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.
National Domestic Hotline:
Local, Statewide & National sites for advocates and shelters:
Victim Witness Assistance Centers:
Victim Impact Statements:
How COVID is affecting the process:
General information (more resources at the bottom):
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.