Contact us 24/7 818.306.3985

Does a Victim of Domestic Violence Have to Testify against the Defendant?

In California, the answer is a resounding "no". A vicitm of domestic violence (and victims of sexual assualt) are immune from imprisonment or confinement for refusing to testify regarding acts of domestic violence persuant to Cal. Code of Civ. Pro. s. 1219. However, this does not fully answer the above question.

Victims of domestic violence may be subpoenaed to appear to testify in a domestic violence case. When subpoenaed, victims of domestic violence must appear in court as compelled. If a victim fails to appear in Court as required from a duly served subpoena, he or she is subject to contempt and imprisonment or confinemnent for not appearing, simply because the statute only immunizes victims from testifying about domestic violence; not for otherwise failing to comply with other court orders (subpoenas are court orders, even when issued by clerks and attorneys). Arguably, victims of domestic violence are, likewise, subject to contempt of court and imprisonment or confinement for refusing to testify regarding issues collateral to the domestic violence offense. So, technically, a victim could be compelled to testify regarding where he or she lives, the defendant's character (if appropriate) or other issues, but is able to refuse to testify regarding the offense-specific facts.

Also, while the Court cannot imprison or confine a victim of domestic violence for refusing to testify regarding the offense, the Court can use its other contempt powers, e.g. to fine the victim monetarily, for refusing to testify. So, the victim of domestic violence should give serious thought to how he or she wishes to proceed and what penalities he or she is willing to absorb to assist the defendant or otherwise avoid being in the spotlight to discuss the offense.

Often victims of domestic violence will look to the Defendant's counsel for direction or may even be contacted by defense counsel to discuss the victim's plan relating to his or her testimony. While there is absolutely nothing wrong with defense counsel contacting or discussing the victim's plans with him or her, it would be inappropriate for defense counsel to provide legal advice to the victim as to whether to testify. There is an inherent conflict of interest for an attorney representing the defendant and providing legal advice to the victim in the same such case. If the victim wishes to know his or her rights and risks, he or she should contact independent counsel.