Domestic Violence in California
California has taken a pioneering approach to reducing violence against women, constantly re-evaluating the effectiveness of its laws and policies and ensuring the state follows best practices in preventing domestic violence and protecting victims. However, some areas of the law still require improvements.
 
History of Domestic Violence in California
In the 1970s, the police in the city of Richmond were the first in the U.S. to implement a training program on domestic violence crisis intervention.[1] Notably, this program operated without federal or state funding. In 1977, California enacted the Domestic Violence Center Act, which helped fund domestic violence “safe houses” by requiring that part of each marriage license fee go toward a special fund.[2]
 
As part of its pioneering efforts, the California Judicial Council held a special conference on domestic violence. The Family Violence and the Courts Conference brought together various sectors of the government and community partners to address issues of domestic violence and develop a coordinated community response.[3] The conference was a success, and the Administrative Office of the Courts (AOC) has hosted several reunion conferences to continue to engage the community and develop a coordinated response to domestic violence in the state.[4]
 
In June 2005, the California Attorney General's Task Force on Local Criminal Justice Response to Domestic Violence released a report detailing shortfalls and gaps in the enforcement of California’s domestic violence laws, called “Keeping the Promise: Victim Safety and Batterer Accountability.” The report examined three primary issues related to the California criminal justice system’s role in domestic violence cases: obtaining and enforcing restraining orders, adjudicating misdemeanor domestic violence cases, and holding batterers accountable.
 
The report found that many criminal justice agencies and the courts were not complying with the clear mandates contained in California law, including issuing criminal protective orders, complying with mandatory probationary terms, ordering batterer’s intervention, enforcing firearms ownership restrictions (i.e. disarming batterers through restraining orders), and entering all restraining orders and protective orders promptly and accurately into criminal justice databases.
 
Following the release of this report, a Domestic Violence and Procedure Task Force was appointed in September of 2005 by California Chief Justice Ronald M. George to recommend changes to improve court practice and procedure in cases involving domestic violence allegations, and specifically, to review and implement, as appropriate, the court-related recommendations contained in the June 2005 report to the Attorney General. As pointed out by the Chair of this new Task Force in urging focused attention by the California Judiciary on responding to the concerns outlined in the Attorney General’s report:
 
An act of domestic violence can be alleged in the context of cases filed in virtually every department of the court, from criminal to family to juvenile law. Some of these cases, deemed “cross-over” cases, involve multiple filings in one or more departments involving the same parties or family. In the case of elder victims, domestic violence may be a part of elder abuse or conservatorship proceedings in probate court. Domestic violence may form the basis for a claim of damages in a personal injury action filed in the general civil department. . . . In short, domestic violence affects all of us and in the most pervasive ways.[5]
 
In 2008, the Domestic Violence and Procedure Task Force released its own report to the Judicial Council of California, outlining a series of guidelines and recommended best practices that the Task Force had developed and revised over two years. These guidelines and practices related to court leadership, restraining orders under the Domestic Violence Prevention Act (DVPA), firearms relinquishment, entry of restraining and protective orders in the Domestic Violence Restraining Order System (DVROS), and criminal law procedures. The report also recommended that the Judicial Council appoint an implementation task force to ensure the recommendations were followed, and noted the general need for more effective judicial education, communication and coordination with regards to domestic violence cases. 
 
The report noted the importance of emergency protective orders; the need to evaluate carefully whether and when to provide notice to an abuser of a victim’s application for a restraining order; and the need for a court to consider the potential danger to a victim if the judge defers or denies granting a temporary protective order and sets the matter for a noticed hearing (or in some cases fails to set the matter for a hearing at all), leaving the victim with no legal protections in the interim. The report also stressed the importance of prompt and accurate entering of all protective orders into the California Law Enforcement Telecommunications System/Domestic Violence Restraining Order System (CLETS/DVROS), as required by Family Code Sec. 6380 (the primary means for law enforcement to enforce such orders), and the need to strictly enforce mandatory firearms relinquishment requirements. Finally, the report recommended best practices to ensure that criminal protective orders were adequately recorded and enforced, and to better implement mandatory probation requirements for domestic abusers.
 
California has built on these and other initiatives to develop a comprehensive body of law and policy addressing all aspects of domestic and family violence that span most areas of the state’s civil and criminal code, placing a premium on protecting the rights of victims of domestic violence, and their children, and striving to ensure adequate implementation of the state’s domestic violence laws. 
 
The Family Code and Domestic Violence Prevention Act
California’s Family Code incorporates the Domestic Violence Prevention Act (DVPA), the main purpose of which is to prevent and address acts of violence or harassment among family members or others with particular relationships, primarily by separating victims from their abusers. 
 
Definition of Domestic Violence
Violence or harassment (or “abuse”) subject to the DVPA is very broadly defined in California, covering many acts of intimidation and coercion that involve no physical violence, but that could inflict severe psychological harm on the victim and lead to acts of physical violence.  The DVPA (California Family Code § 6211) defines “domestic violence” as:
 
[A]buse perpetrated against any of the following persons:
(a) A spouse or former spouse.
(b) A cohabitant or former cohabitant, as defined in Section 6209.
(c) A person with whom the respondent is having or has had a dating or engagement relationship.
(d) A person with whom the respondent has had a child, where the presumption applies that the male parent is the father of the child of the female parent under the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12).
(e) A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected.
(f) Any other person related by consanguinity or affinity within the second degree.
 
“Abuse” is further broadly defined in Cal. Fam. Code Sec. 6203 to mean any of the following:
 
(a) Intentionally or recklessly to cause or attempt to cause bodily injury.
(b) Sexual assault.
(c) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another.
(d) To engage in any behavior that has been or could be enjoined pursuant to Section 6320 [which behavior includes “disturbing the peace” of the other party, molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, placing annoying telephone calls, and destroying personal property].
 
Inclusion of Psychological Violence
Under California law, verbal or psychological “abuse,” such as conduct that may humiliate or embarrass the other party, can constitute domestic violence.[6] While a broad definition of domestic violence is in keeping with the DVPA’s stated purpose of preventing a recurrence of acts of domestic violence and maintaining separation of the parties, including psychological or economic violence in a definition of domestic violence increases the potential for exploitation.
 
Psychological or mental harm can be very difficult to prove. Moreover, in other countries, a definition that includes psychological or economic violence has been subject to manipulation and retributive counterclaims by violent perpetrators. For example, perpetrators have claimed that physical violence is an appropriate response to an act of psychological harm, such as name-calling. To best protect victims and promote batterer accountability, general best practices dictate that a definition of domestic violence should focus on physical harm or the fear of physical harm.
 
Protective Orders in California
A victim of domestic violence may seek a protective order against her batterer to protect her from continued abuse. The victim need only provide an affidavit to the court offering reasonable proof of a past act of abuse.[7]
 
The victim has a right to the protective order even if she has not filed for divorce, legal separation, or nullity of marriage. Also, the fact that she has left the household to avoid abuse will not negatively impact her application for a protective order.[8] In 2007, California amended the law to ensure that victims of domestic violence did not have to pay filing fees in order to secure a protective order from an abuser.[9]
 
The DVPA establishes several ways for a domestic violence victim to secure a domestic violence protective order against an abuser, including:
  • Emergency protective orders (§§ 6240-6275)
  • Restraining orders (§§ 6300-6306)
  • Ex parte orders (or orders granted without the abuser present, §§ 6320-6326)

Temporary restraining orders are covered in Section 240 of the Family Code.

Scope of Protection
Protective orders offer victims of domestic abuse a broad level of protection. For example, a protective order under the DVPA prevents the abuser from having any contact with the victim, the victim’s immediate family, or even pets.[10] The DVPA also bars persons who are subject to domestic violence protective orders from owning or carrying firearms.[11]
 
Protective orders can also grant temporary sole possession of a house or car to the victim, and address child custody and visitation issues.
 
Issuing and Enforcing Protective Orders
The DVPA contains several provisions for improving the issuance and enforcement of protective orders, including requirements to enter all protective orders promptly (within 24 hours) into a Domestic Violence Restraining Order System and requirements to aid local court systems in developing informational materials for domestic violence victims.[12] California’s Family Code was updated to clarify that it is the courts’ responsibility, not the victim’s, to make sure a protective order is given to the right person for entry into the DVROS system. If orders are not entered into this electronic law enforcement system, the orders have little value as a means of protecting domestic violence victims.
 
Custody in Domestic Violence Cases
In child custody and visitation proceedings, California courts and mediators must consider domestic violence in determining the best interests of the child.[13] If the abuser is seeking custody of the child, there is a rebuttable presumption that placing the child in sole or joint custody of the abuser would not be in the best interests of the child; this presumption may only be overcome by evidence that such custody would be in the best interest of the child, and the weighing by the court of several other factors, including whether the abuser has committed any further acts of domestic violence or has completed a batter’s treatment program. (Family Code § 3044). In cases where the court appoints a child custody evaluator to assist the judge in determining the best interests of a child, such evaluators must certify that they have completed a domestic violence and child abuse training program.
 
If a protective order already exists, courts are encouraged to make custody and visitation orders consistent with the protective order. (Family Code § 3031).
 
Criminal Code Provisions on Domestic Violence
In addition to the Family Code, California addresses domestic violence comprehensively through the criminal code. California makes it illegal to use physical force--or to communicate threats of harm--against an intimate partner, and provides for enhancements to certain punishments if a violent crime also qualifies as a domestic violence crime. California has also stepped up requirements to prevent abusers from getting or retaining access to firearms, including barring abusers subject to protective orders from possessing firearms and other procedures to seize firearms in the possession of a person charged with domestic violence.[14]
 
A domestic abuser may be charged with misdemeanor domestic battery, neglect of children (felony child abuse), or felony spousal abuse (infliction of corporeal injury). The assault and battery provisions of the code include battery on a spouse, fiancé, parent of the abuser’s child, and dating partner and do not require physical evidence of injury (Penal Code § 243(e)). For felony spousal abuse, the victim must be a spouse, former spouse, cohabitant or former cohabitant, or the parent of the abuser’s child. Courts may grant perpetrators probation or suspend their sentences if the batterer successfully completes at least one year of a batterer’s treatment program.[15]
 
The battery statute specifically instructs judges not to be lenient when imposing sentences for domestic violence.[16]
                                                                                                                       
The punishment for spousal abuse, a felony, is harsher than the punishment for assault and battery, due to the requirement that some evidence of physical injury –bruising or worse -- be present for the crime to constitute felony spousal abuse. No evidence of actual injury is required for a charge of domestic battery. An assault and battery charge carries a maximum punishment of a $2,000 fine and a yearlong county jail sentence.[17] The spousal abuse provision has a maximum punishment for a first-time offender of a $6,000 fine and four years in state prison.[18] If an abuser is convicted of a felony spousal abuse charge within 7 years of a misdemeanor domestic violence conviction, the maximum prison sentence is increased to 5 years, and the maximum fine is increased to $10,000.[19]
 
In addition to the specific domestic violence charges relating to actual physical abuse, criminal threats may be charged as a misdemeanor or a felony. California law also makes it a crime to communicate a threat of serious harm to someone if the offender intends to put that person in fear, and actually does put the person in sustained fear for themselves or their immediate family (including children).
 
Battery and Corporal Injury
Penal Code § 273.5 Corporal Injury to a Spouse or Cohabitant makes it illegal to inflict a "corporal injury" resulting in a "traumatic condition." A person commits this crime by striking his/her intimate partner in some violent way and causing a visible injury, even a slight one such as swelling or a bruise. This California domestic violence law can be charged if the victim is a current or former spouse or cohabitant or the parent of the abuser’s child.
 
Penal Code 243(e)(1) Domestic Battery makes it a misdemeanor crime to inflict force or violence on an intimate partner, a category that includes a fiancé, cohabitant, the parent of the abuser’s child, or a current or former spouse or dating partner. Unlike Penal Code 273.5, this domestic violence law does not require a visible injury.
 
Domestic Strangulation
Strangulation can be dangerous and is a common precursor to deadly violence. Unfortunately, California does not have an official Felony Strangulation Law similar to the law found in other states. However, according to Women’s eNews, California prosecutors will instead charge strangulation in domestic assault cases under a broad felony, such as attempted murder, when appropriate under the circumstances of the case.
 
Firearms Possession in Domestic Violence Cases
Firearms are the most common weapon used by a male to murder a female. The presence of a firearm in the home is a serious risk for a woman in a domestic violence situation. California law[20] and federal law[21] prohibit persons subject to restraining or protective orders, as well as defendants convicted of certain crimes, from possessing or purchasing firearms or ammunition. However, it is up to the restrained person to relinquish any firearms or ammunition to law enforcement or sell them to a licensed gun dealer.
 
The Domestic Violence and Procedure Task Force recommended several procedural changes to address the difficulty of assuring that batters are disarmed, and in 2008, the California Dangerous Weapons Control Law provided that once a protective order is issued, the person subject to the order must surrender the firearm within twenty-four hours of receiving notice of the order. In the application for a protective order, the victim will have the opportunity to describe any firearms the victim knows to be in the possession of the abuser.[22] Police officers may give victims information about the firearms in the abuser’s possession. (Penal Code § 11106). Section 1524 of the California Penal Code was also recently amended to allow the issuance of a search warrant if the property to be seized includes a firearm at the scene of a domestic violence incident or under the control of a person arrested on domestic violence charges.
 
According to what was formerly known as SafeState.org, a project of the California Attorney General’s office that was disbanded, along with the Crime and Violence Prevention Center, California’s Department of Justice denied 402 permits to purchase firearms in 2006 because the purchaser was subject to a protective order. The department had over 159,515 protective orders on file as of September 2007.
 
Enhancements in Domestic Violence Charges
An individual charged with domestic violence will face higher penalties if he has other domestic violence convictions within the prior seven years. The sentence for a first offense can be up to four years in a state prison and up to $6,000 in fines. The sentence for a subsequent offense can be up to five years in jail and up to $10,000 in fines.[23]
 
Stalking
The stalking provisions in the California Penal Code make it a misdemeanor for a person to willfully, maliciously, and repeatedly follow, or willfully and maliciously harass, someone. However, if the stalker is subject to a protective order, such as a domestic violence protective order, he could be charged with a felony and face up to four years in state prison.[24]
 
Dating Violence
California offers a great deal of protection to victims of dating violence by allowing victims as young as 12 easy access to protective orders. California allows anyone above the age of twelve to get a protection order without requiring a parent or guardian’s permission. However, a copy of the order will be sent to the victim’s parent or guardian, unless the judge finds it is not in the victim’s best interest.[25]
 
The protective orders issued in dating violence cases are the same as those issued in domestic violence cases. The order may require the abuser, for example, to stay away from the victim, not contact her, pay child and spousal support, go to counseling, and surrender his firearms. It may also outline how shared property or a shared residence will be used, as well as terms of child custody and visitation rights.
 
In a 2010 dating violence report card issued by Break the Cycle, an organization aimed at ending teen dating violence, California was one of only seven states to receive an A. Positive legislation in California relating to dating violence allows people in dating relationships to obtain restraining orders (ROs), allows minors to petition for ROs on their own behalf as early as age 12, and recognizes damage to property, stalking, harassment, and the threat of physical abuse as well as actual physical or sexual harm as forms of abuse.
 
California Domestic Violence Victims Entitled to Employment Leave
California’s Labor Code provides guaranteed time off from work for victims of domestic violence to go to court or obtain services. These laws, known collectively as the "Victims of Domestic Violence Employment Leave Act”, were enacted to address the impact of domestic violence on the workplace. These laws prohibit employers from discriminating or retaliating against domestic violence victims who take time off from work to seek judicial remedies, such as restraining orders, domestic violence related services such as medical or psychological counseling or escaping to a shelter program.


[1] http://www.dyess.af.mil/news/story.asp?id=123070512
[2] S. Cola, Senate Office of Research, Cal. Reg. L. Rep., FALL 1994, at 27, 29.
[3] California Judicial Council, Family violence and the courts: a California State conference: a coordinated community response, 1994.
[4] Superior Court of California, County of Tulare, “Domestic Violence Task Force,” http://www.tularesuperiorcourt.ca.gov/1_General_Information/DV_Task/DVTaskForce.htm.
[5] Hon. Laurence D. Kay (Ret.), An Open Letter to the California Judiciary, Administration of Justice in Domestic Violence Cases (2005).
[6] See, e.g., In re Marriage of Nadkarni, 173 Cal. App. 4th 1483, 1498, 93 Cal. Rptr. 3d 723, 734 (2009) (“[T]he plain meaning of the phrase ‘disturbing the peace’ in section 6320 may include, as abuse within the meaning of the DVPA, a former husband's alleged conduct in destroying the mental or emotional calm of his former wife by accessing, reading and publicly disclosing her confidential emails.”)
[12] Cal. Fam. Code § 6380(a) (“[A]ll data filed with the court on the required Judicial Council forms with respect to protective orders, including their issuance, modification, extension, or termination . . . shall be transmitted by the court or its designee within one business day to law enforcement personnel.”)
[14] See, e.g., Cal. Penal Code § 1524 (allowing issuance of search warrants “[w]hen the property or things to be seized include a firearm that is owned by, or in the possession of, or in the custody or control of, a person who is subject to the prohibitions regarding firearms pursuant to Section 6389 of the Family Code, if a prohibited firearm is possessed, owned, in the custody of, or controlled by a person against whom a protective order has been issued pursuant to Section 6218 of the Family Code, the person has been lawfully served with that order, and the person has failed to relinquish the firearm as required by law”).
[15] Cal. Penal Code § 243(e)(1). If no programs are available, the batterer can attend another appropriate counseling program. Id.
[16] See Cal. Penal Code §243(e)(4)(The Legislature finds and declares that these specified crimes merit special consideration when imposing a sentence so as to display society's condemnation for these crimes of violence upon victims with whom a close relationship has been formed.)
[17] Cal. Penal Code § 243(e).
[18] Cal. Penal Code § 273.5.
[19] See Penal Code 243(e)(1).
[20]  Cal. Family Code § 6389; Cal. Penal Code § 136.2.
[21] 18 U.S.C. §§ 922(g)(8)–(9)
[22] Cal. Family Code § 6389.
[23] Cal. Penal Code § 273.5(e).
[24] Cal. Penal Code § 646.9.
[25] Cal. Code of Civil Procedure § 372.