BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 1248 (Alquist) 8
As Amended April 17, 2012
Hearing date: April 24, 2012
Code of Civil Procedure
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MINOR VICTIMS OF SEX CRIMES:
CONTEMPT FOR REFUSAL TO TESTIFY
HISTORY
Source: Santa Clara County District Attorney
Prior Legislation: AB 3842 (Mojonnier) - Ch. 1643, Stats. 1984
Support: California Communities United Institute; County of
Santa Clara, District Attorney; California District
Attorneys Association
Opposition:California Public Defenders Association
KEY ISSUES
SHOULD A MINOR WHO IS AN ALLEGED VICTIM OF A SEX CRIME BE REQUIRED
BY STATUTE TO MEET WITH A VICTIM ADVOCATE WHERE THE MINOR IS UNDER
16 YEARS OF AGE AND FACING CONTEMPT OF COURT FOR REFUSING TO
TESTIFY?
IF A COURT FINDS A PARENT OR GUARDIAN IS "INAPPROPRIATELY
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INTERFERING WITH COURT PROCESSES BY ENCOURAGING A MINOR TO REFUSE TO
TESTIFY" IN SUCH A CASE, SHOULD THE PARENT OR GUARDIAN BE
SANCTIONED, INCLUDING BY COUNSELING, A FINE, OR JAIL TIME?
PURPOSE
The purpose of this bill is to 1) require that a minor who is an
alleged victim of a sex crime meet with a victim advocate, as
defined, where the minor is under 16 years of age and facing
contempt of court for refusing to testify; and 2) provide in
these circumstances that, if the court finds a parent or
guardian is inappropriately interfering with court processes by
encouraging a minor to refuse to testify, the parent or guardian
may be sanctioned, including by counseling, a fine, or jail
time.
Current law generally provides victims of crime the
constitutional right to "refuse an interview, deposition, or
discovery request by the defendant, the defendant's attorney, or
any other person acting on behalf of the defendant, and to set
reasonable conditions on the conduct of any such interview to
which the victim consents," and to "reasonable notice of and to
reasonably confer with the prosecuting agency, upon request,
regarding, the arrest of the defendant if known by the
prosecutor, the charges filed, the determination whether to
extradite the defendant, and, upon request, to be notified of
and informed before any pretrial disposition of the case."
(Cal. Const. Art. 1, � 28 (b) (5) and (6).) "A victim, the
retained attorney of a victim, a lawful representative of the
victim, or the prosecuting attorney upon request of the victim,
may enforce the rights enumerated ( in the Constitution) in any
trial or appellate court with jurisdiction over the case as a
matter of right. The court shall act promptly on such a
request." (Cal. Const. Art. 1 � 28(c) (1).)
Current law generally requires law enforcement to "immediately
notify the local rape victim counseling center, whenever a
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victim of an alleged (sexual assault, as specified) is
transported to a hospital for any medical evidentiary or
physical examination. The victim shall have the right to have a
sexual assault counselor<1> . . . and a support person of the
victim's choosing present at any medical evidentiary or physical
examination." (Penal Code � 264.2(b) (1).)
Current law further requires that "(p)rior 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 counselor and at
least one other support person of the victim's choosing. 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. 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." (Id.)
Current law generally provides victims of sexual assault "the
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<1> "Sexual assault counselor" in this section is defined by
Evidence Code section 1035.2, which delineates a relatively
detailed definition of "sexual assault counselor" which
generally includes a person engaged in many settings "whose
primary purpose is the rendering of advice or assistance to
victims of sexual assault and who has received a certificate
evidencing completion of a training program in the counseling of
sexual assault victims . . . ." and who is a psychotherapist,
has a master's degree in counseling or a related field, or has
specified experience in rape crisis counseling, or has 40 hours
of training, as specified. The centers cross-referenced in this
section are public or private non-profit entities providing
assistance to victims and witnesses, as specified. (Penal Code
� 13835.2.)
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right to have victim advocates<2> 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." (Penal Code � 679.04.)
Current law further provides that, "(p)rior 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 . . . 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. At the time the victim is advised of
(these) . . . rights, 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. An initial investigation by
law enforcement to determine whether a crime has been committed
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<2> Penal Code section 679.04, defines the term "victim
advocate" to mean "a sexual assault counselor, as defined in
Section 1035.2 of the Evidence Code (See footnote (1)), 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." The centers cross-referenced in this section are public or
private non-profit entities providing assistance to victims and
witnesses, as specified. (Penal Code � 13835.2.)
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and the identity of the suspects shall not constitute a law
enforcement interview for purposes of this section." (Id.)
Current law enumerates specified acts or omissions with respect
to a court of justice or proceedings therein which are contempt
of the authority of the court, including "refusing to be sworn
or answer as a witness." (Code of Civil Procedure �
1209(a)(9).)
Current law provides generally that "when the contempt consists
of the omission to perform an act which is yet in the power of
the person to perform, he or she may be imprisoned until he or
she has performed it, and in that case the act shall be
specified in the warrant of commitment." (CCP � 1219(a).)
However, current law provides that, ". . . 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."<3> (CCP �1219 (b).)
Current law provides that except as specified, "in any case in
which a contempt consists of the refusal of a minor under the
age of 16 years to take the oath or to testify, before imposing
any sanction for the contempt, the court shall first refer the
matter to the probation officer in charge of matters coming
before the juvenile court for a report and recommendation as to
the appropriateness of the imposition of a sanction. The
probation officer shall prepare and file the report and
recommendation within the time directed by the court. In making
the report and recommendation, the probation officer shall
consider factors such as the maturity of the minor, the reasons
for the minor's refusal to take the oath or to testify, the
probability that available sanctions will affect the decision of
the minor not to take the oath or not to testify, the potential
impact on the minor of his or her testimony, the potential
impact on the pending litigation of the minor's unavailability
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<3> As used in this section, "sexual assault" means any act made
punishable by Section 261, 262, 264.1, 285, 286, 288, 288a, or
289 of the Penal Code, and "domestic violence" means "domestic
violence" as defined in Section 6211 of the Family Code.
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as a witness, and the appropriateness of the various available
sanctions in the minor's case. The court shall consider the
report and recommendation in imposing a sanction in the case.
(CCP � 1219.5(a).)
This bill would require that a victim of a sex crime who is
subject to this section meet with a victim advocate, as defined
in Section 679.04 of the Penal Code.
This bill additionally would require that, if "the court finds
that a parent or guardian is inappropriately interfering with
court processes by encouraging the minor to refuse to testify,
the parent or guardian may be sanctioned, and the sanction may
include counseling, a fine, or jail time."
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
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overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
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(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Stated Need for This Bill
The author states:
In child sex assault cases, all too often a
combination of factors - the loss of a breadwinner's
income and fear of financial instability, denial,
misconceptions of how a molested child will act - can
lead to a hostile environment for the victim. These
factors can make clear to the victim, a child, that
the family's finances and relationships are in ruin
because of her allegations.
The victim, who initially wanted the abuse to stop,
now wants the legal process to stop. In some cases,
leading them to recant their initial statements or
refuse to participate in the legal proceeding. Without
their testimony, they're told, the case will go away
and the family can return to how it was before the
allegations were made.
Sponsored by the Santa Clara County District Attorney,
SB 1248 seeks to protect child victims of sex crimes
from being coerced into not testifying against their
abusers.
o Independent meeting with sex assault
victim advocate: SB 1248 requires that the child
victim meet with a victim advocate.
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o Sanctions against parents: In cases where
the parent or guardian of a child victim
interferes with court proceedings, SB 1248 would
authorize the court to order the parent or
guardian into counseling, to pay a fine, or to be
sentenced to jail.
2. What This Bill Would Do
As explained in detail above, this bill would enact two
provisions where an alleged victim of a sex crime under the age
of 16 faces contempt of court for refusing to testify. In these
cases, this bill would provide the following:
The minor would be required to meet with a victim
advocate, as defined.
"If the court finds that a parent or guardian is
inappropriately interfering with court processes by
encouraging a minor . . . to refuse to testify, the parent
or guardian may be sanctioned. The sanction may include
counseling, a fine, or jail time."
3. Sanctioning Parents and Guardians for "inappropriately
interfering" with Court Processes
Current law generally provides that any person who knowingly and
maliciously prevents or dissuades - or attempts to prevent or
dissuade -- any witness or victim from attending or giving
testimony at any trial, proceeding, or inquiry authorized by law
is guilty of either a misdemeanor or a felony. (Penal Code �
136.1(a).) For purposes of this section, evidence that the
defendant was a family member who interceded in an effort to
protect the witness or victim creates a presumption that the act
was without malice.
As explained above, this bill would authorize a court to
sanction a parent or guardian found to be "interfering with
court processes by encouraging a minor . . . to refuse to
testify" when the minor is under 16 years of age, is a victim of
a sex crime, and is facing contempt for failure to testify. The
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California Public Defenders Association, which opposes this
bill, argues in part:
Finally, our objection to this bill is based on the
vague and overbroad language that would make this law
impossible to implement, and would certainly
impermissibly chill the youth's right to consult with
his or her parent. "Inappropriately interfering with
court processes by encouraging a minor?to refuse to
testify" is overbroad and vague and would allow a
court to arbitrarily impose sanctions with essentially
unbridled discretion.
As members consider this language, they may wish to discuss the
following questions:
What would "inappropriately interfering with court
processes" mean?
Could there be a circumstance where "interfering with
court processes" would be appropriate?
Would a parent reassuring a shy child that he or she
does not have to testify based on legitimate and good faith
concerns of the parent about their child's well-being
constitute "inappropriately interfering with court
processes" under this bill and, if so, should it subject a
parent to monetary or jail penalties?
What would be the difference between "inappropriately
interfering with court processes" and knowingly and
maliciously dissuading a victim from testifying, which
currently is a crime punishable as a wobbler?
How much of a fine should the court be authorized to
impose under this section?
Is up to 6-months jail time an appropriate jail
sanction?
SHOULD PARENTS AND GUARDIANS BE SUBJECT TO MONETARY OR JAIL
SANCTIONS FOR "INAPPROPRIATELY INTERFERING WITH COURT PROCESSES"
BY ENCOURAGING THEIR CHILD, AN ALLEGED SEX CRIME VICTIM, TO
REFUSE TO TESTIFY?
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ARE THERE EXISTING REMEDIES AVAILABLE TO DEAL WITH A PARENT OR
GUARDIAN WHO, FOR SELF-SERVING INTERESTS UNRELATED TO THE
WELL-BEING OF A CHILD, ENCOURAGE THEIR CHILD TO NOT TESTIFY
AGAINST THEIR CHILD'S ALLEGED ABUSER?
SHOULD A "SAVINGS CLAUSE" BE ADDED TO THIS LANGUAGE?
4. Mandated Meeting with a Victim Advocate
This bill would require that an alleged victim of a sex crime
who is under 16 years of age and is facing contempt for failure
to testify meet with a victim advocate, as specified. Members
may wish to discuss whether as a matter of law victims in these
circumstances should be statutorily required to meet with a
victim advocate. In the alternative, members may wish to
consider whether this should be required unless the court for
good cause determines that such an order would not be in the
best interests of the child.
SHOULD THE BILL MANDATE THAT AN ALLEGED CHILD VICTIM MEET WITH A
VICTIM ADVOCATE BE REVISED TO REQUIRE SUCH A MEETING UNLESS THE
COURT FOR GOOD CAUSE DETERMINES THAT SUCH AN ORDER WOULD NOT BE
IN THE BEST INTERESTS OF THE CHILD?
5. Background: Child Witnesses to Crimes
The unique issues presented by child witnesses in criminal cases
have been the subject of legal and policy discussions over the
last decade and more. The following excerpt is one recent
example:
The problem of violence against children affects
millions of children each year in their homes,
schools, and communities, as both victims and
witnesses. . . .
Once victimized, children often feel guilt, shame, or
embarrassment. These children comprise a "high-risk
population" with significant mental health needs and
symptoms such as depression and suicidal ideation, as
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well as behaviors like victimizing other children.
Primary victimization, in that being the victim of a
crime often requires children to testify in court
about the crime, also affects children's attitudinal
and emotional development in significant ways.
Many crimes against children are prosecuted, and
significant numbers of children testify. The most
common child witnesses are grade school children.
Historically, children testified mostly as victims of
sexual abuse, but increasingly more cases now require
children to testify about a wider spectrum of violence
that they have endured or witnessed.
. . .
In the 1980s, as awareness of the problem of violence
against children grew, child abuse prosecutions
surged. As human victims first and testifying
witnesses second, few have doubted these children's
vulnerability. Because child abuse cases are
difficult for prosecutors and children alike, these
prosecutions have often been scrutinized. To study
them, Congress commissioned task forces that
consistently found that child witnesses in the
criminal justice system need better treatment to
protect their rights and prevent the legal process
from re-victimizing them. . . .
. . . Studies show that, as victims, children want to
participate, and need procedural justice. Children
want correct information about the process and the
possible outcomes, and they need at least a basic
understanding of the legal system, roles of the
professionals with whom they are forced to interact,
and sources of information upon which the judge or
jury will rely. Professor Weisz and her colleagues
found that "children with more general legal knowledge
were less distressed about their hearings." "Parents
often fear that testifying about a traumatic event
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will re-traumatize their children, but literature
shows that child victims who tell their stories in
court, regardless of the outcome, feel empowered and
have a better rate of healing." In fact, when
children were denied or discouraged from
participating, those children were more likely to have
negative perceptions of justice within the system and
less likely to have faith and confidence in it.
Indeed, empirical data demonstrates that "if children
did not testify and cases were dismissed or resulted
in reduced sentences, some children suffered long-term
consequences just as some children reacted badly to
the experience of testifying."
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While many children, as crime victims, want and need
to participate as testifying witnesses, participating
in the process causes many of them significant fear
and anxiety. Researchers attribute the cause of child
witnesses' anxieties to a number of factors,
"including their fear of not being believed and their
fear of answering questions in front of the person who
hurt them." Facing the accused is consistently
children's top concern. If the abuser is the parent,
even the Supreme Court has surmised that the child's
feelings of vulnerability, guilt, and unwillingness to
come forward would be particularly acute. The
prospect of direct examination, and especially
cross-examination, scares children. Children dread
repeated interviews about the abuse, and the
adversarial nature of criminal court - and their
unfamiliarity with the legal system and its processes
- intimidates them.
That anxiety that child witnesses experience,
researchers speculate, "interferes with �their]
ability to retrieve information from their memories."
Social and motivational factors can likewise affect a
child's ability to recount the abuse. "Oftentimes,
they change their answer because they think they're
giving the wrong answer." Children also may answer
differently depending on the question, how it is
posed, and what language is used. Prosecutors who use
big words or legal jargon may confuse children,
especially if they have not practiced the testimony
together.
Because many child witnesses are afraid to testify,
researchers have been particularly concerned with
outcomes for those child witnesses who testified in
court and interested in whether procedures could
alleviate the secondary trauma that many of them
experienced by virtue of their participation.
Researchers, however, disagree on whether the effect
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of testifying on children is positive or negative.
The reluctance of social scientists to definitively
predict the good or ill effects of testifying on
children is understandable given the methodological
challenges of conducting psychological studies on this
phenomenon, and given the number of factors that can
influence a child's experience. There is, however,
little question that many child witnesses suffer at
least short-term harm. In one research study
conducted by Gail Goodman and her colleagues, a
majority of children found testifying to be both a
frightening and upsetting experience; in another
study, Goodman and her colleagues found that the
short-term effects on the children's behavior as a
result of testifying were more harmful than helpful.
"In contrast, by the time the cases were resolved, the
behavioral adjustment of most, but not all, children
who testified was similar to that of children who did
not take the stand. The general course for these
children, as for the control children, was gradual
improvement." Other research has similarly shown that
regardless of their experiences in court, virtually
all children improve emotionally. "At worst,
testifying may impede the improvement process for some
children; at best, it may enhance their recovery."<4>
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<4> Sacrificing The Child To Convict The Defendant: Secondary
Traumatization Of Child Witnesses By Prosecutors, Their Inherent
Conflict Of Interest, And The Need For Child Witness Counsel,
Tanya Asim Cooper, 9 Cardozo Pub. L. Pol'y & Ethics J. 239
(Spring, 2011.) (citations and footnotes omitted).