Domestic Violence – Victim’s rights
- Plaintiff is the state of California
- Code of Civil procedure 1219 and Victim’s rights
- recanting a statement
Victims in domestic violence cases come from all walks of life – they can be male or female, and can be involved in straight or homosexual relationships. And in many cases, an alleged victim may not want the law involved in their family dispute, they may regret calling the police, or they may feel that the system is ignoring their wishes. In this section, we will explain the powers and rights an alleged victim in a domestic violence case has, and also what the police and District Attorney can do regardless of the victim’s wishes.
When someone’s partner, their ex, or someone they have children with is charged with a domestic violence offense, it begins a very difficult and challenging time for them as well. If you are alleged to be a victim of domestic violence, you will be involved in the criminal justice process – often, whether you have asked for police assistance or not. This process can be confusing and, if the police are involved, you might feel as if the power to make decisions for you and your family is taken away from you.
While we would never speak to an alleged victim against their wishes, we do often work with both the defendant and their partner. Thiscan be for several reasons – couples often reconcile, sometimes the partner did not want the police involved in the first place, the partner may have changed their mind about wanting to take any action, or simply because the parties are still in contact and the partner wants to understand the process as well. In some cases, it is the wife, husband, boyfriend or girlfriend of the defendant who first makes contact with us, seeking help for their partner.
Summit Defense Attorneys are skilled in helping families navigate the process and understand what their rights and obligations are while a case is pending. We understand that the criminal justice system can often leave both defendants and victims feeling powerless, and as if no one is listening to what you and your family want. We believe in families being allowed to sort out their own problems if they want to, and we will do everything possible to fight these cases and to keep our client’s families together.
Do I get to decide whether charges are filed, or whether a restraining or protective order is made?
The alleged victim does not get to decide whether the defendant is arrested or whether charges are filed. The police will usually not apply for a restraining order if the victim does not want one, but when a criminal case goes to court, the judge may make one anyway. In fact, as we have discussed above, the policies that apply to domestic violence cases specifically state that the authorities should not take into account what the complainant wants when making arrest decisions.
This can be one of the most frustrating aspects of the process for complainants. However, you should also know that you are not required to talk to the police, the DA, social workers, etc, if you do not want to, and are entitled to consult your own attorney.
If you are still in contact with the defendant, or if you’d like to be but there is an order preventing contact between you, you can always speak to the attorney for the defendant. At Summit Defense Attorneys, we are always happy to speak to our client’s family members and partner, including the alleged victim. If they tell us that they don’t want any action taken, that they want the terms of an order changed, or that do not want an order in place at all, we can often take that information to the DA to give them a more full picture of the state of the relationship, and try to resolve the matter.
Do I have to talk to the police?
No, you do not have to talk to the police if you do not want to. Just as the police cannot force an accused person to speak to them, they cannot force an alleged victim to make a report or complaint against anyone.
However, keep in mind that just because you do not speak to the police, does not mean that they will not take any action in a case. If the police see or hear enough to give them a basis to believe that an offense has occurred, they can still make an arrest and charges can still be filed. For example, in cases where other people are present in the house, or where neighbors have seen or heard something, there may still be enough evidence for the police to take action against an alleged offender. Further, even in cases where there might not be enough evidence to support a charge, the police could still apply for a restraining or protective order on behalf of the alleged victim – regardless of their wishes.
Can I contact my partner if there is a restraining or protective order in place?
Maybe – it depends on the terms of the order. If an order has been made for your protection, then the law requires that you be provided with a copy. You should read the terms of the order carefully, and if there is anything you don’t understand you can ask the police or a lawyer to explain it to you.
Although there are typical orders that are made, they can be different, so read yours carefully. If you are worried about whether you can be in contact with your partner at all, you should look for terms in the order that talk about ‘contact’ or ‘communication’. For example, an order might prohibit your partner from living in your home, but it might not prevent the two of you from talking to each other.
On the other hand, if an order says that your partner is not allowed to communicate with you at all, then you should not communicate them. If you do need or want to communicate with your partner, you could speak to an attorney. If you are not happy with the terms of the order and you want to be able to communicate with your partner, you should consult an attorney to see what your options are.
What if I feel safe and I don’t want the order anymore?
What can happen in the case depends on what stage the court proceedings are at, and if any criminal charges have been filed against your partner. As we have discussed before, a judge in a criminal case can make an order, even if the victim doesn’t want one made. This can be a difficult area of the law for a victim to handle by themselves so, in most cases, the best course of action is to speak to a lawyer early in the case so they can help you navigate the process, and discuss with you what the best options are for you and your family.
Do I have to attend court and testify?
Yes, you do have to go to court if you have been served with a notice from the prosecution, or a subpoena – you should not ignore a court order. It is understandable that you might not want to go to court, but you can face penalties yourself if you disobey a court order.
One important aspect of the law to know is that, in a domestic violence case, there are ways that you can go to court but refuse to testify and be protected from prosecution for contempt, under Section 1219 of the California Code of Civil Procedure. However, you should carefully consider why you do not want to testify or go to court at all. This is a complicated issue, and it is best for someone in this situation to seek the advice of an attorney before deciding what course of action to take, or potentially exposing yourself to criminal penalties.