is a flat rate fee of $10 for information on up to two individuals. (Pen. Code, §§ 290 et seq.)(14)
To use the 900 line, you must be at least 18 years of age, and you must provide the following information about the person you are checking: the name of the person and one of the following: an exact address or exact date of birth or California driver's license number, identification number or social security number. If you only know the person's name, you will need to provide a complete description of the person.
The Megan's Law CD-Rom provides another means to obtain information on California's more than 64,000 serious sex offenders. A CD-ROM, now available for public viewing, provides the following information about serious sex offenders: registrant's name, aliases, photograph (if available), sex, physical description, including scars, marks and tattoos, registered sex offenses, county of residence, and ZIP code, based on last registration. To view the CD-ROM, you must be 18 years of age or older, provide a California's driver's license or identification card, sign a statement that you are not a registered sex offender, that you understand that the purpose of the release of information is for the public to protect themselves and their children from sex offenders, and that it is illegal to use the information to harass, discriminate against or commit a crime against any registrant, and state a distinct purpose for viewing the CD-ROM, if required by local law enforcement. Contact your local law enforcement agency to obtain information on where and when you can view the CD-ROM.
You may also receive information about serious sex offenders through your local law enforcement agency or your neighborhood school, or view the Attorney General's Home Page.
Protecting Yourself When Hitchhiking
Avoid hitchhiking whenever possible. Arrange a ride with a friend or borrow a friend's car. Use public transportation, or join a car pool. If you must hitchhike:
- Try to get a ride with a woman.
- Avoid hitchhiking alone.
- Check the license plate number and write it down before getting into the car.
- Check to see that no one is hiding in the car, and that the driver is the only occupant.
- Become familiar with the vehicle make, model, color, etc. Be sure the door handle on the passenger's side works before getting in.
- Do not get into the back of a van or a 2-door car.
- Do not get in the car of someone who you think has been drinking.
- Ask the driver's destination and determine if it is where you want to go.
- Try to make sure it is a safe ride before putting any of your possessions into the car or trunk.
- Look closely at the driver so you can later identify him/her.
- Do not talk openly about yourself or give your home address or telephone number.
- Do not allow the driver to take you to your home; get out of the car at least a block away.
- Hitchhike in an area where there is ample pull-off space.
- If you feel uncomfortable about the situation, do not get into the car.
Any person who willfully, maliciously, and repeatedly follows or harasses another person and who makes a credible threat with the intent(15) to place that person in reasonable fear for his/her safety or the safety of his/her family, is guilty of the crime of stalking. This crime is punishable by imprisonment in county jail for not more than one year or by a fine of not more than $1,000, or by both that fine and imprisonment, or by imprisonment in state prison. The defendant, if convicted of felony stalking, may be required to register as a sex offender. If probation is granted, the defendant must usually participate in a counselling program. (Pen. Code, § 646.9.)
When there is a conviction for this crime, the court must consider issuing an order restraining the person convicted from any contact with the victim for up to ten years.(16) Any person who violates such an injunction or order shall be punished by imprisonment in state prison for two to four years. The fact that the person is in jail shall not be a bar to prosecution for this crime. (Pen. Code, § 646.9 (b).)
Civil Code section 1708.7 establishes a tort (civil law claim) of stalking, that subjects a stalking defendant to liability for general damages, special damages, and punitive damages. While prosecutors will not directly use this statute, it is important to advise the victim that one option is a civil suit under this section.
Penal Code section 1270.1 provides that a hearing is required before a person charged with a specified stalking offense is released on bail that differs from the bail set in the uniform county-wide bail schedule, or is released on his/her own recognizance. The Department of Corrections, county sheriff, or director of a local department of corrections is required to give a 15-day notice to a victim, victim's family member, or witness to the offense, of the release from state prison or county jail of a person convicted of stalking. (Pen. Code, § 646.92.)
Advice to Stalking Victims
- Stop all contact with the stalker.(17)
- Don't use any third party to intervene, unless it's law enforcement.
- Obtain a restraining order.
- Get a new unlisted phone number and change your old number, or keep it attached to an answering machine to collect evidence of the stalking.
- Alter work hours, routes to and from work, and parking places.
- Advise your employer and co-workers of the problem and provide a picture of the defendant. If he shows up at work, call the police and avoid contact with him.
- Keep a diary of any and all attempts to contact you. Note dates, times, and the presence of any other witness. If the defendant is violating a restraining order, call the police immediately and make a report.
- Save all evidence, including notes, letters and phone messages.
- If hang up calls are being made to your number at home or work, consider asking for installation of a phone tap or call-back feature, that will indicate the phone number of the person calling. (If the caller has not asked that his caller identification number be blocked, this may also enable you to identify him.)
- Avoid places the defendant knows you frequent.
- If you have children in common, arrange through the court for the exchange of custody or visitation through a third party.
- If possible, move to a new address with a roommate and have the bills placed in the roommate's name; ask that your address be kept confidential by the Department of Motor Vehicles, pursuant to Vehicle Code section 1808.21.
- Discuss with an investigator, advocate or district attorney a specific safety plan, if the defendant finds you.
The safety plan should include the following:
- Police emergency phone number and numbers to crisis hotlines.
- Lists and numbers of shelters and safe places where victims can stay.
- Restraining order information.
- Emergency cash, credit cards, checks, etc., on hand to allow for the payment of emergency needs.
- Clothing and personal items packed and ready to go at all times. Make sure that important papers are included, such as children's birth certificates.
- A second set of keys.
- Systems and codes to be used with family, friends, professionals, neighbors, etc. These will warn them that you need help.
- Change locks on doors and windows.
GENDER-BASED HATE CRIMES
The Ralph Act
The Ralph Act, Civil Code sections 51.7 and 52, provides that it is a civil right to be free from violence or the threat of violence to the person or to property because of a person's sex, inter alia. It provides for civil penalties of up to $25,000 for perpetrators, civil remedies to victims of up to three times actual damages, but no less than $1,000, punitive damages, injunctive relief and attorneys' fees. It is enforced by the Department of Fair Employment and Housing, the Fair Employment and Housing Commission, the California Attorney General's office, any district or city attorney, and private attorneys.
The Bane Act
The Bane Act, Civil Code section 52.1, provides protection from interference by threats, intimidation, or coercion or for attempts to interfere with someone's state or federal statutory or constitutional rights, on the basis of sex, among other bases. It provides for civil penalties for perpetrators, civil remedies to victims of up to three times actual damages, but no less than $1,000, punitive damages, injunctive and other equitable relief and attorneys' fees. It is enforced by the California Attorney General, any district or city attorney or, a private attorney.
Various other penal code statutes provide for punishment for gender-based hate crimes. Penal Code section 422.6(a) provides that it is a misdemeanor to interfere by force, or the threat of force, with a person's constitutional rights because of her gender, inter alia. The penalty is up to a one-year jail sentence or a $5,000 fine, or both. Penal Code section 422.6(b) provides that it is a misdemeanor to damage a person's property because of her gender, inter alia. (This carries the same penalty as the preceding section.) Penal Code section 422.7 provides that actions that are normally misdemeanors can become felonies if committed because of the victim's gender, inter alia. (The penalty is up to one year in jail or prison and/or a $10,000 fine.) Finally, Penal Code section 422.75 provides for sentencing enhancements of one to three years for certain bias motivated felonies against a person on the basis of her gender, inter alia.
Violence Against Women Act of 1994
The Violence Against Women Act of 1994(18) (VAWA, Pub. L. 103-322) established for the first time a federal civil right(19) to be free from crimes of violence motivated by gender, and provided a cause of action in either federal or state court to any victim of gender-motivated violence for unlimited compensatory (20) and punitive damages, injunctive relief, declaratory relief, attorneys' fees, and whatever else the court deems appropriate, such as counseling for the abuser.
The VAWA also provides a variety of measures designed to produce safe streets and homes for women, and equal justice for women in the courts.
In addition to its civil rights provisions, the VAWA does the following:
- Increases federal penalties for sex crimes and repeat sex offenders and imposes mandatory restitution for federal sex crimes enforceable through suspension of federal benefits;
- Provides $1.62 billion through the year 2000 for a variety of programs to combat violence against women, including funding for battered women shelters;
- Creates new evidentiary rules to determine the admissibility of the alleged victim's past sexual behavior or alleged sexual disposition; (21)
- Authorizes the U.S. Attorney General to develop model legislation to protect confidentiality between victims of sexual assault or domestic violence and their counselors;
- Requires the U.S. Postal Service to protect the confidentiality of the addresses of domestic violence shelters and abused persons;
- Authorizes the creation of a national domestic violence hotline;
- Creates model programs and demonstration programs to educate youth and help communities fight domestic violence;
- Facilitates the creation of databases, statewide and national, on the incidence of sexual and domestic violence and stalking;
- Provides for education of the state and federal judiciary to eliminate gender bias and to make the judiciary more aware of the issues specific to gender-based violence;
- Permits battered immigrant spouses and children of U.S. citizens and legal residents who have immediate relative status to self-petition for legal resident status and public benefits, and to proceed with their petition without the cooperation of the battering U.S citizen spouse if they no longer live with the batterer and public assistance is necessary for their survival;(22)
- Provides for pretrial detention in sex offense cases;
- Provides for increased penalties for sex offenses against victims younger than 16;
- Provides for testing for sexually-transmitted diseases for victims of sexual offenses and limited HIV testing of defendants;
- Contains measures to reduce domestic violence and stalking;
- Creates interstate protections for victims of domestic violence by providing that permanent, temporary and ex parte restraining orders from one state are enforceable in all 50 states if the order provided the defendant with reasonable notice and an opportunity to be heard in a manner consistent with due process (18 U.S.C. § 2265); and
- Provides that federal criminal penalties can be obtained against a person who travels across state lines (or leaves or enters an Indian reservation) with the intent to injure his spouse or intimate partner and then does so, (18 U.S.C. § 2261(a)(1); or who causes, by force, coercion, duress or fraud, an intimate partner or spouse to cross state lines (or leave or enter an Indian reservation) if the force or coercion leads to physical harm to the victim (18 U.S.C. § 2261(a)(2)); or to cross state lines (or leave or enter an Indian reservation) with the intent to stalk or harass another person, that placed the victim in reasonable fear of death or serious bodily injury to herself or a member of her immediate family (18 U.S.C. § 2261A); or to cross state lines (or leave or enter an Indian reservation) with the intent to violate a valid protection order and to actually violate an order protecting the victim against credible threats of violence (18 U.S.C. § 2262(a)(1); or to cause an intimate partner or spouse to cross state lines (or leave or enter an Indian reservation) by force, coercion, duress or fraud during which, or as a result of which, there is bodily harm to the victim in violation of a valid order of protection (no showing of specific intent is required) (18 U.S.C. § 2262(a)(2). (Penalties for violations of sections 2261, 2261A and 2262 hinge on the extent of bodily injury to the victim; terms of imprisonment range from five years for bodily injury, and up to life if the crime of violence results in the victim's death.)
By far the most important section of the VAWA is Subtitle C, the Civil Rights Remedies for Gender-Motivated Violence Act, that declares that all persons within the United States have the right to be free from "crimes of violence" motivated by gender. (42 U.S.C. § 13981 et seq.) "Motivated by gender" means a crime of violence committed because of gender or on the basis of gender and due, at least in part, to an animus based on the victim's gender.(23) Although the name of the bill implies otherwise, the VAWA covers gender-based violence affecting both men and women.
The VAWA defines "crimes of violence" as an act or series of acts that would, under either state or federal law, constitute a felony against the person or against property if the conduct presents a serious risk of physical harm to another. (24) The kinds of crimes that could be covered include rape, sexual assault, nonsexual assault, and domestic violence, if the violence rises to the level of a felony.
It does not matter, under the VAWA, whether or not the gender-motivated violent acts have actually resulted in criminal charges, prosecution, or conviction, and whether or not those acts were committed on federal lands. Random violent acts that are unrelated to gender, as well as acts that cannot be demonstrated by a preponderance of evidence to be gender-motivated, are not covered.
Under the VAWA, the victim of gender-motivated violence can pursue a civil cause of action against the assailant (including a person acting in an official capacity of any state) in state or federal court. The VAWA does not confer on federal courts, however, jurisdiction over marital dissolutions, alimony, equitable distribution of marital property, or child custody. Also, the VAWA does not provide grounds for removal to federal court for civil actions already filed in state court.
The VAWA contains a four-year statute of limitations. In other words, plaintiff must file her complaint within four years of the commission of the abuse. (However, the abuse must have occurred after the effective date of the VAWA, which was enacted September 13, 1994.)
Links to topics below
- Domestic violence is a major concern in California and in the United States. In 1988, according to the federal Bureau of Justice, 53% of female homicide victims were killed by their male partners. Domestic violence is the single major cause of injury to women, causing injury more frequently than auto accidents, rapes and muggings combined.(25)
- It has been reported that thirty percent of all women will suffer from some form of violence in an adult relationship.(26) A 1997 study released by the United States Justice Department indicates that, in 1994, a quarter-million people were treated for injuries inflicted by an intimate partner.(27) Domestic violence is particularly harmful to children. Fifty percent of batterers are violent to their partner during pregnancy.(28) Approximately 10 million children may witness their mother being assaulted every year in the United States.(29) When women are murdered by their husbands, children are present in approximately 25% of the cases.(30)
- What is "domestic violence?" It is recognized by state law to be "criminal conduct." (Pen. Code, § 13701.) It is defined in Penal Code § 243(e) (misdemeanor battery), Penal Code § 273.5 (spousal and cohabitant battery)(31), Penal Code § 12028.5 (confiscating firearms), Penal Code § 13700 (law enforcement response); and Family Code § 6211 (Domestic Violence Prevention Act.) While each statute contains a slightly different description of domestic violence, the following is a good working definition:
"Domestic violence means intentionally or recklessly causing or attempting to cause bodily injury to a family or household member or date or placing a family or household member or date in reasonable apprehension of imminent serious bodily injury to himself or herself or another."
Each of the above-referenced statutes requires that a special relationship exist between the victim and the defendant. All include current spouses and cohabitants of the opposite sex. They differ in their inclusion of former cohabitants, cohabitants of the same sex, dating or engagement relationships, co-parents, parents, children and other relatives and household members.
Domestic violence includes a husband or ex-husband who beats his wife or ex-wife, a wife or ex-wife who beats her husband or ex-husband, an unmarried person who is beaten by the person with whom she/he lives or has lived, or has or had a child or dates or has dated, and a parent, guardian or other family member who sexually assaults or physically abuses a child in the family. (Also included are elderly parents or dependent adults who are beaten by their children or grandchildren or caretakers.)
SPOUSAL, DATE OR INTIMATE PARTNER ABUSE
Much of the information in this section applies to victims of spousal, date or intimate partner abuse, as well as child abuse. However, because there are issues that separate the two, they are divided into separate sections.
Also, this section focuses on women who are battered by men, because that is the norm. However, it is not unheard of for women to abuse men or for one partner in a same-sex relationship to physically abuse the other. Much of the information in this section is relevant to any case of domestic abuse, including same-sex abuse.
What To Do If Your Spouse, Date or Intimate Partner Beats You (Or Your Children)
- Call the police immediately. The police are obligated to protect you and arrest your attacker. If a police officer does not arrive within a few minutes, call again.
- When the police arrive, insist on filing a police report, whether or not you intend to press charges.
- Write down the officer's name and badge number.
- If the police arrest the batterer, he may be released in a short period of time. Take immediate steps to protect yourself and your children from future abuse, such as obtaining a protective or restraining order from the court.
- Save all the evidence of what happened to you. Save the clothing you were wearing when you were attacked. Take color pictures of your injuries. If you required medical attention, get a copy of the medical record. Ask for a copy of the police report.
- Make sure you are safe from another beating. Call friends, relatives, neighbors or a battered women's shelter to help you. (See Chapter Nine, Directory of Services, at the end of this book for how to contact a shelter near you.) Tell the counselor at the shelter exactly what has happened to you. Most emergency shelters for battered women keep the shelter address a secret so that an attacker cannot find a woman who goes to the shelter. A person from the shelter may be able to arrange to meet you and your children at a neutral place to take you to the shelter. You will be asked to keep the address of the shelter confidential. The shelter may be able to assist you with finding a temporary shelter for any pets you may have. If the shelter is full, however, you will need to consider other resources, such as friends or family.
Your Rights If You Have Been Attacked
Battered Women's Syndrome
You have a right to defend yourself. However, the force you use must be only enough to stop the attacker. (Pen. Code, § 692 et seq.) If you use greater force than the law feels is necessary, you may be accused of attacking the man. It is important that you know that some women who have killed their abusive partners, reportedly in response to domestic violence, have been convicted of murder and sent to prison. (People v. Macioce (1987) 197 Cal.App.3d 262.)
However, evidence of "battered women's syndrome" is admissible to allow the jury to determine whether a woman believed that she had to kill her attacker to protect herself, and whether that belief was reasonable. (See discussion of case and statutory law, infra, and see Walker, The Battered Woman, New York, Harper Row (1979).) The syndrome is a term for the wide variety of controlling mechanisms that a man (although it can be a woman) uses on a woman (although it can be a man) and for the effect that these control mechanisms have. It has been defined as a "pattern of responses and perceptions presumed to be characteristic of women who have been subjected to continuous physical abuse by their mate[s]." (People v. Romero (1994) 8 Cal.4th 728, 735, n.1.)
Battered women often employ strategies to stop being beaten, including hiding, running away, counterviolence, seeking the help of friends and family, going to a shelter, and contacting police. Nevertheless, many battered women remain in the relationship because of lack of money, social isolation, lack of self-confidence, inadequate police response, and a fear (often justified) of reprisals by the batterer. The battering man may make the battered woman depend on him and generally succeeds, at least for a time. A battered woman often feels responsible for the abusive relationship and she can't figure out a way to make him stop beating her. In sum, it is the physical control of the woman through economics and through relative social isolation, combined with the psychological techniques employed by the man, that make her so dependent.
Many battered women go from one abusive relationship to another and seek a new controlling partner to protect them from the previous abuser. With each successful victimization, the person becomes less able to avoid the next one. The violence can gradually escalate, as the batterer keeps control, using ever more severe actions, including rape, torture, violence against the woman's loved ones or pets, and death threats. Battered women sense this escalation. In the case of battered women who kill their abusers in self-defense, it is usually related to their perceived change of what is going on in a relationship. They become very sensitive to what sets off batterers. They watch very carefully. Anybody who is abused over a period of time becomes sensitive to the abuser's behavior and when she sees a change begin in that behavior, it tells her that something is going to happen.
The traditional cycle of violence includes phases of tension-building, violence, and then forgiveness-seeking, in which the man promises not to batter the woman any more and she believes him. During this period, there are occasional good times. That is one of the things that leads a victim not to change her circumstances. Intermittent reinforcement is the key. But after a while, the violence begins again. A woman is often afraid to flee because she feels he will find her, as he has in the past. He reinforces her belief that she can never escape him. Unless her injuries are so severe that something absolutely has to be treated, she will not seek medical treatment. That is the pattern of her life. (See expert testimony recounted in People v. Humphrey (1996) 13 Cal.4th 1073.)
Evidence Code section 1107 provides that, in a criminal action, expert testimony may be presented by the prosecution and/or the defense regarding battered women's syndrome, including the physical, emotional, or mental effects upon the beliefs, perceptions, or behavior of victims of domestic violence, except when offered against a criminal defendant to prove the occurrence of the act or acts of abuse that form the basis of the criminal charge. The California Supreme Court recently decided, in the case of People v. Humphrey, supra, 13 Cal.4th 1073, that evidence of the syndrome may be introduced so that the jury can understand the circumstances in which the defendant found herself at the time she killed her husband, and judge the reasonableness and the existence of her belief that the killing was necessary.
In a recent opinion, a Court of Appeal ruled that expert testimony concerning a battered woman's mental state on the night she murdered her batterer was properly excluded from the trial. The court reasoned that Penal Code section 29 prohibits the use of expert testimony to prove whether a criminal defendant has the requisite fear for her life at the time of the crime, and Evidence Code section 1107(a) was intended only to codify existing rules concerning how battered women's syndrome affects the perception of its sufferers, not to create an exception to Penal Code section 29. (People v. Erickson (1997) 57 Cal.App.4th 1391.)
Protective Orders That Can Be Obtained
There are several different types of orders that can be obtained to protect you and your family members in domestic violence situations. If necessary, through the police, you can get an emergency protective order (EPO) by telephone when courts are not in session, such as on nights and weekends, to protect you from abuse by a family member until the close of judicial business on the fifth court day following the day of its issuance or the seventh day following the day of its issuance, whichever is earlier. (Fam. Code, § 6250-6257.)
Before a court will issue an EPO, there must be reasonable grounds to believe that an adult is in immediate and present danger of domestic violence or that a child is in immediate and present danger of abuse by a family or household member. The judicial officer must also be satisfied that an EPO is necessary to prevent the occurrence or recurrence of domestic violence or child abuse. This order must be served on the restrained person, if that person can reasonably be located. A copy must be given to the protected person, and a copy must be filed with the court as soon as practically possible. (Fam. Code, §§ 6240-6273.) Law enforcement may make a warrantless arrest for violation of an EPO. (Pen. Code, § 836(c)(1).) The law enforcement officer who requested the protective order shall use every reasonable means to enforce it (Fam. Code, § 6272) and shall carry copies of the order while on duty. (Fam. Code, § 6273.)
Such orders are now registered with the Department of Justice, pursuant to Family Code section 6380, et seq.(32) A willful and knowing violation of a protective order is a crime punishable by a fine of not more than $1,000 or by imprisonment in a county jail for not more than a year, or by both a fine and imprisonment. (Fam. Code, § 6388; Pen. Code, § 273.6.) Law enforcement personnel can arrest a defendant for violation of a Domestic Violence Protective Order (DVPO) without a warrant. (Pen. Code, § 836(c)(1).) Law enforcement must maintain data bases available to any officer responding to a scene of domestic violence. (Fam. Code, § 6383.) The district attorney has the primary responsibility to enforce these orders. (See discussion in Domestic Relations section of the Handbook, supra.) A court is now required to consider the issuance of a stay-away order in all domestic violence cases.(33) (Pen. Code, § 136.2(g).)(34)
You can get an ex parte DVPO if you fear an attack against you or your children, or you fear a person has the intent to abduct your child and flee the court's jurisdiction. (These are temporary restraining orders, or TROs, given without notice to the person being restrained.) A showing by the applicant of a reasonable proof of past acts of abuse is sufficient to get this type of DVPO. You can get such an order by filling out forms available at the county court. If you have an attorney, he/she can help you get such an order, or call a battered women's shelter for help. (See Chapter Nine, Directory of Services.)
The court can issue a DVPO to your husband, or the man you are living with or dating, ordering him not to molest, attack, strike, stalk, threaten, sexually assault, batter, harass, telephone, destroy personal property, contact (either directly or indirectly, by mail or otherwise), come within a specified distance of or disturb you peace, and on good cause shown, other named family or household members. (See Fam. Code, §§ 240-246, 2045, 4620, and 6300-6327.) You can also ask for an order excluding a party from the family dwelling, your dwelling, the common dwelling of both parties, or the dwelling of the person who has care, custody, and control of a child to be protected from domestic violence for the period of time and on the conditions the court determines, regardless of which party holds equitable or legal title or is the lessee of the dwelling. (Fam. Code, §§ 6321 and 6340.) Finally, you can get an order enjoining other behaviors necessary to carry out any of the previously-mentioned orders. (Fam. Code, § 6322.) (See also Welf. & Inst. Code, § 213.5, that provides for an order enjoining a parent, guardian, or former household member from molesting, attacking, striking, sexually assaulting or battering a child, or excluding them from the dwelling, or prohibiting them from engaging in other behavior likely to disturb the child.)
The court may restrain any person from transferring, encumbering, concealing, or in any way disposing of any property, except in the usual course of business, or for the necessities of life. When any of these ex parte orders are issued, the matter is returned to court within 20-25 days with an order to show cause why a permanent order should not be granted.
Orders that can be issued ex parte can also be issued after notice and hearing, pursuant to Family Code sections 6340-6345.(35) An order issued after a hearing can last for three years, and can be renewed without a showing of any further abuse since its issuance. (Fam. Code, § 6345.) Other relief available after a noticed hearing includes restitution to a victim of domestic violence, an order that either or both parties participate in counseling (Fam. Code, § 6343; each party shall bear the cost of his/her own counseling separately, unless good cause appears for a different apportionment) or a batterer's treatment program, and attorneys' fees in domestic violence cases. When protective orders are issued in domestic violence cases, the respondent is prohibited from purchasing or receiving a firearm. (Fam. Code, §§ 6218 and 6389.) The court must advise the person so restrained of this when he appears at a hearing. (Fam. Code, § 6304.)(36) A violation of this order is punished pursuant to Penal Code section 12021(g). An acquisition or attempt to acquire such a firearm within ten years of certain misdemeanor convictions (such as for spousal battery) is punishable by a one-year jail or prison sentence or a $1,000 fine, or both. (Pen. Code, § 12021(c).)
A judge can also issue an order against interfering with a witness, including a victim witness, who is testifying in a domestic violence case. (Pen. Code, § 136.2(g) and (h)). A violation of this order is a misdemeanor, and is charged pursuant to Penal Code section 136.1. Recently enacted Penal Code section 14020 et seq. sets forth the Hertzberg-Leslie Witness Protection Act, a program intended to provide relocation and other protective services to witnesses in criminal proceedings who are in danger of retaliatory violence because of their testimony.
You are entitled to have a support person accompany you to any proceeding to obtain a protective order to enjoin specific acts of abuse, such as stalking, harassing, and destroying property, to exclude a person from a dwelling, and to enjoin other specified behavior. (See Code Civ. Proc., § 527.6(f) and Fam. Code, § 6303.)
The court also may determine who will have temporary possession of property that you own together, and who will have temporary custody of and visitation rights with your children. (Fam. Code, §§ 6323-6325.) The fact that a husband has beaten his wife may be relied upon by a court to deny him custody of his children, lest they develop a pattern of learned helplessness that could make them susceptible to abusive relationships later in life. (In re Heather A. (1996) 52 Cal.App.4th 183.)
Whenever custody or visitation is ordered in cases involving domestic violence, the order should specify the manner of transferring the child between parents in order to limit the child's exposure to potential domestic conflict or violence. The court should consider whether visitation or custody should be limited to third-party arrangements, or whether it should be suspended or denied. A minor may be removed from his home, or the court may order that the offending parent or guardian be removed from the home, or the court can consider allowing the nonoffending parent or guardian to retain custody, as long as she can demonstrate to the court that she can protect the child from future harm. (Welf. & Inst. Code, § 361.) If one party is in a shelter or other confidential location, the court's order for time, day, place and manner of transferring the child should not disclose that location. (Fam. Code, §§ 3031, 3100 and 6323.) A party is entitled to have a support person attend any mediation session concerning child custody held pursuant to Family Code section 3021, if a protective order has been issued. (Fam. Code, § 6303.)
Whenever a summons is issued in a dissolution action, the summons contains another order available under the Family Code, the automatic temporary restraining order (ATRO) (See Fam. Code, §§ 231-235; see discussion in Domestic Relations section of this handbook.)
Finally, you can also obtain civil anti-harassment orders, even if you do not have a domestic relationship, pursuant to Code of Civil Procedure sections 527 and 527.6.(37) These orders are enforceable under Penal Code sections 166 or 273.6. On the request of the petitioner, these orders are to be served on respondent by any law enforcement officer on the scene. The officer is required to verify the existence of the order if the protected person cannot produce a copy of it, notify the respondent of its terms and enforce it. The violation of all protective orders can be prosecuted under Penal Code section 166 or Code of Civil Procedure section 1209.
Call The Police
When the police arrive, insist on filing a police report, even if you do not want to press charges(38). The police report is crucial for your future protection. It will support you if you are attacked again and want to press charges, seek to gain custody of your children, or wish to obtain an EPO or a TRO against your attacker.
You Can Have Your Attacker Arrested
There are two ways for you to have your attacker arrested: police arrest and citizen's arrest. Also, the police may issue a misdemeanor citation against your attacker in less serious situations, unless the arresting officer determines that there is a reasonable likelihood that the offense will continue or that the safety of persons or property would be endangered, in which case the person will be arrested and taken before a magistrate. (Pen. Code, § 853.6 et seq.; see discussion, infra.)
When the police answer your call, you should tell them if you want your attacker arrested. The police can usually only arrest the attacker if they have an arrest warrant, or if they have no warrant, if he commits a crime in their presence; he committed a felony, though not in their presence; or if they have reasonable cause to believe that a serious attack (felony) has been committed. (Pen. Code, § 836 (a).) Felonies are more serious attacks and threats, while misdemeanors are less serious.
However, if a peace officer is responding to a call alleging a violation of a domestic violence protective or restraining order issued under the Family Code, section 527.6 of the Code of Civil Procedure, section 213.5 of the Welfare and Institutions Code, or section 136.2 of the Penal Code, or of a similar order issued by the court of another state, tribe, or territory, and the peace officer has reasonable cause to believe that the person against whom the order is issued has notice of the order and has committed an act in violation of the order, the officer may arrest the person, whether or not the violation occurred in the presence of the arresting officer. The officer should, as soon as possible, check that a true copy of the protective order has been registered with the Domestic Violence Protection Order Registry, unless the victim provides the officer with a copy of the order. (Pen. Code, § 836(c).)
In situations where mutual protective orders have been issued under section 6200 of the Family Code, the peace officer should attempt to arrest the primary aggressor, or the person determined to be the most significant, rather than the first aggressor. (Pen. Code, § 836(c)(3).)
If a person commits an assault or battery upon his/her spouse, upon a person with whom he/she is cohabiting, or upon the parent of his/her child, the peace officer may arrest the person without a warrant where he has reasonable cause to believe that the person to be arrested has committed the assault or battery, and where he makes the arrest as soon as reasonable cause arises to believe that the commission of the assault or battery has occurred. (Pen. Code, § 836(d).)
To help the police decide whether to arrest the attacker, you should:
- Describe the attack to them, telling them the amount of force used.
- Describe your injuries.
- Tell the police if a weapon was used or threatened to be used against you. (Pen. Code, § 12028.5 allows certain law enforcement personnel at the scene of an incident of domestic violence involving a threat to human life or physical assault to take custody for no less than 48 hours of any firearm or deadly weapon in plain sight or discovered pursuant to a consensual search, as necessary for the protection of the peace officer or other persons present.)
- Penal Code section 12028.5 sets forth a procedure whereby, if a law enforcement agency has reasonable cause to believe that the return of a firearm or other deadly weapon would be likely to result in endangering the victim or the person reporting the assault or threat, the agency can advise the owner of the firearm within ten days of the seizure, and file a petition in superior court to determine if the firearm or other deadly weapon should be returned.
- A police officer has a duty to listen to your statement and to make a police report. You may take the name and badge number of the officer for your own record.
If the police do not arrest your attacker, you may make a citizen's arrest. Every citizen can arrest another person who has committed a crime or attempted to commit a crime in his/her presence, who has committed a felony, even if not in his/her presence, or when a felony has been committed, and she reasonably believes the person to have committed it. (Pen. Code, § 837.) A law enforcement officer has a duty to inform you of your right to make a citizen's arrest and how to do so safely when he/she responds to a domestic violence call. (Pen. Code, § 836(b).) Any time you are hit, beaten or assaulted, the attacker is committing a crime in your presence. You should tell the police if you want to make a citizen's arrest and have your attacker taken away. You have a legal right to make a citizen's arrest and once the arrest is made, the police have a duty to take your attacker into custody.
If the officer refuses to take him into custody, call a battered women's shelter for advice. (Pen. Code, §142 provides that any peace officer who has the authority to receive or arrest a person charged with a criminal offense who willfully refuses to do so, is subject to a fine of $10,000 or by imprisonment in the state prison, or by a one-year sentence in the county jail, or by both the fine and the imprisonment.)
You Can Press Charges, Even If No Arrest Was Made or Citation Issued
If your attacker was not arrested or cited, and you have decided to press charges, you must file a police report. The police will then go to the district attorney's office with a copy of this report. (In some locations, misdemeanors are prosecuted by the city attorney instead of the district attorney.) To proceed, the district attorney must be convinced that a crime probably was committed and that the person accused probably committed it. If you have any evidence of the crime, you should give it to the police and request that they take it to the district attorney's office. It is helpful to get color photographs of your injuries for use at the trial. To encourage prosecution, you may have to convince the district attorney that you are willing to file the complaint and that you will not later refuse to testify.(39) You should telephone the district attorney's office and make an appointment to talk with a deputy district attorney. Some district attorney's offices have special programs to assist victims of domestic violence. If the district attorney decides to prosecute your attacker for a crime or crimes, the case will go to preliminary hearing (if a felony) and a trial. (Pen. Code, § 859 et seq.)
After An Arrest
Even if your attacker is arrested and taken to the police station, he may be free to return home in a short period of time after his arrest. The police may issue a misdemeanor citation (similar to a traffic ticket) and let him go, unless he demands to be taken before a magistrate, or unless the arresting officer determines that there is a reasonable likelihood that the offense will continue, or that the safety of persons or property would be endangered, in which case he will be taken before a magistrate. (Pen. Code, § 853.6 et seq.) At most, a few hours after he is taken before the magistrate, his bail will be set and, if he has money, he can post bail and be released, although bail may be denied in certain circumstances such as where the defendant used a firearm, violated a restraining order,(40) poses a danger to the public, used alcohol or a controlled substance, has a previous criminal record, has a mental condition, or has a record of failure to appear. (Pen. Code, § 1275.)
Penal Code section 1270.1 provides that a hearing is required before a person charged with a felony domestic violence is released on bail which differs from the bail set in the uniform county-wide bail schedule, or is released on his/her own recognizance (his promise to return for a formal hearing, to obey all reasonable conditions imposed by the court or magistrate, to promise not to leave the state without leave of the court, to agree to waive extradition if he fails to appear as required and is apprehended outside California, and to acknowledge that he has been informed of the consequences and penalties applicable to a violation of the conditions of his release) and the hearing should address the issue of any threats made against victims or witnesses.
If your husband has no money but has friends or relatives who will vouch for him, he may be released on his own recognizance. (Pen. Code, § 1318.)
You must be prepared for the fact that your attacker may return soon after he has been arrested. He may return home in an angry, violent mood. On the other hand, the arrest may make him realize how serious his actions were.
If you believe your attacker will return home to beat you in revenge, arrange to stay with friends or relatives, or call a women's shelter immediately to arrange a safe place for you and your children to stay until you make new plans, or seek a protective order from the court. The district attorney's office can request a stay away order that prohibits your husband from contacting you with the intent to annoy, harass, threaten or commit acts of violence, or the court can issue the order on it own. (Pen. Code, § 136.2(g) and (h).)
After an Arrest
After your attacker is arrested, the police report is sent to the district attorney to draw up a complaint for prosecution.(41) The district attorney may ask you to come to the district attorney's office for an interview. If the crime is a felony, the district attorney will sign the complaint. If the crime is a misdemeanor, and if there was no police officer at the scene of the beating who saw the crime and can testify as a witness at trial, the district attorney may ask you to sign the misdemeanor complaint, although many district attorney's offices have a policy of never asking victims to sign complaints. (Pen. Code, § 740 et seq.) The district attorney often will refer you to a family violence victim advocate to assist you through the prosecution process.
If a citizen's arrest was made after the beating, you will have to go the district attorney's office the next day to make a formal citizen's complaint. Some district attorneys may be reluctant to prosecute the batterer if it appears that you are not firm in your decision to press charges and if you appear unwilling to testify against him. However, newly-enacted Evidence Code section 1109 allows prosecutors to introduce past evidence of domestic abuse (if it was not more than 10 years before the offense) to prove that a defendant was guilty of domestic abuse again, so they may decide to proceed against the person even without your cooperation. Prosecutors may also make use of spontaneous statements made by the victim to the police shortly after the domestic violence occurred, even if the victim does not testify. (Evid. Code, § 1240; People v. Hughey (1987) 194 Cal.App.3d 1383.)
Once the district attorney has filed a formal criminal complaint on behalf of the state, only the district attorney can withdraw it.
You will be served with a subpoena to testify as a witness in court. (Pen. Code, § 1326.)(42) Statistics show that a large number of domestic violence victims refuse to testify. Prosecuting a criminal case is time-consuming and costly to the state. Therefore, district attorneys may be reluctant to file complaints if they believe that you will not testify voluntarily. If you are serious about pressing charges and testifying, you should emphasize these intentions to the district attorney to encourage prosecution. Your medical records may also be subpoenaed or obtained through a search warrant. (Pen. Code, §§ 1524 and 1543.)
An arraignment will usually be held a few days after the arrest. The arraignment is a hearing before a judge where the defendant is told of the criminal charges against him. (Pen. Code, § 976 et seq.) Bail will be set at this hearing. (Pen. Code, § 1273 et seq.)
You may ask the judge, as a condition of bail, to order your husband to stay away from you. (Pen. Code, § 136 et seq.) If such an order is issued as a condition of bail, and a party breaks the order by going to see you, his bail may be revoked and he could be jailed.
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.
Spouse Convicted of Attempted Murder Loses Rights
When a spouse is convicted of attempting to murder the other spouse, the injured spouse is entitled to an award of 100% of the community property interest in the other spouse's retirement and pension benefits, plus reasonable attorneys' fees and costs. No temporary or permanent award of spousal support or medical, life, or other insurance benefits or payments will be made from the injured spouse to the other spouse. (Fam. Code, §§ 274, 782.5 and 4324.)
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.)
Federal Firearm Offenses Relevant to Domestic Violence
- It is a federal crime, under the Brady Bill, to ship or transport in interstate or foreign commerce or possess a firearm or receive a firearm shipped or transported in interstate or foreign commerce while subject to a valid protection order restraining such person from harassing, stalking, or threatening an intimate partner or the child of an intimate partner. The protection order must have been issued following an evidentiary hearing as to which the defendant had notice and an opportunity to be heard, and must state either that the defendant poses a credible threat to the physical safety of the victim, or that the defendant is not allowed to use any force that would reasonably cause injury to the victim. (Law enforcement officers are not subject to this law.) (18 U.S.C. § 922(g)(8).)(46)
- It is a federal crime to possess a firearm after conviction of a state misdemeanor crime of domestic violence. (18 U.S.C. § 922(g)(9).) The crime must have as an element the use or attempted use of physical force, or the threatened use of a deadly weapon, and the defendant's conviction must have been obtained after he had the advice of counsel and notice of his right to a jury trial.(47)
- The penalty for a violation of 18 U.S.C. §§ 922(b)(8), 922(g)(8), 922(d)(9) or 922(g)(9) is a ten-year term of imprisonment.(48) (See discussion, supra, on Violence Against Women Act as it pertains to domestic violence; see also 42 U.S.C. § 10401 et seq., which provides federal funding for family violence prevention and services.)
Written Policies By Law Enforcement Agencies Regarding Domestic Violence Calls
According to Penal Code section 13701, every law enforcement agency should have developed, adopted and implemented written policies and standards for officers' responses to domestic violence calls by January 1, 1986. They shall reflect existing policy that a request for assistance in a situation involving domestic violence is the same as any other request for assistance where violence has occurred. These policies shall be in writing and available to the public upon request and shall include specific standards for the following:
- Felony arrests;
- Misdemeanor arrests;
- Citizen arrests;
- Verification and enforcement of TROs when the suspect is present and when the suspect has fled;
- Verification and enforcement of stay away orders;
- Cite and release policies;
- Emergency assistance to victims, such as medical care, transportation to a shelter, and police standby for removing personal property;
- Assisting victims in pursuing criminal options;
- Furnishing written notice to victims at the scene concerning the restrained person's possible release, the availability of shelters and other services, the option of filing a criminal complaint, the right to ask for various orders, the right to file a civil suit, where applicable, names and locations of rape victim counseling centers and 24 hour phone numbers, and proper procedures to follow after a sexual assault; and
- Writing of reports.
Penal Code section 13702 requires law enforcement agencies to adopt and implement written policies and standards for dispatchers' responses to domestic violence calls that rank calls reporting threatened, imminent or ongoing domestic violence and the violation of any protection or restraining order among the highest priority calls.
Penal Code section 13730 requires each agency to have in place a system for recording domestic violence-related calls. These records should include whether weapons were used, whether the abuser was under the influence of alcohol or a controlled substance, and whether a previous call had been made involving domestic violence.
Alternatives to Criminal Prosecution
Recognizing the hardships on victims and families when criminal prosecution is involved, some district attorneys' offices set up alternatives to criminal prosecution. Under these alternatives, the attacker does not go to trial and is not sent to jail. Instead, efforts are made to help the parties work out their differences through peaceful means to preserve the family.
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
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.
Pre-Trial Diversion Program
The domestic violence diversion program was repealed by the Legislature in 1995, except as a condition of probation. (Pen. Code, § 1203.097.)
Questions Commonly Asked by Victims of Domestic Violence
What if I decide to move out?
- If you feel that you will be in danger if you stay at home, take your children and move out immediately. If you have to leave your children with family or a neighbor, do not be afraid that you will later lose your right to either joint or sole custody of them. If you feel that they are in danger, call the county's Child Protective Services office to have them removed from danger.
- You will not lose rights to your house, apartment or belongings if you move out. When you go, you can take with you anything that belongs to you alone and anything that belongs to you and your husband together. You may also withdraw all of the money you have with your husband in a joint bank account.
- After you leave, stay with a woman friend, with family, or at a battered women's shelter. If you stay with a man who is not a relative, it may hurt your chances of getting spousal support (alimony) and, perhaps, child custody. California law recognizes a strong presumption that a woman who is living with a man has a decreased need to be supported by her former husband. This law also applies to men who are living with women and are asking for support from their former wives. (Fam. Code, § 4323.)
- You may not have to divulge your new address when you go to court, if you fear that to do so would expose you to further violence.
How can I divorce my spouse?
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.
What if I am an undocumented alien and am afraid to report to the police that I have been beaten?
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.
What if my attacker is on probation or parole?
- If your attacker is on probation, send a copy of your police reports and/or restraining orders to his probation officer. Call the county probation department where your attacker was sentenced to find out who his probation officer is.
- If your attacker is on parole, call the California Department of Corrections and report the attack to his parole agent. Your attacker may have his parole revoked and be sent back to prison. (Pen. Code, §3060.)
- If you are afraid of a man who is in state prison, you can find out when and where he will be released by contacting:
Department of Corrections
515 S Street
Sacramento, California 95814
P.O. Box 942883
Sacramento, California 94283-0001
What Is Child Abuse?
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.
The Penalty For Abusing Or Neglecting A Child
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:
- a mandatory minimum period of probation of 48 months;
- a criminal court protective order and, if appropriate, residence exclusion or stay-away conditions;
- successful completion of no less than one year of child abuser's treatment counseling program; and
- if the offense was committed while the defendant was under the influence of drugs or alcohol, the defendant shall abstain from the use of drugs or alcohol during the period of probation and shall be subject to random drug testing by his/her probation officer.
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:
- Is in need of proper and effectual parental care or control and has no parent or guardian, or has no parent or guardian willing or capable of exercising such care or control; or
- Is destitute, is not provided with the necessities of life, or is not provided with a home or suitable place of abode; or
- Has a home that is unfit for him/her because of neglect, cruelty, depravity, or physical abuse by his/her parents or guardian.
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.
Who To Contact For Help
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:
- Your local sheriff or police department.
- The child abuse and neglect hotline, council or center in your area (see "Child Abuse" in Chapter Nine, Directory of Services, at the end of this handbook.)
- The Child Protective Services unit of your local welfare or social services department. Other names may be--Human Resources Agency, Department of Public Social Services, Department of Health and Human Services, Department of Public Assistance.
- Your local county juvenile probation department.
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 Need Help To Stop Abusing Your 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:
- The child abuse hotline, council or center in your area.
- The Child Protective Services unit of your local welfare or social services department.
Specific Rules To Teach Your Children
- Stay away from people who call you near their car, even if they offer to take you somewhere exciting.
- If someone tries to take you away, yell, "This person is not my father (or mother)" and scream.
- If you get lost in a store, find another mom or dad with children or go to the checkout counter. Do not wander around on your own.
- You don't have to keep secrets from your parents. No one can hurt your parents or pets if you tell what happened.
- No one should touch you in the parts covered by your bathing suit, and you should not be asked to touch anyone there.
- Don't let anyone take your picture without permission from your parents or teacher.
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.
If You Were Abused As A Child
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.
- Domestic violence includes abuse(57) against an elder or dependent adult. Penal Code section 368 provides that a person guilty of abusing such a person shall be punished by imprisonment in the county jail for not more than a year, or by imprisonment in state prison for two to four years. The sentence can be enhanced if the victim suffers great bodily injury or is over 70 years old. A similar jail or prison sentence can be imposed, along with a fine not exceeding $1,000, where a person is guilty of stealing or embezzling property, including labor, worth more than $400, from an elderly or dependent adult.(58) (See also Welf. & Inst. Code, § 15656.)(59) A statute entitled the Elder Abuse and Dependent Adult Civil Protection Act, (Welf. & Inst. Code, § 15600 et seq.), which covers persons 65 years of age or older, provides that a custodian, health practitioner, employee of a county adult protective services agency or local law enforcement agency has a duty to report suspected physical abuse against an elderly person. The report must be made by phone, followed by a written report within two days. (Welf. & Inst. Code, § 15630.) The consent of the victim or a conservator or guardian of the victim is required before the report can be made, unless there has been a Penal Code violation. (Welf. & Inst. Code, § 15636.) Failure to report is a misdemeanor, punishable by not more than six months in the county jail, or a fine of not more than $1,000, or by both the fine and imprisonment. (Welf. & Inst. Code, § 15630(h).)(60)
- Civil actions can be brought for elder abuse, for which damages and attorney's fees are available, even after the victim's death. (Welf. & Inst. Code, §§ 15657 and 15657.3.) The California Supreme Court accepted for review a case to determine whether damages for pain and suffering are authorized under this Act. (Delaney v. Baker, Case No. S067060, review granted February 27, 1998.)
- Welfare and Institutions Code section 15670 provides for criminal background checks to be performed on individuals who provide personal case services to elder and dependent adults in order to reduce the occurence of elder abuse.
- Recently enacted California legislation authorizes law enforcement officials or other designated persons to take an endangered adult into emergency protective custody and, where appropriate, to seek medical treatment for him or her. (Welf. & Inst. Code, § 15700 et seq.)
- A sentence can be enhanced where a defendant has attacked an elderly person. (People v. Dozier (1979) 90 Cal.App.3d 174; Pen. Code, § 1170(b).) There is also a provision of the Penal Code specifying that probation can be denied or the suspension of a sentence can be denied for anyone who commits specified crimes and inflicts great bodily injury against a person who is 60 years of age or older. (Pen. Code, § 1203.09.) This section has been found not violative of the Equal Protection Clause by the California Court of Appeal. (People v. Peace (1980) 107 Cal.App.3d 996.)
- Two drugs commonly used by sexual predators to knock out their victims before raping them are Rohypnol and GHB. The drugs are odorless, nearly tasteless, potentially lethal, and have become fixtures at parties and clubs in recent years. Their use makes rape prosecution difficult because the victims wake up unsure of what has occurred. Back to link 1
- Morning After Treatment for AIDS, June 10, 1997, New York Times, pp. B9 and B12. Back to link 2
- Assembly Bill 807, effective January 1, 1998, provides that the victim shall be given oral or written notice by the provider of any initial medical examination arising out of a sexual assault of his/her right to have a sexual assault victim counselor and at least one other support person of his/her choosing present at the examination. (Pen. Code, § 264.2.) Back to link 3
- If you are an illegal immigrant to this country, your ability to obtain some of the services mentioned in this handbook if you are the victim of a rape or of domestic violence may be impacted by Proposition 209, or by the newly enacted Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. 104-208, 110 Stat. 2105, 8 U.S.C. § 1601 et seq. (the Welfare Reform Act.) According to the Welfare Reform Act, a battered spouse is considered to be a qualified alien who is eligible for both state and federal emergency and police services. Back to link 4
- The total amount payable to all "derivative victims" (parents, siblings, spouse or children of the victim; persons living in the household of the victim at the time of the crime; a person who had previously lived in the household of the victim for a period of not less than two years in certain specified relationships; or another family member of the victim, including the victim's fiance, who witnessed the crime) for loss of support as a result of the crime, is $46,000. (Gov. Code, § 13965(a)(7).) Back to link 5
- A "derivative victim" can also be denied assistance if she knowingly and willingly participated in the commission of the crime, or failed to cooperate with a law enforcement agency in the apprehension and conviction of a criminal committing the crime. Back to link 6
- Assembly Bill 807 amended Penal Code section 264.2 to provide, effective January 1, 1998, that prior to the commencement of any initial law enforcement interview or district attorney or defense attorney contact (including investigators or agents employed by them), the victim shall be notified orally or in writing that she has the right to have victim advocates, as well as a support person of her choosing, present at the interview or contact. Back to link 7
- Government Code section 6254(f)(2) provides that your name may be withheld from public record disclosure at your request. Penal Code section 293 prevents members of law enforcement agencies, but not the prosecution, from making public the name and address of a reported sex offense victim who requests anonymity, except to other authorized agencies. The Hayden and Frusetta Witness Protection Act of 1997 amends Penal Code section 1054.2, effective January 1, 1998, and prohibits attorneys from disclosing the address or telephone number of a victim or witness to members of the defendant's family or anyone else, with certain exceptions, unless the court, after a hearing and upon a showing of good cause, orders the information released. (Assem. Bill No. 207, 1997-1998 Reg. Sess.) Back to link 8
- Penal Code section 868.5 has been upheld against a challenge that it creates an improper inference that the trial court believes that the alleged victim is an actual victim. (People v. Adams (1993) 19 Cal.App.4th 412, 437. Back to link 9
- However, Penal Code section 1112 does not affect the admissibility of psychiatric testimony concerning the mental state of the complaining witness in a case involving a sexual assault. (People v. Hagerman (1985) 164 Cal.App.3d 967, 974.) Back to link 10
- The Court of Appeal upheld the constitutionality of Evidence Code section 1108 in People v. Fitch (1997) 55 Cal.App.4th 172, rejecting claims that it violated the due process, equal protection or ex post facto clauses. Back to link 11
- Garcetti v. Superior Court, Case No. S057336, review granted February 5, 1997, People v. Superior Court (Cain), Case No. S057272, review granted February 5, 1997, Hubbart v. Superior Court, Case No. S052136, review granted February 26, 1997; seven additional cases granted review on October 29, 1997: People v. Hedge, Case No. D026713, People v. Donnell, Case No. D026742, People v. Harmon, Case No. D026867, People v. Badger, Case No. D026868, People v. Roberge, Case No. D027104, People v. Blevins, Case No. D027221, and People v. Crane, Case No. D027701; and People v. Putney, Case No. 5065144, review granted December 26, 1997. Back to link 12
- The law was enacted following the 1994 rape and murder of a 7-year old girl named Megan by her neighbor, a recently paroled sex offender. Back to link 13
- The first constitutional challenge to California's sex-offender notification law was filed recently, alleging that a person subjected to it is denied his right to privacy, equal protection, freedom from harassment and freedom from unjust persecution. (Markvardsen v. Lungren, Case No. C97-3197TEH.) Back to link 14
- Penal Code section 646.9(g) provides that it is not necessary to prove that the defendant had the intent to actually carry out the threat. Penal Code section 646.9(b) increases the punishment for stalking when the defendant is the subject of a protective order and stalks the petitioner. The Court of Appeal recently upheld the validity of Penal Code section 646.9 against a claim that it was unconstitutionally vague in People v. McClelland (1996) 42 Cal.App.4th 144. (See also People v. Heilman (1994) 25 Cal.App.4th 391.) Back to link 15
- Assembly Bill 350 added Section 6254 to the Family Code and Section 646.91 to the Penal Code, effective January 1, 1998. These new sections will authorize a judicial officer to issue an ex parte emergency protective order where a peace officer asserts reasonable grounds to believe that a person is stalking another person. Intentional disobedience of such an order can be punishable as contempt of court or as felony stalking. Back to link 16
- The Court of Appeal ruled in People v. Gams (1997) 52 Cal.App.4th 147, that consent to sex by a man's ex-girlfriend did not bar his conviction for stalking her in violation of a court order. Only the court could lift the protective order because consent by the victim is often illusory, due to a condition known as "learned helplessness." (See also Pen. Code, § 13710(b), which states that the terms of a protective order remain enforceable, notwithstanding the acts of the parties.) Back to link 17
- The VAWA has been upheld against constitutional attack in five cases (U.S. v. Bailey (4th Cir. 1997) 112 F.3d 758, Doe v. Doe (D. Conn. 1996) 929 F.Supp. 608, U.S. v. Gluzman (S.D. N.Y. 1997) 953 F.Supp. 84), Doe v. Hartz (N.D. Iowa 1997) 970 F.Supp. 1375, and Seaton v. Seaton (E.D. Tenn. 1997) 971 F.Supp. 1188, but two other courts have ruled that Congress did not have the authority to enact the VAWA under the Commerce Clause or under the enforcement clause of the Fourteenth Amendment. (U.S. v. Wright (D.Neb. 1997) 965 F.Supp. 1307; and Brzonkala v. Virginia Polytechnic and State ariality (W.D. Va. 1996) 935 F.Supp. 779.) Back to link 18
- Plaintiffs can take advantage of the more relaxed burden of proof in civil actions (preponderance of the evidence) than in criminal trials (beyond a reasonable doubt), as well as nationwide service of process, favorable evidence rules, and pre-trial detention options. Back to link 19
- The abuser can be ordered to compensate the victim for all harm resulting from his attack, including income lost from missed days of work, medical expenses, and mental health care. Back to link 20
- Rule 404 of the Federal Rules of Evidence allows a plaintiff to produce evidence of the prior bad acts of the perpetrator to show motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. Back to link 21
- See 8 U.S.C. § 1254(a)(3). However, passage of the Personal Responsibility and Work Opportunity Act of 1996 limited some of the benefits provided to immigrants and other battered women by the VAWA. In response to the concern that the new law undermined battered women's efforts to get help, the Family Violence Option, or Wellstone Amendment, was passed as an amendment to the 1996 welfare bill. This amendment allows each state to temporarily waive any number of requirements if a welfare recipient has been a victim of domestic violence. The California Legislature is currently considering two bills that would provide the Family Violence Option, Senate Bill No. 1185 (1997-1998 Reg. Sess.) and Senate Bill No. 341 (1997-1998 Reg. Sess.) Back to link 22
- According to one commentator, a defendant's statements before or after the attack, his use of pornography, prior similar acts by the defendant, the severity of the attack, or the location of the attack may be admissible evidence that may help prove gender motivation, and expert witness testimony may also be presented. (Frazee, Gender-Justice Breakthrough (Fall 1995) On the Issues: the Progressive Women's Quarterly.) Back to link 23
- The VAWA focuses on the substantial risk, or potential for physical force, so that the victim would not need to incur severe physical injury to bring a cause of action. Back to link 24
- Domestic Violence Intervention Calls For More Than Treating Injuries, Journal of the American Medical Association (1990). Back to link 25
- Rodgers, Wife Assault: The Findings of a National Survey, (1994) 14 Juristat pp. 1-22. Back to link 26
- Home Violence Underreported, Records Show, A3, San Francisco Chronicle, August 25, 1997. Back to link 27
- A.B.A. Center on Children and the Law, The Impact of Domestic Violence on Children: A Report to the President of the American Bar Association (1994). Back to link 28
- Straus, Children as Witness to Marital Violence: A Risk Factor For Life Long Problems Among a Nationally Representative Sample of American Men and Women (Paper presented at the September 1991 Ross Roundtable on Children and Violence in Washington, D.C.) (1991). Back to link 29
- Crawford & Gartner, Woman Killing, Intimate Femicide in Ontario (1974-1990) (Toronto: The Women We Honor Action Committee.) Back to link 30
- Penal Code section 273.5 covers cohabitants of the same sex, as well as of a different sex. A Court of Appeal recently ruled that the provision of this section penalizing the willful infliction of corporal injury causing a traumatic condition on a person who is the mother or father of his or her child does not cover a man who beats a woman pregnant with his child. (People v. Ward (1998) ____Cal.App.4th ____, 1998 WL 110397.) Back to link 31
- So are Temporary Restraininng Orders (TROs), injunctions, criminal court domestic violence orders, domestic violence orders issued by other states if registered with the court clerk, orders regarding custody and visitation terms and conditions, and juvenile court protective orders. (Fam. Code, §§ 6380 and 6385.) Back to link 32
- Pursuant to new amendments to Penal Code sections 136.2, effective January 1, 1998, the court is required to provide copies of various restraining orders to all interested parties. Back to link 33
- However, have a contingency plan in place in the event the person violates the EPO (i.e., friends whose home you can go to or the address of a shelter to go to.) Back to link 34
- Law enforcement personnel may serve the DVPO, TRO or EPO upon request. (Fam. Code, § 6383.) A defendant is considered to be served with an order if he is in court when the judge issues the order. (Fam. Code, § 6384.) Back to link 35
- Family Code section 6389 allows the court, following a hearing, to mandate that the respondent surrender his weapons for storage, usually for the life of the order. Possession of firearms following such an order constitutes a misdemeanor. Back to link 36
- Your employer can obtain a TRO on your behalf pursuant to Code of Civil Procedure section 527.8. Back to link 37
- The district attorney may wish to prosecute your husband based on the police report, even if you do not cooperate as a witness. Back to link 38
- However, many jurisdictions are following a "no drop" policy, whereby they will refuse to drop charges against a man who has committed an act of domestic violence, even if the woman no longer wishes to pursue the case. The district attorney's office may actually compel your appearance at the trial by serving you with a subpoena; you can be held in contempt if you disobey the subpoena. For the first contempt, you can be ordered to attend a domestic violence program for victims for up to 72 hours or perform up to 72 hours of appropriate community service. For subsequent contempt, you can be imprisoned until you comply with the court's order to testify. (Code Civ. Proc., § 1219.) If further incarceration becomes penal, its duration is limited to five days. (Code Civ. Proc., § 1218.) The district attorney's office may also request that you enter into a written undertaking to appear, or forfeit a set amount of money. (Pen. Code, § 1332.) Back to link 39
- Assembly Bill 45 requires, as of January 1, 1998, that a magistrate or commissioner set bail in an amount that he or she deems sufficient to assure the protection of a victim, or family member of a victim, of domestic violence, for a person who has been arrested for the misdemeanor offense of violating a domestic violence restraining order. (Pen. Code, § 1269c.) Penal Code section 1270 requires that a defendant is entitled to a bail-reduction hearing within 48 hours of his/ her arrest. (Dant v. Superior Court) (1998) _____Cal.App.4th _____, 71 Cal.Rptr.2d 546.) Back to link 40
- The Legislature endorsed the concept of vertical prosecution of spousal abuse cases (the same prosecution unit is involved from the filing of the complaint until completion of the case.) (Pen. Code, §§ 273.8-273.87.) Back to link 41
- Penal Code section 1054.2 prohibits a defense attorney from informing the defendant of the address or telephone number of a victim or witness without a court hearing and a showing of good cause. Back to link 42
- The privilege not to testify against your spouse does not apply in domestic violence cases. (Evid. Code, §§ 970-972.) An interpreter may be available, pursuant to Evidence Code section 755, for the trial, as well as for obtaining a protective order. Back to link 43
- Newly enacted Evidence Code section 1109, effective January 1, 1997, allows prior acts of domestic violence (introduced either through witness testimony or through 911 tapes of phone calls) to be considered as evidence by the court to prove the defendant's propensity to commit such acts, if the value of the evidence outweighs the prejudicial effect on the defendant. Evidence Code section 1103 provides that evidence of the character or trait of character (in the form of an opinion, evidence of reputation or evidence of specific instances of conduct) of the victim or of the defendant may be introduced under certain circumstances. Back to link 44
- If the domestic violence engaged in results in the woman being killed, a recently enacted law allows the introduction of hearsay testimony (such as from a woman's diary) from a person who is unavailable as a trial witness if it describes the infliction or threat of physical violence and is deemed trustworthy. ( Evid. Code, § 1370.) Back to link 45
- It is also a federal crime to knowingly transfer or sell a firearm to a person subject to a valid protection order. Law enforcement officers are exempt from the coverage of this section. (18 U.S.C. § 922(d)(8).) Back to link 46
- It is also a federal crime to knowingly transfer or sell a firearm to a person convicted of a misdemeanor crime of domestic violence. The law enforcement exemption does not apply to this statute. (18 U.S.C. § 922(d)(9).) (A purchaser of a firearm is required to state that he has not been convicted of a misdemeanor crime of domestic violence. (18 U.S.C. § 922(s).) Back to link 47
- The United States Supreme Court recently held that the Brady Act's interim provision commanding state chief law enforcement officers (CLEOs) to conduct background checks on firearm purchasers is unconstitutional. However, the court did not reach the issue of whether firearms dealers are obliged to forward to the CLEOs "Brady forms" and to wait five business days to consummate the sale of a firearm. (Printz v. U.S. (1997) U.S. , 117 S.Ct. 2365.) Back to link 48
- Penal Code section 853.6 provides that each city, county or city and county shall develop a protocol to assist officers to determine when arrest and release is appropriate. Back to link 49
- Under the Welfare Reform Act, the immigration status of a crime victim cannot be inquired into, although the immigration status of the perpetrator of the crime is relevant. Back to link 50
- The Ninth Circuit recently ruled that a parent has no clear federal constitutional right under the Fourth or Fourteenth Amendments to strike her child with a belt without exposure to criminal prosecution. (Sweaney v. Ada County (9th Cir. 1997) 119 F.3d 1385.) Back to link 51
- Effective January 1, 1998, civil compromise is no longer available to perpetrators of child abuse. (Pen. Code, § 1377.) Back to link 52
- Female genital mutilation (also known as female circumcision) is defined as excision or infibulation of the labia majora, labia minora, clitoris or vulva, performed for nonmedical purposes. It is illegal, regardless of how it is done, or of the cultural reasons for doing it. Back to link 53
- In a recent case, the Court of Appeal ruled that allowing an eleven year-old child molestation victim to testify while his mother sat next to him did not violate the defendant's right to confrontation. (People v. Johns (1997) 56 Cal.App.4th 550.) Back to link 54
- The California Supreme Court has agreed to review the constitutionality of Penal Code section 803(g), which retroactively revives and extends the statute of limitations and criminal prosecution for one year after the alleged victim complains of the child molestation to the police, regardless of when the act itself took place. (In re Davis, Case No. S062716, review granted March 11, 1998 and People v. Frazier, Case No. S067443, review granted March 11, 1998.) Back to link 55
- Good cause means a good faith and reasonable belief that the taking, detaining, concealing or enticing away of the child is necessary to protect the child from immediate bodily injury or emotional harm or, if the person has been the victim of domestic violence, that the child, if left with the other person, will suffer immediate bodily injury or emotional harm. (Pen. Code, § 278.7.) In this circumstance, the parent who took the child should report the situation to the appropriate district attorney's office and commence a custody proceeding in court. Back to link 56
- Abuse of the elderly can consist of physical abuse, psychological or emotional abuse, financial abuse, or physical neglect. Back to link 57
- The constitutionality of the elder abuse statue was upheld in People v. Superior Court (Holvey) (1988) 205 Cal. App.3d 51, 58-60. Back to link 58
- As of January 1, 1998, civil compromise is no longer available to perpetrators of elder abuse. (Pen. Code, § 1377.) Back to link 59
- A non-custodial relative has been found not criminally liable for failure to prevent physical elder abuse because the relative had no legal control over the abusing caretaker. (People v. Heitzman (1994) 9 Cal.4th 189.) Back to link 60