Monday, February 25, 2008
Contempt: Proposed California Law Would Prohibit Entry Of Contempt Orders Against Non-Testifying Domestic Violence Victims
Under a proposed California state shield law, judges would not be able to hold domsetic violence victims in contempt for refusal to testify against their alleged attackers. The proposed law mimics an existing California law for sexual assault victims and was prompted by a 2005 San Mateo County case in which a woman was threatened with jail for not cooperating with prosecution of her ex-boyfriend.
Advocates of the law want to prevent domestic assault victims from being re-traumatized by being held in contempt when they are unable to go through with their testimony. Opponents counter that pulling a victim’s testimony from a domestic violence trial undercuts the ability to prosecute in some cases and will play a role in deciding whether to even file charges. They also worry that so tying the hands of domestic violence prosecutors might leave accused abusers free to escalate their attacks.
The advocates counter that a solid case can be won even without a victim's testimony. They also claim that the bill is not meant to dissuade prosecutions and, in fact, may aid them because if victims fear having to testify or face imprisonment they may be less likely to even come forward and report incidents of domestic violence.
I think that there are good arguments on both sides, and I won't attempt to resolve the disagreements. I do, however, want to inject a couple of points into the argument. First, "in California, judges are [currently] only allowed to sentence a victim to up to seventy-two hours of battering counseling or up to seventy-two hours of community service for the first finding of contempt in a domestic violence prosecution." R. Michael Cassidy, Reconsidering Spousal Privileges After Crawford, 33 Am. J. Crim. L. 339, 373 (2006).
Second, as noted in Renee L. Rold, All States Should Adopt Spousal Privilege Exception Statutes, 55 J. M. B. 249, 251 (1999), "[o]ne study of the no-drop policy in the San Diego City Attorney's office found that, between the years of 1988 and 1993, only eight arrest warrants were issued for contempt. In addition, the study found that only two victims were actually jailed overnight out of the 400-500 cases their office prosecutes monthly."
What these two points seem to indicate to me is that the proponents of the California case may be overstating the case that victims are subject to renewed trauma from being held in contempt, but the opponents may be overstating the case that domestic violence prosecutions will be hindered by the new law. Instead, it appears that in the vast majority of cases, either domestic violence victims in California choose to testify or judges choose not to hold them in contempt.