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for Victims of Rape, Domestic Violence, and Child Abuse
|Over the last 30 years,
many victims' rights have been written into state laws. What we've
done here is outline and explain a selected few of those rights.
The rights we've chosen to highlight are those which are both especially
important to victims of rape, domestic violence, and child abuse,
and those rights which we've also found to be most frequently violated.
In other words we've selected those rights about which we feel you
most need to be fully informed.
In addition to printing
the actual text of each of the laws, we provide points of explanation
and give you some suggestions on what to do if your rights under
these laws are violated. To go directly to the discussion of the
right you want to know about, go back to the index and click on
the title of the right.
It's worth taking a
moment here to tell you about a very serious flaw in virtually
all victims' rights laws that have been passed in the United States.
The problem is this: when police, prosecutors, and other criminal
justice officials violate your rights - even though these rights
are clearly spelled out in the law - it is virtually impossible
for you to hold these officials legally accountable. There are
a number of reasons this is so. Very briefly, criminal justice
officials in the U.S. are protected by very strong legal immunities.
And even worse for women and children, in a 1989 case called De
Shaney v. Winnebago County, the U.S. Supreme Court ruled that
law enforcement has no affirmative obligation to act.
Clearly, this state
of the law must be changed. Until then, victims of rape and domestic
violence are left without any practical legal remedy when law
enforcement fails to act, fails to protect you, or fails to abide
by your victims' rights. As a result, when officials violate your
rights, you, your friends, and your community must resort to other
means to try and pressure officials into abiding by the laws.
Following each of the rights discussed below, we give you some
of the specific ways that have worked for us when officials violate
victims' rights. But first, here are some general guidelines to
follow when your rights are violated.
General Things To Do When Your
Rights are Violated
1. Get Help!
Get help from a smart friend, a neighbor, a teacher, a victim
advocate, a co-worker, a minister, a trusted official, etc. The
people you ask for help don't necessarily have to know all about
the system and how it works. What's most important is that they
are caring, that they have common sense, and that they have a
basic respect for people's rights.
Tell your support person
what happened. Talk with them about how you want to handle the
situation. Ask them to accompany you when you go to get the situation
corrected, or ask them to speak for you, or to make the phone
call for you.
2. Put Your Complaint
in a Short Note! If officials don't immediately correct a
violation of your rights after you make a phone call or two, write
a short (one or two paragraphs) description of what happened.
Next, write in your note that you know you have a right to different
treatment. Cite the law (give the name and number of the law as
we give it here). And then, at the end of your note, don't forget
to write out briefly how you want the situation corrected and
ask for help. Make a dozen copies of your note. Whenever possible,
attach a copy of the law to your note. Hand the note, or send
it, to the people you want to know about the problem.
If you find it difficult
to focus on writing your note of complaint because of all that's
happened to you, that's one of the things your friend can help
you with. Have your friend sit down beside you and help you write
3. If You Don't
Speak English or If You Are an Undocumented Immigrant ...
If you are a crime victim and don't speak English or if you are
an undocumented immigrant, remember that criminal justice officials
are obligated to provide you equal protection of the laws. This
means that if you don't speak English, these officials must provide
you with adequate interpreters. This also means that if you write
a note in your native language, officials must find a translator
for your note.
4. Bring a Copy
of the Law with You or Cite the Law. If you are writing about
or talking about your rights with an official or advocate, you'll
need to refer to the law by giving what's called the law's "citation",
the name of the code book followed by the number of the code section.
For example, the citation for your right to obtain a copy of your
domestic violence police report is "Family Code Section 6228".
By giving the citation of the law, the person you're talking to
can then go and look up the law for themselves. Citing the law
also tells the person that you know about and take your rights
5. Go Up the Ranks!
Going up the ranks is often the only way to get enough power to
get the situation corrected. For example, in police departments,
go to seargents, captains, or go straight to the chief. If you
don't get the help you deserve from inside a department you'll
need to go to other powerful people outside the department, such
as the head of your church or to the city council. Going up the
ranks to people's bosses or to other powerful people can feel
very intimidating when you're already traumatized by violence.
That's why step number one is so important. Get help from people
you trust so they can be with you or speak for you. A friend by
your side makes you strong.
6. Don't Give Up!
Keep fighting for Your Freedom, Your Happiness, and Your Future!
In the course of getting free of domestic violence or sexual assault
you're going to be dealing with many different officials and related
workers. Because things aren't perfect yet, it's very likely that
one or more of these people along the way is going to disrespect
you and your rights. When your rights are trampled on top of everything
else it can quickly make you feel very depressed. It can make
you feel like giving up. But don't give up. Chances are the next
person right around the corner is someone who takes your rights
very seriously and wants very much to help you.
Couple More General Notes:
Note 1. Exercise Your Rights. Your
safety, your right to justice, and your freedom from violence,
depend on the full exercise of your rights. Don't think it's your
fault if your rights are violated. And don't be intimidated if
officials try to bully you. Get help!
Note 2. Most of
the Rights We Discuss Here Are Based on California Law. Naturally
if you live in another country or state, the laws we discuss here
don't directly apply to you. However, many other states have very
similar laws. To find the laws covering your rights in other states
you can consult your state codes on the internet or in the reference
section of your library, you can call victim advocates, talk to
your county law librarian, or ask a lawyer to look up your rights
for you. We also hope that people in other places can use the
laws we cover here as a starting place for thinking about the
kind of legislation you can pass in your own area.
In addition, if you
are not from California, remember that every person from every
country is covered by the crime victims' rights as outlined in
the United Nations Declaration
of Basic Principles of Justice for Victims of Crime and Abuse
Note 3. Don't Be
Discouraged by the Confusing Language of the Laws. If you're
not used to reading legal text, it might seem impossible at first
to even figure out where a sentence begins and ends. Don't be
discouraged. It really can be confusing! To help you out, we've
put some of the key phrases of the laws in bold type. We've also
provided a plain language summary of the law in the title of each
section, and a set of explanatory notes that follows the text
of each law.
Note 4. How to Download
Small Sections of Text. If you want to download the text of
a law or other small sections of text without having to print
out the whole document, here's how:
- Highlight the
section of text you want to download with your computer mouse
- Click "Print"
in your "File" menu,
- In your print
dialog box click "selected text",
- click "Print".
California Penal Code Section 13730
must write a police report on all
domestic violence related calls.
(Scroll down for Notes and What To
Text of California Penal Code Section 13730
(a) Each law enforcement agency shall develop a system, by January
1, 1986, for recording all domestic violence-related calls for
assistance made to the department including whether weapons are
involved. All domestic violence-related calls for assistance
shall be supported with a written incident report, as described
in subdivision (c), identifying the domestic violence incident.
Monthly, the total number of domestic violence calls received
and the numbers of those cases involving weapons shall be compiled
by each law enforcement agency and submitted to the Attorney General.
(c) Each law enforcement agency shall develop an incident report
form that includes a domestic violence identification code by
January1, 1986. In all incidents of domestic violence, a report
shall be written and shall be identified on the face of the report
as a domestic violence incident. A report shall include at
least both of the following(1) A notation of whether the officer
or officers who responded to the domestic violence call observed
any signs that the alleged abuser was under the influence of alcohol
or a controlled substance. (2) A notation of whether the officer
or officers who responded to the domestic violence call determined
if any law enforcement agency had previously responded to a domestic
violence call at the same address involving the same alleged abuser
on PC13730, police obligation to write a police report on all
domestic violence related calls.
Note that the law requires a report on all domestic violence-related
calls. This means that in addition to an actual physical assault
police must write reports on many other crimes perpetrated against
you by your partner including, but not limited to,
- PC 422 Threats to
kill or commit serious bodily harm,
- PC 236 False Imprisonment,
which means holding you against your will or keeping you from
going where you want to go.
- PC 273.6 Violation
of a domestic violence restraining order
- PC 207 Kidnaping
- All Sexual Assaults
(These are covered under many codes)
- PC 136 Dissuading
- PC 594 Vandalism
of your property, including community property if you're married
- PC 646.9 Stalking
and many more.
It's crucial for you to make sure that police wrote a report,
and a proper report, when they responded to your domestic violence
call. If officers don't write a report (and a complete report),
the perpetrator gets the message that his abuse is no big deal,
and when police give the perpetrator the message that his behavior
is no big deal, they are leaving you in a situation that is more
dangerous than when you called.
When police respond
to your call you can usually tell whether or not they are taking
your case seriously. Some of the things to ask yourself are: Did
police talk with you separately from the perpetrator? Did they
give you time to tell your whole story? Ask you about the history
of abuse? Did the officer take notes? Take photos of all injuries
and damage? Collect all the evidence? Talk to all the witnesses
(including the children)? Provide an adequate translator if necessary?
Offer to write you an Emergency Protective Order? Did the officer
tell you what's going to happen next? Give you a domestic violence
card or booklet with a report number and the officer's name written
on the card?
If the officer didn't
do all these things, or if the officer treated you badly, or didn't
show concern for your safety, you should immediately find out
if the officer even wrote a report, and if the officer did write
a report, you should make sure that a proper report is written.
We highly recommend that all domestic violence victims (covered
by California law) go to the police department as soon as possible
after calling police in order to obtain a copy of the full police
report. By obtaining and reading a copy of the police report,
you can double check that all evidence and witness statements
were included. Under California law (see discussion of Family
Code 6228 below) domestic violence victims now have a legal right
to a complete copy of your domestic violence report.
TO DO: If You Think the Officer Didn't Write a Report, or Didn't
Write an Adequate Report.
1. Call the police
department and ask to speak to the seargent in charge or to the
head of the department's domestic violence unit. Tell the seargent
the date and time you made a domestic violence call. Ask the seargent
to look up your case and ask if a domestic violence report was
written. Ask if the report was a crime report or an incident report.
Ask for the report number and ask what crime was cited. Write
down the answers in a notebook.
If there is no report,
or if you feel the report is inadequate, explain your situation
to the seargent and ask that corrections be made. If you don't
get help from the seargent, ask for the name of the seargent's
superior and call that person.
2. Obtain a copy of
the entire police report as soon as possible (see discussion of
Family Code 6228 below).
3. If you can't find
anyone in the police department who is going to quickly correct
inadequacies in the response to your domestic violence call, don't
get discouraged. There are other things you can do.
4. Call a victim advocate
or a smart friend to help you protest the police treatment. Write
a short complaint, make copies of this complaint and send it to
the mayor, the district attorney, the chief of police, and as
many other important people you can think of. Don't forget to
say in your note that you want help to get the situation corrected.
5. Another thing you
can do is put the evidence together yourself. You can write out
your own statement and present it to police. You can bring in
other witness statements and physical evidence in the same way.
If the police won't enter these evidences into a report, take
them to the District Attorney's office.
you feel shy about doing any of these things, remind yourself
again that your safety depends on a proper police response to
domestic violence. Domestic violence hurts you, your children,
and the entire community. Police are paid by your taxes to take
domestic violence seriously.
California Family Code Section 6228
give domestic violence victims a free copy of the police report
within five days of the victim's request.
(Scroll down for Notes and What To
Text of California Family Code Section 6228.
(a) State and local law enforcement agencies shall provide,
without charging a fee, one copy of all domestic violence incident
report face sheets, one copy of all domestic violence incident
reports, or both, to a victim of domestic violence, upon request.
For purposes of this section, "domestic violence" has the definition
given in Section 6211.
(b) A copy of a domestic violence incident report
face sheet shall be made available during regular business hours
to a victim of domestic violence no later than 48 hours after
being requested by the victim, unless the state or local law
enforcement agency informs the victim of the reasons why, for
good cause, the domestic violence incident report face sheet
is not available, in which case the domestic violence incident
report face sheet shall be made available to the victim no later
than five working days after the request is made.
(c) A copy of the domestic violence incident
report shall be made available during regular business hours
to a victim of domestic violence no later than five working
days after being requested by a victim, unless the state or
local law enforcement agency informs the victim of the reasons
why, for good cause, the domestic violence incident report is
not available, in which case the domestic violence incident
report shall be made available to the victim no later than10
working days after the request is made.
(d) Persons requesting copies under this section
shall present state or local law enforcement with identification
at the time a request is made.
(e) This section shall apply to requests for face
sheets or reports made within five years from the date of completion
of the domestic violence incidence report.
(f) This section shall be known, and may be cited,
as the Access to Domestic Violence Reports Act of 1999.
on FC 6228, Police Obligation to give domestic violence victims
a free copy of the police report within five days of the victim's
When you go to the police department to get a copy of your
domestic violence police report, take a copy of this law with
you. Even though this law went into effect in the year 2000,
many police departments are still not complying. If you show
them a copy of the law, they're much more likely to comply.
When you pick up a copy of the domestic violence police
report, don't leave the police department until you've looked
through the report. Make sure that you got all sections of the
report. Many police departments will only give you the police
officer's narrative (the officer's summation). So check to see
that all statements written out by you, by other witnesses,
and the perpetrator,( if they wrote a statement), are included
in the report.
way to check if you have the entire report is to look down at
the bottom of the first page of the report. You'll see there
is notation at the bottom which gives the page number and the
total number of pages. For example, page 1 will have a notation
something like this, "p1 of 9". This means there should be a
total of 9 pages in the report you've been given. Count the
pages to be sure they're all there.
Later on, read the report carefully. Make notes on all significant
things you feel are incorrect. Just as important, make notes
of all the things you feel are missing or need to be added to
the report. If there are things in the report you don't understand,
go to the police department, a victim advocate, the district
attorney's office, or a lawyer, and ask them to explain.
Many women become very upset when they read the police report
and see that the perpetrator told bold faced lies to the police
about how the incident occurred. If the perpetrator lied to
the police in your case, take a deep breath and ask yourself
this question: how many violent men do you think tell the police,
"Yes, officer, I did it, I'm the bad guy?"
are very accustomed to hearing the perpetrators lie to them.
The police usually know the person is lying, but police have
to write down the perpetrator's statement as it was given to
them, even though they know it is a lie. Please don't let the
perpetrator's lies upset you. If police wrote a thorough report
on your case, chances are very, very good that the system will
keep you safe and keep the perpetrator under control. If police
didn't write a thorough report, now that you have a copy of
the report in your hands, chances are very, very good that you
can get the situation corrected.
TO DO: If the Police Department Won't Give You a Copy of Your
Domestic Violence Report.
to speak to the head of the Police Department Records Department.
Show him or her the law.
the head of the records department still won't give you a copy
of the report, take a copy of the law and go with a smart friend
to the head of the police department's domestic violence unit,
to the District Attorney's office, or to your elected officials.
Tell them the police won't give you a copy of your report even
after you showed them the law and ask them to call the police
department for you.
the police gave you a copy of the report, but it was only a
partial copy of the report, you'll probably have to go through
the same steps to get the entire police report.
California Penal Code Section 836
Arrest the Perpetrator on Domestic Violence Restraining Order
(Scroll down for Notes and What To
Text of California Penal Code Section 836 (c)(1)
When 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, Section 136.2 of this code, or paragraph (2) of
subdivision (a) of Section 1203.097 of this code, or
of a domestic violence protective or restraining order issued
by the court of another state, tribe, or territory and the peace
officer has probable 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 shall, consistent
with subdivision (b) of Section 13701, make a lawful arrest
of the person without a warrant and take that person into custody
whether or not the violation occurred in the presence of the
arresting officer. The officer shall, as soon as possible
after the arrest, confirm with the appropriate authorities or
the Domestic Violence Protection Order Registry maintained pursuant
to Section 6380 of the Family Code that a true copy of the protective
order has been registered, unless the victim provides the officer
with a copy of the protective order.
on PC 836(c)(1), Police Obligation to Arrest the Perpetrator
on Domestic Violence Restraining
Despite the existence of this law, police frequently fail
to make arrests on violations of restraining orders, placing
victims in great danger that the perpetrator will likely escalate
his violations. What frequently happens is this; following the
issuance of a domestic violence restraining order, the restrained
person begins to test the order by veiling his violations in
seemingly harmless acts. He may send you a card to you saying
"I'm sorry", he may have a mutual friend call to tell you that
he needs to pick up his things from the house, he may call with
a concern for the kids.
women aren't fooled by this kind of treachery. They call the
police right away to report that the abuser has violated the
restraining order. But way too many police treat these situations
as silly complaints. The police may not even write a report
or they may only simply call the perpetrator to remind him about
the restraining order, as if the poor guy must have forgotten,
and the police tell him not to do it again or he can be arrested.
This can go on time after time. The perpetrator quickly gets
the message that the police are going to protect him more than
they protect you, and the perpetrator in this case is very likely
going to escalate.
is why there are so many stories of women who are murdered even
though they had obtained a restraining order. People mistakenly
conclude that restraining orders are useless. But if you look
into these cases you'll so often see that the women made reports
to police and the police failed to arrest. In these cases it
was the police, and not the restraining order, that was useless.
is why, if police don't arrest the perpetrator when you make
a report, don't let it go. See the WHAT TO DO section below)
The statement in the law requiring that "police have probable
cause" to make the arrest is satisfied completely by a credible
statement from you, the victim. You should be considered credible
if there is no evidence to indicate you are lying. What this
means is that, if there is no evidence you're lying,, your statement
alone that the restraining order was violated is probable cause
for the officer to make the arrest, and therefore, by this law,
PC836.(c)(1), the officer must make the arrest on your word
alone. No other evidence is needed, and the officer doesn't
have to have seen it happen.
If the perpetrator isn't present, or has fled, when the
police come to talk to you, police must nonetheless make an
effort to find the perpetrator. And if they can't find him,
police should put out what's called a BOLO (a Be On the LookOut
Because a violation of a domestic violence restraining order
is a domestic violence related crime, remember that under PC
13730 police are obligated to write a domestic violence report
you have a right to obtain a copy of that report. Both of these
rights are discussed above.
TO DO: If police do not make an arrest, or do not make a determined
attempt to make an arrest when you report a violation of your
domestic violence restraining order
police do not make an arrest, or do not make a determined attempt
to make an arrest when you report a violation of your domestic
violence restraining order, it is very important for your safety
that you get the situation corrected. If the police didn't tell
you directly that they are going to make an arrest you probably
need to call the police department, ask for a seargent and find
out 1. if a domestic violence crime report was written, and
2. if the officer made an arrest.
the sargent tells you the officer didn't write a report or didn't
make an arrest (or attempt to make an arrest) follow the same
steps outlined above for what to do when police don't write
a report, PC 13730.
California Penal Code Section 679.04
Victims Have the Right to Victim Advocates and a Support Person
During All Police, District Attorney, and Defense Attorney Interviews
(Scroll down for Notes and What To
Text of California Penal Code Section 679.04.
(a) A victim of sexual assault as the result of any offense
specified in paragraph (1) of subdivision (b) of Section 264.2
has the right to have victim advocates and a support person
of the victim's choosing present at any interview by law enforcement
authorities, district attorneys, or defense attorneys. However,
the support person may be excluded from an interview by law
enforcement or the district attorney if the law enforcement
authority or the district attorney determines that the presence
of that individual would be detrimental to the purpose of the
interview. As used in this section, "victim advocate" means
a sexual assault victim counselor, as defined in Section 1035.2
of the Evidence Code, or a victim advocate working in
a center established under Article 2 (commencing with Section
13835) of Chapter 4 of Title 6 of Part 4.
(b)(1) Prior to the commencement of the initial
interview by law enforcement authorities or the district attorney
pertaining to any criminal action arising out of a sexual assault,
a victim of sexual assault as the result of any offense specified
in Section 264.2 shall be notified orally or in writing by the
attending law enforcement authority or district attorney that
the victim has the right to have victim advocates and a support
person of the victim's choosing present at the interview or
contact. This subdivision applies to investigators and agents
employed or retained by law enforcement or the district attorney.
(2) At the time the victim is advised of his or her rights pursuant
to paragraph (1), the attending law enforcement authority or
district attorney shall also advise the victim of the right
to have victim advocates and a support person present at any
interview by the defense attorney or investigators or agents
employed by the defense attorney.
(c) An initial investigation by law enforcement
to determine whether a crime has been committed and the identity
of the suspects shall not constitute a law enforcement interview
for purposes of this section.
on PC 679.04, Sexual Assault Victims Have the Right to Victim
and a Support Person During All Police,
District Attorney, and Defense Attorney Interviews
response to sexual assault victims is improving, but it is still
inexcusably poor. This law giving sexual assault victims the
right to have advocates and a support person present during
all law enforcement interviews is designed to protect you from
all too frequent abuse of sexual assault victims by police,
prosecutors (district attorneys), and defense attorneys. Too
often these officials try to make the victim and her case go
away. They frequently do this by isolating the victim, and then
in one way or another, misinforming her about the case, such
as telling her the case is weak, scaring the victim about irrelevant
things the defense might bring up against her, interrogating
the victim and making her think she is to blame for the assault,
shaming or disrespecting the victim, attempting to dissuade
the victim from testifying, telling the victim there's not enough
evidence when there is enough evidence, attempting to talk the
victim into a give-away plea bargain, and more.
a victim advocate and a support person with you in all law enforcement
interviews is good protection against these kinds of law enforcement
abuses. Just the presence of other people makes it much less
likely that officials will take advantage of the victim's vulnerability.
The presence of other people also helps you be able to question
the things you're being told. We strongly advise all sexual
assault victims to exercise this right to the fullest.
Subdivision (b) of this law requires that police, prosecutors,
and defense attorneys advise sexual assault victims of their
right to advocates and a support person. Very few law enforcement
officials abide by this part of the law.
Subdivision (a) of this law states, "However, the support person
may be excluded from an interview by law enforcement or the
district attorney if the law enforcement authority or the district
attorney determines that the presence of that individual would
be detrimental to the purpose of the interview."
clause was not part of the original writing of the law but was
added to the law a year later under pressure from the California
District Attorney's Association. This addition unfortuantely
creates an opening for officials to exclude support persons
presence during interviews, and is a serious weakness in the
law. However, keep in mind that officials can never exclude
your victim advocate from accompanying a victim in interviews
under any circumstances.
Subdivision 2 © states, "An initial investigation by law enforcement
to determine whether a crime has been committed and the identity
of the suspects shall not constitute a law enforcement interview
for purposes of this section."
refers to the very first response by police when a sexual assault
victim first calls police to report the sexual assault.
Note that this law giving you the right to support persons covers
interviews with defense attorneys as well as interviews with
police and district attorney officials. It's very important
that sexual assault victims understand that you never, under
any circumstances, have to talk with defense attorneys or their
investigators. It is always in your best interest to refuse
to talk to anyone connected with the defense attorney. The only
reason defense attorneys or their investigators want to talk
with you is to try to get you to say something that they can
use against you in court. Before you talk with anyone about
your case, always ask who they are and who they work for. And
remember, you are always within your rights and your best interest
to completely refuse to talk with anyone connected with the
defense attorney team.
TO DO: If police or prosecutors deny your right to have support
persons and victim advocates accompany you in case interviews.
1. The best way
to assure your right to have support persons and victim advocates
accompany you in case interviews is by trying to prevent problems
ahead of time. Download a copy of this law and take it with
you to interviews.
In addition, when
you are scheduling interviews with police or prosecutors be
sure and tell them that you plan on bringing a friend and/or
advocate with you, and that you want them to be in the interview
with you. If you hear any hint of disapproval in the official's
voice, tell them right then that you know you have the right
to bring anyone you want into the interview, under Penal Code
Section 679.04. Tell the official you take your rights very
seriously and that you expect the official to abide by the
law. Your willingness to stand by your rights is very often
enough to assure that officials will respect your rights.
2. Be sure and
meet with your support persons and advocates before the interview.
You can do this simply by meeting together a half hour earlier
than the scheduled interview. When you meet you should discuss
a number of things with your support people, and one of the
most important is to decide what you want to do if the official
says that you can't bring your support persons in the interview
You may decide
that if that happens you'll want to ask to speak to the officer's
superior. You may decide that you want the victim advocate
to do the arguing for you. You may decide that you want to
argue with the official up to a point, but that in the end
you are willing to do the interview without your support persons,
or you may decide that you want to refuse to do the interview
if the official won't allow your support persons to accompany
you. Whatever you decide, the important thing is that you
and your team are all on the same page. That way you can all
feel strong walking into the interview and your support persons
can give you truly quality support.
3. Other things
to discuss with your support persons before going into the
interview are: Do you want someone to take notes during the
interview (highly recommended)? Do you want someone to write
down questions you want to ask and then remind you in the
interview of the questions? Do you want one of your support
persons to ask the questions for you? Do you want your support
persons to be passive or active in the meeting. When you are
being asked questions about the events of the crime, your
support persons shouldn't try to answer questions for you.
However, you might want to tell your support persons that
if the official seems to be abusive in their questioning,
or if you seem to be overwhelmed, that in that case you do
want them to jump in and speak for you. Again, the important
thing is that you and your support team know ahead of time
the kind of support you want.
California Penal Code Section 868.5
of Domestic Violence, Rape, or Child Abuse Victims to have two
support persons of your choosing present in court while you
testify, one of whom may also be a witness.
(Scroll down for Notes and What To
Text of California Penal Code Section 868.5.
(a) Notwithstanding any other law, a prosecuting witness
in a case involving a violation of Section 187, 203, 205, 207,
211, 215, 220, 240, 242, 243.4, 245, 261, 262, 273a, 273d, 273.5,
273.6, 278,278.5, 285, 286, 288, 288a, 288.5, 289, or
647.6, or former Section 2 77 or 647a, or a violation of subdivision
(1) of Section 314, shall be entitled, for support, to the
attendance of up to two persons of his or her own choosing,
one of whom may be a witness, at the preliminary hearing and
at the trial, or at a juvenile court proceeding, during the
testimony of the prosecuting witness. Only one of those
support persons may accompany the witness to the witness stand,
although the other may remain in the courtroom during the witness'
testimony. The person or persons so chosen shall not be a person
described in Section 1070 of the Evidence Code unless the person
or persons are related to the prosecuting witness as a parent,
guardian, or sibling and do not make notes during the hearing
(b) If the person or persons so chosen are also
prosecuting witnesses, the prosecution shall present evidence
that the person's attendance is both desired by the prosecuting
witness for support and will be helpful to the prosecuting witness.
Upon that showing, the court shall grant the request unless
information presented by the defendant or noticed by the court
establishes that the support person's attendance during the
testimony of the prosecuting witness would pose a substantial
risk of influencing or affecting the content of that testimony.
In the case of a juvenile court proceeding, the judge shall
inform the support person or persons that juvenile court proceedings
are confidential and may not be discussed with anyone not in
attendance at the proceedings. In all cases, the judge shall
admonish the support person or persons to not prompt, sway,
or influence the witness in any way. Nothing in this section
shall preclude a court from exercising its discretion to remove
a person from the courtroom whom it believes is prompting, swaying,
or influencing the witness.
(c) The testimony of the person or persons so
chosen who are also prosecuting witnesses shall be presented
before the testimony of the prosecuting witness. The prosecuting
witness shall be excluded from the courtroom during that testimony.
Whenever the evidence given by that person or those persons
would be subject to exclusion because it has been given before
the corpus delicti has been established, the evidence shall
be admitted subject to the court's or the defendant's motion
to strike that evidence from the record if the corpus delicti
is not later established by the testimony of the prosecuting
on PC 868.5, your right to have two support persons of your
choosing in the courtroom
when you testify.
This law is similar to the law above it, PC 679.04, which
gives a sexual assault victim the right to support persons in
law enforcement interviews. The difference is that this law
gives you the right to support persons in courtroom proceedings
when you are testifying. Another difference is that this law
extends to most all victims of criminal abuse; including all
sexual assault victims, domestic violence victims, and child
At the end of the first paragraph, the law states, "The person
or persons so chosen shall not be a person described in Section
1070 of the Evidence Code unless the person or persons are related
to the prosecuting witness as a parent, guardian, or sibling
and do not make notes during the hearing or proceeding." This
only means that you cannot choose a support person who is a
member of the press unless that person is related to you.
Paragraph (b) of the law states, "(b) If the person or persons
so chosen are also prosecuting witnesses, the prosecution shall
present evidence that the person's attendance is both desired
by the prosecuting witness for support and will be helpful to
the prosecuting witness." This means that if one of the persons
you choose as your support person is also being called to testify
in the case, the prosecutor (also called district attorney)
is required to argue for your right to have that person with
you in the court when you testify. Note that subdivision c of
the law instructs the court that if one of your support persons
is also being called to testify, than that person should testify
before you so the support person can be present in the courtroom
when you testify.
TO DO: If officials do not abide by your right to have two support
persons of your choosing in the courtroom when you testify.
1. The way this
law is most frequently violated is that just before you go
into the courtroom to testify, the prosecutor may suddenly
ask that your support person wait outside the courtroom. This
is a very difficult time for you to have to get into an argument
with the prosecutor, and it is absolutely unforgivable for
any prosecutor to pull this trick.
The very best way
to prevent this possibility is in the conversation you will
have with the prosecutor before it is time for you to testify.
Generally the prosecutor will go over a few points of the
case with you before the court proceedings start. It's during
that conversation that you should make clear to the prosecutor
who you want to be in the courtroom with you when you testify.
If the prosecutor shows any sign of disagreement, you'll need
to say very clearly that you know you have a right to have
these persons in the courtroom with you.
2. If the prosecutor
still won't abide by your rights to have your two support
persons in the courtroom, tell the prosecutor you will speak
to the judge. Remember, the judge's job in the courtroom is
to make sure that the trial proceedings are fair. Since you
are the primary witness in the case, you can always take any
concern you may have about the proceedings to the judge. So
if the prosecutor blocks your right to have your two support
persons in the courtroom, as soon as you go up to the witness
stand, you can turn to the judge and tell the judge that you
would like to have your support persons in the courtroom.
3. If you feel
shy about speaking directly to the judge in front of the courtroom,
that's very understandable given the many other things on
your mind before you testify. Another way to handle the situation
of a prosecutor who blocks your support persons from accompanying
you in the courtroom is this: Quickly write a very simple
note that says "Your Honor, I am the victim in this case and
I would like to have my support persons here in the courtroom
when I testify. They are in the hallway because the prosecutor
says they can't come in. But the law says I have a right to
have them with me." Hand the note to the courtroom bailiff
or to a victim advocate and ask them to hand the note to the
California Penal Code Section 679.02
of District Attorney's Office to Notify
Violent Felony Victims of Pending Plea Bargains
(Scroll down for Notes and What To
Text of California Penal Code Section 679.02
(a) The following are hereby established as the statutory rights
of victims and witnesses of crimes.........
(12) To be notified by the district attorney's office where
the case involves a violent felony, as defined in subdivision
(c) of Section 667.5, or in the event of a homicide, the victim's
next of kin, of a pending pretrial disposition before a change
of plea is entered before a judge.
(A) A victim of any felony may request to be notified, by the
district attorney's office, of a pretrial disposition.
(B) If it is not possible to notify the victim of the pretrial
disposition before the change of plea is entered, the district
attorney's office or the county probation department shall notify
the victim as soon as possible.
(C) The victim may be notified by any reasonable means available.
on PC 679.02 (a)(12), District Attorney's (prosecutor's) Obligation
to Notify Violent Felony
Victims of Pending Plea Bargains
A plea bargain (pretrial disposition) is a negotiated agreement
between the prosecutor and the defense in which the prosecutor
agrees to reduce the charges against the accused in exchange
for a guilty plea from the accused. Plea bargains are very common
in our criminal justice system. These deals are made in order
to avoid the time and expense of going to trial. The fact that
the district attorney has offered a "deal" to the defense doesn't
necessarily mean that the outcome is unjust.
there are some prosecutors who are willing to walk into the
courtroom and offer deals to the defendant of such absurd and
drastic reductions of charges that in essence the prosecutor
is giving the case away just to be done with it. For example,
if a prosecutor offers a man charged with kidnaping and rape
a deal to plead guilty to misdemeanor assault, this is very
likely a deal that is a miscarriage of justice for both the
victim and the community. PC 679.02 (a)(12) was passed in order
to give victims and the community at least some protection against
prosecutors' attempting to dump cases of felony violence by
offering give-away deals. The law says prosecutors must notify
victims of pending plea bargains so that if you feel the offered
deal is unjust, you have time to express your objections to
Be aware that this law only requires that prosecutors inform
you of the deal they are planning to offer to the defense. The
law does not require that the prosecutor change the offer if
you object. However, it is very important for you to say so
if you do object. Good prosecutors will take your views into
serious consideration, and they will likely make adjustments
in the deal that incorporate your wishes.
Avoid making quick decisions about your approval or disapproval
of a plea bargain. When a prosecutor informs you of the offer
she or he is about to make in your case, they will likely give
you the reasons they think the offer is good, and then they
will usually ask your approval. In general, there are many things
you need to know and think about before you give your response
to the prosecutor. Tell the prosecutor you want time to think
about the offer and that you'll get back to him or her. In the
mean time you should talk with your victim advocate, with friends,
or with other officials you trust so they can help you make
an informed decision about whether or not the plea bargain is
Most of the time the prosecutor will contact you about a pending
plea bargain in the weeks before a scheduled trial. This gives
you plenty of time to talk with others and to come to an informed
decision about how you want to respond. However, there are some
prosecutors who may come to you about a plea bargain very early
on and in the minutes just prior to the preliminary hearing
when you are likely very nervous and anxious about testifying.
The prosecutor may say something like, "We're going to make
this easy for you. We're going to get this over with quickly.
We're going to offer the defendant this deal and if the defense
takes the deal, then you won't have to testify."
should pay very close attention if a prosecutor comes up to
you just before the preliminary hearing and says they want to
offer a deal instead of going ahead with the hearing. There
are circumstances where this might be a wise and just approach,
but far too often, a prosecutor who makes this move is just
trying to take advantage of your nervousness about testifying
to get you to agree to a deal that is not good for you or for
happens to you one thing you can always do is tell the prosecutor
that you want to go ahead with the preliminary hearing and talk
about deals later.
TO DO: If officials do not abide by your right to be notified
of pending plea bargains.
you find out that the prosecutor has offered a deal to the defense
and has not told you about the deal there are a number of things
you can do. One important thing to remember is that a plea bargain
is not finalized until the judge accepts the deal. And the judge
can undo the deal at any time right up to the sentencing. For
example, if you suddenly find out one day that the accused in
your case has pled guilty to a minor offense when he was initially
charged with a major offense, chances are pretty good that the
prosecutor offered the defense a deal and the defense accepted.
defendant has already accepted the deal before you were even
told about the pending deal, and if you aren't happy with the
deal, the first thing to do is talk it over as soon as possible
with a victim advocate, a smart friend, or a trusted official.
If you still feel the deal is unfair, you'll need to appeal
directly to the judge to explain that you are the victim in
the case, that you weren't informed of the deal, and that you're
very unhappy with the deal. The best way to do this is to write
a one page letter addressed to the judge. It isn't too often
that judges will undo a deal after a defendant has pled to the
deal, but it isn't that rare either, especially in a case where
a victim is unhappy and wasn't properly informed.
it does happen from time to time that a prosecutor outright
fails to inform you of a deal, a much more common way that your
rights are violated under this law is that a prosecutor will
misinform you about the pending deal in order to get you to
agree to the deal and to dissuade you from testifying. For example,
the prosecutor may tell you that it's a great deal (when in
truth it's a lousy deal), they may tell you the evidence is
too weak (when in fact the evidence is strong), they may tell
you that if you testify the defense will go after you about
your affair, your past drug use, your own troubles with the
law, etc. (when in fact, the defense can't bring these things
up at all). And it also may very well be that the prosecutor
who tells you these things is telling the truth.
why it's so important to tell the prosecutor you want to talk
it over with other people before you make your decision about
how you want to respond. If after talking with others you realize
that the prosecutor was misinforming you in order to get you
to agree to a give-away deal, you can first try going to the
same prosecutor to express your objections in hopes that the
prosecutor will back off the deal. If the prosecutor won't reconsider,
you need to gather people to your side and go to the prosecutor's
boss. It's often best to do this in writing.
you do, don't give up just because the prosecutor is pushing
you. You can very often succeed in getting a bad pending plea
California Penal Code Section 264.2(b)(1)
Victim's Have the Right to an
Advocate and Support Person During
Medical-evidentiary Exam (Rape Exam)
(Scroll down for Notes and What To
Text of California Penal Code Section 264.2(b)(1)
(b)(1) The law enforcement officer, or his or her agency,
shall immediately notify the local rape victim counseling center,
when ever a victim of an alleged violation of Section 261, 261.5,
262, 286, 288a, or 289 is transported to a hospital for any
medical evidentiary or physical examination. The victim shall
have the right to have a sexual assault victim counselor,
as defined in Section 1035.2 of the Evidence Code, and a support
person of the victim's choosing present at any medical evidentiary
or physical examination.
(2) Prior to the commencement of any initial medical evidentiary
or physical examination arising out of a sexual assault, a victim
shall be notified orally or in writing by the medical provider
that the victim has the right to have present a sexual assault
victim counselor and at least one other support person of the
(3) The hospital may verify with the law enforcement officer,
or his or her agency, whether the local rape victim counseling
center has been notified, upon the approval of the victim.
(4) A support person may be excluded from a medical evidentiary
or physical examination if the law enforcement officer or medical
provider determines that the presence of that individual would
be detrimental to the purpose of the examination.
on PC 264.2(b)(1) and (b)(2),.Sexual Assault Victim's Have the
Right to an Advocate and Support Person During Medical-evidentiary
Exam (Rape Exam)
Note that in addition to your having a right to an advocate
and support person during a rape exam, this law requires that
law enforcement officers are required to notify the local rape
crisis center when they transport a victim to the hospital for
the exam and that the medical examiner inform you of your right
to an advocate and support person. It is critical that officials
abide by this law because so often in the time just before a
rape exam the victim is overwhelmed by the trauma of the rape
and it's very difficult for her to think of gathering support
the importance of this law to victims, there are still law enforcement
agencies and medical examiners who do not call the rape crisis
center and who do not inform the victim of her rights. This
When law enforcement notifies the local rape crisis center
that they are taking a rape victim to a rape exam, most all
rape crisis centers will send a victim advocate to meet you
at the exam room. You don't have to have the advocate with you
if you prefer to do the exam without an advocate. Don't hesitate
to say so. The most important thing to the advocates is that
you have the exam in the way you feel most comfortable. You
can also ask the advocate to talk with you for a while and answer
your questions and then have the advocate wait outside during
the exam. Or you can have the advocate and support person with
you throughout the exam.
TO DO: If your right to an advocate or support person during
a rape exam is denied, or if you are not informed of the right,
or if law enforcement fails to notify a rape crisis center.
your right to an advocate or a support person during a rape
exam is violated in any way, you can ask that the procedure
be stopped until you can call your friend or an advocate. Or
you can simply refuse to do the exam. Remember, you are under
no obligation to do the rape exam or any particular part of
when these rights are violated most victims don't realize it
until after the exam is over. If your rights were violated during
a rape exam, we ask you to protest, and protest loudly, to help
bring about the day that all sexual assault victims are afforded
there is anything at all that makes you uncomfortable during,
or before, or after a rape exam, and you find it difficult to
speak up or ask your questions, tell the medical examiner or
the detective that you want to talk alone with your advocate
or support person. Ask your advocate or support person to speak
for you or ask questions for you. Remember, that's why your
advocate and support person are there.