BILL ANALYSIS �
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|SENATE RULES COMMITTEE | SB 1248|
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THIRD READING
Bill No: SB 1248
Author: Alquist (D)
Amended: 5/29/12
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 7-0, 4/24/12
AYES: Hancock, Anderson, Calderon, Harman, Liu, Price,
Steinberg
SENATE APPROPRIATIONS COMMITTEE : 7-0, 5/24/12
AYES: Kehoe, Walters, Alquist, Dutton, Lieu, Price,
Steinberg
SUBJECT : Minor victims of sex crimes: contempt for
refusal to testify
SOURCE : Santa Clara County District Attorney
DIGEST : This bill requires 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.
ANALYSIS : Existing 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
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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." (California Constitution Article 1, Sections 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. Article 1, Section 28(c) (1))
Existing law generally requires law enforcement to
"immediately notify the local rape victim counseling
center, whenever a 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 ? and a
support person of the victim's choosing present at any
medical evidentiary or physical examination." (Penal Code
(PEN) Section 264.2(b) (1))
Existing 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.)
Existing law generally provides victims of sexual assault
"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
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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."
(PEN Section 679.04)
Existing 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 and the
identity of the suspects shall not constitute a law
enforcement interview for purposes of this section." (Id.)
Existing 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 (CCP) Section 1209(a)(9))
Existing 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 Section 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
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assault or domestic violence crime." (CCP Section 1219
(b))
Existing 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 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
Section 1219.5(a))
This bill requires that a victim of a sex crime who is
subject to this section meet with a victim advocate, as
defined in PEN Section 679.04, unless the court for good
cause, finds that it is not in the best interest of the
victim.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
Unknown costs due to latest amendments.
SUPPORT : (Verified 5/29/12)
Santa Clara County District Attorney (source)
California Communities United Institute
California District Attorneys Association
Los Angeles County District Attorney
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ARGUMENTS IN SUPPORT : 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.
Independent meeting with sex assault victim
advocate: SB 1248 requires that the child victim meet
with a victim advocate.
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.
RJG:mw 5/29/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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