New California Law Grants Protection for Domestic Violence Survivors

[courtesy of California Progress Report]

By Leland Yee, Ph.D.
Assistant President pro Tem
California State Senate

Governor Arnold Schwarzenegger today signed into law a bill I authored that victim advocates believe will result in more women coming forward to law enforcement after falling victim to domestic violence. Senate Bill 1356, a commonsense and much-needed law, protects domestic violence survivors from the threat of incarceration when they refuse to testify against their abuser in court. The law mirrors an existing statute for sexual assault victims.

Domestic violence survivors have been through enough; the last thing they need is to be re-victimized by our legal system or be exposed to threats of incarceration. This law is not going to result in fewer prosecutions, but instead just the opposite. Survivors are more likely to report incidents of domestic violence when they trust law enforcement and our system of justice.

In fact, in a letter regarding another bill before the Legislature in 1991, then Los Angeles District Attorney Ira Reiner agreed with victim advocates. The letter from Reiner’s special counsel John Lovell stated, “Prosecutors who raise the spectra of possible incarceration of victim/witnesses diminish the credibility of the criminal justice system as an effective instrument in combating domestic violence. The unintended consequence of those types of warnings is a chilling constraint on victim/witnesses to come forward in these types of cases at all.”

Coercion is a draconian practice that should not be used in getting a victim to testify after just facing a similar control tactic from her abuser. Instead, prosecutors should work with advocates in getting the victim to a place where she is comfortable and willing to testify, which in turn will result in a much more successful prosecution. SB 1356 also rightfully considers the children in domestic violence cases, who will no longer be put at risk of losing both parents and being unfairly pushed into foster care.

Since 1991, sexual assault victims have not faced imprisonment if they decide not to testify in a criminal case, whereas domestic violence victims under a second contempt charge have been subject to incarceration. This law was tested in 2005, when the district attorney in San Mateo County pursued and a judge ordered jail time to a victim for refusing to testify against her abuser. The state appeals court later dissolved the contempt charge due to the fact that the case was already prosecuted and resulted in a guilty verdict without the victim’s testimony.