John Coté, Chronicle Staff Writer
Wednesday, July 2, 2008
(07-01) 18:47 PDT SACRAMENTO - -- Gov. Arnold Schwarzenegger today signed into law a bill that will prevent judges from jailing domestic violence victims who refuse to testify against their abuser, giving those victims a protection similar to that already afforded to victims of sexual assault.

The bill, authored by state Sen. Leland Yee, D-San Francisco, had pitted women's and victim's rights groups against many state prosecutors, who argued the threat of incarceration is useful to successfully prosecute domestic violence cases often complicated by the abuser's financial or personal ties to the victim.

"Some have argued that incarceration of domestic violence victims is an important tool in compelling victims to testify," Schwarzenegger said in a signing statement accompanying SB 1356. "However, I believe that the victims in these cases have suffered enough."

The decision to testify "should be made by the individuals most impacted by these crimes," who often experience "psychological trauma and fear of retribution from the abuser or the abuser's family members" similar to sexual assault victims, the governor wrote.

Yee's bill, which will take effect on Jan. 1, carves out an exception similar to the one sexual assault victims have had since 1991.

Currently, judges can order domestic violence victims to attend a domestic violence counseling program or perform as much as 72 hours of community service if they won't testify. Those who still refuse after doing that can be jailed for up to five days.

Retired Judge and ex-state Sen. Quentin Kopp, who still hears cases in San Mateo County, opposed the bill, saying the power to incarcerate rests with an "impartial judge" - not prosecutors - and removing that authority was a "simplistic, inflexible policy."

The state District Attorneys Association also opposed changing the law, saying it will remove a key tool in cases where the only witnesses are often the victims or the attacker's children.

Morris Maya, a deputy district attorney in San Mateo County who handled domestic violence cases, fears the new law will result in more abuse.

"My job for about five years was seeing these women, day in and day out, with black eyes, split lips and busted-out teeth telling me nothing had happened," Maya said earlier. "Their lack of cooperation at best often resulted in reduced sentences, and at worst ended up with their abuser walking out the door with no repercussions whatsoever."

Yee countered that there is no evidence more abuse will result if victims have the right to not testify. He pointed to the "horrifying experience" mothers face when put in jail.

"It tears families apart," Yee said. "Your kids are going to be taken away and put in foster care."

The legislation grew out of the case of Katina Britt, a domestic violence victim that a San Mateo County Superior Court judge ordered jailed in December 2005 after she refused to testify. Britt remained free pending her appeal and ultimately was never jailed.

E-mail John Coté at jcote@sfchronicle.com.

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Not testifying does often result in the perpetrator getting a reduced sentence or no conviction at all. But I agree with Arnold, I don't think it's right to incarcerate people who choose not to testify.

This is good news. A lot of women who make allegations have them blown up by the officer in the police report, and at that point it's like there's no turning back. Some women do call police because they are genuinely nervous (I'm not saying this is sufficient justification to kick a man out of his own house, but it's true), and yet many of these women don't necessarily want the man to be permanently barred from the home or the intact family utterly destroyed. They might prefer to change their story or decline to testify, because they realize that the crisis has abetted and maybe all they need is couple's counseling. Until now, California law prevented these "victims" from backing out; they risked imprisonment if they didn't follow through with helping the prosecutor secure a conviction. Now, alleged victims can change their minds.

Of course, the 911 call to police is recorded, and can be admitted into a trial as evidence. But at the same time, the woman who wants to back off can now testify about her intentions -- or even on behalf of the defense -- without penalty.

The more I think about it, the more I like this law. It lessens the severity of previous legislation, effectively weakening the power of judges and prosecutors.

Since the legal policies for domestic abuse are blatantly and shamelessly sexist, my response will conform to that reality for brevity without supporting or encouraging it.

For women and thier male partners, I think that this is both good and bad.

It's bad for edducated and rational/savvy women who understand the consequences of reporting/alleging abuse to the police. But it's good for ignorant and impulsive women who would otherwise be totally screwed and negatively impacted/compromised upon entering the legal bureaucracy.

And for the male partners, essentially it makes the call to the police more likely to happen, but the conviction less likely to happen. So, again its not clear if this is a step forward or backward.

Wisely stated.