What if the Victim Doesn’t Want to Testify?
Allegations of sexual assault and sexual molestation (PC 243.4) are hot beds of intense emotions that create the perfect conditions for a violent explosion of anger where cooler heads (and often the truth) do not prevail.
Any accusation of sexual assault or molestation is perceived so heinously that the accused is often guilty just from the stigma associated with the accusation, the facts be damned. Because of the explosive nature of these allegations, overzealous prosecutors often attempt to take advantage by overcharging defendants or forcing or eliciting statements from victims that are exaggerated or taken out of context.
Many victims are younger or are highly emotional and are easy targets for ambitious or hard-charging prosecutors. People accused of these crimes are easy, vulnerable targets and often perceived as low-hanging fruit for them.
If Prosecution is Involved, it’s Time to Find a Lawyer
Many times, allegations of sexual misconduct, are inter-family matters that spill into the open, and once the authorities are brought in, even if the family wants to handle the matter privately, they cannot. This is because that once the dust settles and emotions cool, the prosecutors now have an interest in the outcome of the case, and don’t necessarily give a damn about the family’s prerogatives.
In short, it’s hard to get the government out of the case once they are in. Once an accuser of sexual assault or the parent of someone accused of sexual molestation has cooled down, and realized they’ve gotten their husband / family member / friend in trouble by exaggerating claims under conditions of intense emotional hysterics, or whose claims have been taken out of context by the officials reporting them, they may have no redress to clear the record.
If they now change their statement, the prosecutor will assume they are lying.
The accuser now tells the DA that she’s no longer interested in prosecuting the case or showing up to Court. The DA says tough luck, here’s a subpoena, you have to show up or you’ll be arrested.
Is there anything the accuser can do to?
Sometimes the Judge will Force the Victim to Testify
Under usual circumstances the DA is right, under California Code of Civil Procedure (CCP) 1219(a), if someone is refuses to testify in Court, the Judge can (and usually will) send them to jail until they’re ready to testify.
Fighting the Case with CCP 1219(b)
However, under little known CCP § 1219(b), a Judge cannot imprison someone who is a victim of sexual assault or domestic violence for refusing to testify. In many, many cases regarding allegations of sexual misconduct, the only compelling evidence is the testimony of the accuser herself and without that testimony the prosecutor’s case falls apart. So if the accuser changes her mind and now wishes to handle the matter privately, through the families for instance, and save herself the trauma and turmoil of reliving the experiences in the public setting of the Courthouse, it will be too late for her.
Moreover, the accuser’s statements may have been exaggerated either by herself or the authorities who took her statement in the heat of an emotionally charged statement. Now the accuser wishes to take a different position toward the accused, but the system is only interested in the defendant’s conviction. Such authorities usually disregard an accuser’s wishes and intentions regarding the case, or try to cajole them out of them. So what’s the solution? It may just be CCP 1219(b).
Since in many cases of sexual misconduct, the State needs the accuser to testify to make their case, and since the accuser can refuse to testify under CCP 1219(b), this gives the accuser a new-found power in the process.
For instance, if the accuser thinks the State is dealing too harshly with the defendant, she can threaten to use CCP 1219(b) and refuse to testify in order to demand a more lenient sentence.
If the accuser cares about the defendant — she is for instance a wife, girlfriend or daughter — and doesn’t want to see harm befall the defendant, she can similarly refuse to testify.
This powerful tool may mean the difference between an offer for a prison sentence of years, rather than decades. It may mean that the defendant can avoid life-time registration requirements, or having any criminal record at all. The possibilities are endless.
Usually, the accuser will have to get an attorney to represent her in court since this will be against the wishes of the prosecutor and judge. It cannot be the same attorney who represents the defendant because that would raise a conflict of interest. If you are in need of such an attorney please call the attorneys at the Kelmansky Law Group.
Which Crimes Can Benefit from This Strategy?
Here is a listing of just some, though certainly not all, of the sexual crime charges where CCP 1219(b) can come into play:
- PC 288(a) – Lewd and lascivious acts with a minor child PC 288.5: continuous sexual abuse of a child
- PC 287 – Oral copulation by force or fear
- PC 261 – Rape
- PC 243.4 – Sexual Battery
- PC 286 – Sodomy
- PC 289 – Acts of penetration with a foreign object
- PC 269 – Spousal Rape
- PC 269 – Aggravated sexual assault of a child
- PC 288.5 – Continuous Sexual Abuse of a Child
- PC 288.7 – Sex acts against a child 10 or younger
Contact a California Criminal Defense Attorney Today!
Sexual Assault charges in California are serious and have the potential to greatly impact your life and freedom. If you have been accused of Sexual Assault, contact us today.
We have a skilled team of Los Angeles criminal defense attorneys who have years of experiencing securing favorable outcomes for our clients that allow them to continue living their lives.
Need a Criminal Defense Attorney? CALL NOW: 213-932-8922
Yuliya Kelmansky is an Expert Criminal Defense Attorney who has over 15 years of practice defending a variety of criminal cases.
See Related Article:
Refusing to Testify in a Domestic Violence Case
