Tuesday, December 27, 2011
Attorney General Says:
Prosecutors Cannot Exclude Victim Advocates From Interviews
By SHERRI M. OKAMOTO, Staff Writer
A victim advocate for a sexual assault victim cannot be excluded from an interview of the victim, the attorney general has opined.
In an opinion issued Friday, Attorney General Kamala Harris differentiated a victim advocate from “support persons,” who can be barred from victim interviews pursuant to Penal Code Sec. 679.04(a).
Responding to an inquiry by State Assemblyman Tom Ammiano, D-San Francisco, Harris said the statute’s grant of discretion to a district attorney or police officer to exclude an individual whose presence “would be detrimental to the purpose of the interview” does not override a victim’s election to be accompanied by an advocate.
Sec. 679.04(a) gives sexual assault victims the right to be accompanied by “victim advocates and a support person of the victim’s choosing” when being interviewed by law enforcement, district attorneys, or defense counsel.
“However, the support person may be excluded from an interview by law enforcement or the district attorney if the law enforcement authority or the district attorney determines that the presence of that individual would be detrimental to the purpose of the interview,” the statute provides.
‘Victim Advocate’ Defined
As used in this section, “victim advocate” means a sexual assault counselor, as defined in Evidence Code Sec. 1035.2 , or a victim advocate working in a center established under Penal Code Sec. 13835.
Harris noted that “their titles and experiences may differ from person to person,” but all victim advocates “share at least two significant characteristics: (1) all are trained in assisting and counseling victims of sexual assault; and (2) all are engaged in the work of providing guidance and assistance to such victims, either at rape crisis centers or through nonprofit agencies dedicated to helping victims and witnesses of crime.”
She acknowledged that the term “victim advocate” has been “used in some contexts to describe any person who expresses concern or compassion for a victim or who urges severe penalties for assailants,” but reasoned Sec. 679.04(a) “treats the title as a term of art.”
As for a “support person,” Harris said, the statute imposes no qualifications “of age, family connection, experience, or the like,” and so “a support person is neither required nor expected to bring any special training, credentials, or expertise to the proceeding.”
She said Sec. 679.04(a)’s language is not ambiguous, and emphasized that it “contains only three sentences, each of which is direct.”
Since “the middle sentence, conferring a power to exclude, mentions only the ‘support person,’ ” and “is sandwiched between two sentences that mention both the ‘support person’ and ‘victim advocates,’ ” Harris reasoned that the Legislature presumably meant these two categories of individuals to be treated differently and to allow for the exclusion only of those falling into the “support person” category.
“We do not see the statute as susceptible to any other conclusion, particularly in view of the Legislature’s demonstrated commitment to protecting victims of sexual assault from experiencing further trauma as a result of being engaged in the criminal justice system,” she said.
The opinion, prepared for Harris by Deputy Attorney General Daniel G. Stone, is No. 11-203.
In other action Friday, Harris responded to an inquiry by State Sen. Alan Lowenthal, D-Long Beach, as to the authority of private property owners to impose monetary sanctions on owners of vehicles parked on their property.
Harris opined that state law does not authorize such an action, and that private property owners may not acquire, by means of issuing a written warning or posting signage, the right to issue parking citations imposing monetary sanctions to the owners of vehicles parked on their property.
Although vehicles which are illegally or impermissibly parked on private property may be subject to tow and impound, Harris said companies which provide these services cannot require payment of additional charges on behalf of a private property owner.
If a tow or impound company were to exact such a payment, Harris warned, that company may be subject to civil liability.
She said that the owners of vehicles who have received parking citations purporting to impose monetary sanctions from private property owners or their agents “do not have rights or remedies per se,” but explained the citations are unenforceable against the vehicle owners and so “no payment is due.”
Harris further advised that vehicle owners “may have grounds to seek damages arising from the property owner’s conduct, such as threatening to report or reporting a delinquency on the part of the vehicle owner to credit reporting agencies.”
The opinion, No. 07-804, was prepared for Harris by Deputy Attorney General Diane E. Eisenberg. It does not apply to a situation in which a person enters into a written contract with a parking vendor for parking services or privileges or to private nonprofit educational institutions, the attorney general explained.
Copyright 2011, Metropolitan News Company