i
Batterer
Accountability
Report to the
California Attorney General
from the Task Force on
Local Criminal Justice Response
to Domestic Violence
June 2005
Victim Safety
and
Keeping the Promise
Bill Lockyer, Attorney General
iii
The Honorable Bill Lockyer
Attorney General, State of California
1300 I Street, Suite 1700
Sacramento, CA 95814
Dear Attorney General Lockyer:
In December 2003, you formed a Task Force to examine how local criminal
justice systems respond to domestic violence across California. You asked our 26-
member Task Force – representing criminal justice agencies, victims, the judiciary,
health care, and the Legislature – to focus on four areas: obtaining and enforcing
restraining orders, prosecuting misdemeanor domestic violence cases, holding
batterers accountable, and law enforcement’s response to health practitioner reports
of domestic violence. And you cautioned us to expect that local practice would vary
signifi cantly across the state.
After considering close to 300 interviews with practitioners, hundreds of
documents, and testimony from 69 witnesses at six public hearings throughout the
state, we have prepared a report that identifi es numerous problematic practices, and
offers clear, straightforward recommendations that we believe must be implemented
quickly to strengthen the criminal justice response to domestic violence in California.
We hereby submit the report to you, entitled Keeping the Promise: Protecting Victims
of Domestic Violence and Holding Batterers Accountable.
Our report includes disturbing examples of agencies that have failed: to respond
to domestic violence victims, to enforce the law, to comply with the law, and to
work in necessary collaboration. Yet, we have also seen fi rsthand how much can be
accomplished when there is strong local leadership and cooperation among agencies.
Our recommendations provide information on how agencies that work with or within
the criminal justice system can respond more strategically – and more effectively – to
domestic violence crimes and their victims.
This report should be read as a road map for addressing profound problems in
the handling of domestic violence incidents in California. It is a critical report, but
a report still fi lled with hope and optimism for the future – if local communities and
state agencies work closely together to implement the recommendations provided.
iv
We are confi dent that many dedicated public servants in local criminal justice
systems and many community- based advocates want a stronger response to this
devastating crime. We believe that this report can challenge all of us to redouble our
efforts to work in a collaborative and sustained fashion as we strive to make victims
safer and hold batterers accountable.
On behalf of the Task Force, thank you for your leadership and for the
opportunity to participate in this powerful social change process.
Respectfully submitted,
CASEY GWINN, Chair
Attorney General’s Task Force on
Criminal Justice Response to
Domestic Violence
v
Attorney General Bill Lockyer’s
TASK FORCE ON LOCAL CRIMINAL JUSTICE
RESPONSE TO DOMESTIC VIOLENCE
Members
Casey Gwinn, former City Attorney
City of San Diego
Task Force Chair
Ellyne Bell, Executive Director
California Alliance Against Domestic Violence
Linda Berger, Executive Director
Statewide California Coalition for Battered Women
Armando Cervantes, Chief Adult Probation Offi cer
County of San Francisco
Leonard Edwards, Superior Court Judge
County of Santa Clara
Joelle Gomez, Executive Director
Women’s Center of San Joaquin County
Sheila Halfon, Executive Director
Haven House, Inc.
Pamela Iles, Superior Court Judge
County of Orange
Hannah- Beth Jackson, former State Assembly Member
35th District
Alex Kelter, M. D., Chief
Epidemiology and Prevention for Injury Control Branch
California Department of Health Services
Sheila James Kuehl, State Senator
23rd District
Susan E. Manheimer, Chief of Police
City of San Mateo
Karen McGagin, Executive Offi cer
Victims Compensation and Government Claims Board
Kenneth J. O’Brien, Executive Director
Commission on Peace Offi cer Standards and Training
vi
Thomas J. Orloff, District Attorney
County of Alameda
Camerino Sanchez, Chief of Police
City of Santa Barbara
Jack Scheidegger, Assistant Chief
Criminal Justice Statistics Center
California Department of Justice
Paul L. Seave, Special Assistant Attorney General
Director, Crime and Violence Prevention Center
California Attorney General’s Offi ce
Lynda Smallenberger, Executive Director
Kene Me- Wu Family Healing Center, Inc.
Anastacia L. Snyder, Executive Director
Catalyst Domestic Violence Services
Susan B. Sorenson, Ph. D., Professor
School of Public Health
University of California, Los Angeles
Robert G. Splawn, M. D., MPH, FACEP
Medical Director, California Hospital Medical Center
Kavitha Sreeharsha, Staff Attorney
Asian Pacifi c Islander Legal Outreach, San Francisco
William C. Vickrey, Administrative Director
Administrative Offi ce of the Courts
Judicial Council of California
Les Weidman, Sheriff
County of Stanislaus
Gary Windom, Public Defender
County of Riverside
vii
Table of Contents
Executive Summary ............................................................. 1
Chapter 1
Introduction ......................................................................... 11
Chapter 2
Obtaining and Enforcing Domestic Violence
Restraining Orders ............................................................... 15
Chapter 3
Prosecuting Domestic Violence Misdemeanors .................. 49
Chapter 4
Holding Batterers Accountable Through
Batterer Intervention Programs, the Courts,
and Probation Departments ................................................ 58
Chapter 5
Law Enforcement’s Response to Health
Practitioners’ Reports of Domestic Violence ...................... 75
Chapter 6
Other Recommendations to Increase
the Criminal Justice System’s Capacity
to Address Domestic Violence ............................................. 84
Chapter 7
Summary of Minimum Standards
and Recommendations ........................................................ 89
Appendix
Task Force Member Biographies ......................................... 93
Regional Hearing Testifi ers ................................................ 102
Special Recognition ............................................................ 110
Acknowledgements ........................................................... 111
1
Executive Summary
The Task Force
Over the past 15 years, California has given new responsibilities and tools
to agencies within the local criminal justice systems to address the serious
problem of domestic violence. While these agencies, by themselves,
cannot satisfactorily reduce the incidence and ill effects of this violence,
they must play a large role in any strategy that proposes to do so.
It is time to take stock of their efforts. In December 2003, Attorney
General Bill Lockyer convened this 26- member Task Force to learn exactly
how these agencies have carried out their new responsibilities, and
to what extent they are succeeding. He asked that we examine four
substantive areas:
1. Restraining Orders: How are they obtained and enforced?
2. Prosecutors’ Offices: How do they handle domestic violence cases,
given that most are misdemeanors?
3. Batterer Intervention Programs: How do these programs, together
with courts and probation departments, hold batterers accountable?
4. Health Practitioner Reporting: How do law enforcement agencies
respond when they receive reports of suspected domestic violence
from health practitioners?
These questions proved challenging because the pertinent information
was scattered across the numerous autonomous agencies in each county’s
criminal justice system. Moreover, the policies and practices of these
agencies vary widely across and within the state’s 58 counties.
As a result, we focused our fact- finding efforts for the most part on 10
counties chosen to achieve diversity in location and urban/ rural make- up.
Our staff interviewed almost 300 practitioners and experts, and we heard
from 69 testifiers at six public hearings across the state.
On this basis, we have prepared our report for the Attorney General,
entitled Keeping The Promise: Protecting Victims of Domestic Violence
and Holding Batterers Accountable. It consists of findings about agency
practices – particularly “ problematic practices” – that characterize each
of the four substantive areas, and recommendations for corrective action,
including minimum standards of performance. What follows is a selection
of those problematic practices and recommendations.
2
1 Domestic Violence Restraining Orders
Restraining orders can be a powerful tool to prevent batterers from
committing further domestic violence, so long as there is a credible
threat that violators will be sanctioned.
Both Criminal and Family Courts have authority to issue these restraining
orders:
• Criminal Courts must issue a Criminal Protective Order ( CPO) when
sentencing a domestic violence defendant to probation ( the typical
sentence). Such an order either prohibits the offender from having
contact with the victim, or requires the offender to have peaceful
contact with the victim ( often issued if they still live together or share
child custody).
• Family Courts must issue a restraining order, in the form of a
Temporary Restraining Order or a permanent Order After Hearing, if
the victim offers “ reasonable proof” of domestic violence. Like a CPO,
such an order either prohibits contact or requires peaceful contact.
• All such orders must prohibit firearms possession, and must direct the
abuser to surrender any firearms within 24 hours.
Once issued, restraining orders must be recorded in a statewide database
maintained by the Department of Justice ( DOJ). Law enforcement can
consult this database to determine whether a restraining order has
been issued and served, its terms and duration, and on that basis arrest
violators and seize firearms. It is the responsibility of the Criminal Court
to ensure that CPOs are recorded in the database within one business
day, either by entering the information itself or, most frequently,
designating a law enforcement agency to do so. No agency, however, is
statutorily responsible for ensuring that Family Court restraining orders
are recorded.
Problematic Practice: According to the statewide database, the Criminal
Courts in many counties generate few Criminal Protective Orders relative
to the size of their population. Seventeen of these courts acknowledged
that: 1) they were not imposing CPOs on all required domestic violence
defendants, and/ or 2) they had no reliable procedure for entering their
CPOs into the database.
Minimum Standard: As already required by statute, Criminal Courts
must impose Criminal Protective Orders when sentencing domestic
violence offenders to probation, and must ensure that the orders are
recorded in the statewide database.
Recommendation: The Department of Justice should continue to
monitor and intervene ( if necessary) with counties that have low CPO
rates, enhance its own capacities to monitor and provide technical
assistance, and periodically issue reports on how counties are
performing.
3
Problematic Practice: Significant burdens are placed on domestic
violence victims who seek Temporary Restraining Orders and permanent
Orders After Hearing from the Family Courts. Although the victims must
fill out lengthy, not- easily- understood forms that require up to several
hours of assistance, free legal help is not available in four of the core
counties. Moreover, there appear to be some judges, scattered across
the state, who intimidate victims and make it difficult for them to obtain
protection.
Minimum Standard: Every county must provide free legal assistance
for domestic violence victims who want to obtain the protections of
Family Court restraining orders.
Problematic Practice: Family Courts in most of the core counties require
domestic violence victims to deliver copies of their restraining orders to
all law enforcement agencies that might have to enforce them – agencies
that have jurisdiction where the victim and victim’s children live, work,
and attend school. This practice unnecessarily burdens victims because
these orders are enforceable once entered into the statewide database.
In contrast, victims protected by Criminal Protective Orders are not
required to deliver copies to law enforcement.
Minimum Standard: The Family Court and law enforcement in each
county should relieve domestic violence victims of the unnecessary
burden of hand carrying family court restraining orders to the
agencies that have enforcement jurisdiction.
Recommendation: The Attorney General’s Office should sponsor
legislation making Family Courts responsible for ensuring that their
domestic violence restraining orders are entered into the statewide
database, just as Criminal Courts are responsible for their Criminal
Protective Orders. As a result of this recommendation, the Attorney
General sponsored SB 720 ( Kuehl) this session.
Problematic Practice: A batterer cannot be prosecuted for violating a
Family Court restraining order unless he or she was previously served
with the order. According to the statewide database, however, a
significant percentage of the orders issued in almost every county
have not been served – ranging between 20 percent and 50 percent in
45 counties. Whether these orders are truly unserved, or erroneously
reflected as such in the database, they are highly unlikely to be enforced.
Recommendation: The Department of Justice should continue to
monitor the number of Family Court domestic violence restraining
orders that go unserved according to the statewide database,
enhance its own capacities to monitor and to provide technical
assistance, and issue periodic reports on how counties are performing.
4
Problematic Practice: We are aware of few criminal justice agencies
in the core counties that have a coordinated policy of proactively
enforcing firearm prohibitions in Criminal Protective Orders and Family
Court domestic violence restraining orders. This lack of enforcement is
particularly troubling in light of a recent UCLA finding that nearly two-thirds
of domestic violence victims who live in homes where there are guns
report that their batterers used a gun to scare, threaten, or harm them. 1
Minimum Standard: Law enforcement and prosecutors in each
county should adopt procedures to determine whether batterers
subject to Criminal Protective Orders and Family Court restraining
orders possess firearms ( e. g., by checking the Department of Justice’s
firearms database), and then seize those weapons and prosecute the
batterers.
Recommendation: The Attorney General’s Office should sponsor
legislation that authorizes local law enforcement to advise a domestic
violence victim whether, according to the Department of Justice’s
firearms database, the batterer previously purchased a firearm. This
will enable the victim to develop an effective safety plan, and put law
enforcement on notice of the potential restraining order violation.
As a result of this recommendation, the Attorney General sponsored
AB 1288 ( Chu) this session.
Problematic Practice: The heart of a Family Court domestic violence
restraining order is its requirement that the batterer have no contact,
or have peaceful contact, with the victim. The premise is that a period
of separation or regulated contact will help prevent a recurrence
of domestic violence. Law enforcement and prosecutors in the core
counties, however, rarely and inconsistently enforce violations of such
orders when issued by family court. Ironically, batterers subject to these
orders are typically more dangerous than those subject to Criminal
Protective Orders. 2
Minimum Standard: Prosecutors and law enforcement in each county
should adopt proactive policies to arrest and prosecute batterers who
violate Family Court restraining orders. Given scarce resources, such
policies could target violators who appear to pose greater safety risks.
General Recommendation
The solution for every problematic practice identified by the Task
Force relating to restraining orders requires the close collaboration of
multiple agencies in each local criminal justice system. The leaders of
these agencies – the Criminal Court and Family Court, District Attorney’s
Office, City Attorney’s Office, Sheriff’s Department, Police Departments,
Probation Department, community- based victim service and advocacy
organizations, and criminal defense bar – should convene on an on- going
basis to identify and address these problems through coordinated group
action.
5
2 Prosecuting Domestic Violence Misdemeanors
District Attorneys’ Offices prosecute most of their domestic violence cases
as misdemeanors, punishable by a jail term of one year or less, rather
than as felonies.
Problematic Practice: In the District Attorneys’ Offices in most of the core
counties, the least experienced prosecutors handle the misdemeanor
cases. This means that they handle most of the domestic violence cases,
even though such cases present some of the most difficult challenges that
any prosecutor will face, particularly at trial. For example, victims are
often hostile to the prosecution, and recant prior damaging statements
about the defendant.
Minimum Standard: All prosecutors who handle misdemeanor
domestic violence cases should receive training that allows them to
evaluate and prosecute these difficult cases effectively.
Problematic Practice: In what is a fairly widespread practice, prosecutors
enter and judges approve guilty plea agreements with domestic violence
misdemeanants that, contrary to the spirit if not the letter of the law,
do not require attendance at 52- week batterer intervention programs or
three years of probation.
Minimum Standard: Courts should not accept plea agreements
that allow attendees to avoid what is mandatory: 52- week
batterer intervention programs and three- year probationary terms.
Prosecutors should neither offer, accept, nor fail to object to, such
plea agreements.
Problematic Practice: Domestic violence victims who receive support
services are more likely to be and feel safe, and thus more likely to
cooperate with prosecutors. A majority of the prosecutors’ offices in
the core counties, however, do not work with community- based victim
advocates and agencies that provide such services, preferring instead to
work only with their own victim advocates.
Minimum Standard: Prosecutors’ offices should work with
community- based victim advocates and service agencies to address
the unique concerns and needs of domestic violence victims.
3 Holding Batterers Accountable: Batterer Intervention
Programs, Probation Departments, and the Courts
Batterer intervention programs are at the center of California’s criminal
justice response to domestic violence. Most convicted batterers
are sentenced to probation and required, as part of that sentence,
to complete a 52- week program. Even after 15 years of national
evaluations, it is impossible to say how effective these programs are.
6
This is in part because so many participants fail to complete their
programs, which in turn suggests that there are no credible sanctions for
noncompletion. The Task Force examined this key issue: how do criminal
justice agencies in the core counties ensure that batterers complete their
programs.
In the mid- 1990s, the Legislature gave batterer intervention programs
substantial responsibility for probationary supervision of batterers.
Programs must periodically apprise the court about a batterer’s
compliance with program requirements and immediately notify the
court if the batterer appears to be out of compliance. It is the court’s
responsibility to hold an immediate hearing and decide whether to
impose sanctions.
Problematic Practice: Batterers in the core counties have a dismal record
of completing their programs. The estimates of noncompletion offered
by probation officers and prosecutors ranged from 30 percent to 50
percent. The only county that tracks this data reported a noncompletion
rate of 89 percent. ( See General Recommendations, page 7.)
Problematic Practice: By law, a batterer intervention program must refer
a batterer to court for a hearing if the batterer misses a session without
“ good cause,” or misses a session, regardless of the reason, after three
excused absences. All programs surveyed in the core counties excuse
more absences – some allow many more absences – than the law permits.
Minimum Standard: In each county, the probation department, in
collaboration with the prosecutor’s office, victim advocacy agencies,
batterer intervention programs, and other members of the local
domestic violence coordinating council, should develop and enforce a
consistent policy regarding legally permissible absences from batterer
intervention programs.
Recommendation: In each county, the probation department
and prosecutor’s office, in consultation with the court, should
adopt a strategy that imposes specific, immediate, and predictable
consequences ( including immediate arrest) for absences from batterer
intervention programs.
Problematic Practice: When batterer intervention programs refer
noncompliant batterers to court ( usually for unexcused absences), the
most common judicial sanction is to re- enroll the offender in another
program, numerous times if necessary. Re- enrollment means that there
are virtually no consequences for a batterer who does not comply with
attendance requirements. The lack of consequences is complete when
judges give re- enrolled batterers credit for sessions attended in the
previous program, and some judges do precisely that.
7
Minimum Standard: In each county, the court, in consultation with
the probation department and the prosecutor’s office, should develop
a strategy to ensure that multiple re- enrollments do not take place
without additional and graduated sanctions.
General Recommendations:
1. There is need for a fundamental assessment of the extent to which
convicted batterers are held accountable by batterer intervention
programs, the courts, and probation departments. The current
approach must be improved. Little data has been collected, however,
that would allow such an assessment. The State Auditor, under
the Joint Legislative Audit Committee, is in a position to obtain the
needed information, and should be requested to do so by members of
the legislature.
2. The court and probation department in each county should
immediately develop standards and procedures for collecting,
measuring, and evaluating batterer intervention program enrollment
rates, completion rates, and recidivism rates; the reasons for
noncompletion; and judicial responses to noncompliance.
4 Law Enforcement’s Response To Health
Practitioner Reports Of Domestic Violence
Health practitioners are required by statute to make law enforcement
aware of injuries that they reasonably suspect have resulted from
domestic violence ( or assault or abuse of any type). The practitioners
must make two reports: an immediate telephone call, followed within
two days by a written report on the standard form for domestic violence
developed by the Office of Emergency Services. The report, whether
made by telephone or in writing, must include: 1) the name of the
injured person, 2) that person’s whereabouts, 3) the character and extent
of the injuries, and 4) the identity of the alleged perpetrator.
An immediate telephone call affords law enforcement the opportunity
to respond promptly to the health- care facility in order to interview
the victim before he or she leaves, interview any other witnesses at the
facility while their memories are fresh, and interview – and arrest, if
warranted – the alleged perpetrator ( if present). The written report
serves as a back- up source of information if law enforcement does not
receive the telephone report, or does not respond to the facility.
California’s domestic violence reporting requirement for health
practitioners has proven controversial. We did not attempt, however, to
decide whether the requirement is a good one. Our focus, instead, was
to find out how health practitioners are complying with their reporting
obligations, and how law enforcement responds to these reports.
8
Problematic Practice: Health practitioners must make their domestic
violence reports to the law enforcement agency that has authority to
investigate the possible crime. One- third of the practitioners surveyed,
all from large counties with multiple law enforcement agencies,
expressed deep frustration at the extensive time it often took to
determine which law enforcement agency to call, and the lack of
cooperation sometimes exhibited by police dispatchers when asked for
assistance.
Minimum Standard: Law enforcement and health practitioners in
each county or region should establish a protocol to assist health
practitioners identify the correct law enforcement agency for their
mandatory reports of domestic violence.
Problematic Practice: All health practitioners surveyed acknowledged
that they were not using the required Office of Emergency Services
form to report domestic violence to law enforcement. A number of
law enforcement representatives emphasized that the written reports
submitted by health practitioners were frequently not useful, containing
incomplete information and vague descriptions of injuries.
Minimum Standard: All health practitioners should use the required
reporting form developed by the Office of Emergency Services to
report suspected domestic violence to law enforcement.
Problematic Practice: Two- thirds of the health practitioners surveyed
had serious reservations about the speed with which law enforcement
responded to their telephone reports of suspected domestic violence.
All law enforcement personnel explained that their policies required
a response, but that health practitioners’ calls, like all requests for
assistance, are prioritized by dispatchers based on the safety of the victim
and the extent of the injuries.
Problematic Practice: All community- based victim advocacy and service
agencies expressed the view that their services for domestic violence
victims were significantly under- used in health- care settings.
Minimum Standard: In each county or region, law enforcement,
health practitioners, and community- based victim advocacy and
service agencies should adopt a procedure to ensure that there is a
coordinated response by advocates and service providers to support
domestic violence victims in health- care settings.
9
Other Recommendations To Increase The
Criminal Justice System’s Capacity To Address
Domestic Violence
1. Judicial Leadership: Redressing most of the problematic practices we
have identified requires close collaboration among multiple agencies
in each local criminal justice system. The judiciary is perhaps the most
significant agency, and yet many judges are reluctant to participate
in such efforts out of a desire to avoid an appearance of bias when
presiding over domestic violence cases. After consulting with the
Administrative Office of the Courts, we have concluded that judges
who hear domestic violence cases can and should exercise court and
community leadership on the issue.
2. Domestic Violence Courts: The Judicial Council should adopt a rule
that would delineate model court practices and procedures for
dedicated domestic violence criminal courts and specialty calendars.
3. Co- located Criminal Justice Agencies and Victim Service Agencies:
Many agencies that address domestic violence – law enforcement,
prosecutors, and victim advocates and service providers – fail to
appreciate that their missions are highly interdependent. The simple
tactic of locating personnel from these agencies in shared office space
– a tactic already employed by multiple law enforcement agencies
who work in task forces – should be implemented, which would
allow the personnel to overcome mutual distrust, avoid turf battles,
and appreciate their common goals and the virtues of their different
approaches.
4. Domestic Violence Data Collection and Reporting: The Department
of Justice collects little information on the bulk of domestic violence
offenses. Robust criminal justice data is absolutely required if
criminal justice researchers, practitioners, and policymakers are to get
a better handle on this crime.
5. Resources: More resources for staff, training, services, technology,
and data collection are urgently needed to support the criminal
justice response to domestic violence. Simply adding resources,
however, will not solve the problem; there must also be an
appropriate allocation of new and existing resources.
6. Court Watch: One of the most effective ways for communities to
hold courts and prosecutors accountable is to place trained observers
in the courtroom. This allows for the collection of data, and
underscores the importance that the community places on domestic
violence cases.
10
End Notes
1 Sorenson, S. B. & Wiebe, D. J. ( 2004). Weapons in the lives of battered women, American
Journal of Public Health, 94( 8): 1412- 1417. This is a UCLA study of more than 400 women
staying in emergency shelters for battered women in California. In addition to the
fi ndings already mentioned, the study found that 37% of the victims believed that their
partner kept a fi rearm in the home.
2 Several studies in Massachusetts have shown that men with family court restraining
orders have serious criminal histories, often more serious than those arrestees without
family court order histories. See Cochran, D. et al. ( 1998). From chaos to clarity in
understanding domestic violence, Domestic Violence Report, 3( 5); Cochran, D. ( 1995).
The Tragedies of Domestic Violence: A Qualitative Analysis of Civil Restraining Orders
in Massachusetts. Boston, MA: Offi ce of the Commissioner of Probation; Buzawa, E. et
al., ( 1999). Response to Domestic Violence in a Pro- Active Court Setting. Rockville, MD:
National Institute of Justice; Buzawa, E. et al. ( 1998). The response to domestic violence
in a model court: Some initial fi ndings and implications, Behavioral Sciences and the Law,
11
Chapter 1
Introduction
The Domestic Violence Problem
In recent years, criminal justice and public health professionals, together
with policymakers and community leaders, have increasingly recognized
that domestic violence is a serious criminal justice and public health
problem. Although women and men are at risk for all types of violent
victimization, their risk for assault, injury, and death at the hands of an
intimate partner is of special concern. Intimate partners may include
current or former spouses, current or former dating partners, and same
sex partners. National studies show that 85 percent of reported cases
of victimization by intimate partners were against women. 1 Intimate
partners perpetrate about 21 percent of all violent crimes against
women. 2 A recent report estimates that women in the U. S. sustain
two million injuries per year as the result of violent assaults by their
intimates. 3 Homicide is the most serious consequence of violence. The
rate of female- victim intimate partner homicide declined dramatically in
the 1990s, along with other forms of violent crime, but the number of
these homicides is still unacceptably high. 4 Young women ( aged 16 to
34) are at highest risk for domestic violence. This is of special concern
because women in this age group are the most likely to have young
children at home. The health consequences of physical and psychological
domestic violence can be significant and long lasting, for both victims
and their children. 5
The magnitude of the problem in California reflects the national picture.
A study by the California Department of Health Services of women’s
health issues found that nearly six percent of women, or about 620,000
women per year, experienced violence or physical abuse by their intimate
partners. 6 Women living in households where children were present
experienced domestic violence at much higher rates than women living
in households without children: domestic violence occurred in more than
436,000 households per year in which children were present, potentially
exposing approximately 916,000 children to violence in the home every
year. 7
California’s criminal justice statistics are equally alarming. In 2003, there
were 48,854 arrests for domestic violence; 80 percent of those arrested
were men. 8 Also in 2003, there were 194,288 telephone calls for police
assistance in a domestic violence incident; 106,731 of these involved
12
a weapon. 9 From 1992 to 1999 there was an annual average of 169
female victim intimate partner homicides, and an annual average of 163
intimate partner- caused violent injury hospitalizations among women. 10
Addressing the Problem
Over the past 15 years, California has accelerated its efforts to address
the problem. The state has passed numerous laws, adopted a multitude
of policies, and initiated numerous programs designed to:
1. Ensure that domestic violence victims survive.
2. Bring offenders to justice, and hold them accountable for their
actions.
3. Better address the needs of victims and their children.
4. Prevent domestic violence.
Many of these laws have given new responsibilities and tools to agencies
within the criminal justice system. While these agencies, by themselves,
cannot satisfactorily reduce the incidence and ill effects of domestic
violence, they must play a large role in any serious, strategic effort to
do so.
It is time to take stock of these efforts. Exactly how are these agencies
carrying out their responsibilities? And to what extent are they
succeeding? These are difficult questions to answer because the
necessary information is not readily available or easily obtained. Indeed,
it is scattered across the numerous autonomous agencies that comprise
each county’s criminal justice system, as well as other agencies that
address domestic violence. These agencies include, in each county, the
sheriff’s department, the police departments, the district attorney’s
office ( and sometimes a city attorney’s office), the criminal and family
courts, the probation and parole departments, community- based victim
advocates and service providers, batterer intervention programs, and
medical mandatory reporters ( e. g., hospital emergency departments).
Further, the policies and practices of these agencies vary widely across
and within the state’s 58 counties.
The Attorney General’s Task Force
In December 2003, California Attorney General Bill Lockyer convened
this Task Force to study the response of local criminal justice agencies
to domestic violence. Our first and fundamental charge was to put
together a picture of exactly what these agencies are doing. Second, the
Task Force would assess their efforts.
The Attorney General asked the Task Force to examine four substantive
areas:
1. Restraining Orders: How are domestic violence restraining orders
obtained and enforced?
2. Prosecutors’ Offices: How do prosecutors’ offices handle domestic
violence cases, given that most are misdemeanors?
13
3. Batterer Intervention Programs: How do batterer intervention
programs, with courts and probation departments, hold batterers
accountable?
4. Health Practitioner Reporting: How does law enforcement respond
to mandated reports of domestic violence from health practitioners?
The Attorney General selected 26 individuals to serve on this Task Force
representing the breadth and diversity of the agencies that address
domestic violence through the criminal justice system: county and
city prosecutors, judges, legislators, local law enforcement, probation
officers, public defenders, public health officials, researchers, state
agencies, and victim advocacy and service organizations.
Task Force Procedure
The Task Force focused its fact- finding efforts on 10 counties – referred
to as the “ core counties” – and chosen to achieve diversity in location
and urban/ rural make- up. These core counties include Humboldt,
Orange, Placer, Sacramento, San Bernardino, San Diego, San Joaquin,
Santa Clara, Solano, and Tulare. We also considered other counties to
broaden and deepen our understanding of the issues. The number of
counties considered varied by issue. Most noteworthy, we were able to
collect data on all 58 counties regarding restraining orders because of
availability of data from the statewide database on domestic violence
restraining orders.
We obtained information in two ways. First, the Attorney General’s
Office, which served as staff for the Task Force, conducted numerous key
informant interviews primarily in the core counties. Second, we held six
full- day public hearings throughout the state – in Fresno, Los Angeles,
Oakland, Redding, Sacramento, and San Diego – to hear testimony from
practitioners in the core counties and adjacent counties.
Based on the information collected, we made findings about agency
practices – particularly “ problematic practices” – that characterized
each of the four substantive areas in the core counties. We also
made three types of recommendations for corrective action. First,
we recommended “ minimum standards of performance”– the rock
bottom practices necessary for victim safety and offender accountability.
Second, we made more general recommendations. Third, we made
broader recommendations that extended beyond particular agencies
or substantive areas. When pertinent, we also identified “ promising
practices” that particular agencies were undertaking.
End Notes
1 Tjaden, P., Thoennes, N. ( 2000). Extent, Nature and Consequences of Intimate Partner
Violence: Findings from the National Violence Against Women Survey. Washington, D. C.:
U. S. Department of Justice.
14
2 Rennison, C. M., Welchans, S. ( 2000). Intimate Partner Violence. Washington, D. C.: U. S.
Department of Justice.
3 Tjaden, P., Thoennes, N. ( 2000). Extent, Nature and Consequences of Intimate Partner
Violence: Findings from the National Violence Against Women Survey. Washington, D. C.:
U. S. Department of Justice.
4 Rennison, C. M. ( 2001). Criminal Victimization 2000. Washington, D. C.: U. S.
Department of Justice.
5 Coker, A., Smith P., Bethia, L., King, M., McKeown, R. E. ( 2000). Physical health
consequences of physical and psychological intimate partner violence, Archives of Family
Medicine. 9( 5): 451- 7.
6 Lund, L. ( 2003). Violence Against Women in California, 1992- 99. Sacramento:
Epidemiology and Prevention for Injury Control Branch, California Department of Health
Services.
7 Ibid.
8 California Department of Justice, Criminal Justice Statistics Center. ( no date). Review
of Domestic Violence Statistics. This report can be accessed at http:// caag. state. ca. us/ cjsc/
publications/ misc/ dvsr/ rpt. pdf.
9 Ibid.
10 Lund, L. 2003. Violence Against Women in California, 1992- 99. Sacramento:
Epidemiology and Prevention for Injury Control Branch, California Department of Health
Services.
15
Obtaining and Enforcing Domestic
Violence Restraining Orders
The fi ndings below summarize what the Task Force learned about
obtaining and enforcing domestic violence restraining orders in the 10
core counties, with some fi ndings encompassing all 58 counties. These
fi ndings are based on fi ve sources of information. The fi rst source is
interviews conducted by Task Force staff with 73 practitioners in the
core counties: nine judges or court staff, 10 county prosecutors, 17
victim advocates and 37 law enforcement offi cers. Second, the Task
Force obtained data on all 58 counties from the Department of Justice’s
( DOJ) Domestic Violence Restraining Order System ( DVROS) on several
topics, including rates of recorded restraining orders by county, rates of
restraining orders served by county, and numbers of restraining orders
recorded as having no fi rearms restriction by county. Two DOJ experts on
DVROS helped explain this data. Third, DOJ communicated with courts
and law enforcement agencies in numerous counties to seek explanations
for troubling data in DVROS. Fourth, we received testimony at six regional
hearings from eight witnesses ( seven previously interviewed) who work in
the core counties: four victim advocates, three law enforcement offi cers
and one court staff. Finally, we received testimony from 17 witnesses
( none previously interviewed) who work in other counties: 13 victim
advocates, three law enforcement offi cers and one judge. In sum, we
obtained information from 91 individuals: 10 judges or court staff, 10
county prosecutors, 31 victim advocates and 40 law enforcement offi cers in
the core counties and eleven additional counties.
Background
Why We Have Restraining Orders
The overriding purpose of California’s domestic violence restraining order
laws is to prevent batterers from committing additional domestic violence.
This is done in three ways:
1. Prohibiting all contact, or certain types of contact, between the
batterers and their victims;
2. Ordering batterers to relinquish fi rearms and not obtain new ones; and
3. Prosecuting batterers who do not comply with the above restrictions.
Chapter 2
16
Restraining orders can afford some protection. Recent studies have
shown that such orders are associated with decreased likelihood of
subsequent physical and non- physical domestic violence. 1
Prohibiting Contact
Criminal and Family Courts may prohibit all personal contact between
victims and abusers. The rationale for these “ no contact” or “ stay away”
orders is that “ ensuring a period of separation” will help “ prevent... a
recurrence of domestic violence....” 2
Since strict separation may be counter- productive in certain
circumstances, the courts instead may issue “ peaceful contact” orders.
These orders prohibit certain types of problematic contact, such as
“ contact... with intent to annoy, harass, threaten, or commit acts of
violence,” 3 or making “ annoying telephone calls... or disturbing the
peace of mind” of the victim. 4
Disarming the Abuser and Preventing Future Firearm Purchases
When issuing domestic violence restraining orders, Criminal and Family
Courts are required to prohibit batterers from owning, purchasing,
possessing, or receiving fi rearms, and must order those who do possess
fi rearms to relinquish them to law enforcement or sell them to a licensed
fi rearms dealer. 5
Relinquishment must take place no later than 24 hours after issuance of
the order, if the batterer was present at the hearing, or 24 hours after
service of the order on the batterer if the batterer was not in court. 6
Finally, once a restraining order is entered into DOJ’s statewide Domestic
Violence Restraining Order System the restrained party will not legally
be able to purchase a fi rearm because he or she will fail the mandatory
background check performed by DOJ’s Division of Firearms.
The goal is to prevent batterers from using fi rearms to threaten, injure,
or kill domestic violence victims, their children, themselves, and law
enforcement personnel.
Enforcement and Deterrence
If prohibited contact occurs, the abuser may be prosecuted for violating
the court order and sent to jail. Penal Code § 836( c)( 1) explicitly states
that a police offi cer responding to a call alleging a violation of a Criminal
or Family Court domestic violence protective order “ shall” arrest the
batterer, even if the offi cer did not witness the alleged violation. The
threat of punishment is intended to deter abusers, both those subject to
an order and batterers in general, from engaging in prohibited contact,
thereby decreasing the risk of new domestic violence.
If the batterer does not surrender all fi rearms in his or her possession,
law enforcement may seize them and, as mentioned above, the batterer
shall be arrested and may be punished for violating the court order. Here
17
again, the threat of punishment is designed to motivate batterers to
relinquish their weapons and decrease the risk of new and aggravated
domestic violence.
In both of these cases, deterrence works best if the threat of punishment
is real and credible.
Obtaining Criminal Protective Orders
Criminal Courts can issue Criminal Protective Orders ( CPOs) in two
circumstances: during prosecution, and as a condition of probation.
During Prosecution
The court can issue a protective order ( no contact or peaceful contact)
“ upon a good cause belief that harm to, or intimidation… of a victim
has occurred or is reasonably likely to occur….” 7 The court may issue
this order at any time during the prosecution, beginning with the initial
arraignment. 8 While the court is not required to impose such an order, it
“ shall consider issuing [ such order]… on its own motion…” whenever a
“ defendant is charged with a crime of domestic violence….” 9 When the
court does issue a restraining order, it must provide a copy to the victim,
defendant, law enforcement, and the prosecutor. 10 If the court does
make such an order, it must also prohibit fi rearm possession and direct
that all fi rearms be surrendered.
As a Condition of Probation
When a defendant is sentenced to probation for a domestic violence-related
crime, the court must issue, at a minimum, a peaceful contact
restraining order, and may issue a no contact restraining order. 11 The
order ends when the probationary sentence ends, a minimum of three
years. 12 And the court must advise the victim in writing about the
restraining order. 13
Obtaining Family Court Domestic Violence
Restraining Orders
Family Courts can impose three types of domestic violence restraining
orders: Emergency Protective Orders, Temporary Restraining Orders, and
Orders After Hearing.
Emergency Protective Orders
An Emergency Protective Order ( EPO), in the form of a no contact
or peaceful contact order, can be issued at any hour of the day or
night when a police offi cer, responding to a domestic violence scene,
demonstrates to a judge ( by telephone) that “ there is an immediate and
present danger of domestic violence, based on the person’s allegation
of a recent incident of abuse or threat of abuse….” 14 The order expires
fi ve court days or seven calendar days after its issuance ( whichever is
shorter), but does not become enforceable until the offi cer informs the
18
restrained party of the order. 15 The law enforcement offi cer must make a
reasonable effort to inform the restrained party, and must give a copy of
the order to the protected party. 16
Temporary Restraining Orders
The Family Court may issue a Temporary Restraining Order ( TRO),
requiring no contact or peaceful contact, to protect any person who
submits a written affi davit demonstrating “ reasonable proof of a past act
or acts” of domestic violence. 17 The court must make its decision on the
day that the request is fi led, or on the next business day if the request
is fi led too late in the day. 18 The court is authorized to rule “ ex parte”:
that is, without giving the alleged abuser the opportunity to contest the
application. 19 The court must schedule a full hearing to take place within
20 days ( the duration of the order); 20 the order and notice of hearing
must be served on the restrained party to become enforceable.
Orders After Hearing
After the full hearing, referred to above, the Family Court may issue a
permanent restraining order, termed an Order After Hearing ( OAH). It
can last up to three years, and can be renewed. 21 If the restrained party
appears at the hearing, he or she is considered to have been served with
the court’s order. 22 If the restrained party does not appear at the hearing
( despite having been notifi ed), the order is deemed served if: 1) the OAH
is identical to the TRO ( except for the order’s duration), and 2) a copy of
the OAH is mailed to the restrained party at the last address known to
the court. 23 When the OAH is not identical to the TRO, the OAH does not
become enforceable until it is personally served on the restrained party.
Informing Law Enforcement About Restraining Orders
Law enforcement cannot enforce a Criminal or Family Court restraining
order unless it can determine, at the time of an alleged violation, that:
1. An order was issued and is still in effect;
2. The order was served on the violator; and
3. The order prohibits the alleged misconduct.
Law enforcement may make these determinations by consulting a
statewide computer database called the Domestic Violence Restraining
Order System ( DVROS), created and maintained by the Department of
Justice ( DOJ) since 1991.
If DVROS does not show that there is an enforceable restraining order
– even though in fact there is one – law enforcement is highly unlikely
to enforce the order, and the victim will be left without a remedy
and at increased risk. In such circumstances, the batterer will be able
to purchase fi rearms from a licensed fi rearms dealer because DOJ’s
background check, which includes a search of DVROS, will fi nd no
restraining order.
19
Responsibility for Putting Information Into DVROS
To ensure that DVROS has complete, accurate, and up- to- date
information, the Criminal Courts are required to make sure that
the contents of each Criminal Protective Order ( and other relevant
information, such as the name of the protected party, whether the order
was served, and the existence of a fi rearms prohibition) are entered
into DVROS within “ one business day” of the order’s issuance. 24 In
discharging this obligation, courts themselves can input the information
directly into DVROS or designate a local law enforcement agency to
do so. 25 The law treats Family Court restraining orders very differently,
leaving it to each county to determine what agency or agencies ( if any)
will be responsible. 26 ( Such orders must be entered “ immediately” into
DVROS, though that term is not defi ned. 27)
Mechanics of Putting Information Into DVROS
Each county is required to develop a procedure to transmit domestic
violence restraining order information to DVROS through the California
Law Enforcement Telecommunications System ( CLETS). 28 CLETS allows all
law enforcement agencies, DOJ, the courts, prosecutors, probation, and
certain other local and state agencies to communicate in a secure fashion
in order to access DOJ databases.
Whatever procedure is adopted, when a court issues a domestic violence
restraining order, it must do so on forms issued by the Judicial Council
of California, CR- 160 ( CPO) or DV- 110 ( TRO) or DV- 130 ( OAH), and
then someone must convey that order to someone who will enter the
information into DVROS. 29 To date, the courts in only four counties have
decided to enter restraining order information directly into DVROS. As
a result, local law enforcement agencies, virtually all of whom have
CLETS terminals and access to DVROS, have the lion’s share of inputting
the information into DVROS. This means that the courts and local law
enforcement, as well as prosecutors and probation, must cooperate if
restraining order information is to make its way into DVROS.
Penalties For Violating Domestic Violence
Restraining Orders
Criminal Protective Orders
1. A District Attorney or City Attorney may charge a defendant ( who is
being prosecuted for, or has been convicted of, domestic violence)
with the misdemeanor of violating a CPO. The alleged violator has
the right to counsel and a jury trial and, if convicted, may be jailed for
up to one year. 30
2. If a defendant, who is being prosecuted for domestic violence,
violates a CPO while free on bail, the court may increase the
defendant’s bail.
3. If a defendant, who has been convicted of domestic violence, violates
a CPO imposed as part of a probationary sentence, he or she may
be charged with violating probation. At the probation revocation
It’s not written,
but it’s pretty
much known that
nonviolent violations
of restraining
orders… takes six
to seven reports
of those violations
before there’s a
prosecution.
Advocate Manager,
Oakland Hearing
20
hearing, the defendant has the right to counsel, but not to a jury
trial; and unlike most criminal proceedings, the prosecution must
prove its case by a “ preponderance of the evidence,” a much lower
standard than “ beyond a reasonable doubt.” If the court fi nds that
the defendant violated the CPO, it may sentence the defendant to
jail.
Family Court Restraining Orders
1. A District Attorney or City Attorney may charge a batterer who is
subject to a Family Court restraining order with the misdemeanor of
violating that order. 31 The batterer has the right to counsel and a jury
trial. If convicted, the batterer may be jailed for up to one year.
2. A domestic violence victim who has obtained a Family Court
restraining order may ask the court to fi nd the batterer guilty of
criminal contempt for violating that order. 32 The batterer has the
right to counsel, but not to a jury trial so long as the potential
jail sentence cannot exceed six months. If the court fi nds that the
batterer violated the order, it may impose a sentence of up to fi ve
days in jail for each violation. The court may also order the batterer
to pay the attorney fees and costs incurred by the victim in initiating
the contempt proceeding.
What The Laws Do Not Require
The Legislature has established the framework for a statewide domestic
violence restraining order system, but has left it for each county to
determine the all- important details: how each of the numerous
mandates will be carried out and what role each agency will play in the
process. Each county must determine, for example:
1. Who will make sure that a domestic violence victim understands that
a Criminal Protective Order has been issued?
2. When a Criminal or Family Court issues a restraining order, how will
the provision that prohibits fi rearm possession be enforced and which
agencies will make it happen?
3. When a Family Court issues a restraining order, who will see to it that
the order is entered into DVROS, and who will enter it?
4. When a Family Court issues a restraining order, who will take
responsibility for determining the best means of serving the order
upon the batterer?
In the Problematic Practices on the following pages, we discuss how
California’s counties have addressed, or not addressed, these and other
questions.
21
Problematic Practices, Minimum Standards
of Performance, and Recommendations
for Action
The Task Force found 13 problematic practices related to the obtaining
and enforcing of domestic violence restraining orders. They are set
forth below. Following each problematic practice, we set forth ( when
applicable) the minimum standard of performance that we believe the
criminal justice system must meet, and specific recommendations for
corrective action. Finally, we set forth a general recommendation for
collaborative action by all agencies within the criminal justice system.
1. Criminal Courts Are Not Meeting Legal Requirements
Summary: The Criminal Courts in at least 17 counties have not complied
with the statutory mandates that they: 1) issue Criminal Protective Orders
( CPOs) whenever sentencing domestic violence offenders to probation,
and 2) ensure that those orders are entered into the Domestic Violence
Restraining Order System ( DVROS).
There appear to be three reasons for noncompliance:
• Some courts did not understand that CPOs were required when
domestic violence offenders were sentenced to probation;
• Most courts failed to understand their statutorily required leadership
role in ensuring the entry of CPOs into DVROS; and
• In some counties, a lack of cooperation between the courts and other
criminal justice agencies hindered CPO data entry into DVROS.
After DOJ intervened with these courts, a majority appears to have taken
some action to increase the number of CPOs listed in DVROS.
CPOs In DVROS: DVROS can set out, by county, the total number of CPOs
that have been entered into DVROS and are in effect as of a certain date.
One of our fi rst steps was to obtain for each county the total number
of orders in effect as of September 24, 2003 ( the date of the query). In
order to compare the output of each county regardless of the size of its
population, we converted the number of CPOs into the rate per 1,000
county residents. Table 1 sets out the number and rate of CPOs for each
county.
There was a wide disparity in rates. Among the 34 “ large” counties33
( populations of 100,000 or more), the rates varied from 9.4 in San Joaquin
to zero in three counties. The 23 “ small” counties ( with populations less
than 100,000) showed an even greater variation, ranging from 15.68 in
Siskiyou to zero in four counties. While we expected to see variation
among counties, Table 1 strongly implies that the courts in the counties
with extremely low rates ( i. e., close to zero) were not complying with the
laws requiring the issuance of CPOs and their entry into DVROS. Table 1,
however, does not prove noncompliance, for if a county were to have few
domestic violence convictions, its courts could lawfully issue few CPOs.
22
Comparing Orders to Domestic Violence Convictions: To examine this
possibility, we determined for each county the number of domestic violence
convictions that should have resulted in CPOs ( i. e., convictions where the
offenders were sentenced to probation). This information is also displayed
in Table 1. We then compared the number of these convictions to the
number of CPOs that were in fact entered into DVROS. 34 If the number
of such convictions exceeded the number of CPOs listed in DVROS, then it
would be fair to conclude that the courts in that county had failed to comply
with their obligations by not issuing CPOs in all required cases, and/ or by not
entering information into DVROS when they did issue CPOs. 35
Table 1 shows that 13 of the 16 lowest- rate large counties had fewer CPOs
than domestic violence convictions. Indeed, the 10 with the lowest rates had
substantially more convictions than CPOs. For example, Table 1 indicates
that Riverside County should have a minimum of 2,906 CPOs in the system,
but only 130 appear as entered into DVROS. In contrast, most of the large
counties with higher CPO rates had many, many more CPOs than convictions.
The same pattern holds true for the small counties: the 10 lowest- rate
counties had many fewer CPOs than domestic violence convictions, and the
10 highest- rate counties had many more CPOs than convictions. In sum, the
courts in at least 23 counties:
• did not issue CPOs as part of every probationary sentence for a
domestic violence conviction; and/ or
• did not enter into DVROS those probationary CPOs that they did issue.
Letters to Courts in Lowest CPO- Rate Counties: To determine the precise
problem in these 23 counties, and to bring them into compliance with the
law, DOJ asked the 10 large counties with the lowest CPO rates ( ranging
from 0.39 to zero) and 7 of the worst- performing small counties ( rates
ranging from 1.23 to zero) why they had entered so few CPOs into DVROS,
and how they planned to improve in the future.
In response, the courts in six large counties and six small counties explained
that they had always issued mandatory CPOs, but had never adopted a
procedure to have those orders entered into DVROS. All claimed that they
would now use the statutorily required Judicial Council form CR- 160, work
with others ( usually the District Attorney) to help complete the form, and
have the information on it entered into DVROS. In two of these counties,
however, the Task Force learned that there were serious disputes among
court personnel, the District Attorney’s Offi ce, and law enforcement about
their respective roles in getting the orders into DVROS.
The court in one small county stated that it had been unaware of the
requirement to issue CPOs when sentencing domestic violence offenders to
probation, but would now do so.
Finally, the courts in four large counties advanced both types of explanations:
• that they had not adopted a procedure to have all CPOs entered into
DVROS; and
23
Number Rate per 1,000
Expected number of CPO
based on number of DV
convictions requiring CPO
Table 1
Criminal Protective Orders ( CPO) in effect as of September 24, 2003
as listed in the Domestic Violence Restraining Order System ( DVROS)
San Joaquin 4,299 9.40 1,217
Yolo 1,243 9.32 306
Santa Cruz 1,927 9.15 159
Alameda 8,833 7.50 1,016
San Luis Obispo 1,415 6.81 179
Santa Clara 8,850 6.19 1,668
Los Angeles 46,414 6.09 6,645
Monterey 1,721 5.47 819
San Mateo 3,182 5.37 237
Marin 1,001 5.07 75
Orange 10,723 4.82 1,866
El Dorado 609 4.46 186
Placer 809 3.99 264
Sonoma 1,174 3.16 438
Contra Costa 2,308 3.11 423
Butte 490 3.03 236
Santa Barbara 944 2.93 471
Merced 394 2.36 321
Fresno 1,453 2.32 2,256
Kern 1,141 2.15 1,806
Sacramento 1,837 1.91 1,290
Humboldt 168 1.65 204
San Diego 3,352 1.44 788
Shasta 200 1.43 179
Tulare 114 0.39 851
Ventura 216 0.36 435
San Bernardino 251 0.18 1,841
Riverside 130 0.11 2,906
Stanislaus 26 0.07 797
Madera 5 0.05 195
Solano 8 0.02 423
Imperial 0 0.00 138
Kings 0 0.00 201
Napa 0 0.00 174
Total 105,237 – 31,010
Rate – 4.05 –
Total 3,317 – 1,074
Rate – 4.72 –
Notes:
1) The Attorney General’s Offifice has contacted the counties shown in bold about their low CPO
rates.
2) San Francisco is not included in this table because it entered all CPOs into DVROS,
regardless of whether they were related to domestic violence. Since October 2004, San
Francisco Police Department re- examined and improved the way it enters CPOs in DVROS.
3) Domestic violence convictions include only convictions for violating Penal Code section 273.5
where the sentence included probation.
Siskiyou 545 15.68 86
Mendocino 1,026 14.28 45
Glenn 288 12.52 48
Tuolumne 463 10.29 29
Plumas 119 7.45 29
Mariposa 91 6.94 18
Inyo 80 5.91 15
Lake 241 5.25 111
Calaveras 171 5.12 36
Colusa 83 4.88 26
Del Norte 110 4.39 51
Sierra 8 2.94 5
Amador 44 1.64 39
Trinity 13 1.23 32
San Benito 27 0.65 48
Mono 4 0.43 15
Sutter 2 0.03 195
Tehama 1 0.02 29
Nevada 1 0.01 65
Alpine 0 0.00 5
Lassen 0 0.00 33
Modoc 0 0.00 6
Yuba 0 0.00 108
County
with population
less than 100,000
County
with population
100,000 or more
CPO listed in DVROS
Number Rate per 1,000
CPO listed in DVROS Expected number of CPO
based on number of DV
convictions requiring CPO
24
• that they did not impose a CPO in all required circumstances ( e. g.,
if a Family Court restraining order were already in place, if the victim
objected, or if the domestic violence was not extreme).
They too promised to comply with the law.
Follow- up Thirteen Months Later: To track the performance of these
problematic counties, Table 2 presents the number of CPOs in DVROS
and the CPO rate as of October 18, 2004 – 13 months after the date
used in Table 1. All but one of the 10 lowest- performing large counties
significantly increased the number of CPOs in DVROS since being
contacted by DOJ. While this is encouraging, it should be noted that:
• These counties started at such a low level that it should have been easy
to improve;
• With all of their improvement, they still rank lowest among the large
counties; and
• Only three have now achieved a rate above 1.0.
Table 2 also shows that the seven small counties contacted by DOJ had
not materially increased the number of CPOs, despite their statements
that they would implement new procedures. In fairness, DOJ did not
contact them until early August 2004, and thus it is possible, given the
relatively small number of domestic violence- related convictions in their
counties, that those courts have not yet had sufficient time to see the
fruits of their new procedures.
Because 100 percent of the counties investigated have acknowledged
their failure to issue mandatory CPOs and/ or to enter those orders in
DVROS, we believe that many of the other counties with low CPO rates
have significant room for improvement.
This belief is reinforced by our experience with San Diego. In early
August 2004, DOJ asked the San Diego Presiding Judge to explain the
county’s low CPO rate ( Table 1: 1.44), because it had been reported to
DOJ that San Diego was not entering all CPOs into DVROS. One month
later, the San Diego court provided a detailed response acknowledging
that numerous problems had been discovered and that solutions were
being implemented. Table 2 reflects the resulting significant increase
in CPOs – there were 4,787 CPOs in DVROS as of October 18, 2004, an
increase of almost 50 percent from September 2003.
Minimum Standard
As already required by law, the Criminal Courts must impose
Criminal Protective Orders on all domestic violence offenders
sentenced to probation. Further, as already required by law, the
Criminal Courts must ensure that all Criminal Protective Orders,
whether imposed during prosecution or sentencing, are entered
into the Domestic Violence Restraining Order System within one
business day.
25
Yolo 1,433 10.55 190
San Joaquin 4,753 10.13 454
Santa Cruz 1,944 9.05 17
Alameda 10,303 8.60 1,470
San Luis Obispo 1,789 8.39 374
Orange 15,205 6.73 4,482
Placer 1,387 6.62 578
Santa Clara 9,576 6.57 726
San Mateo 3,868 6.44 686
El Dorado 908 6.43 299
Marin 1,230 6.20 229
Los Angeles 45,050 5.84 - 1,364
Merced 985 5.75 591
Monterey 1,786 5.55 65
Butte 702 4.22 212
Fresno 2,508 3.92 1,055
Santa Barbara 1,243 3.79 299
Contra Costa 2,684 3.57 376
Sonoma 1,239 3.27 65
Kern 1,206 2.21 65
San Diego 4,787 2.02 1,435
Humboldt 200 1.95 32
Shasta 251 1.76 51
Sacramento 1,688 1.72 - 149
Tulare 451 1.56 337
Solano 512 1.53 504
San Bernardino 1,668 1.18 1,417
Madera 95 0.91 90
Napa 87 0.86 87
Ventura 469 0.78 253
Riverside 392 0.31 262
Stanislaus 72 0.19 46
Imperial 24 0.18 24
Kings 5 0.05 5
Number Rate per 1,000
Increase or decrease
of CPO since 9- 23- 03
Table 2
Criminal Protective Orders ( CPO) in effect as of October 18, 2004
as listed in the Domestic Violence Restraining Order System ( DVROS)
Total 120,500 – 15,263
Rate – 4.55 –
Total 4,282 – 965
Rate – 5.96 –
Notes:
1) The Attorney General’s Offifice has contacted the counties shown in bold about their low
CPO rates.
2) San Francisco is not included in this table because it entered all CPOs into DVROS,
regardless of whether they were related to domestic violence. Since October 2004,
San Francisco Police Department re- examined and improved the way it enters CPOs in
DVROS.
County
with population
less than 100,000
County
with population
100,000 or more
CPO listed in DVROS
Number Rate per 1,000
CPO listed in DVROS
Number
Increase or decrease
of CPO since 9- 23- 03
Number
Mendocino 1,261 17.27 235
Siskiyou 569 16.28 24
Tuolumne 537 11.66 74
Glenn 265 11.15 - 23
Inyo 151 11.12 71
Mariposa 147 10.94 56
Calaveras 304 8.85 133
Lake 419 8.83 178
Plumas 102 6.34 - 17
Sierra 16 5.88 8
Del Norte 147 5.75 37
Colusa 96 5.39 13
Amador 132 4.86 88
San Benito 63 1.47 36
Yuba 62 1.24 62
Trinity 4 0.38 - 9
Mono 1 0.11 - 3
Sutter 3 0.05 1
Nevada 2 0.03 1
Tehama 1 0.02 0
Alpine 0 0.00 0
Lassen 0 0.00 0
Modoc 0 0.00 0
Recommendations
1. The Department of Justice ( DOJ) should continue to monitor
and intervene with the 17 counties that we found to be out of
compliance with the requirements for issuing Criminal Protective
Orders ( CPOs) and entering them into the Domestic Violence
Restraining Order System ( DVROS). DOJ should also expand that
monitoring and intervention to other counties with low CPO rates.
To accomplish these tasks, DOJ should enhance its capacity to both
monitor DVROS and provide technical assistance to local criminal
justice system personnel. DOJ should periodically issue public
reports ( at least annually) on its monitoring and intervention
activities.
2. The Attorney General’s Office should sponsor legislation amending
Penal Code § 136.2( g) to make clear that courts have the authority
to issue CPOs that prohibit contact regardless of whether the
defendant intends to annoy, harass, threaten, or commit acts
of violence. ( Penal Code § 1203.097( a)( 2) authorizes courts
to prohibit contact in this manner when sentencing domestic
violence offenders to probation, as does Family Code § 6320 with
respect to domestic violence protective orders.) Pursuant to this
recommendation, the Attorney General’s Office has sponsored
such legislation this session, SB 720 ( Kuehl).
2. Unserved and Unrecorded Criminal Protective Orders
A defendant cannot be arrested or convicted for violating a Criminal
Protective Order ( CPO) unless he or she was present in court when the
order was issued or otherwise notified of the order. According to the
Domestic Violence Restraining Order System ( DVROS), however, in many
counties there are a significant number of defendants who appear not
to have been served with the CPOs issued against them. See Table 3.
In Los Angeles County, for example, 5.09 percent of all CPOs in DVROS
( 2,338) are listed as unserved. Whether these CPOs are truly unserved,
or erroneously reflected as such in DVROS, they are highly unlikely to be
enforced.
Recommendation
The Department of Justice should: 1) continue to monitor the number
of unserved Criminal Protective Orders in the Domestic Violence
Restraining Order System, 2) enhance its capacity to monitor and to
provide technical assistance to local criminal justice system personnel,
and 3) periodically issue public reports ( at least annually).
3. Victims Are Usually Not Notifi ed When Criminal Protective
Orders Are Terminated
Current law does not require that domestic violence victims be notified
when a Criminal Protective Order ( CPO) is terminated by court action
before it is scheduled to end. This leaves the victim believing that
protection is being provided by a CPO in force, when it is not.
26
Stanislaus 23 0 23 0.00%
Solano 7 0 7 0.00%
Madera 7 0 7 0.00%
Kings 1 0 1 0.00%
Santa Clara 9,087 33 9,120 0.36%
Sonoma 1,246 8 1,254 0.64%
Orange 12,552 159 12,711 1.25%
Monterey 1,772 23 1,795 1.28%
Sacramento 1,748 32 1,780 1.80%
Yolo 1,295 24 1,319 1.82%
San Mateo 3,432 68 3,500 1.94%
Shasta 200 4 204 1.96%
San Joaquin 4,455 122 4,577 2.67%
Fresno 1,726 50 1,776 2.82%
Riverside 145 5 150 3.33%
San Bernardino 697 25 722 3.46%
Alameda 9,229 334 9,563 3.49%
Marin 1,046 44 1,090 4.04%
Santa Cruz 1,800 84 1,884 4.46%
Merced 679 32 711 4.50%
Tulare 161 8 169 4.73%
Kern 1,076 55 1,131 4.86%
Los Angeles 43,577 2,338 45,915 5.09%
San Luis Obispo 1,553 92 1,645 5.59%
Butte 493 31 524 5.92%
San Diego 3,492 234 3,726 6.28%
El Dorado 669 65 734 8.86%
Contra Costa 2,245 236 2,481 9.51%
Santa Barbara 925 115 1,040 11.06%
Placer 923 119 1,042 11.42%
Ventura 236 32 268 11.94%
Humboldt 156 27 183 14.75%
Napa 0 0 0 -
Imperial 0 0 0 -
As served As unserved
Percent
listed in DVROS
Table 3
Criminal Protective Orders ( CPO) listed as Served and Unserved in the
Domestic Violence Restraining Order System ( DVROS) as of March 5, 2004
Total 106,653 4,399 111,052 3.96%
Total 3,525 111 3,636 3.05%
Note:
1) San Francisco is not included in this table because it entered all CPOs into DVROS,
regardless of whether they were related to domestic violence. Since October 2004,
San Francisco Police Department re- examined and improved the way it enters CPOs in
DVROS.
Amador 74 0 74 0.00%
Colusa 88 0 88 0.00%
Mono 2 0 2 0.00%
Nevada 1 0 1 0.00%
Plumas 115 0 115 0.00%
San Benito 36 0 36 0.00%
Sierra 11 0 11 0.00%
Sutter 3 0 3 0.00%
Trinity 6 0 6 0.00%
Siskiyou 552 2 554 0.36%
Tuolumne 434 4 438 0.91%
Calaveras 240 6 246 2.44%
Glenn 266 8 274 2.92%
Mendocino 1,094 38 1,132 3.36%
Mariposa 113 5 118 4.24%
Inyo 99 9 108 8.33%
Yuba 11 1 12 8.33%
Lake 262 26 288 9.03%
Del Norte 118 12 130 9.23%
Alpine 0 0 0 -
Lassen 0 0 0 -
Modoc 0 0 0 -
Tehama 0 0 0 -
County
with population
less than 100,000
County
with population
100,000 or more Total
CPO listed in DVROS
As served As unserved Total
CPO listed in DVROS
As unserved
Percent
listed in DVROS
As unserved
27
Recommendation
The Attorney General’s Office, District Attorneys’ Offices, and
prosecuting City Attorneys’ Offices should collaboratively create
a process to notify victims when a Criminal Protective Order is
terminated by court action before it is scheduled to end, so that
victims have adequate time to seek Family Court restraining orders
or other services such as safety planning.
4. Emergency Protective Orders Are Underused
A victim of domestic violence can seek an Emergency Protective Order
( EPO), at any time of day or night, from a police officer who responds
to a call for assistance. If the officer demonstrates to a judge ( by
telephone), pursuant to Family Code § 6250( a), that
a person is in immediate and present danger of domestic violence,
based on the person’s allegation of a recent incident of abuse or
threat of abuse,
the judge, through the officer, can issue an order on the spot that
prohibits firearm possession and requires no contact or peaceful contact.
Though of short duration ( five to seven days), this order can provide
some temporary protection, and serve as “ proof” of abuse if the victim
later applies for a Temporary Restraining Order ( TRO) and Order After
Hearing ( OAH). It is important to realize that a victim may need an EPO
Promising Practice
Restraining Orders
Long Beach’s Domestic Violence Court
Superior Court Judge Deborah Andrews in Long Beach has a dedicated domestic violence court. In
1998, Judge Andrews initiated a Protective Order Committee to which 30 stakeholders are invited,
including Judges, Commissioners and Superior Court administrators from both Long Beach and
San Pedro courts, the District Attorney, the Long Beach City Attorney, the Public Defender, the Los
Angeles Sheriff’s Department, the Long Beach Police Department, the Probation Department, Legal
Aid, domestic violence victim advocates from Long Beach and San Pedro, and Records Division
personnel in the Long Beach Police Department, the Sheriff’s Department and the Los Angeles Police
Department. They meet approximately every eight weeks. They have discussed a variety of topics
including:
• What the courts expect to see in an application for a Family Court restraining order;
• How best to transmit Temporary Restraining Orders to the various police departments;
• What is being done about weapons relinquishment;
• How to avoid confl icting Family and Criminal Court orders regarding allowable contact with the
victim and children;
• Discussion of Judicial Council forms; and
• What details are necessary for orders to be considered enforceable.
This promising practice has resulted in better communication among all the regional stakeholders,
better entry of all types of orders into the California Department of Justice’s Domestic Violence
Restraining Order System, and especially, improved communication between Family and Criminal
Courts.
For more information, contact Judge Andrews at dandrews@ lasuperiorcourt. org .
28
29
( and TRO and OAH) even if the abuser is arrested. If the abuser is released
on bail, as happens frequently, the criminal justice system can impose no
restriction on the abuser until the first arraignment, which may not take
place for many weeks.
Despite the importance of EPOs, they are infrequently issued in most
counties. Table 4 displays the number of EPOs entered into DVROS that
were issued in each county between October 1, 2003 and September 30,
2004, and then converts that number into the rate per 1,000 residents.
While there is some variation among the large counties ( ranging from 5.15
in Fresno to 0.05 in San Bernardino) and the small counties ( ranging from
3.19 in Mendocino to 0.08 in Yuba), Table 4’ s most significant message
is that 19 of the 35 large counties ( including five of our core counties -
Humboldt, Sacramento, San Bernardino, San Diego and Tulare) and 13 of
the 23 small counties have rates less than 1.0.
This picture of underuse is consistent with both the interviews in core
counties and the testimony presented to the Task Force. Victim advocates
in five of the 10 core counties reported that EPOs were rarely issued, and
advocates in three others reported that the use of EPOs varied significantly
depending on the local law enforcement agency involved. In addition,
a number of testifiers spoke about law enforcement agencies that have,
or appear to have, a policy of discouraging victims from requesting EPOs.
Fresno County, with the highest rate of 5.15, is a notable exception to this
picture, in part because the Superior Court there has adopted a Standing
Order that allows law enforcement to issue an EPO for the court, without
having to contact the court, if the victim reports an act of domestic
violence, has a visible injury, and the officer believes there is an immediate
and present danger to the victim. If these criteria are not met and the
victim requests an EPO, a judge is called and the request is made.
Minimum Standard
Law enforcement in each county should adopt policies that strongly
encourage officers to request Emergency Protective Orders ( EPO);
and the Superior Court in each county should adopt policies and
procedures that maximize the accessibility and availability of EPOs.
Recommendations
1. The Department of Justice should: 1) continue to monitor
the number of Emergency Protective Orders in the Domestic
Violence Restraining Order System, 2) enhance its capacity
to do so and to provide technical assistance to local criminal
justice system personnel, and 3) periodically issue public
reports ( at least annually).
2. Legislation should be sponsored to significantly shorten the
time between arrest and arraignment in domestic violence
cases. When defendants are released on bail shortly after arrest
– as most are – the prosecution typically takes numerous weeks
( sometimes up to 12 weeks) before filing criminal charges.
30
Fresno 3,293 5.15
San Joaquin 2,177 4.64
Merced 485 2.83
Sonoma 887 2.34
San Francisco 1,406 2.27
Solano 758 2.26
Stanislaus 839 2.22
Santa Barbara 614 1.87
Marin 351 1.77
Santa Cruz 372 1.73
Orange 3,824 1.69
Madera 140 1.34
San Luis Obispo 270 1.27
Placer 255 1.22
Santa Clara 1,709 1.17
Yolo 136 1.00
Tulare 286 0.96
San Mateo 534 0.89
Humboldt 91 0.89
Alameda 1,008 0.84
El Dorado 116 0.82
Kern 375 0.69
Contra Costa 493 0.66
Los Angeles 3,982 0.52
Napa 51 0.50
Ventura 241 0.40
Imperial 34 0.26
Kings 26 0.25
Riverside 312 0.24
Sacramento 147 0.15
Butte 23 0.14
Shasta 19 0.13
Monterey 28 0.09
San Diego 136 0.06
San Bernardino 65 0.05
Number Rate per 1,000
Table 4
Emergency Protective Orders ( EPO) in the Domestic Violence Restraining Order
System ( DVROS) from October 1, 2003 to September 30, 2004
Total 25,483 –
Rate – 0.94
Total 778 –
Rate – 1.08
Mendocino 233 3.19
Calaveras 89 2.59
Glenn 54 2.27
Mono 19 2.03
Sierra 5 1.84
Amador 47 1.73
Inyo 18 1.32
Lake 62 1.31
Mariposa 16 1.19
Tuolumne 54 1.17
San Benito 40 0.93
Alpine 1 0.91
Nevada 59 0.75
Modoc 5 0.63
Tehama 25 0.57
Del Norte 14 0.55
Plumas 7 0.44
Colusa 7 0.39
Lassen 8 0.26
Trinity 2 0.19
Sutter 6 0.09
Siskiyou 3 0.09
Yuba 4 0.08
County
with population
less than 100,000
County
with population
100,000 or more
EPO entered in DVROS
Number Rate per 1,000
EPO entered in DVROS
31
This substantial delay can embolden defendants to commit
additional crimes and put victims at increased risk without the
possible protection of a Criminal Protective Order ( CPO). ( A
CPO cannot be issued until a defendant’s first court appearance,
which occurs only after charges have been filed.) Shortening
the time period between arrest and filing charges should help
deter future violence.
5. The Numbers and Rates of Orders After Hearing Can Be
Improved
Table 5 depicts by county the number of Orders After Hearing ( OAH)
listed in DVROS that were in effect as of September 24, 2003, and then
converts that number into the rate per 1,000 residents. As with previous
tables, the rate varies significantly by county: from 5.68 ( Placer) to
1.81 ( Marin) among the large counties, and from 9.57 ( Modoc) to 0.76
( Colusa) among the small. Several factors may contribute to the OAH
rate, including:
• how difficult it is for a victim to request a TRO ( which a victim must do
in order to seek an OAH) and the OAH itself. This will vary, depending
on such factors as 1) the legal assistance available to help the victim fill
out the numerous forms and navigate the court system, 2) the court’s
accessibility ( e. g., distance from victim, and available transportation),
and 3) the judge’s attitude ( see Problematic Practice 6);
• whether the victim is required to hand- carry the TRO and OAH to one
or more local law enforcement agencies ( see Problematic Practice 7);
and
• how difficult it is to have the notice of the OAH hearing served on the
batterer ( see Problematic Practice 8).
While we have not conducted a specific inquiry into the reasons for any
particular county’s OAH rate, we have no doubt that the counties with
the lowest rates have significant room for improvement.
Recommendation
The Department of Justice should 1) continue to monitor the
number of Orders After Hearing in the Domestic Violence
Restraining Order System, 2) enhance its capacity to do so and
to provide technical assistance to local criminal justice system
personnel, and 3) periodically issue public reports ( at least annually).
6. Signifi cant Burdens Are Placed On Victims Seeking Family Court
Restraining Orders
Obtaining a Temporary Restraining Order ( TRO), and ultimately making
that temporary order permanent with an Order after Hearing ( OAH),
is not an easy process. The victim must fill out forms, which, though
recently revised and simplified by the Judicial Council, are lengthy and
not always easily understood. One critical form requires a description
of the abuse ( Form DV 101). If there are divorce, child custody, and
32
Placer 1,150 5.68
Merced 807 4.83
Stanislaus 1,487 4.05
Riverside 4,853 3.92
Humboldt 378 3.70
Contra Costa 2,715 3.66
Butte 591 3.66
San Diego 8,490 3.65
Sacramento 3,193 3.31
Solano 1,077 3.28
Sonoma 1,161 3.13
Shasta 434 3.10
Imperial 380 3.04
San Francisco 1,859 3.01
San Joaquin 1,363 2.98
Tulare 864 2.97
Kings 295 2.91
Yolo 387 2.90
El Dorado 396 2.90
Napa 288 2.89
Fresno 1,761 2.81
San Bernardino 3,810 2.76
Kern 1,386 2.61
Santa Cruz 531 2.52
Madera 252 2.50
Orange 5,352 2.41
Los Angeles 18,080 2.37
Santa Barbara 753 2.34
San Luis Obispo 478 2.30
Ventura 1,322 2.22
San Mateo 1,255 2.12
Monterey 658 2.09
Santa Clara 2,971 2.08
Alameda 2,415 2.05
Marin 357 1.81
Number Rate per 1,000
Table 5
Family Court Domestic Violence Restraining Orders After Hearing ( OAH) in effect as of
September 24, 2003 as listed in the Domestic Violence Restraining Order System ( DVROS)
Total 73,549 –
Rate – 2.77
Total 2,870 –
Rate – 4.08
Modoc 76 9.57
Lake 356 7.75
Siskiyou 257 7.40
Trinity 64 6.08
Inyo 81 5.98
Mendocino 391 5.44
Sierra 14 5.14
Sutter 298 4.61
Plumas 73 4.57
Glenn 101 4.39
Del Norte 107 4.27
Calaveras 136 4.07
Mono 31 3.37
Yuba 164 3.33
Nevada 252 3.28
Lassen 89 2.92
Alpine 3 2.80
Tehama 116 2.69
Mariposa 34 2.59
Amador 61 2.27
San Benito 93 2.24
Tuolumne 60 1.33
Colusa 13 0.76
County
with population
less than 100,000
County
with population
100,000 or more
OAH listed in DVROS
Number Rate per 1,000
OAH listed in DVROS
33
child visitation matters to be considered along with the restraining order
( and there often are), the number of forms increases and the help needed
multiplies.
Interviews in the core counties revealed how weighty this burden could
be. Advocates in all 10 counties discussed the difficulty of the process
in general, which usually required providing several hours of one- on-one
paperwork assistance to victims. These burdens were confirmed in
testimony at the hearings. Free legal assistance is not available in four of
the 10 core counties.
Moreover, there appears to be a small number of judges, scattered across
the state, who engage in practices that make it difficult for victims to
obtain Family Court restraining orders. Examples of such practices include:
1) refusing to issue TROs if the victim did not call the police to report the
abuse, 2) refusing to take up child support and custody issues as part of the
process, 3) requiring that victims seeking TROs have experienced a recent
emergency, and 4) modifying a no- contact request to allow contact, and
crossing out the firearms prohibition.
Minimum Standard
Every county must provide free legal assistance for domestic violence
victims who want to obtain the protections of Temporary Restraining
Orders and Orders After Hearing from Family Court.
7. Unnecessary Burdens Are Placed On Victims After They Obtain
Family Court Restraining Orders
Traditionally, most counties required victims who obtained a Temporary
Restraining Order ( TRO) and an Order After Hearing ( OAH) to carry the
orders from the courthouse to a law enforcement agency for entry in the
Domestic Violence Restraining Order System ( DVROS). This practice now
appears to be diminishing in frequency. In nine of the 10 core counties,
court personnel, law enforcement, and others cooperate so that the order
is entered into DVROS with little or no help from the victim.
The same cannot be said for another practice: that of requiring the
victim to carry a copy of the TRO and OAH to all of the law enforcement
agencies that might have to enforce the order. These include agencies
that have jurisdiction where the victim lives and works, and where the
victim’s children attend school and are cared for. In seven of the 10 core
counties, victims are expressly advised by the court, court personnel, family
law facilitators, and/ or advocates that they must deliver the orders to
the pertinent law enforcement agencies. The eight police departments
contacted in these counties stated that they expected the victim to drop off
a copy of the order. These departments did state, however, that they would
enforce an undelivered order if 1) the order were in DVROS, and 2) the law
enforcement agency that had entered the information into DVROS ( usually
the Sheriff’s Department) could confirm the accuracy of the information.
These departments’ second choice is in fact the preferred practice
34
contemplated by the legislation that created DVROS. Family Code
§ 6381( b) & ( c) provides that “ data contained in the Domestic Violence
Restraining Order System shall be deemed to be original, self-authenticating,
documentary evidence of the court orders” which as such
are enforceable. Before making an arrest on the basis of data in DVROS,
moreover, it is DOJ policy that law enforcement confirm the accuracy of
that data with the agency that originally put it into the system. ( That is
why agencies that enter information into DVROS must maintain a 24/ 7
capability to “ confirm” that information.)
Thus, requiring the victim to deliver a copy of a TRO or OAH is unnecessary
for enforcement and creates an unnecessary burden on the victim.
Significantly, victims protected by CPOs are not required to deliver those
orders to any law enforcement agency. The Sheriffs’ Departments in three
core counties recognize that this practice has outlived its usefulness. They
expressly reject the need for victim- delivered copies, insisting that an
order’s presence in DVROS provides an adequate basis for enforcement.
Within those three counties, moreover, the four police departments
contacted by the Task Force agreed that an order’s entry in DVROS was
sufficient.
Unfortunately, the outmoded practice of hand- delivery by the victim was
approved as recently as the previous set of Judicial Council forms ( revised
January 1, 2001) and these forms continue to be used even though more
recent forms ( effective January 1, 2003) have superseded them. Even the
newest forms ( e. g. DV- 530), while not containing boilerplate language
ordering victim- delivery, nevertheless advise victims to “[ m] ake sure your
local police have a copy [ of the order] too. Ask them to enter it into
CLETS….” Some court and law enforcement personnel understandably
interpret this advisory as implicitly requiring the domestic violence victims
to hand- deliver restraining orders to local law enforcement.
Minimum Standard
The court and law enforcement in each county should adopt a
protocol that relieves domestic violence victims of the burden of
hand carrying Family Court restraining orders from the issuing
court: 1) to the agency that will enter them into the Domestic
Violence Restraining Order System, and 2) to the agencies that have
enforcement jurisdiction.
Recommendation
The Attorney General’s Office should sponsor legislation that amends
Family Code § 6380( a) so that Family Courts would be responsible for
entering their domestic violence restraining orders into the Domestic
Violence Restraining Order System ( DVROS), just as the Criminal Courts
are responsible for entering Criminal Protective Orders into DVROS.
As it currently stands, no entity is responsible for Family Court orders.
Pursuant to this recommendation, the Attorney General’s Office has
sponsored such legislation this session, SB 720 ( Kuehl).
35
8. Family Court Restraining Orders: Unserved and Unrecorded
A batterer cannot be arrested or convicted for violating a Family Court
restraining order unless he or she was present in court when the order
was issued or otherwise notified of the order. According to the Domestic
Violence Restraining Order System ( DVROS), however, there are a
significant number of batterers in many counties who have not been
served with the Order After Hearing ( OAH) issued against them. See
Table 6. Among the large counties, Riverside has the highest percentage
of OAH listed as unserved ( 43.4%), followed by Butte ( 40.1%); those with
the lowest percentages were Monterey ( 13.5%) followed by Madera
( 15.2%). Among the small counties, Siskiyou has more orders listed
as unserved than served – 52 percent. Other small counties also have
high percentages of unserved OAH, including Sierra ( 46.2%), Mono
( 42.9%) and Yuba ( 39.9%). Whether these orders are truly unserved, or
erroneously reflected as such in DVROS, they are highly unlikely to be
enforced.
Service of TROs is not included in this table because the orders remain in
the system for three weeks only. Still, concerns about the service of TROs
were apparent in core county interviews and at many regional hearings.
There was testimony that in one county, service was so slow that
approximately 30 percent of hearings for permanent orders had to be
re- scheduled for lack of service.
Recommendation
The Department of Justice should 1) continue to monitor the
number of Orders After Hearing that have been entered into
the Domestic Violence Restraining Order System as unserved, 2)
enhance its capacity to do so and to provide technical assistance
to local criminal justice system personnel, and 3) periodically issue
public reports ( at least annually).
9. Firearm Prohibitions: Unissued and Unrecorded
In May 2004, DOJ requested DVROS data on the number of OAH and
CPOs without firearm prohibitions. The results were quite surprising,
given that all OAH and CPOs must contain firearm prohibitions. As with
other data found in DVROS, it was not possible to conclude whether the
courts in these counties had failed to include firearm restrictions in their
orders, or whether the recording agency, usually law enforcement, had
entered the data incorrectly into DVROS. Further investigation of county
practices was required.
Tables 7 ( OAH) and 8 ( CPO) display the results by county for orders
effective as of May 11, 2004. For OAH ( see Table 7), San Francisco had
the highest percentage of orders with no firearm prohibitions ( 16.5%)
among large counties, followed by Kern ( 16.1%) and Santa Barbara
( 14.3%). Among small counties, Mono had the highest percentage of
orders without restrictions ( 52.4%), followed by Lake ( 33%) and Colusa
( 26.7%).
36
Monterey 601 94 695 13.5%
Madera 207 37 244 15.2%
Merced 686 142 828 17.1%
Marin 295 62 357 17.4%
Ventura 1,037 228 1,265 18.0%
Sonoma 870 217 1,087 20.0%
Santa Clara 2,359 595 2,954 20.1%
San Mateo 875 240 1,115 21.5%
Imperial 274 77 351 21.9%
Humboldt 276 79 355 22.3%
Tulare 751 229 980 23.4%
Shasta 356 110 466 23.6%
San Luis Obispo 343 108 451 23.9%
Solano 767 269 1,036 26.0%
Placer 808 285 1,093 26.1%
Kern 1,019 364 1,383 26.3%
Sacramento 2,351 861 3,212 26.8%
Stanislaus 1,114 408 1,522 26.8%
Santa Barbara 542 200 742 27.0%
El Dorado 282 107 389 27.5%
Alameda 1,717 658 2,375 27.7%
San Diego 6,084 2,352 8,436 27.9%
San Francisco 1,332 525 1,857 28.3%
Fresno 1,293 517 1,810 28.6%
Orange 3,678 1,558 5,236 29.8%
Kings 174 77 251 30.7%
Santa Cruz 354 179 533 33.6%
Los Angeles 12,166 6,335 18,501 34.2%
San Bernardino 2,494 1,340 3,834 35.0%
San Joaquin 871 483 1,354 35.7%
Napa 177 107 284 37.7%
Contra Costa 1,683 1,056 2,739 38.6%
Yolo 216 137 353 38.8%
Butte 356 238 594 40.1%
Riverside 2,810 2,155 4,965 43.4%
Listed as served Listed as unserved Percent listed
as unserved
Table 6
Family Court Domestic Violence Restraining Orders After Hearing ( OAH) listed as Served and
Unserved in Domestic Violence Restraining Order System ( DVROS) as of March 5, 2004
Total 51,218 22,429 73,647 30.5%
Total 2,117 747 2,864 26.1%
Alpine 4 0 4 0.0%
Tehama 118 4 122 3.3%
Amador 52 4 56 7.1%
Inyo 74 9 83 10.8%
Mendocino 332 63 395 15.9%
Tuolumne 45 9 54 16.7%
Modoc 62 14 76 18.4%
San Benito 74 17 91 18.7%
Plumas 54 15 69 21.7%
Nevada 199 56 255 22.0%
Lassen 63 18 81 22.2%
Lake 279 85 364 23.4%
Colusa 9 3 12 25.0%
Glenn 71 24 95 25.3%
Mariposa 32 12 44 27.3%
Trinity 49 20 69 29.0%
Calaveras 88 38 126 30.2%
Del Norte 69 33 102 32.4%
Sutter 197 101 298 33.9%
Yuba 92 61 153 39.9%
Mono 12 9 21 42.9%
Sierra 7 6 13 46.2%
Siskiyou 135 146 281 52.0%
County
with population
less than 100,000
County
with population
100,000 or more
Total
OAH in DVROS
Listed as served Listed as unserved Percent listed
Total as unserved
OAH in DVROS
37
For CPOs ( see Table 8), Madera had the highest percentage of orders with
no prohibitions ( 42.9%) among large counties, followed by Butte ( 36.1%)
and Alameda ( 20.3%). Among small counties, San Benito had the highest
percentage of orders without restrictions ( 45.2%), followed by Tuolumne
( 24.2%) and Mariposa ( 15.7%).
In early August 2004, DOJ sent letters to the 274 agencies ( mostly law
enforcement) that had entered these prohibition- less orders into DVROS.
The letters asked the agencies to explain why this had occurred, modify
the data if warranted, and fax copies of orders where judges had crossed
out firearm prohibitions. Of the 151 agencies that responded, the most
common explanations were:
• Judges had crossed off firearm prohibitions from the Judicial Council’s
orders. We confirmed the existence of this practice in interviews in two
counties and from testimony at a regional hearing about judges in
three counties;
• Restraining orders without firearm prohibitions, that were unrelated to
domestic violence, had been entered incorrectly into DVROS under the
OAH category;
• The agencies that entered CPOs into DVROS sometimes misinterpreted
the form ( CR- 160). The form contains two checkboxes, one of which
is to be used to indicate whether the batterer had 24 or 48 hours to
relinquish firearms. If neither box was checked, however, the agency
sometimes misinterpreted the lack of a check mark to mean that the
order carried no firearm prohibition; and
• The agencies that entered orders into DVROS had been trained to
enter Elder and Dependent Adult Abuse orders into DVROS as OAH.
Prior to July 2004, these orders had no firearm prohibitions.
Two months after DOJ sent its letters to the 274 agencies, we again
examined the firearm prohibitions in DVROS to determine if the recording
agencies had changed their practices or corrected erroneously entered
data. Tables 7 and 8 reflect that a substantial decrease in the number and
percentage of orders without firearms prohibitions had occurred.
For OAH ( see Table 7), the percent of orders without prohibitions in the
large counties dropped significantly, from 5.3 percent to 2.6 percent. The
same was true for the small counties, where the percent of such orders
fell from 11.5 percent to 4.5 percent. Consistent with these totals, Table
7 also reflects that many individual counties reduced their previously high
percentages. Among large counties, Kern lowered its percentage from
16.1 percent to 1.4 percent, and Santa Barbara lowered its percentage
from 14.3 percent to zero. The percentage in San Francisco, on the
other hand, increased from 16.5 percent to 19.4 percent. Since October
2004, San Francisco Police Department has re- examined and significantly
improved the entry of firearms prohibition into DVROS. Among small
counties, Mono lowered its percentage from 52.4 percent to 9.1 percent,
Lake from 33.0 percent to 20.1 percent, and Colusa from 26.7 percent to
12.5 percent.
38
San Francisco 1,853 305 16.5% 1,729 335 19.4%
Madera 230 29 12.6% 236 20 8.5%
Los Angeles 18,600 1,331 7.2% 18,284 878 4.8%
San Mateo 1,111 96 8.6% 1,056 44 4.2%
Ventura 1,245 77 6.2% 1,172 48 4.1%
Butte 621 36 5.8% 608 24 3.9%
San Bernardino 3,919 272 6.9% 3,995 139 3.5%
Santa Clara 2,962 63 2.1% 2,924 100 3.4%
Humboldt 343 41 12.0% 304 10 3.3%
Imperial 334 38 11.4% 332 8 2.4%
Yolo 383 18 4.7% 373 8 2.1%
Orange 5,217 151 2.9% 5,126 105 2.0%
Alameda 2,377 147 6.2% 2,459 45 1.8%
Merced 853 68 8.0% 875 15 1.7%
Shasta 478 13 2.7% 500 8 1.6%
Riverside 4,981 149 3.0% 5,060 74 1.5%
Kern 1,386 223 16.1% 1,361 19 1.4%
Sacramento 3,233 56 1.7% 3,178 43 1.4%
San Joaquin 1,343 40 3.0% 1,291 15 1.2%
Monterey 707 16 2.3% 705 8 1.1%
San Luis Obispo 459 26 5.7% 525 5 1.0%
Napa 292 13 4.5% 323 3 0.9%
Marin 357 13 3.6% 355 3 0.8%
Fresno 1,827 118 6.5% 1,923 15 0.8%
San Diego 8,387 200 2.4% 8,161 57 0.7%
Santa Cruz 569 30 5.3% 582 4 0.7%
Tulare 1,012 73 7.2% 1,006 6 0.6%
Solano 1,057 24 2.3% 1,030 4 0.4%
Stanislaus 1,510 25 1.7% 1,490 3 0.2%
Sonoma 1,063 3 0.3% 1,024 2 0.2%
Placer 1,086 57 5.2% 1,052 2 0.2%
Contra Costa 2,750 4 0.1% 2,825 4 0.1%
Santa Barbara 722 103 14.3% 6,992 2 0.0%
El Dorado 385 17 4.4% 384 0 0.0%
Kings 229 7 3.1% 158 0 0.0%
Total Without firearms prohibition Total
Table 7
Orders After Hearing ( OAH) without Firearms Prohibition as listed in Domestic Violence
Restraining Order System ( DVROS) as of May 11, 2004 and October 18, 2004
Total 73,881 3,882 5.3% 79,398 2,056 2.6%
County
with population
100,000 or more Percent
Lake 364 120 33.0% 339 68 20.1%
Modoc 77 16 20.8% 74 13 17.6%
Colusa 15 4 26.7% 16 2 12.5%
Plumas 64 9 14.1% 80 8 10.0%
San Benito 89 9 10.1% 87 8 9.2%
Mono 21 11 52.4% 22 2 9.1%
Mariposa 46 3 6.5% 52 3 5.8%
Tehama 128 6 4.7% 131 7 5.3%
Nevada 263 14 5.3% 255 10 3.9%
Lassen 86 19 22.1% 81 2 2.5%
Siskiyou 273 29 10.6% 280 5 1.8%
Del Norte 92 17 18.5% 84 1 1.2%
Calaveras 122 7 5.7% 111 1 0.9%
Mendocino 400 13 3.3% 435 1 0.2%
Alpine 4 0 0.0% 2 0 0.0%
Amador 59 0 0.0% 60 0 0.0%
Glenn 97 10 10.3% 93 0 0.0%
Inyo 81 1 1.2% 68 0 0.0%
Sierra 14 1 7.1% 13 0 0.0%
Sutter 310 5 1.6% 322 0 0.0%
Trinity 73 5 6.8% 81 0 0.0%
Tuolumne 62 2 3.2% 67 0 0.0%
Yuba 166 32 19.3% 164 0 0.0%
Total 2,906 333 11.5% 2,917 131 4.5%
County
with population
less than 100,000
OAH 5/ 11/ 04 OAH 10/ 18/ 04
Total Total
OAH 5/ 11/ 04 OAH 10/ 18/ 04
Number
Without firearms prohibition
Number Percent
Without firearms prohibition
Number Percent
Without firearms prohibition
Number Percent
Note:
Since October 2004, San Francisco Police Department has re- examined and significantly
improved the entry of fi rearms prohibition into DVROS.
39
For CPOs ( see Table 8), the percent of orders without prohibitions in the
large counties dropped to from 3.8 percent to 1.4 percent. The same was
true for the small counties, where the percent dropped from 9.9 percent to
2.0 percent. Many individual counties substantially reduced their previously
high percentages. Among the large counties, Madera lowered its percentage
from 42.9 percent to 12.6 percent, Butte from 36.1 percent to 23.5 percent,
and Alameda from 20.3 percent to 3.8 percent. Among the small counties,
Tuolumne lowered its percentage from 24.2 percent to 0.9 percent, and
Mariposa from 15.7 percent to 9.5 percent. The percentage in San Benito, on
the other hand, increased from 45.2 percent to 55.6 percent.
Recommendations
1. The Department of Justice should 1) continue to monitor the
number of Criminal Protective Orders and Orders After Hearing that
have been entered into the Domestic Violence Restraining Order
System ( DVROS) without firearm prohibitions, and intervene with
those counties that are not issuing those prohibitions and/ or not
entering them into DVROS, 2) enhance its capacity to monitor and
intervene, and to provide technical assistance to local criminal justice
system personnel, and 3) periodically issue public reports ( at least
annually).
2. The Judicial Council and the Department of Justice should alter the
following current Judicial Council restraining order forms:
a. CR- 160 form, used to issue Criminal Protective Orders ( CPO),
should be modified to eliminate the two checkboxes that allow
a judge to indicate whether a defendant has 24 or 48 hours to
relinquish his or her firearms.
b. The CR- 160 form, in its current version, contains
non- mutually exclusive checkbox categories for the type of
order. The form does not clearly ask whether the order is
related to a domestic violence case. Often these checkboxes
are not even used, probably due to the confusion about which
box to mark. Thus it is left to those entering data to determine
whether the order is domestic violence related, and record
those data in the Domestic Violence Restraining Order System
( DVROS.) We recommend the development of two CPO forms:
one for domestic violence- related cases and one for all other
criminal cases. In addition to ensuring the data in DVROS reflect
actual cases, it will make it easier to track orders where firearms
prohibitions are crossed off.
c. DV- 100 form, used by domestic violence victims to request
Temporary Restraining Orders and Orders After Hearing from
Family Court, should be modified to include a question asking the
victim to describe the number, types, and locations of firearms ( if
any) owned or used by the batterer. This information could be
used by law enforcement to enforce firearm prohibitions.
d. DV- 110 form, used by Family Courts to issue Temporary
Restraining Orders, should be modified to exclude the checkbox
by the language on firearm prohibitions, as those prohibitions
are mandatory.
40
CPO 5/ 11/ 04
Butte 568 205 36.1% 702 165 23.5%
Madera 7 3 42.9% 95 12 12.6%
Yolo 1,363 108 7.9% 1,433 100 7.0%
Ventura 285 45 15.8% 469 24 5.1%
Alameda 9,813 1,988 20.3% 10,303 387 3.8%
Riverside 155 5 3.2% 392 12 3.1%
Stanislaus 15 2 13.3% 72 2 2.8%
Tulare 192 31 16.1% 451 10 2.2%
Los Angeles 45,270 1,117 2.5% 45,050 678 1.5%
San Bernardino 984 35 3.6% 1,668 21 1.3%
Merced 790 85 10.8% 985 12 1.2%
Monterey 1,855 62 3.3% 1,786 18 1.0%
Humboldt 189 16 8.5% 200 2 1.0%
Santa Clara 9,275 70 0.8% 9,576 87 0.9%
Sonoma 1,301 44 3.4% 1,239 11 0.9%
El Dorado 781 53 6.8% 908 8 0.9%
Kern 1,136 11 1.0% 1,206 8 0.7%
Solano 112 9 8.0% 512 3 0.6%
Santa Barbara 1,098 22 2.0% 1,243 6 0.5%
San Luis Obispo 1,710 122 7.1% 1,789 8 0.4%
San Mateo 3,650 51 1.4% 3,868 17 0.4%
San Joaquin 4,635 43 0.9% 4,753 13 0.3%
Fresno 1,994 26 1.3% 2,508 5 0.2%
Contra Costa 2,549 6 0.2% 2,684 5 0.2%
Marin 1,149 10 0.9% 1,231 2 0.2%
San Diego 3,984 119 3.0% 4,787 7 0.1%
Placer 1,172 29 2.5% 1,387 2 0.1%
Sacramento 1,746 4 0.2% 1,688 1 0.1%
Santa Cruz 1,916 12 0.6% 1,944 1 0.1%
Orange 13,462 13 0.1% 15,205 4 0.0%
Imperial 0 0 - 24 0 0.0%
Kings 2 0 0.0% 5 0 0.0%
Napa 4 0 0.0% 87 0 0.0%
Shasta 216 0 0.0% 251 0 0.0%
Total Without firearms prohibition
Table 8
Criminal Protective Orders ( CPO) without Firearms Prohibition as listed in Domestic Violence
Restraining Order System ( DVROS) as of May 11, 2004 and October 18, 2004
Total 113,378 4,346 3.8% 120,501 1,631 1.4%
County
with population
100,000 or more
San Benito 42 19 45.2% 63 35 55.6%
Mariposa 127 20 15.7% 147 14 9.5%
Colusa 95 14 14.7% 96 8 8.3%
Sierra 10 1 10.0% 16 1 6.3%
Yuba 33 3 9.1% 62 3 4.8%
Plumas 115 3 2.6% 102 3 2.9%
Amador 87 10 11.5% 132 2 1.5%
Lake 315 38 12.1% 419 6 1.4%
Tuolumne 455 110 24.2% 537 5 0.9%
Glenn 276 15 5.4% 265 2 0.8%
Siskiyou 557 48 8.6% 569 4 0.7%
Mendocino 1,160 64 5.5% 1,261 3 0.2%
Calaveras 254 8 3.1% 304 0 0.0%
Del Norte 128 16 12.5% 147 0 0.0%
Inyo 114 5 4.4% 151 0 0.0%
Mono 1 0 0.0% 1 0 0.0%
Nevada 1 0 0.0% 2 0 0.0%
Sutter 3 0 0.0% 3 0 0.0%
Tehama 1 0 0.0% 1 0 0.0%
Trinity 5 0 0.0% 4 0 0.0%
Alpine 0 0 - 0 0 -
Lassen 0 0 - 0 0 -
Modoc 0 0 - 0 0 -
Total 3,779 374 9.9% 4,282 86 2.0%
County
with population
less than 100,000
CPO 10/ 18/ 04 CPO 5/ 11/ 04 CPO 10/ 18/ 04
Number Percent
Without firearms prohibition
Number Percent
Total Total
Without firearms prohibition
Number Percent
Without firearms prohibition
Number Percent
Total
Note:
1) San Francisco is not included in this table because it entered all CPOs into DVROS,
regardless of whether they are related to domestic violence. Since October 2004, San
Francisco Police Department re- examined and improved the way it enters CPOs in
DVROS.
41
10. A Legal Loophole Allows Many Charged with Domestic
Violence Offenses To Keep Their Firearms
If a Criminal Court exercises its discretion to order that an individual
charged with domestic violence must have no contact or peaceful contact
with the alleged victim, that order – without exception – must also direct
the defendant to relinquish any firearms. 36 If a Criminal Court does not
enter such an order, however, the court has no independent basis to issue
a firearm prohibition.
This presents a grave problem. Research consistently points to the
heightened dangers that domestic violence victims face when firearms
are present – batterers commonly use guns against their victims.
According to a recent UCLA study, when a gun is kept in a domestic
violence home, nearly two- thirds of the surveyed victims reported that
the batterer used that gun to scare, threaten, or harm her. 37 ( Perhaps it
is not surprising that so many domestic violence victims do not want to
cooperate with law enforcement when their batterers are prosecuted.)
Moreover, domestic violence is more likely to escalate to homicide when
there are firearms in the home: domestic violence assaults with firearms
are 12 times more likely to result in death than domestic violence assaults
without firearms. 38
Our witnesses and interviewees left no doubt that judges frequently
decline to issue no contact or peaceful contact orders. Whatever the
reasons for this practice – the victim objects, the victim and defendant
live together or have children, or there is no prosecutor present to
request an order ( see Prosecution Problematic Practice 2) – courts should
have the authority to order relinquishment of firearms. But they do not
under current law.
Recommendations
1. The Attorney General should sponsor legislation that would
require courts to prohibit those charged with domestic violence
offenses from possessing or obtaining firearms. Pursuant to this
recommendation, the Attorney General’s Office has sponsored
such legislation this session, AB 1288 ( Chu).
2. If this legislation is enacted, the Judicial Council and the
Department of Justice should modify the CR- 160 form to require
arraignment courts to issue a Criminal Protective Order ( CPO)
prohibiting firearm possession, regardless of whether a CPO is also
issued restricting contact.
11. Firearm Prohibitions Are Rarely Enforced
All domestic violence restraining orders – issued by Criminal or Family
Courts – are supposed to prohibit a batterer from owning, purchasing,
possessing, or receiving firearms; as Tables 7 and 8 demonstrate, most
orders do. These orders direct the batterer to get rid of any firearms
that he or she possesses or controls within 24 hours after learning of the
order, either by surrendering them to local law enforcement or selling
This [ when a
restraining order is
issued] is the most
dangerous time [ for
victims]. And we
ought to be doing
something about it.
We ought to be going
after those guns.
Lieutenant,
San Diego Hearing
42
them to a licensed gun dealer. Finally, these orders direct the batterer to
file a receipt with the court within 72 hours of learning about the order,
demonstrating that relinquishment has taken place.
The objective of these firearms prohibitions is to prevent batterers from
using firearms to threaten, injure, or kill domestic violence victims, as well
as their children, themselves, and law enforcement personnel. According to
the UCLA study mentioned above, however, such firearm use is a common
occurrence: when a gun is kept in a domestic violence home, nearly two-thirds
of the surveyed victims reported that the batterer used that gun to
scare, threaten, or harm her. 39 Moreover, domestic violence is more likely
to escalate to homicide when there are firearms in the home: domestic
violence assaults with firearms are 12 times more likely to result in death
than domestic violence assaults without firearms. 40
Despite the heightened dangers that domestic violence victims face when
there are firearms in the home, we are aware of few criminal justice
agencies in the core counties that have a coordinated policy of proactively
enforcing firearm prohibitions in Criminal Protective Orders. We are
unaware of any agencies in the core counties that have such a policy
when it comes to firearm prohibitions in Family Court domestic violence
restraining orders.
On a brighter note, we can report that batterers subject to Criminal
Protective Orders and Family Court restraining orders are failing DOJ’s
mandatory background check when they attempt to purchase firearms from
licensed dealers: in 2002 and 2003, DOJ denied 451 attempted purchases
due to restraining orders. DOJ also denied 768 attempted purchases by
convicted domestic violence offenders during that same period.
Minimum Standard
Law enforcement and prosecutors in each county should adopt
procedures to determine whether batterers subject to Criminal
Protective Orders and Family Court restraining orders possess firearms
( e. g., by checking with DOJ’s firearm database), and then seize those
weapons and prosecute the batterers.
For example: law enforcement, before serving a Family Court Order
After Hearing ( which must contain a firearms prohibition), should
determine whether there is reason to believe that the batterer
possesses a firearm ( for law enforcement’s own protection, as well as
the victim’s safety), and then seize any firearms when making service.
Another example: when defendants with criminal domestic violence
charges request the court to modify bail or grant release without
bail, the court can agree to the request providing that the defendant
agrees that he or she is subject to a firearm prohibition and that law
enforcement can search for and seize firearms.
DOJ Firearms Division should provide technical assistance to local
agencies.
43
Recommendation
The Attorney General’s Office should sponsor legislation that allows
local law enforcement to advise a domestic violence victim whether
DOJ’s firearm database indicates that the batterer possesses a firearm.
Pursuant to this recommendation, the Attorney General’s Office has
sponsored such legislation this session, AB 1288 ( Chu).
12. Minimal Enforcement and Prosecution of Family Court “ No
Contact” and “ Peaceful Contact” Orders
The heart of a domestic violence restraining order is its requirement that
the batterer either have no contact or have peaceful contact with the
victim, not simply that the batterer not commit additional crimes ( for which
a restraining order would be superfluous). The reason for these orders, as
explained above, is that a period of separation or of regulated contact will
help “ prevent… a recurrence of domestic violence….” 41 These orders will
have limited impact, however, if violations are rarely punished. That is why
the Legislature directed law enforcement to arrest all such violators. 42
Unfortunately, we found broad agreement among victim advocates, law
enforcement, and court personnel in the 10 core counties and numerous
other counties, through interviews and testimony at all six regional
hearings, that enforcement and prosecution of these types of violations
were the exception, not the rule. In testimony, we heard that law
enforcement seemed to require a “ magic number” of violations before
they would respond or consider taking action: in one county, it was seven
Enforcing Firearms Prohibitions in
Criminal Protective Orders
Orange County’s Domestic Violence Court
The Orange County Domestic Violence Court subjects all defendants at initial arraignment to a
Criminal Protective Order ( which automatically prohibits fi rearms possession), and orally advises
them to report to the Department of Justice ( DOJ) Firearms Division within 24 hours of the
hearing ( or 24 hours after release from custody) in order to surrender any fi rearms. The court
also gives the defendants a written advisory that states: 1) the defendant should report to DOJ by
calling the listed phone number; 2) the defendant should leave a voicemail message identifying all
fi rearms ( in the manner specifi ed on the form); 3) a Special Agent will contact the defendant with
fi nal instructions; and 4) the agent will compare the fi rearms that the defendant identifi ed over
the telephone with the data in DOJ’s Automated Firearms System.
After four weeks of operation ( period ending April 30, 2005), the court has ordered 100 defendants
to call DOJ. Of these, 21 have not yet done so because they are still in custody, and 13 others
have failed to call. Three defendants surrendered weapons voluntarily, and a fourth was arrested
for possession of weapons in violation of the Criminal Protective Order. These four defendants
surrendered, in total, four handguns, two shotguns, three rifl es, and one grenade launcher.
For more information contact DOJ Firearms Division Assistant Director Dale Ferranto at Dale.
Ferranto@ doj. ca. gov, or Special Agent Supervisor Cris Abad at Cris. Abad@ doj. ca. gov.
44
violations, in another it was five pursuant to District Attorney policy, and in
another the District Attorney will not prosecute these violations at all.
Law enforcement and prosecutors advanced a number of reasons to
explain their extreme reluctance to prosecute these violations:
• the proof of the violation is often difficult ( e. g., when the only
witnesses are the batterer and victim);
• the proof of the batterer’s intent to violate the order is often not clear
( e. g., a batterer, prohibited from coming within 100 feet of the victim’s
home, approaches to within 50 feet);
• the case will not appeal to a jury or judge when the violations are truly
technical ( e. g., as above, the batterer comes too close to the victim’s
home);
• the victim sometimes appears to have invited the violation ( e. g., the
victim invites the batterer over to the home, resulting in the batterer’s
violation of the order);
• law enforcement does not have useful guidelines to interpret
prohibitions on non- peaceful contact; and
• there is a lack of resources to invest in these difficult- to- win non- violent
cases, given that existing resources are already taxed by the domestic
violence cases with physical injuries.
While any of these reasons might have merit in any given case, the result
appears to be that few violations are prosecuted. We do not feel that
this general lack of prosecution is justified by these reasons. A general
failure to enforce and prosecute is at odds with the purpose of the
restraining order system. Moreover, the resulting lack of enforcement and
prosecution has negative and dangerous unintended consequences. For the
victim, there is a loss of faith in the system and reluctance to report new
violations, even as these violations grow in seriousness. For the batterer,
there is a sense of empowerment to commit new violations and more
violent crimes. Finally, there are studies that show that batterers who
are subject to Family Court restraining orders typically have more serious
criminal histories than batterers convicted in the criminal courts without a
Family Court order history. 43
We note that there is an alternative basis to enforce violations of Family
Court restraining orders – a criminal contempt action brought under Code
of Civil Procedure § 1218 by a “ party” ( i. e., the victim who obtained the
Family Court order) against the alleged violator ( i. e., the batterer). This
section allows up to five days in jail for every incident. Of course, the
victim usually will not have an attorney ( though he or she can recover
reasonable attorney fees, if the batterer has funds), while an attorney
will be appointed to defend the batterer. Moreover, there is no statutory
authorization, as there must be, for a District or City Attorney to prosecute
under § 1218.44. As a result, these actions are rarely, if ever, brought.
There is also a serious question as to whether a private party – as opposed
to a public prosecutor – could legally prosecute a criminal contempt action
under any circumstance. 45
45
Minimum Standard
Prosecutors and law enforcement in each county should adopt
proactive policies and procedures to arrest and prosecute batterers
who violate Family Court restraining orders. The goal of the policy
should be the deterrence of more serious domestic violence, rather
than waiting until violations escalate to violence. Such a policy, for
example, could target those violators who appear to pose greater
safety risks in light of their criminal histories, firearm ownership,
earlier restraining orders, and previous complaints of abuse made
against them. What is key to remember is that batterers subject to
Family Court orders may be more dangerous than those who have
been charged under the Penal Code. Victim safety requires that law
enforcement and prosecutors broaden their strategic view to include
abusers both within the Criminal and the Family Court systems.
Recommendation
The Attorney General’s Office should sponsor legislation that allows a
District Attorney or City Attorney to bring criminal contempt actions
under Code of Civil Procedure § 1218. Such actions may proceed to
trial without a jury ( so long as the sentence cannot exceed six months),
making it easier and more likely that Family Court protective orders
will be enforced. Pursuant to this recommendation, the Attorney
General’s Office has sponsored such legislation this session, SB 720
( Kuehl).
13. Issues of Culture and Interpretation
Many non- English- speaking victims are immigrants to California, and are
often reluctant to call the police. In addition to their cultural aversion to
involving outsiders in family matters, prior negative experiences with the
police and the justice systems in their countries of origin often result in
serious reluctance to involve the authorities in this country. 46 Testifiers at
regional hearings confirmed this reluctance. Further, whether they are here
legally or not, it is likely they will perceive an increased risk of involving law
enforcement because they fear deportation. To complicate matters, their
fear of deportation is tied to their fear of losing custody of their children. 47
This cultural backdrop makes it even harder for domestic violence victims
who are not English speakers to feel confident about calling and confiding
in law enforcement. Although most counties have interpretation services
available, interviews with advocates and law enforcement in some of the
ten core counties revealed that needing interpretation services in any
language besides Spanish slowed the process down considerably. As a
result, according to testimony, police sometimes use batterers or children
as interpreters if their English is better, as it often tends to be. Allowing
the batterer to interpret for the victim, of course, is fraught with danger,
carrying the possibility that the victim will be the one arrested. Finally,
when police give out information on restraining orders and shelter
programs to victims, the information is usually not available in Asian
languages. ( See General Recommendation, page 46.)
46
General Recommendation: Inter- Agency
Collaboration
The mitigation and elimination of every problematic practice identified
by the Task Force in connection with restraining orders, require the
close collaboration of multiple agencies in each local criminal justice
system. Each problem is a function of local rules, resources, priorities,
and personalities, and so requires for its solution a local collaborative
approach.
Hence, the Task Force recommends that the leaders of the agencies that
comprise each local criminal justice system – Criminal Court and Family Court
judges, court personnel, the District Attorney’s Office, the City Attorney’s
Office ( if applicable), the Sheriff’s Department, the Police Departments,
the Probation Department, community- based victim service and advocacy
organizations, and defense attorneys – convene on an on- going basis to
identify and address these problems through coordinated group action.
This could include, given the particular county:
• why the Domestic Violence Restraining Order System ( DVROS) reflects
low Criminal Protective Order ( CPO) rates ( see Problematic Practice 1);
• why Emergency Protective Orders ( EPOs) are underused ( see
Problematic Practice 4);
• why DVROS reflects low Order After Hearing ( OAH) rates ( see
Problematic Practice 5);
• how legal services could better assist victims obtain Family Court
restraining orders ( see Problematic Practice 6);
• why victims are obligated to carry Family Court orders to law
enforcement agencies that have jurisdiction where they and their
children live, work, and go to school ( see Problematic Practice 7);
• why DVROS reflects large numbers of unserved CPOs ( see Finding 2),
and Temporary Restraining Orders ( TROs) and OAH ( see Problematic
Practice 8);
• why DVROS reflects significant percentages of CPOs and OAH that do
not have firearm prohibitions ( see Problematic Practice 9);
• why firearm prohibitions issued by Criminal and Family Courts are
rarely enforced ( see Problematic Practice 11);
• why there is minimal enforcement of Family Court “ no contact” and
“ peaceful contact” restraining orders ( see Problematic Practice12); and
• how non- English- speaking victims could be better served by law
enforcement, the prosecution, and the courts ( see