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Part Il

First Line Criminal Justice Advocacy

E. Arrest and Arraignment: Sex Crimes and
Domestic Violence


If the suspect has not been arrested:
If the suspect has not been arrested it's important to determine why not, and to determine if, indeed, there should have been an arrest. Most states in the US have pro-arrest policies when there is probable cause of domestic violence, as do most individual jurisdictions. Knowing the laws and policies governing your police should make it fairly easy in most cases for you to determine whether or not there should have been an arrest in your client's case. (As mentioned earlier, it's critical for advocates to have copies of, and be familiar, with your local jurisdiction's written law enforcement policies on domestic violence and sexual assault.)

In general, in California, if there is any injury to the victim, "no matter how slight", police should make an arrest. If you feel there should have been an arrest in your client's case, and there was not, call the on-duty sergeant or call the head of the police domestic violence unit and ask why there was no arrest.

When you make these calls, it's always a good idea to take notes on the answers you're given, especially if the answers are ridiculous. Also, make sure that a crime report was actually written, and that the crime report has been, or is being sent up to the district attorney's office. If, after looking at the case, the ranking officer argues that the responding officer was correct in not making an arrest, but you still believe the suspect should have been arrested, you'll need to escalate your advocacy strategies to make the arrest happen. (See Part III, "When Push Comes to Shove".)

One common legitimate reason police may not have made an arrest, even if there was sufficient evidence for an arrest, is that the suspect fled the scene and couldn't be found. Once the suspect has managed to evade police and police have moved on to their next call, police will rarely double back and go looking for the suspect. However, if your client is able to determine the suspect's whereabouts and then gives this information to police, police will often follow-up on the information and make the arrest. So if your client's up to it, have her dig around a bit to the extent that it's safe, and then get the information to the police, and, if necessary, push police to make the arrest. Since victims know the suspect well, if they're willing to make a few calls, they can usually come up with the suspect's whereabouts in no time.

In addition, if the suspect has not been arrested because he has fled the scene, check to make sure the officer has issued a 'stop and hold order'. A 'stop and hold order' is an order put out over the police communication system giving notice to other officers that the suspect of given description should be detained.

If the suspect was not arrested because there was no injury, ask the victim if she was informed by the officer, as is required by most law enforcement domestic violence policies, that the victim had the right to make a citizens arrest. If the officer didn't so inform the victim, you and she should complain to the department.

NOTE: In Rape and Child Molest Cases police rarely make an arrest right after the victim has made the report. One reason this is so is because it generally takes some time to develop the kind of evidence needed to prove a case of sexual assault. Another reason is that some of the common sexual assault investigative techniques, such as pretext calls, can only be done if the defendant is not in custody. (For more discussion of these issues, see the section on sex crimes.)

Victims of rape and child molestation are usually very upset and concerned that the suspect isn't arrested immediately after the victim makes the report. Sex crimes victims often take the lack of arrest to mean that the police don't believe her. Her friends and family also come to the same unfortunate conclusion that this means police don't believe the victim's story about the sexual assault. This easily leads to increased erosion of a sex crimes victim's already fragile support system.

In addition to concerns that police don't believe them, the lack of immediate arrest also makes sex crimes victims very fearful that the perpetrator is still out there able to retaliate against her for having made the report. This victim fear is legitimate.

Since most sex crimes perpetrators know their victims well, and since perpetrator and victim usually have important shared social circles, sex crimes perpetrators frequently launch all kinds of retaliatory attacks against the victim, from harassment campaigns, to organizing their shared social circle against her, to threats and attacks of bodily harm.
(See www.justicewomen.com, "Special for Rape Victims" for tips on how to prevent and deal with these common problems)

All in all, it's very important that you, the victim's advocate, explain to sex crimes victims, and to the victim's support system if possible, that in most sex crimes cases the perpetrator won't be arrested until after police complete their investigation. Advocates should routinely have this discussion with their client even if the client doesn't specifically ask about it. It is also critical to remind sexual assault victims that every and all harassment or retaliation by the perpetrator should be reported to the detective or prosecutor assigned to the case.

Remember, too, that any and all attempts to dissuade a witness from testifying or attempts to get the victim to change her testimony are a crime, whether committed by the perpetrator or by anyone else.

Advocates should insist that police write a crime report and investigate every such incident. And then send these reports up to the DA's office for prosecution.

NOTE: Mandated Arrests on Violations of Domestic Violence Restraining Orders: California Penal Code Section 836(c)(1) requires that police make an arrest on all restraining order violations. This law was passed because so many police have systematically failed to enforce restraining order violations, and because this particular law enforcement failure is so often the prelude to domestic violence homicide.

NOTE: Citizen Arrests: In domestic violence cases where there is insufficient evidence to make an arrest, most law enforcement policies require that officers inform the victim of the right to make a citizen's arrest. California Penal Code Section 836(b) requires that police responding to a domestic violence call inform the victims of their right to make a citizen's arrest and of how to safely execute the arrest.

If the suspect has been arrested:
If the suspect has been arrested both you and the victim will want to get the answers to basic questions about the arrest as soon as possible: including, whether or not the suspect is still in custody, the booking charges, the amount of bail, the date, time and courtroom of the next court hearing, the purpose of the next court hearing, whether or not the district attorney has filed charges, the exact charges filed, and whether or not a criminal court protective order has been obtained for the victim.

There are two primary sources for obtaining this post-arrest information. The first source is by making a simple call to the county jail. Almost all jails can be called 24 hours, 7 days a week. Anyone who calls the jail can obtain the following information on any inmate: the amount of bail, the date, time, and courtroom of the next hearing, and the booking charges. (Booking charges are the criminal charges recommended by the police department when the suspect is booked into jail. Booking charges are not necessarily the charges the district attorney will file in the case, nor do they guarantee that any charges will be filed at all. But the booking charges do give you a good idea of where the criminal justice system is likely to go with the case.)

Because the jail can be called 24 hours a day, and because victims are usually very fearful that the perpetrator may get out, it's very important that you give the victim the jail telephone number so she can update herself on the perpetrator's status whenever she feels the need to do so, including in the middle of the night. (Most states provide that if the victim so indicates, the jail will notify the victim prior to release of the suspect. Even so, it's important that the victim herself be able to call into the jail, and be informed of the spectrum of information the jail must provide.)

The second, and more complete source of information, is the district attorney's office. So it's also important that you give your client the telephone number of the district attorney's office. But remind her that the district attorney's office will only be able to answer her questions during normal business hours.

Tell her the receptionist at the district attorney's office has a computer in front of her, and can generally give more in-depth information about the case than can be obtained from the jail. The district attorney receptionist will usually be able to tell her or you such things as the purpose of the next hearing, what happened at the last hearing, the name of the deputy district attorney on the case, the charges that are being filed (or not), whether or not there is a criminal protective order in place, and more.

In addition, if the district attorney receptionist cannot (or does not) provide you or the victim with the needed information, ask the receptionist to put you through to the deputy district attorney assigned to the case and leave your questions on his answering machine. Also, advise your client as to other personnel in your district attorney's office who can assist her in obtaining information, such as victim advocates assigned to the district attorney's office.

If you or the victim do not get answers to your questions within 24 hours of leaving a message on the phone of district attorney office personnel, you or she should not hesitate a moment to put in a phone call of complaint to the District Attorney him or herself.

NOTE: Arrest Warrants: In cases where officers don't make an arrest at the scene, but later determine through further investigation that there should be an arrest, the police will usually first obtain an arrest warrant before making the arrest.

In sex crimes cases, where it is the usual situation that suspects are not arrested immediately following the report, it is very common for officers to seek an arrest warrant after concluding their investigation and prior to arresting the suspect. The reason this is significant for victims and advocates is that the existence of an arrest warrant generally provides you with a means to obtain substantial information about a sex crimes investigation that you otherwise would likely be unable to obtain.

Remember that, unlike domestic violence victims, sex crimes victims in most states do not have the right to obtain a copy of the sex crime police report. If the sex crimes detective has established a cooperative relationship with the victim and advocate, this detective may be willing to answer the questions you and the victim have about the evidence in the case. But too often sex crimes detectives are not forthcoming in this regard and the victims and victim advocates in sex crimes cases are frequently kept in the dark about case evidence and the adequacy of the investigation.

This is especially detrimental if the district attorney says there's not enough evidence to file this or that charge on the case. If you and the victim don't know the details of the evidence, it's very difficult to argue the district attorney's stance. And this is where the arrest warrant can save the day.

When police apply to the judge for the arrest warrant, they must attach an evidence based argument for the arrest. Often police simply attach a copy of the police report instead of writing up a whole new text. But either way, once the judge has signed the warrant, that arrest warrant goes on to the public record - along with whatever evidence the police has provided to argue for the arrest. This means that once there is an arrest warrant in a case, you or the victim can simply go to the court house, usually to a criminal court clerk's office, and request a copy of the arrest warrant. And presto, you now have in your hands either a copy of the police report or a police summary of the evidence in the case.

In short, once a suspect has been arrested in a sex crimes case, it's highly likely you can obtain substantial information on the evidence in the case, if not the whole police report, simply by going to the court house and requesting a copy of the arrest warrant.

The Arraignment:
If the suspect is in custody, the state (the prosecutor, the district attorney) has 48 hours to file formal charges and to hold an arraignment. If the prosecutor fails to file formal charges before 48 hours have passed, the suspect must be set free. If the suspect is freed, (or if for some reason the charges were filed and then quickly dismissed) the prosecutor can still file charges at a later date. But once charges have been dismissed, the prosecutor generally doesn't file (or re-file) charges unless you and/or the victim actively work to convince the prosecutor to do so.

The primary purpose of the arraignment is to officially inform the defendant of the charges against him and to have the defendant enter a plea of guilty or not guilty. It is usually at the arraignment that the defendant is also assigned a defense attorney if he cannot afford a private attorney. In addition, if the defendant is in custody at the time of arraignment, the defendant can, and usually does, request a bail reduction hearing. This bail reduction hearing will usually be scheduled for within a couple of days.

In addition, the arraignment is the best time to have the prosecutor obtain a criminal protective order for the victim. Also at the arraignment a date is set for the next court hearing on the case. A date is set for the preliminary hearing if the defendant is charged with a felony, and, if the case has been charged for a misdemeanor, a date is set for a settlement hearing.

Domestic violence victims are usually very anxious about the arraignment and other early court hearings. They feel unprepared. They're afraid things are happening so fast that critical legal events are taking place at the same time their lives are most traumatized. They wonder why they haven't been notified or called to appear. Many fear this means they have been cut out of the process, and that they will have no input or control over the course of the criminal case.

So it's very important to calm your client's anxieties about the arraignment. And the best way to do that is to make sure she really understands the function and limits of the arraignment; that the arraignment is not the time when testimony is heard, nor will any evidence be introduced or weighed at the arraignment, nor is it the time when any decisions are made about the defendant's guilt or innocence. The arraignment is simply an official informing the defendant of the charges against him.

NOTE: On occasion, arraignment may be delayed beyond 48 hours. This happens most frequently if the suspect has bailed out of jail and hired a private attorney, and the defendant then chooses to waive his right to arraignment within 48 hours. This is often done as an attempt to drag out the case. The defendant will then be cited to appear for arraignment on a date maybe two or three weeks hence. Sometimes the defense attorney will come into court on that date, and ask for more time, arguing that the defendant hasn't yet quite decided to hire the attorney, or some other such nonsense. And so begins what can be a nasty defense strategy to drag things out endlessly in hopes of exhausting the victim.

When this happens it is the prosecutor's responsibility to argue vigorously against the tactic and to get the judge to call a halt to the game. But often the prosecutor doesn't. So if this happens in your client's case, you and she need to go to the prosecutor's supervisor to light a fire under the prosecutor's feet to get things underway.

There are however three principal questions you and the victim should consider prior to the time of the arraignment and bail reduction hearings:

  • Does victim want a criminal protective order?
  • Is the bail adequate?
  • Are the criminal charges being filed adequate to the crime?

We discuss each of these questions in turn.

Criminal Protective Orders: A criminal court protective order has many important advantages over a domestic violence restraining order obtained in the family court system. A criminal protective order is a restraining order put in place by the criminal court judge to protect a case witness from the defendant. Like a domestic violence restraining order obtained in family court, a criminal protective order can order the defendant to stay away from the victim and her children, and, as such, by default, a criminal protective order can also determine custody.

Though a criminal protective order can be obtained at any time throughout the criminal case against the defendant, it's usually best to obtain the order at the earliest possible occasion, which is why we discuss it here under the topic of the arraignment.

A criminal court protective order, unlike a domestic violence restraining order, can be obtained simply by requesting the prosecutor to obtain one when he goes into court on the case. This includes when the prosecutor goes into court at the arraignment. The victim doesn't have to be present. All she has to do is make a phone call to the case prosecutor prior to the arraignment (or at any other time) and ask the prosecutor to obtain the criminal court protective order. It's that simple.

Because the criminal court protective order has so many advantages over a domestic violence restraining order, we outline those advantages in more detail below.

Advantages of a Criminal Court Protective Order:

1. Police usually treat a violation of a criminal protective order much more seriously than a violation of a domestic violence restraining order. When a police officer sees on the computer or in the paperwork that the victim has a criminal protective order, the officer knows immediately that the woman is a protected witness in a criminal case overseen by a criminal court judge, and that the suspect currently has criminal charges filed against him. Since police themselves are officials in the criminal system, since the criminal system always trumps the family system in power, and since so many officers scoff at family law , police are much more likely to treat violations of a criminal protective order more seriously than violations of a domestic violence restraining order which is issued in family court.

2. In order to obtain and maintain a criminal court protective order, the victim never has to appear in court, does not have to fill out any paperwork, does not have to prove she needs the order, never has to respond to the defendant's response, does not have to go back into court to fight to keep the order, doesn't have to go to mediation with the abuser, doesn't have to listen to defendant's excuses, nor respond to his usual rash of counter accusations, none of that. In fact, the defendant doesn't get a hearing to respond to a criminal court protective order for the simple reason that the criminal charges already filed against him provide a sufficient level proof to sustain the order.

The only thing a victim has to do to obtain a criminal court protective order is tell the prosecutor she wants one. The prosecutor then goes into the criminal court, asks the judge to sign the order, and in most all cases, the judge signs the order without further ado. And since the defendant is sitting right there in court, the judge informs the defendant of the order, and the order is served.

A court clerk puts the order in the state-wide law enforcement computer system. And in no more than a minute or two the whole process is done. The victim is immediately protected in nearly identical terms as she is under a domestic violence restraining order. And she never had to do a thing except tell the prosecutor she wanted the order.

This is a far cry from the drudgery a victim goes through to obtain a domestic violence restraining order in family court. The trip to the court at one of the worst times of her life, the half day process just to fill out the application, the return to the court to pick up the temporary order, and another return trip to the court a couple weeks later to battle the defendant's arguments in his attempt to defeat the permanent order.

3. In obtaining a criminal court protective order there's never any of the hassle of having to find and serve the defendant with the order. This is because the defendant is right there in court when the judge signs a criminal court protective order. In great contrast, after a family court judge signs a domestic violence restraining order, there is often a huge hassle getting officials to find the defendant and serve him with the order. And often they don't succeed. And since the order doesn't go into effect until the defendant is served, the whole lengthy process of obtaining the domestic violence restraining order in family court can turn into a giant waste of time with the victim ending up with no protection at all.

4. A criminal court protective order, unless for some unusual reason the judge has specified differently, is good for the duration of the court's jurisdiction over the defendant including through any probationary period, and including during the jail sentence. This brings up the one possible disadvantage of the criminal court protective orders which we'll discuss in more detail a few paragraphs down. If the criminal case is dismissed, the criminal protective order is negated the moment the case is dismissed.

5. Another advantage of a criminal court protective order is that the defendants, as well as the police, also generally take a criminal court protective order much more seriously than the domestic violence restraining order obtained in family court. This is because the criminal court judge who issues the order is the same judge who is hearing the defendant's criminal court case. Victims can simply notify the prosecutor or the judges themselves of the defendant's violations. The last thing most defendants want is for the judge on their criminal case to be further prejudiced against them.

6. If the children were present during the domestic violence incident in question, and often when they are simply living in the same household, a criminal court judge is usually open to extending the criminal protective order to the children too. This means the defendant cannot go near the children, and the mother doesn't have to worry about the mediation, visitation or custody hassles while the criminal court protective order is in effect.

Disadvantages of a Criminal Court Protective Order:

  • There is one principal disadvantage to a criminal court protective order. The order can be abruptly and unpredictably rendered null and void if the criminal case against the defendant is suddenly dismissed.
    If you think there is a possibility this might happen in your client's case, then she should be sure and back up her criminal court protective order with a domestic violence restraining order.

  • Unlike a domestic violence restraining orders obtained in family court, a criminal court protective order cannot resolve property disputes.
NOTE: Criminal Court Protective Order Policies: Because of the many advantages of the criminal protective order for victims of violence against women and children, many women's groups have pressured their district attorney's offices to routinely and automatically obtain criminal protective orders on all domestic violence, sexual assault, and child abuse cases. In our county, we have only gotten so far as to have our prosecutors routinely request criminal protective orders on all rape and felony domestic violence cases. And even on these cases we have to stay vigilant that prosecutors exercise the policy.

Obtaining a Criminal Protective Order for Your Client:

  1. If you know and trust the prosecutor on your client's case, you or the client can simply leave a message on the prosecutor's phone stating that the victim in a given case wants a criminal protective order. Make sure and give the prosecutor any needed particulars, such as the full names of any children to be covered in the order.

  2. If you don't trust the prosecutor assigned to the case, or as sometimes happens at the arraignment, you're not sure which prosecutor's going to be handling the arraignment, have your client write out a one or two paragraph note to the judge. In the note she should identify herself as the case victim, and state that she wants a criminal court protective order. Then she should write two or three sentences saying why she wants the order. This statement should include her level of fear of the defendant. The statement should also say whether she wants the children covered in the protective order. If the victim also wants to make sure the defendant can't bail out of jail, this letter is also a good opportunity to make this request to the judge too.

Sample victim note to the arraignment judge requesting a criminal court protective order and requesting that defendant's bail not be reduced.

May 1, 2003

Honorable Judge,

I am the victim in the domestic violence case of people v. Ray Johnson. I am willing to testify in this case.

I'm requesting that you please don't reduce the defendant's bail. I'm also requesting that you issue a criminal protective order ordering that Mr. Johnson have no contact with me or with our children. My children were present when Mr. Johnson beat me and threatened to kill me two days ago. Mr. Johnson also said if I ever called the police he would take the children and I would never see them again.

I am very afraid of him and believe he is capable of carrying out his threats. He has been violent towards me and the children for the last two years and every beating is worse than the one before. Please don't reduce his bail. Please grant a criminal protective order for myself and my children.

Thank you.

Signed and Printed Name

NOTE: Although the criminal court protective order will be entered into the state law enforcement computer it is still a very good idea for the victim to obtain a copy of the order and carry it on her person. Victims can obtain a copy of the criminal court protective order simply by requesting one from the district attorney's office.

In addition, it's also a good idea to double check to make sure the order got entered correctly into the state law enforcement computer. (In California, the state law enforcement computer system is called CLETS.) To make this check simply ask any law enforcement official or clerk to check the information for you.

When the defendant is booked into jail, there is usually a standard bail amount set for each charge for which he's booked. As mentioned above, you or the victim can call the jail at any time to ask the amount of the defendant's bail. If the defendant hasn't been able to bail out in the day or two before the arraignment, most defendants will ask for a bail reduction hearing when they are arraigned. The bail reduction hearing will usually be set for within the next few days.

If your client does not want the perpetrator to get out on bail, doesn't want the bail reduced, or would like the bail amount to be increased, you and she have three options:

* If you know and trust the case prosecutor, you and/or the victim can simply call and ask that the prosecutor argue for no bail reduction at the bail reduction hearing. If you want the bail to be increased, it's important to present the reasons why the bail should be increased.

The two main arguments for increasing or for not reducing bail are that the defendant is a flight risk, or that the defendant is a threat to victim or public safety.

(Keep in mind one problem you're likely to encounter early on in cases, is uncertainty about which prosecutor will actually be handling the case in court. There are frequent substitutions of attorneys at the beginning of cases. This is true even if your district attorney claims to practice vertical prosecution on violence against women cases.)

* Even before the arraignment, the victim can write a short (one or two paragraph) letter to the judge, whoever that may be. A request that the defendant's bail not be reduced, or that bail be increased, can be part of the same note in which a victim asks for a criminal protective order. (See sample letter in the criminal court protective order section above.)

* If there is a bail reduction hearing scheduled, the victim can call the probation department and ask to talk to the probation officer that is assigned to preparing bail recommendation reports. The victim should tell the probation officer why, and how intensely, she fears for her safety if the defendant gets out on bail. Or she can tell the probation officer why she believes the defendant is a flight risk.

Are the Charges being Filed Adequate to the Crime?
Is a fractured skull being filed as misdemeanor domestic violence? A rape being filed as sexual battery? Multiple counts of felony child abuse being filed as one felony count? Stalking being filed as a violation of a restraining order? A violation of a restraining order being filed as a violation of probation?

Or is a perfectly viable case not being filed at all?

The critical question of whether or not adequate charges are being filed in your client's case will bring you and your client squarely into the realm of your local district attorney's office. So we'll discuss the all important question of evaluating the charges being filed at arraignment in the following section, Section F on the District Attorney.


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