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NEW DOMESTIC VIOLENCE LAW, EFFECTIVE JANUARY 2009:
Domestic violence and sexual assault victims are no longer required to testify against their alleged attacker, under the threat of jail by the Judge. This means, if a victim refuses to testify in court against his or her spouse or significant other, the Court and Prosecutor can no longer threaten the victim with contempt charges if the victim refuses to testify against the accused. If a victim does not testify, the prosecutor will have a much harder time securing a conviction on the Defendant. A defense attorney has a much easier time winning a dismissal or an acquittal.
Many domestic violence cases involve couples who share a long history with one another, during which time deep emotional ties develop. Often, couples reconcile after charges of domestic abuse have been filed by the District or City Attorney (the prosecutor). By the time a criminal case against the accused goes to trial, the alleged victim will often no longer want to testify against their loved one. In the past, a judge could hold a subpoenaed victim in jail for contempt if they refused to testify against their loved one. This is no longer true! Victims now have the right NOT to testify against their spouse or co-habitant.
Pursuant to the California Code of Civil Procedure, Section 1219(b), a domestic violence (or sexual assault) victim will no longer be forced to testify against the accuser in court, and cannot be found in contempt by a Judge and sent to jail.
When a victim refuses to testify, it makes the case against the Defendant a lot more difficult to prosecute, and sometimes, this results in the charges being dismissed. However, in some cases, the prosecutor can still proceed to trial if there is other sufficient evidence against the Defendant, such as an officer’s testimony regarding what the victim said, and photos of injuries. But even this evidence can be suppressed if a motion is won to keep it out of trial. This is why it is crucial to have an experienced Criminal Defense Attorney, like Ann Gottesman, who knows Domestic Violence law, fighting for you in court.
Civil Code of Procedure, Section 1219, subsections (B) and (C) states the following:
…(b) Notwithstanding any other law, no court may imprison or
otherwise confine or place in custody the victim of a sexual assault
or domestic violence crime for contempt when the contempt consists of
refusing to testify concerning that sexual assault or domestic
violence crime.
(c) As used in this section, the following terms have the
following meanings:
(1) "Sexual assault" means any act made punishable by Section 261,
262, 264.1, 285, 286, 288, 288a, or 289 of the Penal Code.
(2) "Domestic violence" means "domestic violence" as defined in
Section 6211 of the Family Code.
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