Domestic violence victims cannot be held in contempt for refusing to testify against their alleged attackers under a proposed state shield law sparked by a 2005 San Mateo County case in which a woman was threatened with jail for not cooperating with prosecution of her ex-boyfriend.
State Sen. Leland Yee, D-San Mateo/San Francisco, re-introduced the bill which is a mirror image of legislation he proposed in 2006 following the domestic violence trial of David Gilford and subsequent contempt charge for Katina Britt, the woman he was accused of seriously beating.
Yee, then an assemblyman, yanked the legislation when it appeared headed for defeat.
While the new bill, which mimics existing law for sexual assault victims, is essentially the same as its predecessor, Yee spokesman Adam Keigwin said different circumstances like a new stable of legislators could spell success.
Even more important, Keigwin said, is the strong support of domestic violence victim advocacy groups who have had the past two years to familiarize themselves with the legislation and have already spent time lobbying state leaders.
"We have the same support, the same opposition as well,” Keigwin said. "This time we’ve had time for outreach and to make sure everybody totally buys into wanting to do this.”
Opponents who don’t buy into the idea, as Keigwin alluded, include the state District Attorney’s Association and the San Mateo County District Attorney’s Office who prosecuted Gilford and pursued Britt.
Pulling a victim’s testimony from a domestic violence trial undercuts the ability to prosecute in some cases and will play a role in deciding whether to even file charges, said Chief Deputy District Attorney Steve Wagstaffe.
More importantly, he added, tying the hands of domestic violence prosecutors might leave accused abusers free to escalate their attacks.
"I don’t want a potential domestic violence case to one day become a homicide case,” Wagstaffe said.
But proponents of Yee and defense attorney Paul DeMeester, who represented Britt against contempt charges, argue that a solid case can be won without a victim’s testimony.
"They prosecute murder cases day in and day out where the victim doesn’t testify,” DeMeester said. "There is evidence of wrongdoing that can be brought forward. If the case is serious enough, there will be medical evidence, eye witnesses and 911 calls.”
In the case of DeMeester’s client, Britt, her accused abuser was convicted — but not of domestic violence.
Gilford was sentenced to seven years prison on charges of assault and residential burglary.
Prosecutors were forced to drop the domestic violence charges after Britt refused to testify against Gilford. Without Britt’s cooperation, prosecutors said their hands were tied. Under a recent Supreme Court decision commonly referred to as Crawford, a victim must testify on their own behalf. A court is limited in what hearsay it allows.
For domestic violence victims, this ruling means confronting their alleged abuser in court if they hope to see justice. For prosecutors, it means overcoming the fear and intimidation common in domestic violence victims or facing the need to threaten jail time.
According to the prosecution’s case, Gilford broke into Britt’s home on Nov. 9, 2003. He allegedly jumped from under her bed, accusing her of cheating and assaulted her so badly she was left unconscious and with a bleeding kidney. During the seven-day trial in November 2005, Britt took the stand but refused to cooperate.
Judge Robert Foiles threatened to jail her for contempt, sparking a tangential legal battle that ended after Britt secured an emergency stay of the order and a state appeals court declined to review the matter. Instead, it dissolved the case, calling it moot once Gilford was convicted.
Meanwhile, Yee proposed adding domestic violence victims to a 1991 law protecting sexual assault victims from imprisonment if they decide not to testify in a criminal case. After the bill stalled in the Assembly Public Safety Committee under the weight of opposition, Yee pulled it but promised the matter wasn’t dead.
Monday’s resurrection is again aimed at protecting victims and their children from further damage, he said.
"Although I respect the opinion of the district attorneys who may oppose this bill, I am compelled by the overwhelming interest of victims and advocates who must handle the physical and psychological trauma associated with this horrible crime,” Yee stated in an announcement of the bill.
Marivic Mabanag, executive director of the California Partnership to End Domestic Violence, agreed that victims’ safety is the key concern and argued they are in the best position to judge "when testifying against their abusers might pose a serious threat to themselves or their children.”
Yee said the bill is not meant to dissuade prosecutions and, in fact, may aid them because "if victims fear having to testify or face imprisonment they may be less likely to even come forward and report incidents of domestic violence.”
Keigwin said opponents were asked to prove that prosecutions would suffer if the bill passes by providing statistics comparing states with and without similar legislation. None has come forward, he said.
The bill moves first to the Senate Public Safety Committee and if passed heads directly to the Senate floor. If approved, the bill then switches to the Assembly.
Britt is expected to testify on behalf of the bill and is as strong a supporter of the legislation now as she was at the time of her own case, DeMeester said.
Michelle Durand can be reached by e-mail: firstname.lastname@example.org or by phone: (650) 344-5200 ext. 102.