The Victims’ Bill of Rights for California: Marsy’s Law
On November 4, 2008, California votes approved Proposition 9, “Marsy’s Law”, also known as the Victims’ Bill of Rights. Under California Constitution article I, § 28, section (b), this law was passed in honor of murdered college students Marsy Nichols.
In this section we will discuss the various rights that a victim has in a domestic violence case, that are set forth by Marsy’s Law – while these rights ring true for all cases where there is an alleged victim or “complaining witness”, it is especially frequent in domestic violence cases. Learn more about domestic violence restraining orders here [web link].
What rights does an alleged victim of a Domestic Violence Case have?
The Right to Be Present in Court
The alleged victim has the right to be put on notice about court proceedings. They also have the right to not only be present in court, but to be heard on issues concerning restitution or protective orders. Upon request, they can also be heard at any of the following proceedings:
- Your post-arrest release decision
- Your plea
- Your sentencing
- Your post-conviction release decision
- Any proceedings in which the right of the alleged victim is at issue
Also, they can confer with the prosecution, upon request, regarding your arrest, charges filed, and request to be notified of and informed before any pretrial conferences.
The Right to an Attorney
The alleged victim can also retain their own attorney during the case if they wish. This can lead to some complications when trying to conduct a proper investigation on a domestic violence case, because your criminal defense attorney may want to speak with the alleged victim between court dates or send an investigator to do so. However, since the alleged victim has the right to have their own attorney, they must be advised of this before your attorney contacts them. Sometimes this can cause them to avoid speaking with your attorney, and if the alleged victim hires their own attorney, a criminal defense attorney absolutely cannot contact them directly.
Are there any benefits to the victim having an attorney?
It is sometimes helpful when the alleged victim has their own attorney when they are asking the court or the district attorney for leniency in your case. Consult your own attorney about this issue if you are facing domestic violence charges.
The Right to Refuse Disclosure of Confidential Information
As previously mentioned, the victim is not obliged to disclose any information or records to you. He or she can also refuse an interview, deposition, or discovery request by, you, your attorney, or any other person acting on your behalf. If an interview is granted by the alleged victim, he or she has they right to set certain conditions on the conduct that they consent to.
The Right to not Testify
In a domestic violence case, the alleged victim has the absolute right to not testify if they do not want to. The courts can order the alleged victim to come to court and obey subpoenas, but they cannot compel an alleged domestic violence victim to take the stand and testify in your case. This rule comes from California Code of Civil Procedure Section 1219(b).
The Right to Restitution
The “complaining witness” has the right to seek restitution. A judge often orders a defendant to make this type of payment in cases where a victim suffered losses as a result of domestic violence or any other type of offense. Restitution differs from a court fine in that it is paid directly to the victim and not the government. Most importantly, if the victim suffered losses as a result of the crime, you must pay restitution regardless of the sentence imposed.
What Information Can the Court Provide to an Alleged Victim?
Upon request, the following information will be provided:
- Your pre-sentence report
- Your conviction
- Your sentence
- Your place and time of incarceration
- Your scheduled release date, and
- Your release or escape from custody
The victim can be informed of all parole procedures, along with, the right to participate, provide information to the parole authority to be considered, and to be notified of your parole.
Sentencing and Probation for a Domestic Violence Case in California
Is Sentencing and Probation More Burdensome?
The complaining witness has the right to provide information to a probation department official. The probation department is in charge of conducting a pre-sentencing investigation, concerning the impact of the crime on the victim and the victim’s family. The information provided by the alleged victim often includes sentencing recommendations that the official will take into consideration before your sentencing.
If you are convicted of a domestic violence case and placed on probation, your probation will likely be very different and stricter, than probation for non-domestic violence offenses.
What does domestic violence probation entail?
California Penal Code Section 1203.097 requires the court to structure probation in a certain way for domestic violence cases. This includes the following:
- Your probation must last for at least three (3) years
- You must perform some hours of community service
- You must contribute some of your fines to a battered women’s shelter
- The court must consider imposing some kind of protective order in your case, which could last for up to ten (10) years — even after you already finished probation!
- You must participate in a fifty-two (52) week batterer’s program, and demonstrate your progress at later court dates throughout that program. The program must meet weekly and must meet in two (2) hour long session
California Penal Code Section 1203.097 makes these terms “non-negotiable” in domestic violence cases. They must be imposed in any case where someone is placed on domestic violence probation. To get around these strict terms, your attorney might consider asking the prosecutor to agree to a plea bargain where they “stipulate” or agree, that the charge you are convicted of is actually not a “domestic violence” charge, even though it was originally charged as such.