What Survivors of Domestic Violence Need to Know: A Short Summary of the Criminal Justice System

What Survivors of Domestic Violence Need to Know: A Short Summary of the Criminal Justice System

Disclaimer: Survivors of domestic violence will be referred to as “victims” throughout this article. Though California Women’s Therapy — and most of the mental health community — prefers the term “survivors,” this linguistic choice has been made in an effort to accurately represent the language of the criminal justice process. 

One in three women and one in four men experience physical domestic violence (NCADV, 2020). In California, approximately 35% of women and 31% of men experience physical domestic violence (National Coalition Against Domestic Violence [NCADV], 2020). Domestic violence is defined as “abuse or threats of abuse when the person being abused and the abuser are or have been in an intimate relationship (married or domestic partners, are dating or used to date, live or lived together, or have a child together)” (Judicial Council of California, 2021). 

Domestic violence can happen to anyone of any race, gender, sexual orientation, ethnicity, or social class. Domestic violence can result in lasting physical, financial, psychological, or emotional damage or even death. The most dangerous time for a victim of domestic violence is when they are leaving or after they have just left an abuser. The criminal justice system is there to help victims find safety and justice. However, navigating this system can also be an extremely confusing and distressing experience. 

            The first thing a victim of domestic violence needs to know is that there are a vast array of resources that they can use. While COVID makes everything more complicated — including finding shelter from abusers — there are still several available resources at the disposal of victims, including the sources listed at the bottom of this article.

What happens throughout the Criminal Justice Process? 

  The first court appearance is the arraignment. The arraignment is where the defendant’s charges are read to them, they present their lawyer or one is provided to them, and they plead guilty or not guilty. At this point, a stay away order will probably be enacted. The victim may be asked to speak. If the defendant pleads guilty or no contest the judge can sentence them. If they plead not guilty, the next step is either a pretrial conference or preliminary hearing. 

            The pretrial conference is when the charges are filed as misdemeanors. In California, domestic violence crimes are “wobblers” — crimes that can be punished as a felony or misdemeanor. Misdemeanors are less serious offenses than felonies and can result in up to a year in jail. Felonies are more serious and can result in prison sentences over a year long. In the pretrial conference the prosecutor (the district attorney) and the defendant’s attorney will meet, usually with a judge present to discuss the case. The case can conclude at this stage. The prosecution may ask for the victim’s input before going into the meeting; however, the case is pursued by the prosecutor, not the victim. The victim does not have control over the outcome or when the case ends. The victim can only attend and may be asked to speak. 

            A preliminary hearing is for felony cases. It is where the judge hears the evidence and decides if there is enough to go to trial. The victim may be subpoenaed or asked to testify (to give an account of the incident in question). A subpoena is a summons to court. Victims have certain rights, meaning that the victim may not have to speak, though if they are subpoenaed, they are still required to show up as a subpoena is a court order. The victim may get a lawyer, if they feel they need one, or they may have a support person if they find it beneficial. The support person can be anyone (friend, loved one, religious person, co-worker), and they can sit with the victim in the room. If the judge decides there is enough evidence, a trial date will be set.

The next step is the trial. Most cases do not go to trial. Generally, before trial there is a “plea bargain” — when the prosecution and defendant agree for a plea of guilty (generally to a lesser charge) or no contest in exchange for leniency. If the defendant “pleas” out, then there will be no trial. They admit guilt to the judge, and then they are sentenced. 

Trial is where the prosecution and defense both present their arguments for the defendant’s innocence or guilt. The victim may be issued a subpoena to testify, where they will likely give a testimony or a recount of the incident and other pertinent information. The victim has the right to refuse to testify, though they can still attend the trial, but that will greatly weaken the case against the defendant. Again, the victim can have a support person. There may be other witnesses, including those who saw the incident in question, the responding police officer, or a medical professional. The trial is usually done in front of a jury or as a “bench” or “court” trial, where the judge hears and decides guilt. 

Once guilt has been determined, the judge hands down the sentence, either right after the verdict is read or at a later sentencing hearing. At the sentencing hearing, the victim may give a small speech (victim impact statement) about what they have suffered. The statement’s purpose is to help the judge understand the impact of the trauma on the victim and allow the victim to address the defendant directly. The victim does not have to speak if they do not want to. The statement is read pre-sentencing (or at a parole hearing) so that the victim’s view can be considered in the decision. It is one of the best ways for the victim to be heard in the process. 

There are resources online that can help draft this statement in a way to best illustrate the damage that has been done. It can be one of the best ways to feel satisfied by the criminal justice process. Most of the process will be out of the victim’s hands, with the prosecuting attorney and judge making many decisions, but the statement is a way of participating directly. It can either read it directly or have it read out by someone else. 

Following sentencing, the defendant can appeal the case. The appeal is when one party (the “appellant”) asks a higher court to look at the decision in the case. The prosecution cannot appeal if the verdict is not guilty; however, the defendant can appeal a guilty conviction. The appellant is arguing that something went wrong in the case. There may have been a legal error that changed the outcome. This does not have to do with a problem with the facts of the case, but with the way the law was enacted. 

In an appeal,  there is not a new trial, and new evidence cannot be presented. The appellant writes a brief that the appellate court (reviewing court) considers. Generally, the appeal will not go back to trial and the appellate court (reviewing court) will uphold the lower court’s decision. However, if the court finds that there was something amiss they can overturn the decision or “remand” the case and send it back down to the lower court to allow them to redecide the case. 

The punishment for domestic violence ranges. It can lead to jail or prison time, mandated participation in batterers’ classes, fines or even compensation to the victim (including paying medical bills). It can be very rewarding just for the validation of the system admitting that what happened was wrong. 

Whatever the goal or the hope for a certain outcome may be, beware that the criminal justice system can be grueling and is often confusing. The victim’s participation can help that feeling of justice, but if they cannot participate, they can stay informed of the outcome and potential release dates.

How do protective orders help?

The police officer may give the victim an emergency protective order (EPO). It will be granted by a judge (who is on call) if they believe the victim is in imminent danger. The order lasts either five business days or up to a week. The point of the EPO is to give the victim time to go file for a more permanent order. The protective orders do not cost money, and the victim does not need a lawyer to file them. 

Protective orders can say a number of things. They make it so the defendant cannot have contact and/or go near the victim or have a gun. An abuser with a firearm increases the victim’s risk fivefold (NCAVC, 2020). They can make the abuser move out and  require them to avoid the victim’s home, work, and child’s school. If the defendant does not obey the order, they can be arrested and charged. The order is valid even outside of California. 

Here is a  helpful document explaining the ins and outs of a Criminal Protective order: https://www.courts.ca.gov/documents/CPO1.pdf. The order will have the date it expires at the bottom. If the victim does not want a protective order, they can talk to the district attorney or the judge at the hearing, but the judge may decide to issue one anyways. Only the judge can cancel the order. The victim and defendant cannot agree to ignore or cancel the order.  

There are different types of protective orders. There is a temporary restraining order and a permanent restraining order. After filing for a permanent restraining order there will be a court hearing for the permanent order. A permanent restraining order can last up to five years, so it is not truly ‘permanent’ yet. When the order is almost up (last three months) a request for another five-year extension or for it to become permanent can be made. While waiting for the permanent restraining order hearing, the victim can request a temporary restraining order if they are in immediate danger. Here is a helpful website breaking information regarding protective orders down further: https://www.womenslaw.org/laws/ca/restraining-orders/domestic-violence-restraining-orders

What are your rights as a victim? 

Marsy’s Law (a.k.a. the California Victims’ Bill of Rights Act of 2008) extended the rights of victims of crime in California. Currently, victims in California have the following rights:

To be treated with dignity and without harassment throughout the criminal justice process

  • To be protected from the defendant 
  • To have their safety and/or the safety of their family considered in the making of bail and release conditions
  • To not have to disclose confidential information to the defendant or their attorney
  • To refuse to be interviewed, disposed or a discovery request by the defendant’s attorney
  • To reasonable notice of and to confer with the prosecuting attorney (upon request) and to be notified of pretrial disposition
  • Upon request, be notified of any proceedings
  • Upon request, to be heard at any proceedings
  • A speedy trial and final conclusion
  • To  request the pre-sentencing report 
  • To request to be informed of any information related to sentencing, schedule of release, release, and place and time of incarceration
  • To restitution (recompense for injury or loss)
  • To ask for property once it is finished being used as evidence
  • To request to be informed of parole procedures, to participate in the parole process and to be notified upon release
  • For their safety to be considered before decisions of parole and post-judgement releases

The best protection a victim has is to know their rights, to know the process, and to stay informed throughout. 

There can also be civil cases going on at the same time of the criminal cases. The civil case could be regarding child custody or other civil matters, but not the guilt or innocence of the defendant in the case. 

Being a victim of domestic violence is already distressing, and we understand that the process of gaining justice may feel overwhelming. If you are still feeling confused or stressed out, we want to provide you with several great resources to lean on (see resource links below). 

If you need to talk to someone either virtually or in person, most places are still open to phone calls or emails during the COVID-19 pandemic, and would be happy to provide you with more information. 

This article was written by Sydney Brabble, an intern at California Women’s Therapy.

Resources:

National Domestic Hotline:

1-800-799-SAFE (7233)

Local, Statewide & National sites for advocates and shelters:

https://www.womenslaw.org/find-help/ca/advocates-and-shelters

https://www.domesticshelters.org

https://www.cpedv.org/domestic-violence-organizations-california

Lawyers:

https://www.womenslaw.org/find-help/ca/finding-lawyer

Victim Witness Assistance Centers:

https://victims.ca.gov/victims/localhelp.aspx

Victim Impact Statements:

https://www.co.shasta.ca.us/index/da/crime-victims/what-is-a-victim-impact-statement

https://rivcoda.org/victim-services/victim-impact-statement

https://www.alcoda.org/resources/files/victim_impact_statement_english.pdf

 Victim Rights:

https://www.cdcr.ca.gov/victim-services/marsys-law/

https://oag.ca.gov/victimservices/content/bill_of_rights

Court Process:

https://www.courts.ca.gov/1269.htm

Protective Orders:

https://www.courts.ca.gov/documents/CPO1.pdf

https://www.womenslaw.org/laws/ca/restraining-orders/domestic-violence-restraining-orders

How COVID is affecting the process:

https://www.nolo.com/legal-encyclopedia/resources-for-domestic-violence-victims-during-covid-19-shelter-in-place-orders.html

General information (more resources at the bottom):

https://victims.ca.gov/victims/learn/domesticviolence/

References:

Judicial Council of Carolina. Domestic Violence. (2021). Retrieved January 29, 2021, from https://www.courts.ca.gov/selfhelp-domesticviolence.htm?rdeLocaleAttr=en 

National Coalition Against Domestic Violence (2020). Domestic violence in California. Retrieved January 29, 2021, from https://assets.speakcdn.com/assets/2497/ncadv_california_fact_sheet_2020.pdf

How to Set Healthy Boundaries During the Coronavirus Pandemic

Are you wondering how to set healthy boundaries during the Coronavirus pandemic?

Relationships can only be healthy when both people have the space to be themselves and maintain their personal integrity. This can be especially challenging while “shelter at home” and “safer at home” restrictions are in place. Sadly, many people find themselves in relationships, romantic and otherwise, with people who do not respect boundaries and feel entitled to have their needs met regardless of the other person’s. These people most likely grew up in households that were unsafe and unstable, and where there was a constant invasion of personal boundaries.

If you can relate, chances are you have a hard time creating healthy boundaries to create the life experience you wish to have. This unique time in our history is an excellent time to learn to create healthy boundaries within your relationship. Here are some ways you can begin to do so:

Identify Your Limits

You can’t set boundaries unless you discover where it is you personally stand. You’ll need to take a bit of time to recognize what you can and cannot tolerate. What makes you happy and what makes you feel uncomfortable and stressed? Only until you have made these discoveries can you move on to the next steps.

Don’t Be Shy

People who have similar communication styles are easy to engage with. These people will quickly understand what your new barriers are. But people who have a different cultural background or personality may not easily understand your boundaries. With these people, it’s important to be very clear and direct.

Pay Attention to Your Feelings

People who have a hard time setting boundaries don’t often allow themselves to acknowledge their own feelings because they’re usually too busy worrying about everyone else’s.

You’ll need to start recognizing how people make you feel in order to know whether your new boundaries are being crossed or not. When you’re with someone, make mental notes, or even jot down in a journal how that interaction made you feel.

If, after spending time with someone, you feel anger or resentment, this is a sign that the person may be overstepping your boundaries. Reiterate to this person what your boundaries are. If they continue to disrespect you and them, you will want to cut yourself away from further interactions.

Make Self-Care a Priority

Put yourself and your needs first. This may feel strange and even somehow wrong if you’ve spent your entire life taking care of others. Give yourself permission to feel your feelings and get what you need to feel happy and well.

Speak with Someone

If you’ve spent an entire life with a sense of low self-worth, you may find setting boundaries quite difficult. In this case, it’s important to speak with a therapist that can help you discover where these feelings are coming from and how to change your thought patterns and behavior.

If you’d like to explore therapy, please get in touch with me. I would be happy to help you on your journey toward self-care.

How to Deal with Loneliness Around Valentine’s Day

Valentine’s day is just around the corner. For many people that means celebrating with their spouse or partner and showing them extra love and attention. But for others, Valentine’s Day is a sad reminder that they are single or are perhaps grieving the recent loss of their significant other.

If you are celebrating it alone this year, here are a few ways you can alleviate your sadness this Valentine’s Day.

Give Yourself a Break

It’s bad enough to feel lonely, but it’s even worse to scold yourself for doing so. Loneliness is not an indication that you’re doing anything wrong or that there is something wrong and unlovable about you.

Even people that are in relationships can feel incredibly lonely. Loneliness affects everyone at some point in their life. It’s not a sin to feel this way, so stop scolding yourself.

Take Yourself on a Date

How many times during the year do you make a real effort to show yourself love? If you’re like most people, you don’t really think much about how you treat yourself.

This Valentine’s Day, if you find yourself a party of one, try and make the best of it by focusing all of your love and attention on yourself. Take yourself out to a nice dinner. Or, if you don’t like the idea of sitting at a table alone surrounded by couples, then order in your favorite food and watch your favorite movie.

Take a nice long bath. Listen to your favorite band. Buy yourself a little gift on the way home from work. Use this Valentine’s Day to commit to showing yourself more love and kindness throughout the year.

Show Your Love for Others

Valentine’s Day is a holiday to show love. No one says that love must be shown in a romantic way.

This is a great time to show your affection and appreciation for the wonderful people in your life. Get your best friend a box of chocolates or your mom a bouquet of flowers. Put a card on your neighbor’s windshield and your coworker’s computer monitor.

You can be filled with love by being loved, and you can be filled with love by loving others. The more love YOU show this holiday, the more love you will feel inside. And you would be amazed at how the loneliness quickly slips away when you are full of love.

Don’t let the commercialism of the holiday make you feel alone and isolated. You really can have a lovely Valentine’s day if you love yourself and others.

How to Find Friends as an Adult

You may remember growing up, meeting your best friend on the playground or making friends in French class. As adults, we don’t have systems built in to make friends like we did as children. We can’t even reach out to loved ones for help, because while it’s socially acceptable to say “I’m looking for a boyfriend”, its not socially acceptable to say “I’m looking for a best friend.” If you want to find a friend as an adult, it’s going to be a lot like finding a romantic partner.

Envision Your Friend

Think about what kind of person your friend would be. Think back to your childhood friends and what made them fun to hang out with. Should your friend be extroverted or introverted? Should they love the outdoors or be a movie buff? Look for qualities in your friend similar to the way you’d look for qualities in a partner.

Go Where Your Friend Would Be

Now that you know what kind of person your friend would be, think about what that person would be doing. Where are they on the weekends? Where do they shop or like to go out to eat? Go to those different places. If you’re an outdoorsy person and want an outdoor-loving friend, find outdoor meetups. Try a hiking or walking group, or sign up for a new fitness class. Keep in mind as you test the waters that you won’t find your friend on your first outing. Just as when you’re looking for a partner, it takes more than just one try. It will take a bit of time and searching.

The Big Ask

When you’re ready to ask out your potential new friend, a great way to get a “yes” is to invite them to a favorite, or to something new. For example, invite your friend to go watch your favorite sports team or over to your house to cook your favorite recipe. You can also invite them to play a new board game, or out to watch a new movie.

Stoke the Fire

You’ll need to nurture your budding friendship by spending more time together. Just as in dating, take it slow and steady, and don’t take anything too seriously at first. Too much too fast could set you up for a friendship that’s not going to work, or might make the other person feel smothered.

You can deepen the friendship by working on goals together. Find out what your friend dreams about. How can you help them meet their goals? How can they help you with yours? Maybe they can help you get ready for a summer swimsuit, and maybe you can help them organize their garage. Find ways to work on things together.

Do you find yourself struggling in social situations? A licensed therapist can help you overcome shyness and improve your social interactions. Give my office a call today, and let’s schedule a time to talk.