BILL NUMBER: SB 407 CHAPTERED
BILL TEXT
CHAPTER 206
FILED WITH SECRETARY OF STATE SEPTEMBER 11, 2007
APPROVED BY GOVERNOR SEPTEMBER 11, 2007
PASSED THE SENATE AUGUST 27, 2007
PASSED THE ASSEMBLY JULY 20, 2007
AMENDED IN ASSEMBLY JULY 5, 2007
AMENDED IN SENATE JUNE 5, 2007
AMENDED IN SENATE MAY 15, 2007
AMENDED IN SENATE APRIL 30, 2007
AMENDED IN SENATE APRIL 17, 2007
AMENDED IN SENATE MARCH 29, 2007
INTRODUCED BY Senator Romero
(Coauthors: Assembly Members Beall, Dymally, and Horton)
FEBRUARY 21, 2007
An act to amend Sections 1037.1, 1037.2, 1037.4, and 1037.5 of the
Evidence Code, and to amend Section 679.05 of the Penal Code,
relating to domestic violence.
LEGISLATIVE COUNSEL'S DIGEST
SB 407, Romero. Domestic violence.
Existing law generally provides that no person has a privilege to
refuse to be a witness or to refuse to disclose any matter or produce
any writing, object, or other thing. However, a victim of domestic
violence has a privilege to refuse to disclose, and to prevent
another from disclosing, a confidential communication, as defined,
between the victim and a domestic violence counselor, as specified.
The California Constitution requires that a statute that would
exclude relevant evidence in any criminal proceeding be enacted by a
2/3 vote.
This bill would, among other things, expand the scope of the
privilege by expanding the definition of a domestic violence
counselor. The bill would also make other related, conforming
changes, and would make specified findings and declarations.
Because this bill would exclude relevant evidence in criminal
proceedings, the bill would require a 2/3 vote.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. (a) The Legislature hereby finds and declares all of
the following:
(1) It is the intent of the Legislature in enacting this act to
clarify and strengthen the applicable statutory definitions
associated with the domestic violence victim-counselor privilege.
These clarifications are designed to give all parties detailed
information about the privilege in accordance with emerging changes
in domestic violence programs and services.
(2) These provisions have played a critically important role in
protecting the lives and safety of domestic violence victims by
allowing them to access shelter programs and supportive services that
enable those victims and their children to escape their abusive home
environment and achieve independence from their abusers.
(3) However, since its enactment, the domestic violence
victim-counselor privilege provisions have not been amended to
reflect the growth in the types of comprehensive domestic violence
programs. Consequently, the current statutory definitions relating to
this privilege have caused some confusion within the domestic
violence community as to persons eligible to invoke the privilege and
the types of communications that shall be deemed confidential and
privileged.
(b) Finally, the Legislature hereby finds and declares that the
amendments to those provisions constitute clarifications and
revisions that are consistent with the original intent and purpose of
the domestic violence victim-counselor privilege.
SEC. 2. Section 1037.1 of the Evidence Code is amended to read:
1037.1. (a) (1) As used in this article, "domestic violence
counselor" means a person who is employed by a domestic violence
victim service organization, as defined in this article, whether
financially compensated or not, for the purpose of rendering advice
or assistance to victims of domestic violence and who has at least 40
hours of training as specified in paragraph (2).
(2) The 40 hours of training shall be supervised by an individual
who qualifies as a counselor under paragraph (1), and who has at
least one year of experience counseling domestic violence victims for
the domestic violence victim service organization. The training
shall include, but need not be limited to, the following areas:
history of domestic violence, civil and criminal law as it relates to
domestic violence, the domestic violence victim-counselor privilege
and other laws that protect the confidentiality of victim records and
information, societal attitudes towards domestic violence, peer
counseling techniques, housing, public assistance and other financial
resources available to meet the financial needs of domestic violence
victims, and referral services available to domestic violence
victims.
(3) A domestic violence counselor who has been employed by the
domestic violence victim service organization for a period of less
than six months shall be supervised by a domestic violence counselor
who has at least one year of experience counseling domestic violence
victims for the domestic violence victim service organization.
(b) As used in this article, "domestic violence victim service
organization" means a nongovernmental organization or entity that
provides shelter, programs, or services to victims of domestic
violence and their children, including, but not limited to, either of
the following:
(1) Domestic violence shelter-based programs, as described in
Section 18294 of the Welfare and Institutions Code.
(2) Other programs with the primary mission to provide services to
victims of domestic violence whether or not that program exists in
an agency that provides additional services.
SEC. 3. Section 1037.2 of the Evidence Code is amended to read:
1037.2. (a) As used in this article, "confidential communication"
means any information, including, but not limited to, written or
oral communication, transmitted between the victim and the counselor
in the course of their relationship and in confidence by a means
which, so far as the victim is aware, discloses the information to no
third persons other than those who are present to further the
interests of the victim in the consultation or those to whom
disclosures are reasonably necessary for the transmission of the
information or an accomplishment of the purposes for which the
domestic violence counselor is consulted. The term includes all
information regarding the facts and circumstances involving all
incidences of domestic violence, as well as all information about the
children of the victim or abuser and the relationship of the victim
with the abuser.
(b) The court may compel disclosure of information received by a
domestic violence counselor which constitutes relevant evidence of
the facts and circumstances involving a crime allegedly perpetrated
against the victim or another household member and which is the
subject of a criminal proceeding, if the court determines that the
probative value of the information outweighs the effect of disclosure
of the information on the victim, the counseling relationship, and
the counseling services. The court may compel disclosure if the
victim is either dead or not the complaining witness in a criminal
action against the perpetrator. The court may also compel disclosure
in proceedings related to child abuse if the court determines that
the probative value of the evidence outweighs the effect of the
disclosure on the victim, the counseling relationship, and the
counseling services.
(c) When a court rules on a claim of privilege under this article,
it may require the person from whom disclosure is sought or the
person authorized to claim the privilege, or both, to disclose the
information in chambers out of the presence and hearing of all
persons except the person authorized to claim the privilege and such
other persons as the person authorized to claim the privilege
consents to have present. If the judge determines that the
information is privileged and shall not be disclosed, neither he nor
she nor any other person may disclose, without the consent of a
person authorized to permit disclosure, any information disclosed in
the course of the proceedings in chambers.
(d) If the court determines that information shall be disclosed,
the court shall so order and inform the defendant in the criminal
action. If the court finds there is a reasonable likelihood that any
information is subject to disclosure pursuant to the balancing test
provided in this section, the procedure specified in subdivisions
(1), (2), and (3) of Section 1035.4 shall be followed.
SEC. 4. Section 1037.4 of the Evidence Code is amended to read:
1037.4. As used in this article, "holder of the privilege" means:
(a) The victim when he or she has no guardian or conservator.
(b) A guardian or conservator of the victim when the victim has a
guardian or conservator, unless the guardian or conservator is
accused of perpetrating domestic violence against the victim.
SEC. 5. Section 1037.5 of the Evidence Code is amended to read:
1037.5. A victim of domestic violence, whether or not a party to
the action, has a privilege to refuse to disclose, and to prevent
another from disclosing, a confidential communication between the
victim and a domestic violence counselor in any proceeding specified
in Section 901 if the privilege is claimed by any of the following
persons:
(a) The holder of the privilege.
(b) A person who is authorized to claim the privilege by the
holder of the privilege.
(c) The person who was the domestic violence counselor at the time
of the confidential communication. However, that person may not
claim the privilege if there is no holder of the privilege in
existence or if he or she is otherwise instructed by a person
authorized to permit disclosure.
SEC. 6. Section 679.05 of the Penal Code is amended to read:
679.05. (a) A victim of domestic violence or abuse, as defined in
Sections 6203 or 6211 of the Family Code, or Section 13700 of the
Penal Code, has the right to have a domestic violence advocate and a
support person of the victim's choosing present at any interview by
law enforcement authorities, prosecutors, or defense attorneys.
However, the support person may be excluded from an interview by law
enforcement or the prosecutor if the law enforcement authority or the
prosecutor determines that the presence of that individual would be
detrimental to the purpose of the interview. As used in this section,
"domestic violence advocate" means either a person employed by a
program specified in Section 13835.2 for the purpose of rendering
advice or assistance to victims of domestic violence, or a domestic
violence counselor, as defined in Section 1037.1 of the Evidence
Code. Prior to being present at any interview conducted by law
enforcement authorities, prosecutors, or defense attorneys, a
domestic violence advocate shall advise the victim of any applicable
limitations on the confidentiality of communications between the
victim and the domestic violence advocate.
(b) (1) Prior to the commencement of the initial interview by law
enforcement authorities or the prosecutor pertaining to any criminal
action arising out of a domestic violence incident, a victim of
domestic violence or abuse, as defined in Section 6203 or 6211 of the
Family Code, or Section 13700 of this code, shall be notified orally
or in writing by the attending law enforcement authority or
prosecutor that the victim has the right to have a domestic violence
advocate 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 prosecutor.
(2) At the time the victim is advised of his or her rights
pursuant to paragraph (1), the attending law enforcement authority or
prosecutor shall also advise the victim of the right to have a
domestic violence advocate 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.