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| Know
Your Rights
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Introduction |
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| Over the last 30 years,
many victims' rights have been written into state laws. What we've
done here is outline and explain a selected few of those rights.
The rights we've chosen to highlight are those which are both especially
important to victims of rape, domestic violence, and child abuse,
and those rights which we've also found to be most frequently violated.
In other words we've selected those rights about which we feel you
most need to be fully informed.
In addition to printing the actual text of each of the laws, we provide points of explanation and give you some suggestions on what to do if your rights under these laws are violated. To go directly to the discussion of the right you want to know about, go back to the index and click on the title of the right. It's worth taking a moment here to tell you about a very serious flaw in virtually all victims' rights laws that have been passed in the United States. The problem is this: when police, prosecutors, and other criminal justice officials violate your rights - even though these rights are clearly spelled out in the law - it is virtually impossible for you to hold these officials legally accountable. There are a number of reasons this is so. Very briefly, criminal justice officials in the U.S. are protected by very strong legal immunities. And even worse for women and children, in a 1989 case called De Shaney v. Winnebago County, the U.S. Supreme Court ruled that law enforcement has no affirmative obligation to act. Clearly, this state of the law must be changed. Until then, victims of rape and domestic violence are left without any practical legal remedy when law enforcement fails to act, fails to protect you, or fails to abide by your victims' rights. As a result, when officials violate your rights, you, your friends, and your community must resort to other means to try and pressure officials into abiding by the laws. Following each of the rights discussed below, we give you some of the specific ways that have worked for us when officials violate victims' rights. But first, here are some general guidelines to follow when your rights are violated. |
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| Some
General Things To Do When Your Rights are Violated |
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1. Get Help! Get help from a smart friend, a neighbor, a teacher, a victim advocate, a co-worker, a minister, a trusted official, etc. The people you ask for help don't necessarily have to know all about the system and how it works. What's most important is that they are caring, that they have common sense, and that they have a basic respect for people's rights. Tell your support person what happened. Talk with them about how you want to handle the situation. Ask them to accompany you when you go to get the situation corrected, or ask them to speak for you, or to make the phone call for you. 2. Put Your Complaint in a Short Note! If officials don't immediately correct a violation of your rights after you make a phone call or two, write a short (one or two paragraphs) description of what happened. Next, write in your note that you know you have a right to different treatment. Cite the law (give the name and number of the law as we give it here). And then, at the end of your note, don't forget to write out briefly how you want the situation corrected and ask for help. Make a dozen copies of your note. Whenever possible, attach a copy of the law to your note. Hand the note, or send it, to the people you want to know about the problem. If you find it difficult to focus on writing your note of complaint because of all that's happened to you, that's one of the things your friend can help you with. Have your friend sit down beside you and help you write the note. 3. If You Don't Speak English or If You Are an Undocumented Immigrant ... If you are a crime victim and don't speak English or if you are an undocumented immigrant, remember that criminal justice officials are obligated to provide you equal protection of the laws. This means that if you don't speak English, these officials must provide you with adequate interpreters. This also means that if you write a note in your native language, officials must find a translator for your note. 4. Bring a Copy of the Law with You or Cite the Law. If you are writing about or talking about your rights with an official or advocate, you'll need to refer to the law by giving what's called the law's "citation", the name of the code book followed by the number of the code section. For example, the citation for your right to obtain a copy of your domestic violence police report is "Family Code Section 6228". By giving the citation of the law, the person you're talking to can then go and look up the law for themselves. Citing the law also tells the person that you know about and take your rights very seriously. 5. Go Up the Ranks! Going up the ranks is often the only way to get enough power to get the situation corrected. For example, in police departments, go to seargents, captains, or go straight to the chief. If you don't get the help you deserve from inside a department you'll need to go to other powerful people outside the department, such as the head of your church or to the city council. Going up the ranks to people's bosses or to other powerful people can feel very intimidating when you're already traumatized by violence. That's why step number one is so important. Get help from people you trust so they can be with you or speak for you. A friend by your side makes you strong. 6. Don't Give Up! Keep fighting for Your Freedom, Your Happiness, and Your Future! In the course of getting free of domestic violence or sexual assault you're going to be dealing with many different officials and related workers. Because things aren't perfect yet, it's very likely that one or more of these people along the way is going to disrespect you and your rights. When your rights are trampled on top of everything else it can quickly make you feel very depressed. It can make you feel like giving up. But don't give up. Chances are the next person right around the corner is someone who takes your rights very seriously and wants very much to help you. A
Couple More General Notes: Note 2. Most of the Rights We Discuss Here Are Based on California Law. Naturally if you live in another country or state, the laws we discuss here don't directly apply to you. However, many other states have very similar laws. To find the laws covering your rights in other states you can consult your state codes on the internet or in the reference section of your library, you can call victim advocates, talk to your county law librarian, or ask a lawyer to look up your rights for you. We also hope that people in other places can use the laws we cover here as a starting place for thinking about the kind of legislation you can pass in your own area. In addition, if you are not from California, remember that every person from every country is covered by the crime victims' rights as outlined in the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. Note 3. Don't Be Discouraged by the Confusing Language of the Laws. If you're not used to reading legal text, it might seem impossible at first to even figure out where a sentence begins and ends. Don't be discouraged. It really can be confusing! To help you out, we've put some of the key phrases of the laws in bold type. We've also provided a plain language summary of the law in the title of each section, and a set of explanatory notes that follows the text of each law. Note 4. How to Download Small Sections of Text. If you want to download the text of a law or other small sections of text without having to print out the whole document, here's how:
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Text of California Penal Code Section 13730 (c) Each law enforcement agency shall develop an incident report
form that includes a domestic violence identification code by
January1, 1986. In all incidents of domestic violence, a report
shall be written and shall be identified on the face of the report
as a domestic violence incident. A report shall include at
least both of the following(1) A notation of whether the officer
or officers who responded to the domestic violence call observed
any signs that the alleged abuser was under the influence of alcohol
or a controlled substance. (2) A notation of whether the officer
or officers who responded to the domestic violence call determined
if any law enforcement agency had previously responded to a domestic
violence call at the same address involving the same alleged abuser
or victim. |
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NOTES:
on PC13730, police obligation to write a police report on all
domestic violence related calls.
NOTE A
NOTE B When police respond to your call you can usually tell whether or not they are taking your case seriously. Some of the things to ask yourself are: Did police talk with you separately from the perpetrator? Did they give you time to tell your whole story? Ask you about the history of abuse? Did the officer take notes? Take photos of all injuries and damage? Collect all the evidence? Talk to all the witnesses (including the children)? Provide an adequate translator if necessary? Offer to write you an Emergency Protective Order? Did the officer tell you what's going to happen next? Give you a domestic violence card or booklet with a report number and the officer's name written on the card? If the officer didn't do all these things, or if the officer treated you badly, or didn't show concern for your safety, you should immediately find out if the officer even wrote a report, and if the officer did write a report, you should make sure that a proper report is written. NOTE C WHAT TO DO: If You Think the Officer Didn't Write a Report, or Didn't Write an Adequate Report.1. Call the police department and ask to speak to the seargent in charge or to the head of the department's domestic violence unit. Tell the seargent the date and time you made a domestic violence call. Ask the seargent to look up your case and ask if a domestic violence report was written. Ask if the report was a crime report or an incident report. Ask for the report number and ask what crime was cited. Write down the answers in a notebook. If there is no report, or if you feel the report is inadequate, explain your situation to the seargent and ask that corrections be made. If you don't get help from the seargent, ask for the name of the seargent's superior and call that person. 2. Obtain a copy of the entire police report as soon as possible (see discussion of Family Code 6228 below). 3. If you can't find anyone in the police department who is going to quickly correct inadequacies in the response to your domestic violence call, don't get discouraged. There are other things you can do. 4. Call a victim advocate or a smart friend to help you protest the police treatment. Write a short complaint, make copies of this complaint and send it to the mayor, the district attorney, the chief of police, and as many other important people you can think of. Don't forget to say in your note that you want help to get the situation corrected. 5. Another thing you can do is put the evidence together yourself. You can write out your own statement and present it to police. You can bring in other witness statements and physical evidence in the same way. If the police won't enter these evidences into a report, take them to the District Attorney's office. 6. If you feel shy about doing any of these things, remind yourself again that your safety depends on a proper police response to domestic violence. Domestic violence hurts you, your children, and the entire community. Police are paid by your taxes to take domestic violence seriously.
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Text of California Family Code Section 6228.
(b) A copy of a domestic violence incident report face sheet shall be made available during regular business hours to a victim of domestic violence no later than 48 hours after being requested by the victim, unless the state or local law enforcement agency informs the victim of the reasons why, for good cause, the domestic violence incident report face sheet is not available, in which case the domestic violence incident report face sheet shall be made available to the victim no later than five working days after the request is made. (c) A copy of the domestic violence incident report shall be made available during regular business hours to a victim of domestic violence no later than five working days after being requested by a victim, unless the state or local law enforcement agency informs the victim of the reasons why, for good cause, the domestic violence incident report is not available, in which case the domestic violence incident report shall be made available to the victim no later than10 working days after the request is made. (d) Persons requesting copies under this section shall present state or local law enforcement with identification at the time a request is made. (e) This section shall apply to requests for face sheets or reports made within five years from the date of completion of the domestic violence incidence report. (f) This section shall be known, and may be cited, as the Access to Domestic Violence Reports Act of 1999. |
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NOTES: on FC 6228, Police Obligation to give domestic violence victims a free copy of the police report within five days of the victim's request. NOTE
A NOTE
B Another way to check if you have the entire report is to look down at the bottom of the first page of the report. You'll see there is notation at the bottom which gives the page number and the total number of pages. For example, page 1 will have a notation something like this, "p1 of 9". This means there should be a total of 9 pages in the report you've been given. Count the pages to be sure they're all there. NOTE
C NOTE
D Police are very accustomed to hearing the perpetrators lie to them. The police usually know the person is lying, but police have to write down the perpetrator's statement as it was given to them, even though they know it is a lie. Please don't let the perpetrator's lies upset you. If police wrote a thorough report on your case, chances are very, very good that the system will keep you safe and keep the perpetrator under control. If police didn't write a thorough report, now that you have a copy of the report in your hands, chances are very, very good that you can get the situation corrected. WHAT TO DO: If the Police Department Won't Give You a Copy of Your Domestic Violence Report.1. Ask to speak to the head of the Police Department Records Department. Show him or her the law. 2. If the head of the records department still won't give you a copy of the report, take a copy of the law and go with a smart friend to the head of the police department's domestic violence unit, to the District Attorney's office, or to your elected officials. Tell them the police won't give you a copy of your report even after you showed them the law and ask them to call the police department for you. 3. If the police gave you a copy of the report, but it was only a partial copy of the report, you'll probably have to go through the same steps to get the entire police report.
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Text of California Penal Code Section 836 (c)(1)
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NOTES:
on PC 836(c)(1), Police Obligation to Arrest the Perpetrator
on Domestic Violence Restraining NOTE
A Most women aren't fooled by this kind of treachery. They call the police right away to report that the abuser has violated the restraining order. But way too many police treat these situations as silly complaints. The police may not even write a report or they may only simply call the perpetrator to remind him about the restraining order, as if the poor guy must have forgotten, and the police tell him not to do it again or he can be arrested. This can go on time after time. The perpetrator quickly gets the message that the police are going to protect him more than they protect you, and the perpetrator in this case is very likely going to escalate. This is why there are so many stories of women who are murdered even though they had obtained a restraining order. People mistakenly conclude that restraining orders are useless. But if you look into these cases you'll so often see that the women made reports to police and the police failed to arrest. In these cases it was the police, and not the restraining order, that was useless. This is why, if police don't arrest the perpetrator when you make a report, don't let it go. See the WHAT TO DO section below) NOTE
B NOTE
C NOTE
D FC 6228 you have a right to obtain a copy of that report. Both of these rights are discussed above. WHAT TO DO: If police do not make an arrest, or do not make a determined attempt to make an arrest when you report a violation of your domestic violence restraining orderA. If police do not make an arrest, or do not make a determined attempt to make an arrest when you report a violation of your domestic violence restraining order, it is very important for your safety that you get the situation corrected. If the police didn't tell you directly that they are going to make an arrest you probably need to call the police department, ask for a seargent and find out 1. if a domestic violence crime report was written, and 2. if the officer made an arrest. B. If the sargent tells you the officer didn't write a report or didn't make an arrest (or attempt to make an arrest) follow the same steps outlined above for what to do when police don't write a report, PC 13730.
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Text of California Penal Code Section 679.04.
(b)(1) Prior to the commencement of the initial interview by law enforcement authorities or the district attorney pertaining to any criminal action arising out of a sexual assault, a victim of sexual assault as the result of any offense specified in Section 264.2 shall be notified orally or in writing by the attending law enforcement authority or district attorney that the victim has the right to have victim advocates and a support person of the victim's choosing present at the interview or contact. This subdivision applies to investigators and agents employed or retained by law enforcement or the district attorney. (2) At the time the victim is advised of his or her rights pursuant to paragraph (1), the attending law enforcement authority or district attorney shall also advise the victim of the right to have victim advocates and a support person present at any interview by the defense attorney or investigators or agents employed by the defense attorney. (c) An initial investigation by law enforcement to determine whether a crime has been committed and the identity of the suspects shall not constitute a law enforcement interview for purposes of this section. |
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NOTES
on PC 679.04, Sexual Assault Victims Have the Right to Victim
Advocates Note
A Having a victim advocate and a support person with you in all law enforcement interviews is good protection against these kinds of law enforcement abuses. Just the presence of other people makes it much less likely that officials will take advantage of the victim's vulnerability. The presence of other people also helps you be able to question the things you're being told. We strongly advise all sexual assault victims to exercise this right to the fullest. NOTE
B NOTE
D This clause was not part of the original writing of the law but was added to the law a year later under pressure from the California District Attorney's Association. This addition unfortuantely creates an opening for officials to exclude support persons presence during interviews, and is a serious weakness in the law. However, keep in mind that officials can never exclude your victim advocate from accompanying a victim in interviews under any circumstances. NOTE
E This refers to the very first response by police when a sexual assault victim first calls police to report the sexual assault. NOTE
F WHAT TO DO: If police or prosecutors deny your right to have support persons and victim advocates accompany you in case interviews.1. The best way to assure your right to have support persons and victim advocates accompany you in case interviews is by trying to prevent problems ahead of time. Download a copy of this law and take it with you to interviews. In addition, when you are scheduling interviews with police or prosecutors be sure and tell them that you plan on bringing a friend and/or advocate with you, and that you want them to be in the interview with you. If you hear any hint of disapproval in the official's voice, tell them right then that you know you have the right to bring anyone you want into the interview, under Penal Code Section 679.04. Tell the official you take your rights very seriously and that you expect the official to abide by the law. Your willingness to stand by your rights is very often enough to assure that officials will respect your rights. 2. Be sure and meet with your support persons and advocates before the interview. You can do this simply by meeting together a half hour earlier than the scheduled interview. When you meet you should discuss a number of things with your support people, and one of the most important is to decide what you want to do if the official says that you can't bring your support persons in the interview with you. You may decide that if that happens you'll want to ask to speak to the officer's superior. You may decide that you want the victim advocate to do the arguing for you. You may decide that you want to argue with the official up to a point, but that in the end you are willing to do the interview without your support persons, or you may decide that you want to refuse to do the interview if the official won't allow your support persons to accompany you. Whatever you decide, the important thing is that you and your team are all on the same page. That way you can all feel strong walking into the interview and your support persons can give you truly quality support. 3. Other things to discuss with your support persons before going into the interview are: Do you want someone to take notes during the interview (highly recommended)? Do you want someone to write down questions you want to ask and then remind you in the interview of the questions? Do you want one of your support persons to ask the questions for you? Do you want your support persons to be passive or active in the meeting. When you are being asked questions about the events of the crime, your support persons shouldn't try to answer questions for you. However, you might want to tell your support persons that if the official seems to be abusive in their questioning, or if you seem to be overwhelmed, that in that case you do want them to jump in and speak for you. Again, the important thing is that you and your support team know ahead of time the kind of support you want.
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Text of California Penal Code Section 868.5. (b) If the person or persons so chosen are also prosecuting witnesses, the prosecution shall present evidence that the person's attendance is both desired by the prosecuting witness for support and will be helpful to the prosecuting witness. Upon that showing, the court shall grant the request unless information presented by the defendant or noticed by the court establishes that the support person's attendance during the testimony of the prosecuting witness would pose a substantial risk of influencing or affecting the content of that testimony. In the case of a juvenile court proceeding, the judge shall inform the support person or persons that juvenile court proceedings are confidential and may not be discussed with anyone not in attendance at the proceedings. In all cases, the judge shall admonish the support person or persons to not prompt, sway, or influence the witness in any way. Nothing in this section shall preclude a court from exercising its discretion to remove a person from the courtroom whom it believes is prompting, swaying, or influencing the witness. (c) The testimony of the person or persons so chosen who are also prosecuting witnesses shall be presented before the testimony of the prosecuting witness. The prosecuting witness shall be excluded from the courtroom during that testimony. Whenever the evidence given by that person or those persons would be subject to exclusion because it has been given before the corpus delicti has been established, the evidence shall be admitted subject to the court's or the defendant's motion to strike that evidence from the record if the corpus delicti is not later established by the testimony of the prosecuting witness. |
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NOTES:
on PC 868.5, your right to have two support persons of your
choosing in the courtroom Note
A Note
B Note
C WHAT TO DO: If officials do not abide by your right to have two support persons of your choosing in the courtroom when you testify.1. The way this law is most frequently violated is that just before you go into the courtroom to testify, the prosecutor may suddenly ask that your support person wait outside the courtroom. This is a very difficult time for you to have to get into an argument with the prosecutor, and it is absolutely unforgivable for any prosecutor to pull this trick. The very best way to prevent this possibility is in the conversation you will have with the prosecutor before it is time for you to testify. Generally the prosecutor will go over a few points of the case with you before the court proceedings start. It's during that conversation that you should make clear to the prosecutor who you want to be in the courtroom with you when you testify. If the prosecutor shows any sign of disagreement, you'll need to say very clearly that you know you have a right to have these persons in the courtroom with you. 2. If the prosecutor still won't abide by your rights to have your two support persons in the courtroom, tell the prosecutor you will speak to the judge. Remember, the judge's job in the courtroom is to make sure that the trial proceedings are fair. Since you are the primary witness in the case, you can always take any concern you may have about the proceedings to the judge. So if the prosecutor blocks your right to have your two support persons in the courtroom, as soon as you go up to the witness stand, you can turn to the judge and tell the judge that you would like to have your support persons in the courtroom. 3. If you feel shy about speaking directly to the judge in front of the courtroom, that's very understandable given the many other things on your mind before you testify. Another way to handle the situation of a prosecutor who blocks your support persons from accompanying you in the courtroom is this: Quickly write a very simple note that says "Your Honor, I am the victim in this case and I would like to have my support persons here in the courtroom when I testify. They are in the hallway because the prosecutor says they can't come in. But the law says I have a right to have them with me." Hand the note to the courtroom bailiff or to a victim advocate and ask them to hand the note to the judge.
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Text of California Penal Code Section 679.02
(a)(12). |
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NOTES:
on PC 679.02 (a)(12), District Attorney's (prosecutor's) Obligation
to Notify Violent Felony NOTE
A However, there are some prosecutors who are willing to walk into the courtroom and offer deals to the defendant of such absurd and drastic reductions of charges that in essence the prosecutor is giving the case away just to be done with it. For example, if a prosecutor offers a man charged with kidnaping and rape a deal to plead guilty to misdemeanor assault, this is very likely a deal that is a miscarriage of justice for both the victim and the community. PC 679.02 (a)(12) was passed in order to give victims and the community at least some protection against prosecutors' attempting to dump cases of felony violence by offering give-away deals. The law says prosecutors must notify victims of pending plea bargains so that if you feel the offered deal is unjust, you have time to express your objections to the deal. NOTE
B NOTE
C NOTE
D You should pay very close attention if a prosecutor comes up to you just before the preliminary hearing and says they want to offer a deal instead of going ahead with the hearing. There are circumstances where this might be a wise and just approach, but far too often, a prosecutor who makes this move is just trying to take advantage of your nervousness about testifying to get you to agree to a deal that is not good for you or for the case. If this happens to you one thing you can always do is tell the prosecutor that you want to go ahead with the preliminary hearing and talk about deals later. WHAT TO DO: If officials do not abide by your right to be notified of pending plea bargains.1. If you find out that the prosecutor has offered a deal to the defense and has not told you about the deal there are a number of things you can do. One important thing to remember is that a plea bargain is not finalized until the judge accepts the deal. And the judge can undo the deal at any time right up to the sentencing. For example, if you suddenly find out one day that the accused in your case has pled guilty to a minor offense when he was initially charged with a major offense, chances are pretty good that the prosecutor offered the defense a deal and the defense accepted. If the defendant has already accepted the deal before you were even told about the pending deal, and if you aren't happy with the deal, the first thing to do is talk it over as soon as possible with a victim advocate, a smart friend, or a trusted official. If you still feel the deal is unfair, you'll need to appeal directly to the judge to explain that you are the victim in the case, that you weren't informed of the deal, and that you're very unhappy with the deal. The best way to do this is to write a one page letter addressed to the judge. It isn't too often that judges will undo a deal after a defendant has pled to the deal, but it isn't that rare either, especially in a case where a victim is unhappy and wasn't properly informed. 2. Though it does happen from time to time that a prosecutor outright fails to inform you of a deal, a much more common way that your rights are violated under this law is that a prosecutor will misinform you about the pending deal in order to get you to agree to the deal and to dissuade you from testifying. For example, the prosecutor may tell you that it's a great deal (when in truth it's a lousy deal), they may tell you the evidence is too weak (when in fact the evidence is strong), they may tell you that if you testify the defense will go after you about your affair, your past drug use, your own troubles with the law, etc. (when in fact, the defense can't bring these things up at all). And it also may very well be that the prosecutor who tells you these things is telling the truth. That's why it's so important to tell the prosecutor you want to talk it over with other people before you make your decision about how you want to respond. If after talking with others you realize that the prosecutor was misinforming you in order to get you to agree to a give-away deal, you can first try going to the same prosecutor to express your objections in hopes that the prosecutor will back off the deal. If the prosecutor won't reconsider, you need to gather people to your side and go to the prosecutor's boss. It's often best to do this in writing. Whatever you do, don't give up just because the prosecutor is pushing you. You can very often succeed in getting a bad pending plea bargain withdrawn.
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Text of California Penal Code Section 264.2(b)(1)
and (b)(2) |
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NOTES: on PC 264.2(b)(1) and (b)(2),.Sexual Assault Victim's Have the Right to an Advocate and Support Person During Medical-evidentiary Exam (Rape Exam) NOTE
A Despite the importance of this law to victims, there are still law enforcement agencies and medical examiners who do not call the rape crisis center and who do not inform the victim of her rights. This is inexcusable. NOTE
B WHAT TO DO: If your right to an advocate or support person during a rape exam is denied, or if you are not informed of the right, or if law enforcement fails to notify a rape crisis center.1. If your right to an advocate or a support person during a rape exam is violated in any way, you can ask that the procedure be stopped until you can call your friend or an advocate. Or you can simply refuse to do the exam. Remember, you are under no obligation to do the rape exam or any particular part of the exam. 2. Unfortunately, when these rights are violated most victims don't realize it until after the exam is over. If your rights were violated during a rape exam, we ask you to protest, and protest loudly, to help bring about the day that all sexual assault victims are afforded their rights. 3. If there is anything at all that makes you uncomfortable during, or before, or after a rape exam, and you find it difficult to speak up or ask your questions, tell the medical examiner or the detective that you want to talk alone with your advocate or support person. Ask your advocate or support person to speak for you or ask questions for you. Remember, that's why your advocate and support person are there.
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