Provider Guide to Survivors Rights

PROVIDER GUIDE TO SURVIVORS’ RIGHTS

ACKNOWLEDGEMENTS

*The Victim Rights Advocacy Project (VRAP) was funded by the Santa Clara County Office of Gender-Based Violence Prevention (OGBVP) Research and Policy Grants.

The VRAP team would like to acknowledge and thank all the survivors and advocates who participated in a focus group or an interview for this project. We deeply appreciate your insight and expertise.

We want to thank the following agencies for their assistance on crafting the compendium: Community Solutions, Evident Change, Maitri, the South Bay Coalition to End Human Trafficking, Katharine & George Alexander Community Law Center, Step Forward Foundation, Justice at Last, Bay Area Legal Aid, and the API Institute on GenderBased Violence.

INTRODUCTION The Victim Rights Advocacy Project (VRAP) Legal Compendium was written for survivors of gender-based violence as well as advocates. The purpose of the Compendium is to provide an accessible, concise, and userfriendly repository of fundamental victim rights in California. The Compendium is not intended to be an exhaustive compilation of all victim rights. The primary focus is federal and California crime victim rights concerning victims of gender-based-violence; particularly intimate partner abuse, sexual assault, and human trafficking. Additionally, we have included key Santa Clara County policies pertaining to victim rights.

Victims’ rights were not initially considered essential to the criminal justice process until the 1970s. In the 1980s, President Ronald Reagan’s Task Force on Victims of Crime published a report finding the criminal justice system was out of balance and that victims’ rights had not been provided in the same way that defendant rights had.

The Task Force found that the system oppressively burdened victims from the criminal investigation forward. In 2004, crime victim advocates sought to focus on federal legislation, which, through the broadly supported Crime Victims’ Right Act (CVRA), extended an array of rights to victims of crime. Under the CVRA, courts were required to ensure that victims were afforded said rights.

Many states enacted crime victim rights paralleling the federal CVRA. California was the first state in the nation to adopt Marsy’s Law, also known as the California Victims’ Bill of Rights Act of 2003.

Marsy’s Law amended the state’s constitution and some penal codes.

Marsy’s Law protects and expands the rights of victims of crime through 18 distinct rights. These rights are explained in detail in the Compendium.

In addition to federal and state laws that protect all victims of crime, legislators have also introduced federal and state legislation to protect victims of genderbased violence specifically. The Violence Against Women Act (VAWA) and Trafficking Victims Protection Act (TVPA) instituted protections and legal remedies for victims of gender-basedviolence at the federal level. California has also enacted specific rights for victims of gender-based violence; including confidentiality protections for case workers and survivors of intimate partner violence, sexual assault, and human trafficking (CA Evidence Code §§ 1037-1037.2, 1035-1036.2, and 1038.2, respectively).

VICTIM'S RIGHTS ADVOCACY PROJECT JULY 2022

Gender based violence is so named because in all parts of the world, violence disproportionately impacts women, girls, and gender nonconfirming persons. This does not dismiss that men and boys can experience abuse and violence as well. Gender-based violence is rooted in gender inequality, discrimination, and power imbalances. Often GBV happens within the home or other familial settings, and therefore it is not readily identifiable. Also, GBV may be misunderstood or even condoned due to patriarchal socialization and deeply entrenched gender norms.

Gender-based violence can take many forms and generate complex intersections.

In this compendium, the term used when speaking about human trafficking, intimate partner violence, and sexual assault is gender based violence to reflect the disproportion and power dynamics across genders.

Note, this compendium was written to support all survivors of violence or abuse regardless of gender or gender identity.

Violence against women can take many forms and generate complex intersections.

Providing trauma-informed, victim-centered, and empowerment-based support requires screening for, and addressing, different types and intersections of victimization. Comprehensive screening ensures that victims are promptly connected to the appropriate services, benefits, protections, and legal remedies that they are entitled to.

The Compendium aims to acknowledge and address intersections of gender-based-violence.

The Compendium begins with a section on universal federal and state rights for victims of crime. The following sections are organized by type of victimization, followed by key issues covered in state and federal laws, and, where applicable, local Santa Clara County policies. Each section includes learning objectives and section summary of key points. We hope you find this Compendium useful and invite your feedback!

Note: The Compendium is organized by type of victimization, followed by key issues covered in state and federal laws, and local Santa Clara County policies (where applicable).

VICTIM'S RIGHTS ADVOCACY PROJECT 2022

Table of Contents SURVIVOR VOICES Viviana Noelle Savita Daniel Wafaa Maria Anna Case Studies Table

CONFIDENTIALITY Learning Objectives Survivor Voices/Case Study Confidentiality and the Law Confidentiality and IPV Confidentiality and HT Confidentiality and SA Case Study Answers Section Summary

ADVOCACY Learning Objectives Survivor Voices/Case Study Advocacy and the Law Advocacy and IPV Advocacy and HT Advocacy and SA Case Study Answers Section Summary

LANGUAGE ACCESS Learning Objectives Survivor Voices/Case Study Language Access and the Law Case Study Answers Section Summary Resources Listed

S1-S13 S3 S4 S6 S8 S9 S11 S13 S14

1-37 Section One Section Two Section Three Section Four Section Five Section Six Section Seven Section Eight

38-64 Section One Section Two Section Three Section Four Section Five Section Six Section Seven Section Eight

65-83 Section One Section Two Section Three Section Four Section Five Section Six

RESTRAINING ORDERS 84-106 Learning Objectives Survivor Voices/Case Study Restraining Orders and the Law Restraining Orders and IPV Restraining Orders and HT Restraining Orders and SA Case Study Answers Section Summary

Section One Section Two Section Three Section Four Section Five Section Six Section Seven Section Eight

IMMIGRATION RELIEF 107-133 Learning Objectives Survivor Voices/Case Study Immigration and the Law Immigration and HT Case Study Answers Section Summary Resources Listed

Section One Section Two Section Three Section Four Section Five Section Six Section Seven

FAMILY LAW

134-159

Learning Objectives Survivor Voices/Case Study Family Law Case Study Answers Section Summary

Section One Section Two Section Three Section Four Section Five

EMPLOYMENT RIGHTS 160-183 Learning Objectives Survivor Voices/Case Study Employment Rights and the Law Employment Rights and IPV Case Study Answers Section Summary

Section One Section Two Section Three Section Four Section Five Section Six

HOUSING

184-210

Learning Objectives Survivor Voices/Case Study Housing and the Law Housing and IPV Housing and HT Housing and SA Case Study Answers Section Summary

Section One Section Two Section Three Section Four Section Five Section Six Section Seven Section Eight

VICTIMS RIGHTS

211-236

Learning Objectives Survivor Voices/Case Study Victim Rights and the Law Case Study Answers Section Summary Resources Listed

Section One Section Two Section Three Section Four Section Five Section Six

RESOURCES

R1 & R2

SURVIVOR'S VOICES

S1

According to the U.S. Department of Justice Bureau of Statistics, there were over five million reports of violent crime in 2019; including over 1,100,000 reports of domestic violence and almost 460,000 reports of rape or sexual assault. During that same year, roughly 26% of violent victimizations for which victims received assistance from a victimservice agency were related to domestic violence. The National Human Trafficking Hotline reported that over 22,000 victims were identified in 2019. The incidence of violence and abuse across the country is staggering. As we work towards increasing survivor access and systems’ accountability, it is important to incorporate survivors’ voices and experiences.

We included a few case studies based on actual survivor stories. Case studies are intended to foster reader engagement and facilitate learning. We find that it is helpful to show examples of how different victim rights apply to actual situations survivors face.

Throughout this compendium, we will be following the stories of Viviana, Noelle, Savita, Wafaa, Daniel, Maria, and Anna. Names have been changed to protect survivor confidentiality.

S2

Viviana Spanish-speaking

Forty-four year old Viviana walked into a domestic violence service provider’s office looking for support after Jorge, her abusive partner, threatened to use the legal process to obtain full custody of their one-year-old son and have her deported.

Viviana shared that Jorge had been her high school sweetheart in Mexico. He moved to the U.S. after high school.

Instead of joining him, Viviana stayed in Mexico and completed a degree in child development. She then married Paco, had two kids and divorced him when he became controlling and abusive. Following the divorce, Viviana focused on her children and career. She managed to land a great job at the local elementary school.

After decades of not hearing from Jorge, he reached out and they began a long-distance relationship. Eventually, Jorge convinced Viviana to move to the U.S. and marry him. When she arrived, she found out that he was already married. Jorge began physically, sexually, and emotionally abusing her. He pressured her to work for free at his janitorial business. The situation got even worse after Viviana gave birth to their son Camilo. With no friends or family in the area, Viviana endured the situation for two more years. She was too ashamed to go back home and face her family after another failed marriage, she couldn't talk to anyone about what was going on, and felt completely alone and embarrassed. After an especially brutal assault by Jorge, a neighbor connected Viviana to a local confidential intimate partner violence service provider.

Some of the legal issues that may come up for Viviana include: advocacy, confidentiality, family law, restraining orders, and immigration.

S3

Noelle (English-speaking)

Noelle grew up in a middle-class home on the East Coast. Her parents were hard-working and ensured she had everything she needed. Noelle had been an enthusiastic and inquisitive child, but that all changed after she was molested by a family member when she was eight. She became withdrawn and irritable. She only had two friends at school. Being an only child, she spent a lot of time alone. She spent many afternoons and evenings at the local mall, which is where she met Jonathan.

Noelle was having problems at home and Jonathan really understood her. He was sweet, thoughtful and charming. She was 14 at the time, and even though he was 16 years older than her, they got along really well.

Jonathan subtly and systematically isolated Noelle from her few friends.

He assured Noelle that she was better off without them because they were bad influences and said he was all the company Noelle needed. Jonathan was a man, he made Noelle feel special and said he would always take care of her. After dating for a few months, Noelle found out that Jonathan was struggling financially.

He asked Noelle to help. She really wanted to help him , so she asked what she could do. Jonathan asked Noelle to have sex with some guys he knew for money. She was reluctant but Jonathan pressured her. He cried and argued that she did not really love him and didn’t care about his situation. Jonathan persisted for days; he begged Noelle to do this for him and swore it would only be one time. Noelle reluctantly agreed. She loved Jonathan and did not want anything bad to happen to him. Pretty soon, Jonathan was coercing Noelle to have sex for money at least twice a week. When she refused he cussed her out, beat her savagely, and threatened to tell her parents, friends, classmates, and neighbors that she was a prostitute and a whore. He reminded her of the graphic photos and videos he’d taken and vowed that he’d post them online. Noelle saw no way out.

Jonathan sex trafficked her for many years.

S4

Noelle CONTINUED

After enduring physical, sexual, and emotional abuse for ten years Noelle ran away across the country to California to escape Jonathan. Even though he was on the other side of the country, Jonathan continued to harass and stalk Noelle.

He would send people to look for her at her jobs. Not having any other options, Noelle began doing sex work for Eddie, a sex trafficker she met in a homeless shelter. Noelle soon plunged into a dangerous, volatile situation. Eddie was just as abusive as Jonathan and the work itself was dangerous. One day a man that had paid to have sex with Noelle raped and beat her badly. He said he would come back and kill her if she told anyone. Terrified, Noelle worked up the courage to call the police. She did not tell the officer that she had been raped, just that she had been beaten by a stranger. The officer was nice enough, but she basically dropped off Noelle at the homeless shelter and wished her well.

Noelle knew she would not be safe at the shelter. She reached out to the National Human Trafficking Hotline and they connected her to a local confidential shelter for survivors of intimate partner abuse and human trafficking. Noelle was admitted into the confidential shelter that night.

Some of the legal issues that may come up for Noelle include: advocacy, confidentiality, housing, victim rights, and medical.

S5

Savita

(English and Punjabi-speaking) Twenty-eight-year-old Savita came to the United States on a Conditional Green Card after her marriage to Ram. The couple met a few years prior when Ram visited India to spend time with his family. Ram shared with Savita that he was working as an engineer in California.

Savita was a school teacher and had a good career. The year she met Ram, she had just completed a Master’s Degree in Urdu Literature.

The couple maintained a long-distance relationship for two years and eventually married in India. Ram made the necessary arrangements for Savita to travel to the U.S. He knew that Savita’s dream was to work as a teacher once she joined him in California. He promised her that she could go through the necessary credentialing process and seek employment. Savita was so excited; she could not wait to join Ram and start their new life together. But her dream was shattered when the abuse started soon after her arrival to the U.S.

Ram was not at the airport when she arrived and made her wait for hours. She couldn’t speak English very well and did not have a phone to call Ram. When Ram finally picked her up and drove her home, he was angry about having to take time from work. They drove home in silence. When they arrived in the small two-bedroom home Ram was renting, Savita found out that her mother and father-in-law were not just there to welcome her; they also lived in the home. While it is common in her culture to take care of her in-laws, Savita was treated like a servant and expected to work all day and often respond to their needs at night. She was not allowed to call her family or friends. Nor was she allowed to talk to the neighbors or visitors.

S6

Savita CONTINUED Ram’s abusive behavior escalated from shouting and verbally abusing and demeaning Savita, to slapping her, shoving her, pulling her hair, and forcing her to have sex. She was forced to work from early in the morning to late at night, taking care of Ram and his parents, and barely had any time for herself. The few opportunities that Savita had to go out for walks, her mother-in-law was close by to make sure Savita did not talk to anyone. One day, Savita’s mother-in-law was really angry at Savita because she was not preparing dinner to Ram’s liking.

Savita spoke up for herself and Ram slapped her across the face and yelled at her to never speak back to his mother again. Savita tried to run into her room, but Ram grabbed her by the neck and punched her in the stomach. Later that night, when Ram and his parents had gone to bed, Savita ran to the neighbor's house and the neighbors called a domestic violence shelter. The shelter staff made arrangements for Savita to go to a hotel that night, and enter the shelter the following day.

Some of the legal issues that may come up for Savita include: advocacy, confidentiality,family law, language access, and immigration.

S7

Daniel (English-speaking)

Daniel and Jacob met in junior high school and quickly became best friends. They had a lot in common - both were new to the area and both were raised in very conservative and religious families. After being friends for several months, they began a dating relationship in secret. This was Daniel’s first romantic relationship and he was both happy and terrified.

For several years they carefully concealed their relationship and sexual orientation from family and friends. After high school, they both applied to the same out of state university and moved in together when they were accepted.

Early on in the relationship, Jacob became controlling and emotionally abusive towards Daniel. When they moved in together, things got worse.

Jacob was jealous of Daniel’s friends and called him constantly when they were apart. Daniel could not hold down a job because Jacob would show up unexpectedly and create a scene. It was becoming too much for Daniel. He did not know what to do. He could not talk to anybody about what was going on. Daniel suggested to Jacob that they take a break. Jacob became really angry.

He punched Daniel in the face and kicked him. Daniel picked up the phone to call the police, but Jacob threatened that he would disclose their relationship to everyone if Daniel did not put down the phone. Daniel was mortified. He felt trapped. The next day Daniel called his friend Tina and told her what was going on. Tina’s nonjudgmental support and encouragement allowed Daniel to share everything he had gone through. Tina assured Daniel that he could stay with her as long as he needed to. Although Daniel was clear with Jacob that he wanted to end the relationship, Jacob continued to call and text multiple times every day. And, he soon figured out that Daniel was staying with Tina.

Some of the legal issues that may come up for Daniel include: advocacy, confidentiality, employment, housing, restraining orders, and medical.

S8

Wafaa (English-speaking) Wafaa was raised in a small village in Ghana. She was one of six children. Her family was very poor. Coffie, her oldest brother left the village when he was 21 and migrated to the United States.

He settled in northern California, married and had three children. Wafaa moved to a larger village to attend school. She had always wanted to be a teacher. Wafaa put herself through college cleaning houses and working odd jobs.

The year she graduated from college, she married Eli – her high school sweetheart. Eli owned a small grocery store. The young couple was very happy. A year after they married Wafaa learned that she was expecting their first child. They could not have been happier.

Unfortunately, during Wafaa’s third month of pregnancy, Eli was killed by criminals that robbed his store. Wafaa was devastated. She did not know what to do. She suspected that the robbers were a group of young men that frequently staked out the store. She talked to the police, and shortly thereafter began getting threatening phone calls. One night, someone threw a rock with a death threat tied around it through her window. Wafaa was terrified. She did not know what to do or where to go. Her family could not take her in – it was too much of a risk.

Coffie found out about Wafaa’s situation and invited her to join him and his family in California.

Coffie told Wafaa that her baby would have many more opportunities in the United States. Wafaa realized she could not remain in the village. She sold everything she owned and made the long trip from Ghana to California.

S9

Wafaa CONTINUED

When Wafaa arrived in California she was almost five months pregnant. She arrived penniless and exhausted. Coffie and his wife allowed her to rest a couple of days. For the first time since Eli died Wafaa felt hopeful. However, that hope was short lived. Coffie and his wife soon gave Wafaa a long list of chores. They told her she had to earn her keep and contribute to the family since they were providing room and board and would soon have to care for her unborn child. From that point on, Wafaa’s day began at 5am and ended around midnight. She had to prepare meals for everyone, get the kids ready for school, feed them breakfast, lunch and dinner, clean the house, and complete whatever chores Coffie or his wife ordered. She barely had time to eat. Coffie refused to take her to see a doctor for prenatal care. His wife constantly berated Wafaa and told her she was lazy and spoiled. The excessive work and poor health care caused Wafaa to have a miscarriage during her sixth month of pregnancy. She was devastated. During her time in the hospital, she shared her living situation with a nurse. The nurse was very worried about Wafaa’s situation and called a local service provider.

Some of the legal issues that may come up for Wafaa include: advocacy, confidentiality, language access and immigration.

S10

Maria (Tagalog-speaking) Maria was born and raised in Candon in the province of Ilocos Sur, Philippines. She grew up speaking Ilocano and learned to speak English in school. Maria, her parents, and eight siblings lived happily in their comfortable and modest home. However, the area where they lived was unsafe. Maria wanted to help her family move to a better area and buy a bigger house. She researched possible careers and learned that According to the World Health Organization (WHO), the Philippines is the largest supplier of skilled health professionals in the world, with 70 percent of newly licensed Filipino nurses seeking employment globally each year. She enrolled in a nursing program with the goal of becoming a registered nurse and seeking employment the U.S. under an H-1B visa.

In her last year of the nursing program, Reyna, a childhood friend of Maria's who recently moved to the U.S. to work in an elderly nursing facility in San Francisco, CA, reached out to Maria and encouraged her to travel to the U.S. and work with her. The facility was owned and operated by Danilo and his wife Tala. The Couple, originally from the Philippines, owned and operated several nursing facilities for the elderly. Reyna set up a phone call between Tala and Maria to talk about the possibility of a work sponsorship once she completed the nursing program, which is needed for an H-1B visa.

Tala was very nice and sounded very excited to have Maria work for them. The pay would be really good ($25 an hour to start). Maria could live with Tala and her husband while Maria got on her feet, and would not have to pay rent – just buy her own food and household items.

Tala or Danilo could transport Maria to work while she saved enough to buy a car. Tala would even pay for Maria’s flight to San Francisco. There was one catch. Maria had to travel to the U.S. immediately. Tala could not wait for Maria to complete the nursing program. She was to apply for a tourist visa and fly to San Francisco immediately. Maria hesitated, but Tala convinced her that there were great nursing programs in the US also. So, Maria said goodbye to her family and made the long trip to the U.S. S11

Maria Continued

Her first days in the U.S. were amazing. Tala gave Reyna a day off and the two of them showed Maria the sights. They rode a trolley, went to the piers and ate the most delicious ice cream. Maria could not believe her good fortune at finding such a generous, caring employer. Unfortunately, she soon discovered that things were not at all like Tala had promised. Maria had to pay back the travel expenses Tala covered.

The flight alone was over $2,000. Tala told Maria not to worry – Tala would deduct $200 from every paycheck until the $2,000 (plus interests charged by the credit card Tala used) was paid off. Maria also learned that the hourly rate was $15.00 instead of $25.00 - and that a $300 rent fee would also be deducted monthly from her earnings.

To make matters worse, Maria could not attend nursing school because she had to work 14-hour days six days a week. She could not return to the Philippines because she had to pay Tala what she owed her. Maria felt hopeless and trapped. The only hopeful thing about her situation was that Tala promised to petition Maria as a legal permanent resident.

Two years later, Maria had not paid off the $2,000 debt – instead, it kept growing.

Talking to her co-workers, Maria discovered most of them were in the same situation.

They too were hanging on with the hopes of becoming legal permanent residents. The work was hard and often Tala paid workers the equivalent of $2.00 per hour. A family member of one of the nursing home residents became suspicious and reported the situation to the police. One day, the police came and arrested Tala and Danilo. Maria was terrified – she now had no income and no place to live. She was in the U.S. on tourist visa that had long expired, and was working without a permit.

Some of the legal issues that may come up for Maria include: advocacy, confidentiality, employment and victim rights.

S12

Anna (Spanish-speaking) Anna and Agustin met in their home country – Nicaragua – when Anna was 15 and Agustin was 30. He was very charming and made her feel special. They dated for a year and Anna became pregnant. When her parents found out, they kicked her out of the family home. Anna asked Agustin to let her live with him and his family. Agustin was furious. He did not welcome the idea of Anna ruining his bachelor lifestyle. Fortunately, his parents were not about to let Anna live on the streets. She was a child, carrying their grandbaby.

Immediately after Anna moved in, Agustin changed. He became demanding and controlling. Anna thought things would improve when their daughter, Celia, was born. But they did not.

Augustin continued to stay out all night with his friends, and get home at 5 or 6 in the morning – demanding food and sex.

When Anna refused to get out of bed, Agustin would kick and beat her. Agustin also began to drink heavily and take drugs.

He became suspicious of everyone, going as far as to tell Anna that Celia was not his daughter. He became cold and distant with Celia. He'd yell at her for anything and beat her constantly.

Over the following 15 years, the situation went from bad to worse. Anna decided that she had to leave. There was no protection for her or Celia in Nicaragua. She convinced her in-laws to loan her money and began the long journey through Central America and Mexico to reach the United States. Once in the U.S., Anna petitioned for Asylum and was released to Claudia, one of her cousins. Claudia told Anna that she and Celia could stay for as long as they needed to. However, Claudia’s boyfriend Mario made Anna and Celia very uncomfortable. One night, after Mario tried to sexually assault Celia, mother and daughter went into a confidential shelter.

Anna is a monolingual Spanish speaker. Some of the legal issues that may come up for Anna include: advocacy, confidentiality, language access, restraining orders, victim rights, and immigration.

S13

S14

USC OR FB? Foreign Born

USC Foreign Born

USC

Foreign Born Foreign Born Foreign Born

SURVIVOR

Viviana Spanish-speaking

Noelle English-speaking

Savita English and Punjabi-speaking

Daniel English-speaking

Wafaa English-speaking

Maria Tagalog-speaking

Anna Spanish-speaking

IPV, SA

LT

LT, work place crimes, SA

IPV

IPV, LT

IPV, SA, ST

IPV, SA, LT

VICTIMIZATION

Advocacy, language access, restraining orders, victim rights, immigration

Immigration, employment law, victim rights, public benefits

Language access, immigration, sexual assault workplace, victim rights

Employment, advocacy, restraining order, housing, medical

Immigration, public benefits, family law, language access

Advocacy (SA/ST), victim rights, housing, public benefits, medical

Confidentiality, Immigration, family law, restraining order, public benefits, language access

LEGAL ISSUES

Case Studies Table

CHAPTER 1

CONFIDENTIALITY

1

Section One

LEARNING OBJECTIVES

1 2 4 3 5 6 7 8 WHAT IS THE DIFFERENCE BETWEEN CLIENT PRIVACY, CONFIDENTIALITY, AND PRIVILEGE?

WHAT INFORMATION IS PRIVILEGED?

WHO QUALIFIES AS A SEXUAL ASSAULT COUNSELOR FOR THE PURPOSE OF ASSERTING CLIENT/COUNSELOR PRIVILEGE?

WHO QUALIFIES AS A HUMAN TRAFFICKING CASE WORKER FOR THE PURPOSE OF ASSERTING CLIENT/COUNSELOR PRIVILEGE?

WHAT INFORMATION IS CONFIDENTIAL?

WHO QUALIFIES AS A DOMESTIC VIOLENCE COUNSELOR FOR THE PURPOSE OF ASSERTING CLIENT/COUNSELOR PRIVILEGE?

WHAT DISCLOSURES MUST ADVOCATES MAKE TO ALL CLIENTS REGARDING CONFIDENTIALITY?

WHAT PROGRAMS ARE IN PLACE TO PROTECT SURVIVOR CONFIDENTIALITY? 2

A n i ntegral part o f t h e a d v o c at e ’ s r o l e i s e s t a b l i s h i n g a re l a tionship bas e d o n t r u s t a nd r e s p e c t w i t h t h e s u r v i v o r .

S a fe guarding sur v i v o r s ’ p r i v a cy i s a n e s s e n t i a l b u i l d i n g b l o c k in this pr o c e s s . S u r v i v o rs a r e m o r e l i k e l y t o s p e a k f ree ly if they kno w t h e i r c o m m u n i c a t i o n s w i l l b e k e p t c o n fidential. Ba s e d o n t h i s p r in c i p l e , s e v e r a l l a w s h a v e b e e n put in plac e t o p r o t e c t c li e n t c o n f i d e n t i a l i t y in c l uding state l a w p r i v i l e g e s , r u l e s o f e v i d e n c e , a n d s t a t e a n d federal priv a c y s t a t u t e s . Th i s s e c t i o n e x p l a i n s c o n fidentiality l a w s a n d m a n da t e s t h a t p r o t e c t c l i e n t p r i v acy and conf i d e n t i a l i t y . A dd i t i o n a l l y , w e w i l l e x p l o r e w h e n advocate- s u r v i v o r p r i v i l e g e c o m e s i n t o p l a y . I t i s im p ortant to und e r s t a n d t h e di f f e r e n c e s b e t w e e n p r i v a c y , c o n fidentiality, a n d p r i v i l e g e - a n d t o e x p l a i n t h e s e d i ff erences to c l i e n t s . A s y o u re a d t h i s s e c t i o n , t h i n k a b o u t the potent i a l c o n f i d e n t ia l i t y i s s u e s t h a t c o m e u p i n y o u r work as an a d v o c a t e .

-3-

SECTION TWO

SURVIVOR VOICES & CASE STUDIES

Viviana

Viviana is a survivor of intimate partner violence, sexual assault, and labor trafficking by her former partner Jorge. Please review her story on page S3, for context and in order to answer the questions following this section.

Viviana and two-year old Camilo are admitted into a confidential domestic violence shelter. She is assigned to a confidential shelter advocate. Viviana provides written consent for the purpose of allowing the advocate to make referrals for other services needed.

The shelter advocate links Viviana to immigration, family law, and employment law attorneys.

Viviana learns about Domestic Violence Protective Orders (DVPO) and schedules an appointment with a confidential legal advocate to begin a DVPO petition.

4

VIVIANA'S CONFIDENTIALITY RIGHTS

Viviana’s cousin, Karen, lives out of state and has come to visit Viviana and meet Camilo. Viviana shared her situation with Karen. Viviana’s appointment with a legal advocate takes place while Karen is in town. Karen insists on accompanying Viviana to her appointment with the legal advocate. Viviana reluctantly agrees. She does not want to seem ungrateful.

When the two women arrive at the legal advocate’s office, Karen says, “I’ll stay with you Viviana”. Viviana looks to the legal advocate to decide.

How should the legal advocate respond to having a Karen (a third party) present during the appointment?

Explain, in front of Karen, that there will be no expectation of confidentiality if a third party is present. And tell Karen she is not allowed to sit in the interview.

Say it is ok, as long as Viviana wants Karen there.

Correct answer on page 34

Ask to speak with Viviana alone for a few minutes and explain to her that there will be no expectation of confidentiality if a third person is present during the meeting. And then let Viviana decide.

5

After completing the DVPO intake, the legal advocate accompanies Viviana to a follow up interview with law enforcement. During the interview, the legal advocate provides silent support for Viviana. Viviana discloses that she was sexually assaulted by Jorge to the detective. At the conclusion of the interview, the detective asks Viviana for her number and address. Viviana shares with the detective that she will be staying at the confidential IPV shelter. A few hours later, the detective realizes he has other questions. He calls Viviana on the cell phone number she provided, but she is asleep and does not pick up the phone. The detective knows that the legal advocate works for the agency running the shelter where Viviana is staying. The detective then calls the shelter and asks to speak with Viviana. He explains he knows she is there and he just met with her that afternoon.

How should the crisis line advocate respond to the detective?

Let the detective know that Viviana is there, but she is taking a nap, and take a message.

Explain she can’t confirm or deny if Viviana is a current or past client, but she will take a message and if she has contact with Viviana, she will pass it on.

Say she can’t confirm or deny if Viviana is there and hang up.

A few days after receiving the referral, the family law attorney calls the shelter advocate with a few questions, including: (1) What type of abuse did Viviana suffer?

(2) How long has she been at the shelter (3) Has she filed a Good Cause Report?

How should the advocate respond to the attorney?

Explain to the attorney that Vivian’s release is limited to sharing that she is a client for the purpose of making a referral and offer to take a message for Viviana.

Answer all the questions the attorney has, after all the attorney can assert attorneyclient privilege

Tell the attorney that they cannot talk to Viviana at all.

6 Correct answer on page 33

SECTION THREE

CONFIDENTIALITY & THE LAW

7

Protecting Client PersonallyIdentifying Information (PII): Confidentiality and Privacy of Client Information (VAWA funded projects) All agencies that receive Violence Against Women Act (VAWA) funding from the Department of Justice, Office on Violence Against Women, must protect the confidentiality and privacy of clients served under this funding. This means that grantees and subgrantees may not disclose, reveal, or release personally identifying information (PII) or individual information collected in connection with services requested, used, or denied through grantees’ and subgrantees’ programs regardless of whether the information has been encoded, encrypted, hashed, or otherwise protected. PII is information that could directly or indirectly identify an individual, such as that person’s name, address, social security number, race, birth date, number of children, etc. (VAWA, 34 U.S.C. § 12291(b)(2))

Quick Facts: 1. There are differences between client Privacy, Privilege, and Confidentiality.

2. The survivor is the holder of the privilege.

3. Always obtain informed consent before sharing any confidential client information.

4. Understand and explain your confidentiality limitations to survivors early on.

There are three specific situations in which a grantee or subgrantee may share or release a client’s PII: 1) when the victim/client voluntarily provides informed consent, in writing, for its release; 2) when a statute/law requires its release; or 3) when a court requires its release. If a statute or court compels the release of PII, the grantee or subgrantee releasing it must make reasonable attempts to notify affected victims of the release and take steps necessary to protect the affected victims’ privacy and safety. (VAWA, 34 U.S.C. § 12291(b)(2)) For more information: FAQs on VAWA Confidentiality Provision (https://www.justice.gov/ovw/page/file/1006896 /download) 8

Confidentiality Between Survivors and Case Managers/Advocates

9

In general, organizations and advocates that work with survivors of intimate partner abuse, sexual assault, and human trafficking (employees, interns and volunteers) have an obligation to safeguard client privacy and confidentiality. Privacy and confidentiality are two concepts often used interchangeably, but they are not the same thing. Privacy is the legal right of an individual to have some control over how their personal information is collected, used, and/or disclosed. Confidentiality relates to the ethical duty to ensure client information is kept secret to the extent possible. This includes not disclosing that a survivor sought services, or is being served by a service organization, without the survivor’s consent. The consent must be: written, informed, time-limited, survivor-centered and specific. (Some data used can be referred to the Family Violence Appellate Project; https://fvaplaw.org/legalresource-library/)

Advocacy Tip: Privacy = Survivor decides who knows their information Confidentiality = The advocate has a duty to protect survivor’s information Privilege = The advocate cannot be compelled to share the survivor’s information

10

CONFIDENTIALITY & SURVIVORS OF DOMESTIC VIOLENCE

SECTION FOUR 11

Communication, including electronic communication (i.e., emails, text messages), between a survivor of intimate partner violence (IPV) and their IPV advocate is presumed to be confidential. (Evidence Code, §917). Sometimes an agency, or advocate, is subpoenaed to produce a client’s file or testify regarding communications between the advocate and survivor. California Evidence Code §§ 1037 – 1037.8 explains the requirements an organization and its advocates must meet in order to assert intimate partner violence survivorcounselor privilege.

Those requirements are provided in the following page.

-12-

California Evidence Code §§ 1037 – 1037.8 An organization and its advocates must meet certain requirements in order to assert intimate partner violence survivor - counselor privilege, specifically: "Domestic violence counselor"(aka Intimate Partner Violence Advocate) means a person who is employed by a domestic violence victim service organization, as defined in this article, whether financially compensated or not, for the purpose of rendering advice or assistance to victims of domestic violence and who has at least 40 hours of training. The 40 hours of training shall be supervised by an individual who qualifies as a counselor under paragraph (1), and who has at least one year of experience counseling survivors of domestic violence for the domestic violence victim service organization. The training shall include, but need not be limited to: history of domestic violence, civil and criminal law as it relates to domestic violence, the domestic violence victim-counselor privilege and other laws that protect the confidentiality of victim records and information, societal attitudes towards domestic violence, peer counseling techniques, housing, public assistance and other financial resources available to meet the financial needs of domestic violence victims, and referral services available to domestic violence victims.

(3) A domestic violence counselor who has been employed by the domestic violence victim service organization for a period of less than six months shall be supervised by a domestic violence counselor who has at least one year of experience counseling domestic violence victims for the domestic violence victim service organization. (b) As used in this article, "domestic violence victim service organization" means a nongovernmental organization or entity that provides shelter, programs, or services to victims of domestic violence and their children, including, but not limited to, either of the following: Domestic violence shelterbased programs, as described in Section 18294 of the Welfare and Institutions Code. Other programs with the primary mission to provide services to victims of domestic violence whether or not that program exists in an agency that provides additional services.

QUICK FACTS: In other words, in order to assert the counselor-IPV survivor privilege, the advocate must: (1) work for an organization that qualifies as a domestic violence service provider under Welfare & Institutions Code §18294, or work for an agency whose primary mission is to serve domestic violence survivors. (2) have completed the 40-hour intimate partner violence training, and be supervised by a confidential advocate for the first six months of their employment with the organization.

13

An IPV survivor has the right to have an IPV advocate and a support person of the survivor’s choosing present at any interview by law enforcement authorities, prosecutors, or defense attorneys. However, the support person may be excluded from an interview by law enforcement or the prosecutor if the law enforcement authority or the prosecutor determines that the support person’s presence would be detrimental to the purpose of the interview. Prior to being present at any interview conducted by law enforcement authorities, prosecutors, or defense attorneys, an IPV advocate shall advise the survivor of any applicable limitations on confidentiality between the victim and the advocate. (Penal Code, §679.05a) Disclosing information shared with IPV counselor in court or other setting: An IPV survivor can refuse to share confidential communication made between the survivor and IPV counselor in any proceeding that requires testimony to be given (e.g., investigation, court hearing, etc.). (Evidence Code, §1037.5) However, confidentiality between the survivor and counselor may be waived if the survivor discloses the information or consents that the information may be disclosed. (Evidence Code, §912)

Quick Facts: Non-confidential advocates, or advocates that do not fall under the Evidence Code as a confidential intimate partner abuse advocate/domestic violence counselor, must disclose their confidentiality limitations to survivors as soon as possible.

Disclosing confidentiality limitations allows survivors to make informed decisions about what they want to share.

Limitations on confidentiality between survivor and counselor: An IPV counselor shall inform an IPV survivor of any applicable limitations of confidentiality on communications between the victim and counselor. This information may be provided verbally. (Evidence Code, §1037.8) Instances of reported child abuse are excluded from confidential information. (Evidence Code, §1037.3) An IPV counselor will not disclose confidential information that the survivor shared (either verbally or in writing), unless the court decides it is necessary to further the survivor’s case. This includes information about all IPV incidents, children of the survivor or the abuser, and the survivor’s relationship with the abuser. A court may require the IPV counselor to disclose confidential information provided by the survivor if it determines that this information overrides the effect of disclosure of the information on the survivor, the counseling or treatment relationship, and the counseling or treatment services. (Evidence Code, §1035.4; Evidence Code, §1037.2) 14

Confidentiality related to Address Information (Safe at Home Program) An IPV survivor who lives in California can apply for address confidentiality through the state’s Safe at Home Program. This consists of designating another address as a substitute mailing address and helps to prevent their abuser from locating them through public records. Through the program, participants receive a substitute mailing address.

Safe at Home receives the participant's first class, certified, and other registered mail and forwards it to the participant's mailing address at no cost. The program is also open to members of the survivor’s household. A Safe at Home participant's records are kept confidential and cannot be released by Safe at Home, unless directed by a court of law, government agency, or requested by a law enforcement agency; these agencies must demonstrate a bona-fide administrative 'need to know' participant information before Safe at Home will release it as requested.

(Government Code, §6205) To apply, a survivor should fill out an application at an enrolling agency designated by the Safe at Home Program. As part of the application process, the survivor must meet with an advocate in person and complete the required documentation. After an application is filed, the Secretary of State shall certify the applicant as a program participant. This certification is good for four years, unless it is withdrawn or invalidated before that date. (Government Code, §6205 and §6206) To learn more and apply for Safe at Home: https://www.sos.ca.gov/registries/safe-home/

15

CONFIDENTIALITY FOR REQUESTING A NAME CHANGE (SAFE AT HOME PROGRAM) A person who participates in the state’s address confidentiality program (Safe at Home Program) and who files a court petition to legally change their name to avoid IPV, stalking, sexual assault, or human trafficking is exempt from the name-change publication requirement. This means that placing a public notice in a local newspaper, or other procedures that would generally be used to publicly post the person’s name change request, will not occur. In addition, for minors who participate in Safe at Home, there is no filing fee to submit a name-change request. (Code of Civil Procedure, §1277)

CONFIDENTIALITY RELATED TO CHILD CUSTODY AND VISITATION If an IPV survivor is staying in an IPV shelter or other confidential location, the court’s child visitation order (including time, day, and place for visitation) shall be designed to prevent disclosure of the location of the shelter or other confidential location. (Family Code, §3100 d)

CONFIDENTIALITY RELATED TO VEHICLES Survivors of IPV, stalking, rape, and sexual battery may apply for new and different license plates for their vehicle. The application process includes providing proof of vehicle ownership, driver’s license or other photo identification, the vehicle’s previously issued license plates, a fee for duplicate plates, and relevant documentation from law enforcement, court, IPV agency, or rape crisis center. (Vehicle Code, §4467)

CONFIDENTIALITY RELATED TO MEDICAL SERVICES Health care practitioners who provide medical services for a wound or physical injury inflicted as result of assaultive or abusive conduct, or by means of a firearm, to report that incident by phone, and in writing, to local law enforcement. (California Penal Code Sections 1160 - 11163.2) 16

CONFIDENTIALITY & SURVIVORS OF HUMAN TRAFFICKING

SECTION FIVE

The human trafficking case worker privilege was added to the California Evidence Code in 2005.

The purpose of the privilege is to ensure information exchanged between a survivor and their caseworker is protected from disclosure to third parties or the court without the survivor’s informed consent or a court order. Section1038 of the CA Evidence Code outlines the requirements to qualify as a human trafficking case worker.

-18-

Human Trafficking Caseworker-Survivor Privilege California Evidence Code §§1038 – 1038.3 enumerate the requirements for human trafficking case workers. These sections include specific requirements for the organization as well as staff training

and

on-going

education

requirements.

E.C.§1038. (a) A trafficking victim, whether or not a party to the action, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication, whether made orally, in writing, or otherwise conveyed, between the victim and a human trafficking caseworker if the privilege is claimed by any of the following persons: (1) The holder of the privilege.

(2) A person who is authorized to claim the privilege by the holder of the privilege.

(3) The person who was the human trafficking caseworker at the time of the confidential communication or is presently the human trafficking caseworker for the victim. However, that person may not claim the privilege if there is no holder of the privilege in existence or if the person is otherwise instructed by the court or by another person authorized to permit disclosure. (b) The human trafficking caseworker shall claim the privilege whenever the caseworker is present when the communication is sought to be disclosed and the caseworker is authorized to claim the privilege under this section. (c) A human trafficking caseworker shall inform a trafficking victim of any applicable limitations on confidentiality of communications between the victim and the caseworker. This information may be given orally.

(Amended by Stats. 2019, Ch. 197, Sec. 1. (AB 1735) Effective January 1, 2020.)

19

E.C. §1038.1 (a) The court may compel disclosure of

(c) If the judge determines that the

information

human

information is privileged and shall not

trafficking caseworker that constitutes

be disclosed, no person shall disclose,

relevant evidence of the facts and

without the consent of a person

circumstances

crime

authorized to permit disclosure, any

allegedly perpetrated against the victim

information disclosed in the course of

and that is the subject of a criminal

the proceedings in chambers. If the

proceeding, if the court determines that

court determines that information shall

the probative value of the information

be disclosed, the court shall so order

outweighs the effect of disclosure of the

and inform the defendant in the

information

on

counseling

relationship,

received

by

involving

the

a

a

victim,

the

criminal action. If the court finds there

and

the

is a reasonable likelihood that any

counseling services.

information is subject to disclosure

(b) When a court rules on a claim of

pursuant to the balancing test provided

privilege under this article, it may

in this section, the procedure specified

require

in paragraphs (1), (2), and (3) of Section

the

person

from

whom

disclosure is sought or the person

1035.4 shall be followed.

authorized to claim the privilege, or

(Amended by Stats. 2019, Ch. 197, Sec.

both, to disclose the information in

2. (AB 1735) Effective January 1, 2020.)

chambers out of the presence and hearing of all persons except the person authorized to claim the privilege and those other persons that the person authorized

to

claim

the

privilege

consents to have present.

20

As used in this article, the following terms are defined as such:

E. C. § 1038. 2

(a) “Confidential communication” means all information, including, but not limited to, written and oral communication, transmitted between the victim and the human trafficking caseworker in the course of their relationship and in confidence by a means which, so far as the victim is aware, discloses the information to no third persons other than those who are present to further the interests of the victim in the consultation or those to whom disclosures are reasonably necessary for the transmission of the information or an accomplishment of the purposes for which the human trafficking caseworker is consulted and made with the victim’s knowledge and consent. "Confidential communication” includes all information regarding the facts and circumstances relating to all incidences of human trafficking, as well as all information about the children of the victim and the relationship of the victim to the human trafficker. (b) “Holder of the privilege” means: (1) The victim if the victim has no guardian or conservator.

(2) A guardian or conservator of the victim if the victim has a guardian or conservator.

(3) The personal representative of the victim if the victim is deceased. (c) “Human trafficking caseworker” means a person working for a human trafficking victim service organization, whether financially compensated or not, for the purpose of rendering advice or assistance to victims of human trafficking, who meets the requirements of paragraph (1) or (2) and who also meets the requirements of paragraph (3), if applicable: (1) Has an advanced degree or license, such as a master’s degree in counseling, social work, or a related field and at least one year of experience in a caseworker role working directly with victims of human trafficking.

21

CONTINUED

E.C. §1038.2

(2) Has at least 40 hours of training as specified in this paragraph and is supervised by an individual who qualifies as a human trafficking caseworker under paragraph (1). The training, supervised by a person qualified under paragraph (1), shall include, but need not be limited to, the following areas: (A) History of human trafficking.

(B) Civil and criminal law relating to human trafficking.

(C) Systems of oppression.

(D) Peer counseling techniques.

(E) Resources available to victims of human trafficking.

(F) Crisis intervention and counseling techniques.

(G) Role playing.

(H) Intersections of human trafficking and other crimes.

(I) Client and system advocacy.

(J) Referral services.

(K) Connecting to local, regional, and national human trafficking coalitions.

(L) Explaining privileged communications.

(3) If the caseworker has been employed by a human trafficking service organization for a period of less than six months, that caseworker is supervised by another human trafficking caseworker who has at least one year of experience working with human trafficking victims. (d) “Human trafficking victim service organization” means a nongovernmental organization or entity that provides shelter, program, or other support services to victims of human trafficking and their children and that does all of the following: (1) Employs staff that meet the requirements of a human trafficking caseworker as set forth in this section.

(2) Operates a telephone hotline, advertised to the public, for survivor crisis calls.

(3) Offers psychological support and peer counseling provided in accordance with this section.

(4) Makes staff available during normal business hours to assist victims of human trafficking who need shelter, programs, or other support services. (e) “Victim” means a person who consults a human trafficking caseworker for the purpose of securing advice or assistance concerning a mental, physical, emotional, or other condition related to their experience as a victim of human trafficking.

22

Confidentiality related to Address Information (Safe at Home Program) A human trafficking survivor who lives in California can apply for address confidentiality through the state’s Safe at Home Program. This consists of designating another address as a substitute mailing address and helps to prevent their abuser from locating them through public records. Through the program, participants receive a substitute mailing address. Safe at Home receives the participant's first class, certified, and other registered mail and forwards it to the participant's mailing address at no cost. The program is also open to members of the survivor’s household. A Safe at Home participant's records are kept confidential and cannot be released by Safe at Home, unless directed by a court of law, government agency, or requested by a law enforcement agency; these agencies must demonstrate a bona-fide administrative 'need to know' participant information before Safe at Home will release it as requested.

(Government Code, §6205) To apply, a survivor should fill out an application at an enrolling agency designated by the Safe at Home Program.4 As part of the application process, the survivor must meet with an advocate in person and complete the required documentation. After an application is filed, the Secretary of State shall certify the applicant as a program participant. This certification is good for four years unless it is withdrawn or invalidated before that date. (Government Code, §6205 and §6206) To learn more and apply for Safe at Home: https://www.sos.ca.gov/registries/safe-home/

23

CONFIDENTIALITY FOR REQUESTING A NAME CHANGE (SAFE AT HOME PROGRAM) A person who participates in the state’s address confidentiality program (Safe at Home) and who files a court petition to legally change their name to avoid IPV, stalking, sexual assault, or human trafficking is exempt from the name-change publication requirement. This means that placement of a public notice in a local newspaper, or other procedures that would generally be used to publicly post the person’s name change request, will not occur. In addition, for minors who participate in Safe at Home, there is no filing fee to submit a name-change request. (Code of Civil Procedure, §1277)

PRIVACY PROTECTIONS RELATED TO LAW ENFORCEMENT AND INVESTIGATION S A human trafficking survivor and their immediate family members have specific privacy protections. Law enforcement may not disclose the names, addresses, and images of survivors of human trafficking and their immediate family until the trafficking investigation or any ensuing prosecution is finished. The law enforcement agency must verbally inform the survivor of this right. (Penal Code, §293)

24

CONFIDENTIALITY & SURVIVORS OF SEXUAL ASSAULT

SECTION SIX

California Evidence Code §§1035 – 1035.8, 1036 and 1036.2 enumerate the requirements for Certified Sexual Assault Advocates. These sections include specific requirements for the organization as well as staff training and ongoing education requirements.

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EVIDENCE CODE §1035.2

“SEXUAL ASSAULT VICTIM COUNSELOR” DEFINED As used in this article, “sexual assault victim counselor” means any of the following: (a) A person who is engaged in any office, hospital, institution, or center commonly known as a rape crisis center, whose primary purpose is the rendering of advice or assistance to victims of sexual assault and who has received a certificate evidencing completion of a training program in the counseling of sexual assault victims issued by a counseling center that meets the criteria for the award of a grant established pursuant to §13837 of the Penal Code and who meets one of the following requirements: (1) Is a psychotherapist as defined in Section 1010; has a master’s degree in counseling or a related field; or has one year of counseling experience, at least six months of which is in rape crisis counseling.

(2) Has 40 hours of training as described below and is supervised by an individual who qualifies as a counselor under paragraph (1). The training, supervised by a person qualified under paragraph (1), shall include, but not be limited to, the following areas: law, medicine, societal attitudes, crisis intervention and counseling techniques, role playing, referral services, and sexuality. (b) A person who is employed by any organization providing the programs specified in §13835.2 of the Penal Code, whether financially compensated or not, for the purpose of counseling and assisting sexual assault victims, and who meets one of the following requirements: (1) Is a psychotherapist as defined in §1010; has a master’s degree in counseling or a related field; or has one year of counseling experience, at least six months of which is in rape assault counseling.

(2) Has the minimum training for sexual assault counseling required by guidelines established by the employing agency pursuant to subdivision (c) of §13835.10 of the Penal Code, and is supervised by an individual who qualifies as a counselor under paragraph (1). The training, supervised by a person qualified under paragraph (1), shall include, but not be limited to, the following areas: law, victimology, counseling techniques, client and system advocacy, and referral services.

27

EVIDENCE CODE §1035.4

“CONF IDE NTI A L CO MMU NICATION BETWE E N SE XUA L ASSAULT CO U NSE L OR AND VICTIM” DEFI NE D

As used in this article, “confidential communication between the sexual assault counselor and the victim” means information transmitted between the victim and the sexual assault counselor in the course of their relationship and in confidence by a means which, so far as the victim is aware, discloses the information to no third persons other than those who are present to further the interests of the victim in the consultation or those to whom disclosures are reasonably necessary for the transmission of the information or an accomplishment of the purposes for which the sexual assault counselor is consulted. The term includes all information regarding the facts and circumstances involving the alleged sexual assault and also includes all information regarding the victim’s prior or subsequent sexual conduct, and opinions regarding the victim’s sexual conduct or reputation in sexual matters.

The court may compel disclosure of information received by the sexual assault counselor which constitutes relevant evidence of the facts and circumstances involving an alleged sexual assault about which the victim is complaining and which is the subject of a criminal proceeding if the court determines that the probative value outweighs the effect on the victim, the treatment relationship, and the treatment services if disclosure is compelled.

When a court is ruling on a claim of privilege under this article, the court may require the person from whom disclosure is sought or the person authorized to claim the privilege, or both, to disclose the information in chambers out of the presence and hearing of all persons except the person authorized to claim the privilege and such other persons as the person authorized to claim the privilege is willing to have present. If the judge determines that the information is privileged and must not be disclosed, neither they nor any other person may ever disclose, without the consent of a person authorized to permit disclosure, what was disclosed in the course of the proceedings in chambers.

If the court determines certain information shall be disclosed, the court shall so order and inform the defendant. If the court finds there is a reasonable likelihood that particular information is subject to disclosure pursuant to the balancing test provided in this section, the following procedure shall be followed: (1) The court shall inform the defendant of the nature of the information, which may be subject to disclosure.

(2) The court shall order a hearing out of the presence of the jury, if any, and the hearing allow the questioning of the sexual assault counselor regarding the information, which the court has determined may be subject to disclosure.

(3) At the conclusion of the hearing, the court shall rule which items of information, if any, shall be disclosed. The court may make an order stating what evidence may be introduced by the defendant and the nature of questions to be permitted. The defendant may then offer evidence pursuant to the order of the court. Admission of evidence concerning the sexual conduct of the complaining witness is subject to §352, 782, and 1103 of the Evidence Code.

28

EVIDENCE CODE §1035.6 “HOLDER OF THE PRIVILEGE” DEFINED

As used in this article, “holder of the privilege” means: (a) The victim when such person has no guardian or conservator. (b) A guardian or conservator of the victim when the victim has a guardian or conservator. (c) The personal representative of the victim if the victim is dead.

EVIDENCE CODE §1036 WHEN COUNSELOR SHALL CLAIM PRIVILEGE The sexual assault victim counselor who received or made a communication subject to the privilege under this article shall claim the privilege whenever he is present when the communication is sought to be disclosed and is authorized to claim the privilege under E.C. subdivision (c) §1035.8.

EVIDENCE CODE §1035.8 WHEN PRIVILEGE TO REFUSE TO DISCLOSE CONFIDENTIAL COMMUNICATION MAY BE CLAIMED A victim of a sexual assault, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between the victim and a sexual assault victim counselor if the privilege is claimed by: (a) The holder of the privilege; (b) A person who is authorized to claim the privilege by the holder of the privilege; or (c) The person who was the sexual assault victim counselor at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if they are otherwise instructed by a person authorized to permit disclosure.

QUICK FACTS: In other words, in order to assert the counselor-SA survivor privilege, the advocate must: Work for an organization that qualifies as a rape crisis center under CA Evidence Code §1035.2.

Non-confidential advocates, or advocates that do not fall under the Evidence Code as a confidential sexual assault counselor, must disclose their confidentiality limitations to survivors as soon as possible. Disclosing confidentiality limitations allows survivors to make informed decisions about what they want to share.

29

Confidentiality related to Address Information (Safe at Home Program) A sexual assault survivor who lives in California can apply for address confidentiality through the state’s Safe at Home Program. This consists of designating another address as a substitute mailing address and helps to prevent their abuser from locating them through public records. Through the program, participants receive a substitute mailing address. Safe at Home receives the participant's first class, certified, and other registered mail and forwards it to the participant's mailing address at no cost. The program is also open to members of the survivor’s household. A Safe at Home participant's records are kept confidential and cannot be released by Safe at Home unless directed by a court of law, government agency, or requested by a law enforcement agency; these agencies must demonstrate a bona-fide administrative 'need to know' participant information before Safe at Home will release it as requested.

(Government Code, §6205) To apply, a survivor should fill out an application at an enrolling agency designated by the Safe at Home Program.5 As part of the application process, the survivor must meet with an advocate in person and complete the required documentation. After an application is filed, the Secretary of State shall certify the applicant as a program participant. This certification is good for four years unless it is withdrawn or invalidated before that date. (Government Code, §6205 and §6206) To learn more and apply for Safe at Home: https://www.sos.ca.gov/registries/safe-home/

30

CONFIDENTIALITY FOR REQUESTING A NAME CHANGE (SAFE AT HOME PROGRAM) A person who participates in the state’s address confidentiality program (Safe at Home) and who files a court petition to legally change their name to avoid IPV, stalking, sexual assault, or human trafficking is exempt from the name-change publication requirement. This means that placing a public notice in a local newspaper, or other procedures that would generally be used to publicly post the person’s name change request, will not occur. In addition, for minors who participate in Safe at Home, there is no filing fee to submit a name-change request. (Code of Civil Procedure, §1277)

CONFIDENTIALITY RELATED TO MEDICAL EXAM Survivors who disclose that their medical exam is due to sexual assault or spousal rape cannot be guaranteed confidentiality because hospitals and health care providers are required to report to the local law enforcement agency all cases in which medical care is sought or suspected where injuries have been inflicted upon the victim. The report must be made by phone and in writing, and include the name of the injured person, her or his current whereabouts, and the character and extent of injuries. (Penal Code sections (11160–11161.1)

CONFIDENTIALITY IN COURT PROCEEDINGS If a survivor chooses to move forward with judicial proceedings, they may ask to be identified in all records and in all proceedings as Jane Doe or John Doe. The court must grant this request if it is needed to protect the privacy of the person and it will not unduly bias the prosecution or the defense. (Penal Code §293.5)

CONFIDENTIALITY RELATED TO VEHICLES Survivors of IPV, stalking, rape, and sexual battery may apply for new and different license plates for their vehicle. The application process includes providing proof of vehicle ownership, driver’s license or other photo identification, the vehicle’s previously issued license plates, a fee for duplicate plates, and relevant documentation from law enforcement, court, IPV agency, or rape crisis center. (Vehicle Code, §4467) 31

SECTION SEVEN

CASE STUDY ANSWERS

32

Recall, Viviana was staying at the shelter and a detective called and asked to speak with her.

How should the crisis line advocate respond to the detective?

Let the detective know that Viviana is there, but she is taking a nap, and take a message.

Explain she can’t confirm or deny if Viviana is a current or past client, but she will take a message and if she has contact with Viviana, she will pass it on.

Say she can’t confirm or deny if Viviana is there and hang up.

Answer: Even though Viviana shared with the detective that she is staying at the shelter, if the shelter advocate does not have consent from Viviana to confirm that she is staying at the shelter, the advocate cannot confirm this information to the detective.

Recall, the family law attorney called with a couple questions about Viviana's situation.

How should the advocate respond to the attorney?

Explain to the attorney that Vivian’s release is limited to sharing that she is a client for the purpose of making a referral and offer to take a message for Viviana.

Answer all the questions the attorney has, after all the attorney can assert attorneyclient privilege

Tell the attorney that they cannot talk to Viviana at all.

Answer: Access to free or affordable legal resources is very important for our clients.

Advocates often develop close working partnerships with attorneys. These partnerships are key to fully supporting survivors. And, it is still imperative that advocates maintain client confidentiality and only share information that is included in the client release.

33

Recall Viviana's cousin Karen agreed to take her to see a legal advocate.

How should you respond to having a third party (Viviana’s cousin) present during the appointment?

Ask to speak with Viviana alone for a few minutes and explain to her that there will be no expectation of confidentiality if a third person is present during the meeting. And then let Viviana decide.

Explain, in front of Karen, that there will be no expectation of confidentiality if a third party is present. And tell Karen she is not allowed to sit in the interview.

Say it is ok, as long as Viviana wants Karen there.

Answer: The advocate should explain to Karen and Viviana that the advocate and survivor have to meet alone for a few minutes. Once alone, the advocate can explain how confidentiality and privilege work. It is also important for the survivor to know it is completely her choice if she wants Karen in the meeting.

34

SECTION EIGHT

SECTION SUMMARY

35

What is the difference between client privacy, confidentiality, and privilege?

Privacy is often referred to as the right to control information and decisions about oneself.

Confidentiality means the responsibility to protect information that a client has shared. It is a promise that: (1) the advocate will not intentionally disclose information; (2) the advocate will take protective measures to prevent inadvertent or unlawful disclosure of information; (3) the advocate will vigorously challenge any attempts to take the information; and (4) the advocate will alert the owner of the information about attempts to take it.

Privilege typically means: a) a court cannot force a survivor or their advocate to disclose information shared between the advocate and survivor, and b) neither the advocate nor the survivor can be punished for a refusal to disclose the information.

What information is confidential?

Information that has the potential to reveal a client’s identity and/or services rendered may be considered confidential.

What information is privileged?

Information shared between survivors and advocates is typically “confidential” for the purpose of asserting privilege if: (1) it is communicated privately between survivor and advocate, (2) the survivor reasonably expects the information to stay private, and (3) the survivor actually keeps the communication private.

Who qualifies as a domestic violence counselor for the purpose of asserting client/counselor privilege?

Advocates that work for an organization that qualifies as a domestic violence service provider under Welfare & Institutions Code §18294, or work for an agency whose primary mission is to serve domestic violence survivors: Advocates who have completed the 40-hour intimate partner violence training, and be supervised by a confidential advocate for the first six months of her/his/their employment with the organization.

36

Who qualifies as a sexual assault counselor for the purpose of asserting client/counselor privilege?

Advocates that work in any office, hospital, institution, or center commonly known as a rape crisis center, whose primary purpose is rendering support to victims of sexual assault, and have received the appropriate training, or have a master’s degree in counseling or a related field.

Who qualifies as a human trafficking case worker for the purpose of asserting client/counselor privilege?

Advocate working for an HT service organization that: (a) Has an advanced degree or license, such as a master’s degree in counseling, social work, or a related field and at least one year of experience in a caseworker role working directly with victims of human trafficking; or (b) Has at least 40 hours of training as specified in this paragraph and is supervised by an individual who qualifies as a human trafficking caseworker

What disclosures must advocates make to all clients regarding confidentiality?

Whether the advocate is a mandated reporter.

Whether the advocate is considered part of the law enforcement or prosecution team and falls under Brady evidence obligations of discovery in court cases.

What programs are in place to protect survivor confidentiality?

While there are federal and state guidelines, many agencies have specific policies.

Advocates should be familiar with their organization’s policies and practices around confidentiality.

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CHAPTER 2

ADVOCACY

Section One

LEARNING OBJECTIVES

1

When does an IPV survivor have the right to have an advocate and support person present?

4

How are survivors informed about their right to have an advocate and support person?

2

When does an SA survivor have the right to have an advocate and support person present?

5

What situations can a support person attend?

3

When does an HT survivor have the right to have an advocate and support person present?

6

When can a support person be excluded?

39

Advocates play an essential role in supporting survivors of gender-based violence. In addition to providing crisis intervention services, advocates provide long-term case management and advocacy within the criminal and civil justice systems.

Recognizing the importance of linking survivors to advocates early on, California legislators enacted laws that afford survivors of intimate partner violence and sexual assault the right to an advocate and support person. While the right to an advocate does not yet exist for human trafficking survivors, Santa Clara County has prioritized survivor access to confidential advocates through local policy and protocols.

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SECTION TWO SURVIVOR VOICES & CASE STUDIES

DANIEL Daniel is a survivor of intimate partner violence.

Please review his story on page S8, in order to answer questions on advocacy for Daniel.

NOELLE Noelle is a survivor of intimate partner violence, sexual assault, and sex trafficking. Please review her story on page S4, in order to answer questions on advocacy for Noelle.

41

DANIEL’S SAFETY & RIGHT TO AN ADVOCATE AND SUPPORT PERSON

Jacob figured out that Daniel was staying with Tina. One evening, Jacob confronted Daniel in the driveway as Daniel was arriving home. As Daniel tried to run into the house, Jacob punched Daniel in the stomach and began to strangle him, call him names, and accuse him of sleeping around. One of the neighbors called the police.

When the police arrived, they spoke to Daniel and Jacob separately.

The police arrested Jacob and took statements from the witnesses, including Daniel. Although it was hard for him, he told the police everything.

Because the situation involves intimate partner abuse, what should the officer do?

Explain that there will be a follow up interview with an IPV detective and that Daniel has the right to an advocate present during interviews with law enforcement under PC §679.05.

Provide Daniel with an IPV resource card.

Ensure Daniel feels safe to stay at Tina’s house and ask if he wants an emergency protective order

All of the above

42 Correct answer on page 62

NOELLE’S RIGHT TO AN ADVOCATE AND SUPPORT PERSON

After enduring physical, sexual, and emotional abuse for ten years, Noelle ran away across the country to escape Jonathan. Even though he was on the other side of the country, Jonathan continued to harass and stalk Noelle. He would send people to look for her at her workplace. Not having any other options, Noelle began doing sex work for Eddie, a sex trafficker she met in a homeless shelter. Noelle soon plunged into a dangerous, volatile situation. Eddie was just as abusive as Jonathan and the work itself was dangerous. One day a man that had paid to have sex with Noelle raped and beat her badly.

He said he would come back and kill her if she told anyone. Terrified, Noelle worked up the courage to call the police. She did not tell the officer that she had been raped. The officer was nice enough, but she basically dropped off Noelle at the homeless shelter and wished her well. Noelle knew she would not be safe at the shelter. She reached out to the National Human Trafficking Hotline and they connected her to a local confidential shelter for survivors of intimate partner abuse and human trafficking. Noelle was admitted into the confidential shelter that night.

43

After being in the confidential shelter a couple of days, Noelle confided to an advocate that she had been raped. Noelle wanted to know what would happen if she reported the rape. The advocate explained the reporting process and sexual assault forensic exam (SAFE). Noelle did not want to talk to the police or go to the exam alone.

As a sexual assault survivor, what are her rights around having a support person or advocate with her during the interview with law enforcement and SAFE?

Noelle only has the right to have an advocate present during interviews with law enforcement.

Noelle only has the right to have an advocate present during the sexual assault forensic exam.

Correct answer on page 62

Noelle has the right to have an advocate present both the interview with law enforcement and the sexual assault forensic exam.

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SECTION THREE

ADVOCACY & THE LAW

45

ADVOCACY & SUPPORT SERVICES FOR SURVIVORS OF DOMESTIC VIOLENCE

SECTION FOUR

An IPV survivor has the right to have an IPV advocate and a support person of the survivor’s choosing present at any interview by law enforcement authorities, prosecutors, or defense attorneys. (Penal Code, §679.05) “IPV advocate” defined: A person employed by a program to provide advice or assistance to victims of IPV, or an IPV counselor. (Penal Code, §679.05) Prior to the commencement of the initial interview by law enforcement authorities or the prosecutor pertaining to any criminal action arising out of a domestic violence incident, a victim of domestic violence or abuse shall be notified orally or in writing by the attending law enforcement authority or prosecutor that the victim has the right to have a domestic violence advocate and a support person of the victim's choosing present at the interview or contact. This applies to investigators and agents employed or retained by law enforcement or the prosecutor. (Penal Code, §679.05) An IPV survivor has the right to have a support person accompany them to court proceedings and other activities. The support person’s role is to provide moral and emotional support and to help the person feel more confident that he or she will not be injured or threatened by the other party during the proceedings, if that person is present. The survivor can choose any individual to serve as a support person; no special training or qualifications are needed. The support person is not present as a legal advisor and will not provide legal advice. (Family Code, §6303 – DV Violence Prevention Act)

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Situations a Support Person May Attend

Seeking a restraining order or civil harassment order: A support person may go to court with an individual who is seeking a temporary restraining order or civil harassment order for reasons including IPV or sexual assault.

If the individual (also known as a “party”) seeking the order is not represented by an attorney, the support person may sit with the party at the table that is generally reserved for the party and the party’s attorney. (Code of Civil Procedure, §527.6) Seeking a protective order: The support person may accompany a survivor to a court proceeding to obtain a protective order, and may sit with the survivor in court if the survivor is not represented by an attorney. (Family Code, §6303) Attending mediation: A support person may accompany a person protected by a court-issued protective order to any mediation orientation or mediation session, including separate mediation sessions. Family Court Services shall advise the person protected by the order of the right to have a support person during mediation. The support person’s presence does not waive the confidentiality of the mediation, and the support person must keep mediation proceedings confidential. (Family Code, §6303) During interviews with law enforcement, prosecutors, or defense attorneys: An IPV survivor has the right to have an advocate and a support person of the victim’s choosing present at any interview by law enforcement authorities, prosecutors, or defense attorneys. Prior to being present at any interview, the advocate shall advise the victim of any applicable limitations on the confidentiality of communications between the victim and the advocate. (Penal Code, §679.05) Before the start of the initial interview by law enforcement authorities or the prosecutor related to criminal action arising out of an IPV incident, a survivor shall be notified orally or in writing by law enforcement or the prosecutor of the right to have an advocate and a support person of the survivor’s choosing present at the interview or contact. The survivor also has the right to have an advocate and a support person present at any interview by the defense attorney or defense attorney’s investigators or agents. (Penal Code, §679.05)

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Situations a Support Person May be Excluded From initial investigation by law enforcement: An initial investigation by law enforcement shall not constitute a law enforcement interview. (Penal Code, §679.05) From interviews with law enforcement or prosecutor: The support person may be excluded if the law enforcement authority or the prosecutor determines that the support person’s presence would be detrimental to the purpose of the interview. (Penal Code, §679.05) From a medical/physical examination: A support person may be excluded from a medical evidentiary or physical examination if the law enforcement officer or medical provider determines that the support person’s presence would be detrimental to the purpose of the examination. (Penal Code, §264.2(4)) From court: When a support person accompanies an individual seeking a temporary restraining order or civil harassment order to court, the court may remove the support person from the courtroom if the court believes this person is prompting, swaying, or influencing the party assisted by the support person. (Code of Civil Procedure, §527.6) From mediation: A mediator may exclude a support person from a mediation session if the support person participates in the mediation session, acts as an advocate, is disruptive, or disrupts the process of mediation. (Family Code, §6303) As it relates to mediation of child custody and visitation, a support person can be excluded from a mediation proceeding at the mediator’s discretion. (Family Code, §3182)

QUICK FACTS: IPV Survivors have the right to an advocate and support person during any follow up interviews with law enforcement, prosecutors, and defense attorneys, civil or criminal court, and mediation.

Law enforcement, prosecutors, or their agents must inform the victim of their right to have an advocate and support person prior to initiating an interview.

A support person can be excluded from the above-mentioned situations.

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ADVOCACY & SUPPORT SERVICES FOR SURVIVORS OF HUMAN TRAFFICKING

SECTION SIX

Currently, there is no state law affording survivors of human trafficking the right to an advocate and support person. In cases of sex trafficking, or labor trafficking cases involving sexual assault, survivors can avail themselves of an advocate and support person as sexual assault survivors pursuant to Penal Code, §679.04. In labor trafficking cases, if there is an intersection with intimate partner abuse, the survivor can assert their right to an advocate under Penal Code §679.05.

The South Bay Coalition to End Human Trafficking’s Legislative Committee is actively working to ensure that survivors of human trafficking have the same right to an advocate as intimate partner violence and sexual assault survivors. Section six of the Santa Clara County Law Enforcement Human Trafficking Protocol outlines advocacy support services for multi-victim operations and in-person response. This Protocol was signed into effect by the Santa Clara County Police Chiefs Association in January 2021. We will discuss this protocol further in this section.

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SECTION SIX OF THE LAW ENFORCEMENT HUMAN TRAFFICKING PROTOCOL

6. 1 When law enforcement engages in criminal investigations that involve human exploitation of any form, service providers will be brought in at the earliest opportunity to allow service providers to provide the most amount of support for victims.

6.2 When operations are being planned and there is a possibility of victim recovery, law enforcement agencies should call the Point Agency and provide notification at the earliest opportunity. Victim service providers can arrange to have advocates available for the purpose of the operation. Notification should be provided at the earliest opportunity, ideally at least one week before the operation date so that providers can arrange necessary housing and other emergency services. When calling the Point Agency, law enforcement agencies should be prepared to provide the following information (if possible): Date and time of the operation; City (ies) and county (ies) where the operation will take place; Number of estimated victims; Special needs (e.g., wheelchair, hearing aids, medical concerns); Victim gender (s); Languages spoken; Law enforcement agencies involved; Safet y concerns; Potential number of victims that will need housing; If minors are involved; Conflicts of interests amongst potential victims.

6.3 When law enforcement actions lead to identification of a victim, an in-person response may be requested by calling the Point Agency, Community Solutions at (877) 363-7238. The Point Agency is described further on the follow page.

Advocacy Tip: If you are not in Santa Clara County, call the anonymous non-governmental National Human Trafficking Hotline 1 (888) 373-7888. Available 24/7.

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THE SOUTH BAY COALITION TO END HUMAN TRAFFICKING ADVOCACY SERVICE PROVIDER (ASP) COMMITTEE DEVELOPED SEVERAL PROTOCOLS TO ENSURE SURVIVORS OF HUMAN TRAFFICKING RECEIVE COMPREHENSIVE SUPPORT AND CASE MANAGEMENT. IN 2005, THE COALITION DEVELOPED A POINT AGENCY SYSTEM. THE FOLLOWING ARE EXCERPTS FROM THE POINT AGENCY SYSTEM PROTOCOL:

Purpose of a Point Agency System Since the Coalition’s inception in 2003, advocates have played a critical role in responding to trafficking victims’ needs. Advocates provide confidential supportive services related to crisis intervention, case management, advocacy, safety and goal planning, and linkage and referral. To ensure all potential human trafficking victims are connected to an advocate as soon as possible following identification, the Coalition established a Point Agency system. The purpose of the Point Agency System is to route all referrals for victim services to one organization – the Point Agency. Having one number to call is more efficient for law enforcement, medical personnel, and for victim service providers. The collaboration among service providers promotes efficient use of resources.

The Point Agency will then assign an advocate based on the client’s: (1) culturally and linguistic needs; (2) safety concerns; (3) client’s geographic location; and (4) service agencies’ individual capacity at the time of the referral.

Support for a Point Agency System The Point Agency model has been endorsed by several entities, including the Office of Victims of Crime, who recommends, “A good practice of a task force is to have one victim service provider serve as the coordinating victim service organization”.

For more information: https://www.ovcttac.gov/taskforceguide/eguide/5-building-strong-cases/54-landing-asuccessful-prosecution/the-victim-as-a-witness/ 53

THE COALITION’S IN-PERSON RESPONSE PROTOCOL WAS INITIALLY CREATED IN 2008 TO PROVIDE CONFIDENTIAL ADVOCATES GUIDELINES FOR RESPONDING IN PERSON TO AN INDIVIDUAL SURVIVOR. THE FOLLOWING ARE EXCERPTS FROM THE PROTOCOL:

B. Advocacy Service Providers Intimate Violence and Sexual Assault Advocates have played a critical role in responding to trafficking issues in the San Francisco Bay Area since the Coalition’s inception. Due to their existing structures, programs, networks and confidential communication privilege, intimate partner violence and sexual assault providers are uniquely positioned to support human trafficking victims. Advocacy Service Providers (ASPs) in Santa Clara County have worked in partnership to provide comprehensive, survivor-centered and trauma-informed support to survivors of human trafficking for almost 20 years.

The Coalition ASPs are committed to providing in-person response to survivors of human trafficking identified by law enforcement, governmental organizations, service providers, and others. The Coalition’s Point Person model for coordination of in-person response has been nationally recognized as a best practice by the Office of Victims of Crime (OVC): An in-person response involves a confidential advocate responding, in a timely manner, where a potential victim of human trafficking has been identified. Inperson response is provided in order to ensure immediate services to victims of human trafficking and encourage safety and security by initiating a relationship with a confidential advocate early on.

To refer a human trafficking victim to crisis support services, call the Community Solutions hotline in crisis situations 877-363-7238. Non-crisis referrals can be made by emailing the Point Agency at HTPointPersonReferral@communitysolutions.org.

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CBO OR GOVERNMENTAL ORGANIZATION - IDENTIFIED HT VICTIMS

CBO IDENTIFIES POTENTIAL HT VICTIM

CBO notifies Point Person/Agency that there is a need for an IP Response

Point Person/Agency works with VSP to ensure a one-hour in-person response

Once at the scene HT Advocate will work with survivor to identify immediate needs

HT Advocate will follow up with Point Person/Agency to ensure continued support of survivor

55

Law Enforcement Identified Survivors

LAW ENFORCEMENT IDENTIFIES POTENTIAL HT VICTIM

LE notifies Point Person/Agency that there is a need for an IP Response

Point Person/Agency works with VSP to ensure a one-hour in-person response

Once at the scene HT Advocate will work with survivor to identify immediate needs

HT Advocate will follow up with Point Person/Agency to ensure continued support of survivor

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THE COALITION’S MULTI-VICTIM OPERATIONS PROTOCOL INCLUDES THE FOLLOWING INFORMATION:

PURPOSE The Coalition is committed to providing guidance and technical assistance for advocates and attorneys responding to human trafficking survivors. This protocol provides direction and support for multi-victim operations. Multi-victim operations consist of three principal components: (1) advocacy support the day of the operation; (2) emergency housing for potential victims; and (3) long term advocacy and legal assistance

BACKGROUND Multi-victim operations refer to law enforcement actions involving several potential victims of sex or labor trafficking.

Some multi-victim operations involve multiple locations as well. Since the Coalition’s inception, victim and legal service providers have worked closely with local and federal law enforcement agencies to ensure victim support during law enforcement actions and in the aftermath. Providers believe that early access to victim and legal services enhances victim safety in the short term, and can increase victim participation in services over the long term. The Coalition’s Point Agency protocol outlines the process that law enforcement follows to request advocacy support, including individual and multi-victim actions.

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ADVOCACY & SUPPORT SERVICES FOR SURVIVORS OF SEXUAL ASSAULT

SECTION FIVE

A sexual assault survivor has the right to have a sexual assault counselor (victim advocate) and a support person of the victim’s choosing present at any interview by law enforcement authorities, district attorneys, or defense attorneys. A survivor has this right whether or not they waived the right previously (e.g., in a medical or physical examination or in an interview by law enforcement, district attorneys, or defense attorneys). (Penal Code, §679.04) A survivor who is an elder or dependent adult has a right to up to two support persons at a preliminary hearing or trial, including accompanying the person to the witness stand; one of the support persons may be a witness. (Penal Code § 868.5) Before starting the initial interview by law enforcement authorities or the district attorney, the victim shall be notified of their right to have a victim advocate and a support person of the victim’s choosing present at the interview or contact, about any other victim rights, and the right to request that a person of the same gender or opposite gender as the victim be present in the room during any interview with a law enforcement official or district attorney. (Penal Code, §679.04)

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Situations a Support Person May Attend DURING A MEDICAL EVIDENTIARY OR PHYSICAL EXAMINATION Survivors of IPV, stalking, rape, and sexual battery may apply for new and different license plates for their vehicle. The application process includes providing proof of vehicle ownership, driver’s license or other photo identification, the vehicle’s previously issued license plates, a fee for duplicate plates, and relevant documentation from law enforcement, court, IPV agency, or rape crisis center. (Vehicle Code, §4467)

IN COURT An initial investigation by law enforcement to determine whether a crime has been committed and the identity of the suspect(s) does not constitute a law enforcement interview for purposes of this section. (Penal Code, §679.04)

Situations a Support Person May be Excluded INITIAL LAW ENFORCEMENT INVESTIGATION An initial investigation by law enforcement to determine whether a crime has been committed and the identity of the suspect(s) does not constitute a law enforcement interview for purposes of this section. (Penal Code, §679.04)

INTERVIEW WITH LAW ENFORCEMENT OR DISTRICT ATTORNEY 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 support person’s presence would be detrimental to the interview’s purpose. (Penal Code, §679.04)

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SECTION SEVEN

CASE STUDY ANSWERS

61

Recall, Jacob assaulted Daniel in front of the home where Daniel was residing, and the neighbors called the police.

Because the situation involves intimate partner abuse, what should the officer do?

Explain that there will be a follow up interview with an IPV detective and that Daniel has the right to an advocate present during interviews with law enforcement under PC §679.05.

Ensure Daniel feels safe to stay at Tina’s house and ask if he wants an emergency protective order

Provide Daniel with an IPV resource card.

All of the above

Recall, after being trafficked for sex, Noelle was assaulted and raped by a buyer.

As a sexual assault survivor, what are her rights around having a support person or advocate with her during the interview with law enforcement and SAFE? Noelle only has the right to have an advocate present during interviews with law enforcement.

Noelle only has the right to have an advocate present during the sexual assault forensic exam.

Noelle has the right to have an advocate present both the interview with law enforcement and sexual assault forensic exam.

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SECTION EIGHT

SECTION SUMMARY

When does an IPV survivor have the right to an advocate and support person present?

Interviews with law enforcement, prosecutors, or defense attorneys, mediation, and family or criminal court hearings.

When does an SA survivor have the right to have an advocate and support person present?

Interviews with law enforcement, prosecutors, or defense attorneys, sexual assault forensic exams, and civil or criminal court hearings.

When does an HT survivor have the right to have an advocate and support person present?

Human trafficking survivors do not yet have a right to an advocate. However, if there is an intersection with sexual assault or intimate partner abuse, those rights will attach. In Santa Clara County, human trafficking survivors are afforded the same rights as sexual assault or intimate partner abuse survivors.

How are survivors informed about their right to have an advocate and support person?

Before an initial interview by law enforcement authorities or the prosecutor regarding a domestic violence or sexual assault incident, the victim must be notified orally or in writing by the attending law enforcement authority or prosecutor that the victim has the right to have a domestic violence advocate, or sexual assault advocate, and a support person of the victim's choosing present at the interview or contact.

What situations can a support person attend?

Restraining order proceedings, interviews with law enforcement, prosecutors, or defense attorneys, mediation, family or criminal court hearings, and medical exams.

When can a support person be excluded?

Interviews with law enforcement, prosecutors, or defense attorneys, mediation, family or criminal court hearings, and medical exams.

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CHAPTER 3

LANGUAGE ACCESS

Section One

LEARNING OBJECTIVES

1

What are our language access requirements under Title VI of the Civil Rights Act of 1964?

4

What is interpreting?

2

What is meaningful language access?

5

Can I interpret?

3

What does it mean to be limited-English proficient?

6

How do I effectively work with interpreters?

66

Ensuring the ability to communicate with a survivor in a language that the survivor can most effectively speak is a foundational element in providing trauma informed services for survivors with limited-English proficiency (LEP). Survivors with LEP continue to face barriers in accessing services given the lack of language accessible services. The US Census Bureau estimates that approximately 65.9 million people use a language other than English at home; 25.6 million use English less than “very well”[1], and 13% of the US population, approximately 38 million, has “hearing problems"[2]. Santa Clara County is a linguistically diverse community with residents speaking more than 100 languages.

Nearly 40% of Santa Clara County residents were born outside of the U.S., with about 20% of children in County schools identified as English learners. Without language access, survivors with limited-English proficiency have no systems' access. This section provides an overview of federal laws and guidance that ensure meaningful language access, considerations for providing trauma informed language access, and interpretation. Taking a written plan and implementing practices and procedures that ensure client centered trauma informed language access requires careful planning and consideration across the multitude of systems that survivors encounter. In discussing language access, consider what is being done to provide trauma informed language access, as well as what language access barriers survivors are faced with when encountering inaccessible systems, and the impact it has on survivors with limited-English proficiency.

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SECTION TWO SURVIVOR VOICES & CASE STUDIES

Anna

Anna is a survivor of intimate partner violence from Nicaragua.

She fled her partner, Agustin, with her 15 year-old daughter and sought asylum in the U.S. Please review her story on page S13, for context and in order to answer the questions following this section

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ANNA'S RIGHT TO LANGUAGE ACCESS Anna and her fifteen-year-old daughter, Celia, were admitted into a confidential shelter. Anna has limited-English proficiency and has been relying on Celia to communicate with shelter staff. Anna is assigned a bilingual-shelter advocate who does not speak Anna’s language. Shelter rules, information, and required group meetings are in English only. Anna has been having difficulty following the rules and participating in group meetings.

You are the legal advocate, and Anna has asked you to assist her in getting language access help at the shelter.

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HOW SHOULD YOU RESPOND TO THE SHELTER RELYING ON CELIA TO INTERPRET?

Provide resources on language access requirements to Anna and Celia and tell them to notify the shelter that relying on children to interpret is prohibited under federal law.

It is ok to have Celia interpret because she is fluent in English and the language spoken by Anna.

Contract with an interpreter and accompany Anna to a meeting with her advocate to discuss language access requirements under federal and state law, and discuss resources and options to make the shelter language accessible.

During the meeting with the shelter advocate you notice that the interpreter and Anna are having a side conversation with each other.

How should you respond to the interpreter?

Pause and let Anna and the interpreter complete the conversation, and then continue with the meeting.

Interrupt the conversation and ask the interpreter to explain what they are discussing.

End the meeting, and schedule a new interpreter.

70 Correct answer on page 80

Explain to the judge that you are not a trained court interpreter and unable to interpret, and that under Title VI of the Civil Rights Act courts are required to provide interpreters at no cost to the court user with limited-English proficiency.

You are accompanying Anna to a hearing, and the judge notes that Anna is limited-English proficient. The judge asks if you can speak Anna’s language, and you respond yes. The judge asks that you interpret for Anna in the court.

Interpret for the court, because Anna’s hearing will be postponed if you don’t.

How should you respond?

Interpret for the court until the court can locate a qualified court interpreter.

Correct answer on page 80

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SECTION THREE

LANGUAGE ACCESS & THE LAW

72

Language Access Requirements (Federally funded projects) “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” [3] Title VI of the Civil Rights Act of 1964 prohibition against discrimination based on national origin provides the legal basis for language access.

Organizations receiving federal financial assistance are required to develop and implement policies that ensure meaningful access for Limited English Proficient (LEP) persons to their programs and activities. Federal guidance represents a significant shift from previous positions where the onus was on the non-English-speaker to be understood; now recipients of federal financial assistance are responsible for ensuring meaningful language access for individuals with limited-English proficiency.

Organizations may receive federal funds directly or indirectly, through grants, contracts or subcontracts that may be dispersed by federal, state, county, or city authorities. When a program receiving federal funding is not providing meaningful access to LEP individuals, an administrative complaint may be filed with the federal department that is the source of funding an agency violating Title VI. A violation of Title VI may result in an investigation and the loss of all federal funding for the violating agency.[4]

Meaningful Language Access Meaningful Language Access is defined by the Department of Justice as “language assistance that results in accurate, timely, and effective communication at no cost to the LEP individual. For LEP individuals, meaningful access denotes access that is not significantly restricted, delayed or inferior as compared to programs or activities provided to English proficient individuals.” [5]

Limited English Proficiency (LEP) Our understanding of what it means to be limited-English proficient has evolved. Originally limitedEnglish proficient was understood to mean someone who does not speak English as their primary language and who has a limited ability understand and communicate in English. What we now understand is that the ability to communicate effectively and understand English is contextual. For individuals who speak English or American Sign Language as a second or third language, the ability to understand, effectively communicate and express themselves is impacted by the context, stress, subject matter, and trauma. Survivors whose primary language, the first language a person learns, is not English, or survivors with limited-English proficiency typically do not ask for interpreters, because they are accustomed to not being provided their legal right to meaningful language access. As advocates it is essential to assess the language needs of survivors, to ensure the voice of survivor is heard, and survivors’ needs are being met.

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Interpreting Language interpretation is the facilitation of oral or sign-language communication between users of different languages. Interpretation allows people that speak different languages to communicate with each other using interpreters or specialized equipment. Interpreting is the process where the interpreter listens to a message in the source language and relays that message in the target language.

Modes of interpreting There are three modes of interpreting that are recognized: Simultaneous –The process of orally rendering one language into another language virtually at the same time that the speaker is speaking. This is what you will see with conference interpreting, where individuals are listening to the interpretation while the speaker is actively speaking.

Consecutive –The process of orally rendering one language into another language after the speaker has completed a statement or question. This is what you will see when a witness is testifying in court. Where a question is asked in English, the interpreter will interpret after the question has been asked.

Sight Translation –The rendering of material written in one language into spoken speech in another language. An example of this is when an interpreter takes a document written in English and reads the document out loud in the target language to the individual with limited-English proficiency.

Interpreter Our understanding of what it means to be limited-English proficient has evolved. Originally limited-English proficient was understood to mean someone who does not speak English as their primary language and who has a limited ability understand and communicate in English. What we now understand is that the ability to communicate effectively and understand English is contextual. For individuals who speak English or American Sign Language as a second or third language, the ability to understand, effectively communicate and express themselves is impacted by the context, stress, subject matter, and trauma. Survivors whose primary language, the first language a person learns, is not English, or survivors with limited-English proficiency typically do not ask for interpreters, because they are accustomed to not being provided their legal right to meaningful language access. As advocates it is essential to assess the language needs of survivors, to ensure the voice of survivor is heard, and survivors’ needs are being met.

Categories of Interpreters There are many different types of interpreters, depending on their area of practice, state, or system. Federal definitions [6] provide an understanding of the different types of professional interpreters available. A certified interpreter is an interpreter that has been tested using a valid and reliable testing instrument on the ability to interpret in the simultaneous and/or consecutive modes of interpretation. There are several types of certification, including but not limited to: court, medical, administrative hearing, conference, and educational. Make sure to ask what type of certification an interpreter has, and who certified the interpreter. A qualified interpreter is an interpreter in a language where a certification test does not exist in the qualifying language. The qualified interpreter meets the training, experience, and knowledge standards for interpreting established by the hiring agency. A language skilled interpreter is someone who is fluent in English and the target language, but has no training and there is no qualification protocol established for the language spoken. The language skilled or bilingual interpreter is someone that can demonstrate the ability to speak English and the target language, but may not have the ability to competently interpret.

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Interpreting Services In-Person Interpretation involves having the interpreter and all parties are on-site together. Generally, the interpreter is seated to the side of, and slightly behind, the LEP individual facing the person conducting the interview. This allows the advocate to maintain eye contact directly with the LEP survivor, discourages others from speaking to the interpreter, and allows the advocate to build rapport with the LEP survivor. Please be aware that the positioning of the interpreter may need to change if the survivor is uncomfortable with the interpreter being positioned so closely and behind the survivor.

Telephonic Interpretation involves the interpreter being off-site, connected by phone to the conversation between two parties, and interpreting over the phone. Courts, hospitals, and systems may use specialized equipment, including headsets and two telephone lines. One phone line is used to allow the interpreter to hear what is being said. The second line is used by the interpreter to interpret communications between the LEP survivor and advocate.

Video Interpretation involves the use of cameras or webcams in the courtroom that are connected through the internet with an off-site interpreter. The interpreter receives both video and audio through the internet connection. Be aware that video remote interpretation being used in courts, hospitals, or other settings may not be designed to ensure confidential communication. Other platforms generally do not have separate and secure lines of communication if multiple parties are using the same video remote interpreter.

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I’m bilingual, can I interpret?

Interpretation is a skill acquired through extensive education, training, and experience.

It requires: (1) native-like fluency in both English and the target language; (2) knowing the mechanics of interpretation; (3) having training on a range of topics associated with the profession; (4) possessing a technical vocabulary; and (5) adhering to a code of ethics emphasizing accuracy, proficiency, confidentiality and neutrality.

Additionally, in cases of gender-based violence there may be terms that are sensitive and/or not easily translated. For example, human trafficking is often not a literal translation and means different things depending on the country. Before you interpret complete the checklist below.

API-GBV F.A.N.S. CHECKLIST FOR BILINGUAL SPEAKERS FLUENCY

ACCURACY

NEUTRALITY

SAFETY

(1a) Are you fluent in English?

(3) Are you able to interpret in the consecutive or simultaneous mode accurately without adding, omitting, or summarizing?

(5) Can you avoid a conflict of interest or the appearance of a conflict of interest between you and your client?

(9) Will your interpretation maintain the attorney-client privilege? (Or relevant counselor-survivor privilege)

(1b) Did you complete S4 level and score 4 (Advanced Professional Proficiency) on ILR scale, Self Assessment– Speaking Proficiency test?

(2a) Are you fluent in the target foreign language?

(2b) Did you complete L-4 level and score 4 on ILR scale, SelfAssessment of Foreign Language Listening Proficiency test?

(4) Are you familiar with legal terminology and specialized terminology of domestic violence , sexual assault & human trafficking in the source language?

(6) Can you stay in the interpreter’s role and avoid functioning in the advocate’s role?

(7) Could you be a potential witness in the case?

(10) You cannot wait for a qualified interpreter while maintaining the victim’s immediate safety?

(11) Can you maintain your safety?

(8) Will you be interpreting for your client and not the abuser, or trafficker?

If you answered “yes” to all of the above questions and there are no qualified interpreters available, you can provide limited interpretation, but proceed with caution.

If you answered “no” to any question and you do not feel competent to interpret, but a judge or attorney is pressuring you to interpret, you can state your reasons and request that your objection be placed in the record.

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WORKING WITH AN INTERPRETER

Meet with the interpreter before the two of you meet with the client. Provide information about what will be discussed, share copies of written documents you will be using, and confirm that the interpreter is able to interpret. Remember interpreters are people, they are survivors, they are perpetrators, they experience trauma, they may know the parties, and they may have biases. The role of the advocate before meeting with the client is to check to make sure the interpreter is qualified to interpret for the survivor.

When you first meet with the client and interpreter, confirm their languages match. The language identified may not be the language spoken by the individual. Also, variations in language based on region or dialect can impact the effectiveness of the interpretation. Explain confidentiality, roles and responsibilities as well as basic guidelines on how the session will be conducted. Establish a signal for the interpreter to ask for a pause, or to have the speaker slow down.

When communicating with the client through an interpreter: The interpreter will most likely be using the consecutive mode of interpretation.

Speak in short, simple sentences.

Avoid jargon and slang. Keep everything clear and to the point. Explain legal terms in simple language. Remember – there may be differences of culture, world view and education.

Speak slowly. Vital information is often lost because untrained interpreters have less developed memory skills than trained interpreters.

Ask one question at a time. Often, if two questions are asked the first question is ignored. By the same token, give steps or instructions one at a time.

Check for understanding. If you ask a client, "Did you understand?" never assume that a nod or a smile means agreement. (It may indicate respect or deference to authority.) Instead, after conveying important information, ask the client to repeat in their own words what you have said. Then you will know that the client has actually understood.

Have the interpreter "sight translate" all vital documents. If the client must sign or understand an important document, the interpreter should read it silently first to be sure they understand it and ask the provider any questions. The interpreter should translate it orally, line by line. You should be present at all times to answer any questions. Do not ask the interpreter to sight translate a legal document, unless they are court-certified. Never ask the interpreter to summarize a document. Do not leave the client alone with the interpreter during sight translation. You are always needed to answer questions, the interpreter is not permitted to answer the client's questions.

Do not allow side conversations. A common mistake occurs when untrained interpreters start talking with the client "on the side." Do not allow it. Gently remind the interpreter that everything is to be interpreted.

Maintain control. An untrained interpreter will often try to take control. Be firm: the client is your client. Stay focused on the relationship between you and the client. The interpreter should remain in the background.

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WORKING WITH AN INTERPRETER CONTINUED Overcome misunderstandings. One exception to the background role of the interpreter is when a misunderstanding arises. In which case, the interpreter should step in if communication is not clear.

There may be confusion with legal terms or a cultural barrier.

Do not say anything that you would not like the client to hear. Remember, an interpreter is required to interpret everything that is said.

TRAUMA INFORMED INTERPRETING There are a number of considerations in providing trauma informed interpretation: The linguistic community (including Deaf) is a small community and interpreters may know the client they are interpreting for, or be familiar with community members the client knows.

Not all interpreters are trained in or knowledgeable about domestic violence, sexual assault, human trafficking and trauma informed practices. Ensure that sensitive terms that are translated are done so without tone, judgment or shame.

Some interpreters are themselves victims or perpetrators.

Interpreters can experience trauma and vicarious trauma.

You will need to schedule more time when working with an interpreter.

Interpreters often have a higher status in their community for their ability to speak English. This power dynamic may make the client uncomfortable speaking openly with the interpreter being present or seeking their approval.

Victims may specify a gender preference for an interpreter. Still should consider time, resources, and any exigency when finding an interpreter.

Children, family members, friends, or acquaintances should not be used to interpret. Survivors will not feel comfortable sharing private, personal, intimate, or traumatizing information in front of persons they are familiar with.

SPOTTING BAD INTERPRETING It is difficult to identify how well the interpreter is doing without speaking the language. But there are some questions you can ask yourself. And if you have any doubt, always ask the interpreter and check in with your client using another interpreter.

Can you understand the interpreter?

Does the client look confused?

Does the interpreter look confused?

Is the interpreter engaging in side conversations?

Is the interpreter summarizing?

Is the interpreter saying too much?

Is there a change in your client’s demeanor or behavior?

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SECTION FOUR

CASE STUDY ANSWERS

79

Remember, you are responding to the shelter relying on Celia to interpret for Anna.

Provide resources on language access requirements to Anna and Celia and tell them to notify the shelter that relying on children to interpret is prohibited under federal law.

It is ok to have Celia interpret because she is fluent in English and the language spoken by Anna.

Contract with an interpreter and accompany Anna to a meeting with her advocate to discuss language access requirements under federal and state law, and discuss resources and options to make the shelter language accessible.

Remember, the interpreter and Anna are having a side conversation with each other.

How should you respond to the interpreter?

Pause and let Anna and the interpreter complete the conversation, and then continue with the meeting.

End the meeting, and schedule a new interpreter.

Interrupt the conversation and ask the interpreter to explain what they are discussing.

Remember, you are responding to the judge asking you to interpret for Anna in the court.

Explain to the judge that you are not a trained court interpreter and unable to interpret, and that under Title VI of the Civil Rights Act courts are required to provide interpreters at no cost to the court user with limited-English proficiency.

Interpret for the court, because Anna’s hearing will be postponed if you don’t.

Interpret for the court until the court can locate a qualified court interpreter.

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SECTION FIVE

SECTION SUMMARY

What are our language access requirements under Title VI of the Civil Rights Act of 1964?

Title VI of the Civil Rights Act of 1964 prohibition against discrimination based on national origin provides the legal basis for language access. Organizations receiving federal financial assistance are required to develop and implement policies that ensure meaningful access for Limited English Proficient (LEP) persons to their programs and activities.

What is meaningful language access?

Language assistance that results in accurate, timely, and effective communication at no cost to the LEP individual.

What does it mean to be limited-English proficient?

Previously, individuals with limited-English proficiency were defined as not speaking English as their primary language and having a limited ability to speak, read, write, or understand English.

What we now understand is that the ability to communicate effectively and understand English is contextual. For individuals who speak English or American Sign Language as a second or third language, the ability to understand, effectively communicate and express themselves is impacted by the context, stress, subject matter, and trauma.

What is interpreting?

Language interpretation is the facilitation of oral or sign-language communication between users of different languages. Interpretation allows people that speak different languages to communicate with each other using interpreters or specialized equipment.

Can I interpret?

Interpretation involves a lot more than simple conveying information communicated in a source language to the target language. It is a skill acquired through extensive education, training, and experience. It requires native-like fluency in both English and the target language; knowing the mechanics of interpretation; having training on a range of topics associated with the profession; possessing a technical vocabulary; and adhering to a code of ethics emphasizing accuracy, proficiency, confidentiality and neutrality. Additionally, in cases of gender-based violence there may be terms that are sensitive and/or not easily translated. Review the Checklist for Bilingual Speakers to assess your interpretation capacity.

How do I effectively work with interpreters?

Meet with the interpreter before your meeting when possible and provide information about what will be discussed. When you first meet with the client and interpreter, confirm their languages match. When communicating with the client through an interpreter: speak in short, simple sentences and avoid jargon and slang. Ask one question at a time then check for understanding. Do not allow side conversations; maintain control. Stay focused on the relationship between you and the client. The interpreter should remain in the background. Do not say anything that you would not like the client to hear. Remember, an interpreter is required to interpret everything that is said.

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SECTION FIVE

Citations 1. Source: Census Detailed Languages Spoken at Home and the Ability to Speak English for the Population 5 years and Over for United States 2019 ACS 5-Year Estimates Data Profiles.

2. “Hearing Problems” includes Deaf/deaf and HOH (Hard OF Hearing).

Content compiled from US Census 2012 and Annual Disability Statistics Compendium 2013. Harrington, Tom (2004, July, Updated July 2014) Deaf Population of the US, http://libguides.gallaudet.edu/content.php? pid=119476&sid=1029190.

3. Civil Rights Act of 1964, Title VI, 42 U.S.C. § 2000d 4. LEP.gov is a federal clearinghouse on language access, including guidances, FAQs, and language access information produced by multiple federal agencies. https://www.lep.gov/ 5. Department of Justice Language Access Plan. Department of Justice, pp. 3.

March 2012. https://www.justice.gov/sites/default/files/open/legacy/2012/05/07/languageaccess-plan.pdf 6. 28 U.S.C. §1827.

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CHAPTER 4

RESTRAINING ORDERS

Section One

LEARNING OBJECTIVES

1 4

2 3 5 6

What is an Emergency Protective Order?

What is the Domestic Violence Prevention Act?

What is a Temporary Domestic Violence Restraining Order?

What is a Domestic Violence Restraining Order After Hearing?

What is a Criminal Protective Order?

What is a Civil Harassment Restraining Order?

7

Which type of orders are available to survivors of Human Trafficking?

8

Which type of orders are available to survivors of Sexual Assault?

9

How can I safety plan with a survivor that has a Restraining Order?

85

A restraining order is a court order that can protect survivors from being physically or sexually abused, threatened, stalked, or harassed. Restraining orders can mandate the restrained party to stay away from the protected party. Survivors of intimate partner violence frequently seek restraining orders as a safety measure. There are different types of restraining orders and it is important to understand the scope and limitations of each order to better support survivors.

-86-

SECTION TWO

SURVIVOR VOICES & CASE STUDIES

VIVIANA Viviana is a survivor of intimate partner violence, sexual assault, and labor trafficking by her former partner Jorge. Please review her story on page S3, for context and in order to answer the questions following this section.

DANIEL Daniel is a survivor of intimate partner violence. Please review his story on page S8, for context and in order to answer the questions following this section.

NOELLE Noelle is a survivor of intimate partner violence, sexual assault, and sex trafficking. Please review her story on page S4, for context and in order to answer the questions following this section.

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VIVIANA'S RIGHT TO A RESTRAINING ORDER

Viviana and Camilo entered a confidential shelter for survivors of IPV and HT. Viviana was afraid that Jorge would follow through on his threats to take Camilo and kill her. She shared her fears with a confidential advocate and the advocate scheduled a meeting for Viviana with a legal advocate.

WHICH TYPE OF RESTRAINING ORDER CAN VIVIANA REQUEST?

Civil Harassment Restraining Order

Domestic Violence Restraining Order

Criminal Protective Order

ADVOCACY TIP Whenever a survivor with minor children leaves an abusive situation, taking the children with them, the survivor must file a good cause report with the District Attorney’s Office’s Child Abduction Unit to protect the survivor from kidnapping allegations.

Correct answer on page 102

88

DANIEL'S RIGHT TO A RESTRAINING ORDER

One evening, Jacob confronted Daniel in the driveway as Daniel was arriving home. As Daniel tried to run into the house Jacob punched Daniel in the stomach and began to strangle him, call him names, and accuse him of sleeping around. One of the neighbors called the police. The police arrested Jacob and took statements from the witnesses, including Daniel. Although it was hard for him, Daniel told the police everything. As the police led Jacob into the police car, he continued to shout at Daniel and threaten him. Daniel is afraid of what Jacob will do when he is released. Daniel meets with an advocate to figure out his options.

WHAT IMMEDIATE PROTECTION IS AVAILABLE TO DANIEL?

None, because Daniel and Jacob are no longer in a relationship

An Emergency Protective Order (EPRO)

A Domestic Violence Restraining Order (DVRO)

A Civil Harassment Restraining Order

Correct answer on page 102

89

NOELLE'S RIGHT TO A RESTRAINING ORDER

The officer who picked up Noelle was kind, but just dropped her off at a local homeless shelter. Noelle knew she would not be safe at the shelter. She reached out to the National Human Trafficking Hotline and they connected her to a local confidential shelter for survivors of intimate partner abuse and human trafficking. Noelle was admitted into the confidential shelter that night. Even though she is across the country, Jonathan keeps harassing and threatening Noelle. Noelle wants Jonathan to stop harassing her.

90

If Noelle wants to pursue a restraining order against Jonathan, how can a California court establish personal jurisdiction over an out-of-state abuser?

One of the acts of abuse happened in CA. Jonathan sent Noelle threatening texts and harassing phone calls from another state but she read the messages and answered the calls while in CA. The judge could decide the abuse happened to Noelle in CA.

If Jonathan has a substantial connection to CA. Perhaps he regularly travels to CA to look for Noelle, for business, to see extended family, or if Jonathan had previously lived in CA and recently fled the state.

If Noelle files her petition and Jonathan gets served with the court petition while he is in CA, this is a way for the court to get jurisdiction.

Any of the above.

Correct answer on page 103

Advocacy Tip

An out-of-state custody order that is registered in CA can be enforced as if the order were issued by a CA court. However, the abuser will be notified of the registration and have the chance to contest it being registered in the new state. If the survivor is trying to keep their location confidential from the abuser, registering the order would likely not be a good idea since it will let the abuser know know what county in CA the survivor is living in.

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SECTION THREE

RESTRAINING ORDERS & THE LAW

92

Injunctions and Civil Restraining Orders An injunction is a court order requiring a person to do or cease doing a specific action. There are three types of injunctions: Permanent Injunctions, Temporary Restraining Orders, and Preliminary Injunctions. Temporary Restraining Orders and Preliminary Injunctions can be issued by the judge early in a lawsuit to stop the defendant from continuing their allegedly harmful actions. The court has full discretion regarding whether to grant temporary injunctive relief. Permanent Injunctions are issued as a final judgment in a case. Failure to comply with an injunction may result in being held in contempt of court, which in turn may result in either criminal or civil liability. See, e.g., Roe v. Wade 410 US 113 (1973).

A Restraining Order, also known as a protection order, makes it illegal for an individual to contact another person(s). The purpose of most Restraining Orders is to ensure the restrained party cannot harm or unduly influence the protected person(s) while a matter is active before the court. There are two types of Restraining Orders – civil and criminal. In civil cases (often in Family Court), the person requesting the Restraining Order is also known as the petitioner. If the order is granted, the petitioner becomes the protected party. The person against whom the Restraining Order is requested is also known as the respondent. If the order is granted, the respondent becomes the restrained party.

A temporary order is granted when the judge believes that the facts alleged by the petitioner warrant the issuance of the order. Temporary Restraining Orders are ex parte (meaning, the order can be granted without waiting for a response from the other side). Generally, Temporary Restraining Orders are only in place until further hearings can be held. At the time of the Restraining Order hearing, the respondent will have a chance to respond to the allegations listed in the Temporary Restraining Order petition.

Safety Planning with a Survivor who has a Restraining Order A Restraining Order should never replace a safety plan, therefore survivors need to have a plan in place to increase their safety. Restraining Orders are registered in the California Law Enforcement Telecommunication System (CLETS), however, survivors are still encouraged to keep a copy of their Restraining Order on or near them at all times. It is recommended to provide copies of the restraining order to employers, childrens' schools, and trusted family and friends.

Inform as many neighbors, relatives, friends, and co-workers as soon as possible that the Restraining Order is in effect. If there are any violations of the Restraining Order, the survivor should contact law enforcement as soon as possible.

Civil Harassment Order This order helps protect survivors from violence, stalking, serious harassment, or threats of violence by someone they have not dated and do not have a close relationship with, for example a neighbor, a roommate, or a friend.

Criminal Protective Order This order is issued by a Criminal Court Judge when a defendant appears in court for the first time and there is a criminal case involving domestic violence, sexual assault, human trafficking, or other assault. Criminal protective orders last until the date specified on the order. They can last up to ten years.

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RESTRAINING ORDERS FOR SURVIVORS OF DOMESTIC VIOLENCE

SECTION FOUR

DOMESTIC VIOLENCE PREVENTION ACT California's Domestic Violence Prevention Act (the DVPA) was passed in 1993. Its objective is to provide immediate legal protection for victims of domestic physical abuse and emotional abuse, in the form of temporary restraining orders and injunctions against the abuser. Prior to the Act's passage, obtaining such assistance, if it was obtainable at all, was a complicated, lengthy, and expensive process.

“Domestic violence” is abuse perpetrated against any of the following persons: a spouse or former spouse, a cohabitant or former cohabitant, a person with whom the survivor is having or has had a dating or engagement relationship, a person with whom the survivor has had a child with, or a close blood relative.

For the purposes of this act, “abuse” can mean any of the following: bodily injury, sexual assault, reasonable apprehension of imminent serious bodily injury to self or others, harassing, attacking, stalking, threatening, coercive control and/or disturbing the peace.

Abuse is not limited to the actual infliction of physical injury or assault.

As its title indicates, the Act applies to married people and immediate family members, people who have had children together, and to people who were or are dating each other. The definition of abuse in the Act covers a lot of ground: molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, destroying personal property, contacting (either directly or indirectly, by mail or otherwise), coming within a certain distance of, or disturbing the peace of the other party.

95

EMERGENCY PROTECTIVE ORDER

After responding to an IPV call, law enforcement can request that a judge issue an emergency protective order if there is an immediate and present danger of IPV or if a child is in immediate and present danger of abuse by a family or household member or kidnapping by a parent or relative. This order can also protect an elderly or dependent adult who is in immediate and present danger of abuse. The judge will issue the order if they believe it is necessary to prevent IPV, child abuse or abduction, or abuse of an elder or dependent adult. (Family Code §6250, §6251).

The order will expire at the close of the fifth business day or the seventh calendar day, whichever comes first. (Family Code §6256).

The emergency protective order can include giving temporary custody of any children in the family or household to the survivor. (Family Code §6252)

SB 1141 – coercive control. “Codifies and elaborates on case law defining when a restraining order under the Domestic Violence Protection Act may be issued because a person was disturbing the peace of the other party which includes coercive control. The bill defines disturbing the peace of the other party as conduct that destroys the mental or emotional calm of the other party and includes coercive control that unreasonably interferes with a person’s free will and personal liberty and includes unreasonably isolating a victim from friends, relatives, or other sources of support.”

(Family Code 6320 (c)

CIVIL HARASSMENT ORDER This order helps protect survivors from violence, stalking, serious harassment, or threats of violence by someone they have not dated and do not have a close relationship with, for example a neighbor, a roommate, or a friend.

Temporary Domestic Violence Restraining Order The temporary order is designed to offer immediate protection from physical or sexual abuse, threats, stalking, harassment and other forms of abuse. (Family Code §6203, Family Code §6321). This order can order the abuser to not contact the IPV survivor and stay away from the home, while the survivor waits for a longer-term restraining order to be issued. It can also include temporary custody and visitation orders as well as temporary use, possession and control of real or personal property.

Domestic Violence Restraining Order After Hearing This order can be issued after a court hearing attended by the IPV survivor and can include the same provisions as the temporary restraining order. The court can grant this order for up to five years, and the order can be renewed without evidence of additional abuse (Family Code §6345(a)). The court can grant the renewal if it believes the protected party has a "reasonable" fear that the abuser will threaten, harass, or abuse them again once the first restraining order expires. At the hearing, the court can also make child support and spousal support orders (Family Code §6340c, §6323, §6341).

ADVOCACY TIP If there are child custody and visitation issues: 1. The judge may send the parents to mediation. Mediation helps parents agree on a plan for custody and visitation that is best for the children.

2. If a client is sent to mediation, the judge may make the temporary custody and visitation orders last until the next hearing or until another court order.

3. Either parent can ask to meet with the mediator separately.

Criminal Protective Order This order is issued by a Criminal Court Judge when a defendant appears in court for the first time and there is a criminal case involving domestic violence, sexual assault, or other assault. It can include peaceful contact orders and/or no-contact and stay-away orders. If the survivor wants to have contact with the accused, they can request that the no-contact order be modified to a peaceful contact order.

The current protocol for amending protective orders from no-contact to peaceful contact entails having the survivor meet with a confidential IPV service provider. During the meeting, the advocate will explain the differences between protective orders, review safety concerns, and provide resources. The advocate will then provide a letter for the survivor confirming that they participated in the meeting.

The survivor presents the letter to the judge at the accused’s arraignment hearing and requests that the no-contact order be modified to peaceful contact. Court orders are modified at the judge’s discretion. If the judge modifies a no-contact order to a peaceful contact order, the survivor can request to have the order reverted to no-contact if they are concerned for their safety.

96

RESTRAINING ORDERS FOR SURVIVORS OF HUMAN TRAFFICKING

SECTION FIVE

Human trafficking survivors have the option of requesting a restraining order, however, the type of order they request depends on the nature of their relationship with the trafficker.

A human trafficking survivor can request a Civil Harassment Restraining Order, if they did not have an intimate or dating relationship with their trafficker.

If a human trafficking survivor had an intimate or dating relationship with their trafficker, or if they had children with them, then they can request a Domestic Violence Restraining Order.

If the trafficker is facing criminal charges as a result of the abuse perpetrated on the survivor, the Criminal Court may issue a Criminal Protective Order to protect the survivor from further abuse.

-98-

RESTRAINING ORDERS FOR SURVIVORS OF SEXUAL ASSAULT

SECTION SIX

Sexual assault survivors can request a Civil Harassment Restraining Order, if they did not have a dating or intimate relationship with their perpetrator. Civil Harassment Restraining Orders are also available in cases where the perpetrator is not an immediate family member of the victim.

If a sexual assault survivor had a dating or intimate relationship with their perpetrator, or if they had children with them, or they are an immediate family member, then they can request a Domestic Violence Restraining Order.

If the perpetrator is facing criminal charges as a result of the sexual assault, the Criminal Court may issue a Criminal Protective Order to protect the survivor from further abuse.

-100-

SECTION FOUR

CASE STUDY ANSWERS

101

Recall Viviana is in a confidential shelter, seeking shelter from Jorge. She is meeting with a legal advocate.

WHICH TYPE OF RESTRAINING ORDER CAN VIVIANA REQUEST?

Civil Harassment Restraining Order

Domestic Violence Restraining Order

Criminal Protective Order

Recall, that after police respond to reports of fighting between Daniel and Jacob, Daniel tells the officer about the abuse.

WHAT IMMEDIATE PROTECTION IS AVAILABLE TO DANIEL?

None, because Daniel and Jacob are no longer in a relationship

A Domestic Violence Restraining Order (DVRO)

An Emergency Protective Order (EPRO)

A Civil Harassment Restraining Order

102

Recall that while Noelle is in a different state from Jonathan, he continues to harass and stalk her and her son.

If Noelle wants to pursue a restraining order against Jonathan, how can a California court establish personal jurisdiction over an out-of-state abuser?

If Jonathan has a substantial connection to CA. Perhaps he regularly travels to CA to look for Noelle, for business, to see extended family, or if Jonathan had previously lived in CA and recently fled the state.

One of the acts of abuse happened in CA. Jonathan sent Noelle threatening texts and harassing phone calls from another state but she read the messages and answered the calls while in CA. The judge could decide the abuse happened to Noelle in CA.

If Noelle files her petition and Jonathan gets served with the court petition while he is in CA.

Any of the above.

QUICK FACT Even if none of the typical ways to establish jurisdiction apply, that doesn’t necessarily mean that Noelle can’t get an order. If she files, she may be granted an order on consent or the judge may find other circumstances that allow the order to be granted.

103

SECTION FIVE

SECTION SUMMARY

104

What is a Restraining order?

A restraining order is a court order that can protect survivors from being physically or sexually abused, threatened, stalked, or harassed. Restraining orders can mandate the restrained party to stay away from the protected party

What is an Emergency Protective Order?

After responding to an IPV call, law enforcement can request that a judge issue an emergency protective order if there is an immediate and present danger of IPV, or if a child is in immediate and present danger of abuse by a family or household member, or kidnapping by a parent or relative. If granted, the order will expire at the close of the fifth business day or the seventh calendar day, whichever comes first.

What is the Domestic Violence Prevention Act (DVPA)?

It provides domestic violence victims with immediate legal protection in the form of restraining orders and other injunctions against abusers. Under the DVPA, the court may issue a domestic violence restraining order upon reasonable proof of one past act or multiple past acts of abuse.

What is a Temporary Domestic Violence Restraining Order?

The temporary order offers immediate protection from physical or sexual abuse, threats, stalking, harassment and other forms of abuse. This order can order the abuser not contact the IPV survivor and stay away from the home, while the survivor waits for a longer-term restraining order to be issued. It can also include temporary custody and visitation orders as well as temporary use, possession and control of real or personal property.

What is a Domestic Violence Restraining Order After Hearing?

This order can be issued after a court hearing attended by the IPV survivor and can include the same provisions as the temporary restraining order. The court can grant this order for up to five years, and the order can be renewed without evidence of additional abuse.

105

What is a Criminal Protective Order?

This order is issued by a Criminal Court Judge when a defendant appears in court for the first time and there is a criminal case involving domestic violence, sexual assault, or other assault. It can include peaceful contact orders and/or no-contact and stayaway orders.

What is a Civil Harassment Restraining Order?

This order helps protect survivors from violence, stalking, serious harassment, or threats of violence by someone they have not dated and do not have a close relationship with, for example a neighbor, a roommate, or a friend.

Which type of orders are available to survivors of Human Trafficking?

Human trafficking survivors have the option of requesting a restraining order, however, the type of order they request depends on the nature of the relationship with the trafficker.

Which type of orders are available to survivors of Sexual Assault?

Sexual assault survivors have the option of requesting a restraining order, however, the type of order they request depends on the nature of their relationship with the assailant.

How can I safety plan with a survivor that has a Restraining Order?

A restraining order should never replace a safety plan. Survivors are encouraged to keep a copy of their restraining order on or near them at all times. It is recommended the survivor provide copies of restraining orders to employers, children’s schools, trusted family and friends. They should inform as many neighbors, relatives, friends, and co-workers as soon as possible that the restraining order is in effect. If there are any violations of the restraining order, the survivor should contact law enforcement as soon as possible.

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CHAPTER 5

IMMIGRATION RELIEF

Section One

LEARNING OBJECTIVES

3 2 4 5

1

WHAT IS VAWA?

WHAT IS THE TVPA?

WHAT IS A VAWA SELF-PETITION?

WHAT IS CONTINUED PRESENCE?

WHAT IS A T VISA?

6

WHAT IS A REFUGEE/ASYLEE?

WHAT IS A U VISA?

7

108

Foreign-born survivors of intimate partner violence, sexual assault, and/or human trafficking who either lack legal immigration status, or are dependent on their abuser/trafficker for legal status, often face additional barriers to seeking support. These barriers can include intimidation, isolation, language barriers, manipulation or threats regarding citizenship or residency, financial abuse, and loss of custody of children who are US citizens.

As you read this section, think about the potential immigration issues that may come up for the survivors of gender-based violence that you work with.

109

SURVIVOR VOICES & CASE STUDIES

SECTION TWO

VIVIANA Viviana is a survivor of intimate partner violence, sexual assault, and labor trafficking by her former partner Jorge. Please review her story on page S3, for context and in order to answer the questions following this section.

WAFAA Wafaa is a survivor of labor trafficking.

Her brother Coffie abused and exploited her after convincing her to relocate from Ghana to the U.S. to live with him and his wife. Please review her story on page S9, for context and in order to answer the questions following this section.

SAVITA Twenty-eight-year-old Savita is a survivor of domestic and family violence. She relocated from India to the United States on a Conditional Green Card after her marriage to Ram. Please review her story on page S6, for context and in order to answer the questions following this section.

110

A few weeks ago, Viviana left Jorge and went into a shelter with their son Camilo. Viviana is very afraid that Jorge will follow through on his threats to call immigration and report her. She cannot imagine what will happen to Camilo if she is detained or deported. Viviana’s advocate schedules an immigration consultation for Viviana. Viviana explains her situation to the immigration attorney and asks if immigration remedies are available.

What immigration remedies may be available to Viviana? Check all that apply.

Asylum

VAWA Self-Petition

U Visa Petition

T Visa Petition

Upon arriving in the US, Savita moved in with her husband Ram, his parents, and younger sibling. Ram and his family became very abusive to Savita and controlled everything she did. One day, after a violent episode, Savita ran out of the house and called the police from a neighbor's house. That night, Savita was admitted into a confidential shelter for domestic violence survivors. A couple of days later, Ram texted Savita threatening to cancel her conditional green card.

Savita shared her concerns with her advocate, who then connected Savita to an immigration attorney.

What are Savita’s options? Check all that apply:

Asylum

T Visa

U Visa

Correct answers on page 127 & 129

WAVA Self-Petition

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Wafaa came into the US on a tourist visa that is long expired. After being treated for a miscarriage, she was connected to a confidential service provider by a nurse. Wafaa entered a confidential shelter for survivors of human trafficking. After taking some time to recover, Wafaa asked to speak with an immigration attorney. Wafaa shared with the attorney that she left Ghana eleven months prior because she was receiving death threats and the police could not keep her safe. Wafaa also told the attorney that her brother Coffie tricked her into coming to the US by promising to support and help her when what he actually wanted was a 24/7 domestic worker to clean and cook for him and his family.

What immigration remedies may be available for Wafaa?

Asylum

T Visa

U Visa

Continued Presence

ADVOCACY TIP There are three ways immigrants who become victims of domestic violence, sexual assault and some other specific crimes may apply for legal immigration status for themselves and their child(ren). A victim’s application is confidential and no one, including an abuser, crime perpetrator or family member, will be told that you applied.

Self-petitions for legal status under the Violence Against Women Act (VAWA) T-Visa U-nonimmigrant status (crime victims)

Correct answer on page 128

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SECTION THREE

IMMIGRATION RELIEF & THE LAW

113

The United States was founded by immigrants: people who came from different countries, built the economy, and established the government as we know it today.

During times of economic growth, the United States has opened its borders and allowed noncitizens to enter. The calls

of

freedom,

economic

opportunities,

and

modernization attract people to seek new lives in the United States. According to the US Census, in 2021 there were a little more than 331 million people in the United States; the foreign-born population in that same year was a little more than 45 million.

[1]

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There are numerous different categories a non-United States Citizen could be classified under. Below are some definitions which are commonly used to define US Citizens and noncitizens. [Note: These are broad explanations. Immigration law has many exceptions.]

1. US Citizens🡺 a. At birth - Acquired Citizenship: i) People who were born in one of the 50 states of the US (and the District of Columbia), or one of three territories [Puerto Rico, Guam, and the US Virgin Islands], or ii) a child born outside of one of the 50 states, D.C., or one of the three territories who has a parent who is a US Citizen, who meets some specific requirements in order to transmit citizenship to their child. b. After birth - Naturalization: Lawful permanent residents (Green Card holders) who are eligible to apply for US citizenship (cannot apply until 5 years after they obtained their Green Card, with some exceptions).

2. Undocumented persons:🡺Those persons who arrive in the US without authorization, or those who entered with visas and whose time expired.

3. Lawful Permanent Residents or Green Card holders: People who are granted permission to live and work in the US permanently and still maintain the citizenship of their home nation. [Note: This is not a permanent status. Instead, it means that the person’s permanent residence is located in the United States.]

4. Permanently Residing Under Color of Law (PRUCL): When an undocumented person is known to United States Citizenship and Immigration Services (USCIS), has filed paperwork waiting for lawful status, and has not broken any laws.

5. Refugees and Asylees: A person who cannot return to their home country due to past persecution or a well-founded fear of future persecution based on race, religion, nationality, political opinion, or membership in a particular social group. They are in the US legally and can apply for permanent residence and naturalization/citizenship.

6. Special Immigrant Juvenile Status: People who are unmarried, undocumented, under the age of 21 that have dependency, probate, or single-parent custody orders based on abuse, abandonment, or neglect by one or both parents and for whom it would not be in their best interest to return to their country of origin. They are able to obtain permanent residence when visas are available. Cannot petition in the future for birth parents. (Note: Dependency and Single-Parent Custody orders should be completed before the minor turns 18 years old.)

7. Nonimmigrant Status Holders: Those who have employment, student, or tourist visas and are in the US for a specific purpose and a limited amount of time. Nonimmigrant visa allows a victim/survivor to apply for admission to the United States. Nonimmigrant status is the legal status that allows a victim/survivor to stay in the United States.

Note: U[2]visas/nonimmigrant status and T visas/nonimmigrant status fall in this category as well.

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The United States government has numerous branches of government that deal with immigration issues or documentation. The Department of Homeland Security is primarily responsible for reviewing applications for immigration relief and for immigration enforcement. The graphic below shows different agencies and their responsibilities.

Department of Health and Human Services

Department of Labor 1. Wage & Hour Division, Regional Coordinator, Workplace Crimes, Certifies law enforcement affidavits for U and T visas.

2. Provides labor certifications for some employment-based visas.

Department of Justice

1. Immigration Courts and the Board of Immigration Appeals - handles removal proceedings 2. Office of Victims of Crimes and Bureau of Justice Assistance - provides grants and assistance 3. Office of Civil Rights - US Attorney's Office - prosecutes trafficking cases federally and provides Compliance Letters 4. Federal Bureau of Investigations investigates trafficking cases

1. Responsible for unaccompanied minors.

2. Houses the Office of Refugee Resettlement.

3. Addresses public health issues with respect to immigration.

Department of Homeland Security

Department of State

1. Citizenship and Immigration Services (USCIS): Reviews and decides applications for immigration benefits including work authorization.

2. Customs and Border Protection (CBP): Screens persons entering the US at a seaport, land border, or airport.

3. Immigration and Customs Enforcement: Enforces immigration laws. This office also houses the attorneys who represent the Government in removal hearings.

1. Reviews applications for visas at US embassies and consulates abroad.

2. Office to Monitor and Combat Trafficking in Persons: issues the Trafficking in Persons Report annually.

3. Prepares and issues human rights reports by country.

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Immigration rules and laws are extensive and complicated. There are several factors that could positively or negatively affect a person who is applying for admittance or citizenship within the United States. Below are some reasons a person may be ineligible to qualify.

[3]

Admissibility as a nonimmigrant or immigrant: Political/National security grounds Material support for a terrorist organization Recruiting or participating in a terrorist organization Persecution of persons based on their religion Others Economic grounds Public charge - likely to be a public charge (need public benefits) Health and Morals grounds Has a contagious disease Has not received all age-appropriate vaccinations Is a danger to self or others Crimes Admits or convicted of a crime involving moral turpitude Controlled substance violations Others Prior Immigration Violations Entry without authorization Unlawful Presence and departure from US (triggers bars to lawful reentry) Unlawful reentry after being removed or accumulating unlawful presence Use of fraudulent documents False claims to US citizenship Others Eligibility for Naturalization (U.S. Citizenship): Good Moral Character Filed income tax returns if required to Registered for Selective Service (if male between ages 18 and 26 when an LPR) Did not claim US citizenship or vote in an election Did not obtain prior immigration status by fraud Not Deportable Similar issues as grounds of inadmissibility Note: There are some exceptions to the grounds of inadmissibility listed above and some waivers available. When working with a survivor of human trafficking who is a foreign national, it is important to refer the client to an immigration attorney for screening and any possible legal assistance if the survivor wants or needs such assistance. Practicing law without a license (assisting someone to file a petition for immigration relief) carries significant consequences for the advocate and the survivor. Before seeking support from the US Department of Homeland Security, consult an immigration attorney FIRST. The survivor may have an outstanding order of removal, which could be executed without an opportunity for the survivor to seek a T or U visa.

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IMMIGRATION OPTIONS FOR HUMAN TRAFFICKING SURVIVORS

SECTION FOUR

For human trafficking victims, threats and fears of deportation and immigration issues cause immense stress and pain. The United States has recognized this issue and offered survivors of human trafficking some relief. There are several special categories that human trafficking survivors can now apply under to be protected.

It is important to note several things a client should be informed of prior to applying for immigration relief. First, if a client has a prior order of removal (by an immigration judge or at the border), it is very risky to file an application with Immigration unless the person is represented by an immigration attorney. If a client applies for political asylum and is not granted it, they could be placed in removal proceedings.

Lastly, applications are more than the forms. An extensive cover letter and supporting documents are all part of the applications. More information will be provided in the following sections.

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T NONIMMIGRANT STATUS (T VISA) Allows under certain circumstances for human trafficking victims to remain in the US. [Note: One stipulation with T visas is that survivors cooperate with reasonable requests from law enforcement - including the Department of Labor investigating and/or prosecuting their traffickers, unless survivors are under 18 years of age or qualify for a trauma exception. [4]

U NONIMMIGRANT STATUS (U VISA)

SELF-PETITION UNDER VIOLENCE AGAINST WOMEN ACT (VAWA)

Provides immigration protection to certain victims who have endured substantial mental or physical abuse as a result of a qualifying crime committed against them in the United States. [Note: One stipulation with U visas is that survivors have been, are being, or are willing to be helpful to law enforcement investigating and/or prosecuting the criminal acts committed against them.] [5]

A spouse and/or children of a US citizen or legal resident or a parent of a US citizen, who suffered abuse (physical and/or emotional), can file a selfpetition in place of a relative petition, which is the first step before applying for permanent residence (green card).[6]

ASYLUM FOR REFUGEES Provides protection to persons who cannot return to their home countries due to fear of persecution or past persecution based on nationality, race, religion, political opinion, or membership in a particular social group. [7]

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TRAFFICKING VICTIMS PROTECTION ACT In October 2000, the Trafficking Victims Protection Act of 2000 (TVPA) was enacted. Before the TVPA, no comprehensive federal law existed to protect victims of trafficking or to prosecute their traffickers. The TVPA of 2000 established methods of prosecuting traffickers, preventing human trafficking, and protecting victims and survivors of trafficking. The act establishes human trafficking and related offenses as federal crimes. It established the Office to Monitor and Combat Trafficking in Persons, which is required to publish a Trafficking In Persons (TIP) report each year. The TIP report describes and ranks the efforts of countries to combat human trafficking. The act also established the Interagency Task Force to Monitor and Combat Trafficking, which assists in the implementation of the TVPA. It provides for restitution for victims and immigration relief through the T visa.

CONTINUED PRESENCE For clients who are recognized as survivors of severe human trafficking by law enforcement officials, advocates or legal representatives can ask law enforcement to request continued presence for the survivor. Continued presence is granted by U.S. Citizenship and Immigration Services (USCIS) for survivors to allow them to stay in the US for a short period of time to assist law enforcement in their investigation or prosecution of the trafficking. Work authorization can be granted to survivors who are approved for continued presence, and continued presence triggers eligibility for federal public benefits.

T NONIMMIGRANT STATUS [T VISAS]

T nonimmigrant status was created from the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA). T nonimmigrant status is a temporary status (four years) for survivors of severe forms of trafficking in persons: Sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or The recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.

121

T Nonimmigrant Status [T visas] If a client is granted T nonimmigrant status, there is the possibility of adjustment of status to permanent resident between the third and the fourth years of the status, or if the investigation or prosecution of the trafficking concludes, whichever comes first. Application for T nonimmigrant visa can trigger eligibility for certain benefits and a grant of T nonimmigrant status can provide the client with employment authorization. Clients who apply for T visas might also explore the possibility of applying for their family members (who might be at risk) to obtain visas. For the purposes of immigration, these family members are referred to as derivatives. There are several requirements clients must meet to qualify for T visas/nonimmigrant status. Please keep in mind these are generalized summaries of the requirements; therefore, it is extremely important to have your client consult an immigration attorney who is an expert within their field.

The requirements for T visa applicants generally are as follows: The applicant meets the definition of severe form of trafficking in persons The applicant is physically present in the US or at a port of entry on account of the trafficking The applicant has complied with any reasonable request for assistance in investigating or prosecuting the trafficking (exceptions for minors [under 18] and trauma), and The applicant would suffer extreme hardship involving unusual and severe harm upon removal.

QUICK FACT: Because proving “severe form of trafficking” can be challenging, often immigration attorneys will apply for both T and U visas.

There are several benefits for clients who are eligible for T nonimmigrant status. Some of these benefits include: Applying for derivatives: A client’s spouse or children (if children are under age 21 and not married).

Clients who are minors may apply for their parents or siblings (if their siblings are under age 18 and not married). Note: In case of present danger of retaliation by the trafficker or the trafficker’s associates, applicants 21 years of age or older may petition for parents and siblings (under the age of 18 and unmarried).

Work authorization: Principal and derivative applicants can be granted work authorization once T nonimmigrant status is granted.

Adjustment to permanent resident: Between the third and the fourth years of a client’s T nonimmigrant status, the client may apply to adjust to become a permanent resident. If the T nonimmigrant status expires, the survivor is no longer eligible to adjust to permanent residence. If approved, the client will have a “green card.” Note: In some cases, applicants can apply earlier if AUSA provides a letter that the criminal case is completed.

California Benefits: Some California public benefits (Refugee Cash Assistance, CalWORKS, CAPI, IHSS, and CFAP) become available when applicants provide sworn statements that they are a victim of human trafficking and one document such as a document from a social services, trafficking, and/or domestic violence program, legal, medical, or other professional.

Federal Benefits: Upon grant of continued presence or T nonimmigrant status, a client will be eligible for federal benefits. USCIS will contact the Department of Health and Human Services (Office of Refugee Resettlement) and DHHS will issue an eligibility letter.

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U NONIMMIGRANT STATUS [U VISAS] U nonimmigrant status was created from the Victims of Trafficking and Violence Protection Act (VTVPA) of 2000. U visas are temporary and last only up to four years. However, those who receive U nonimmigrant status are able to apply for permanent residence between the third and fourth year of the status. U visas are for victims of certain crimes such as rape, torture, trafficking, incest, domestic violence, sexual assault, or abusive sexual contact. Application for a U nonimmigrant visa can make the client eligible for certain benefits and for employment authorization. Clients who apply for U visas might also explore the possibility of applying for their family members to obtain visas. There are several requirements clients must meet to qualify for U visas/nonimmigrant status. Please keep in mind these are general summaries of the requirements; therefore, it is extremely important to have your client consult an immigration attorney who is an expert within their field.

The requirements for U visa applicants generally are as follows: Applicants must allege they are a victim of one of the specific criminal activities listed in the statute or of “any similar activity.”

Applicants must allege that the criminal activity took place in the United States, or if not, that it violated US law.

Applicants must allege they possess information concerning the alleged criminal activity. [If the victim is a child, the child’s representative must possess information concerning the alleged criminal activity.]

Applicants must provide a form completed and signed by law enforcement that states that the U visa applicant is being, has been, or is likely to be helpful to the investigation or prosecution of designated criminal activity.

Applicants must allege they have suffered “substantial physical or mental abuse” as the result of this criminal activity.

There are several benefits for clients who are able to apply for U visas. Some of these benefits include: Applying for derivatives: A client’s spouse or children (if children are under age 21 and not married).

Clients who are minors may apply for their parents or siblings (if their siblings are under the age of 18 and not married).

Work authorization: Principal and derivative applicants will be granted work authorization once U visas are granted. [Note: Because the wait for a U visa is long, USCIS is reviewing U applications and if the application appears to meet all of the requirements and there are no significant reasons not to grant the visa, then USCIS can issue interim status and work authorization while the applicant is waiting for a U visa.]

Adjustment to permanent resident: Between the third and the fourth years of a client’s U nonimmigrant status, they may apply to become a permanent resident. If the U nonimmigrant status expires, the survivor is no longer eligible to adjust to permanent residence. If approved, the client will have a “green card.”

California Benefits: Some California public benefits (Refugee Cash Assistance, CalWORKS, CAPI, IHSS, and CFAP) become available when the U visa application has been filed with USCIS and while it is pending.

123

Violence Against Women Act (VAWA) The original Violence Against Women Act (VAWA), passed in 1994 and authored by then-Senator Joseph R. Biden, was the first federal legislation acknowledging domestic violence and sexual assault as crimes and providing federal resources to encourage community-coordinated responses to combating violence against women. VAWA is up for renewal every five years, and each VAWA reauthorization has built on existing protections and programs to better meet the needs of survivors. The most common form of relief is the VAWA self-petition. The self-petition takes the place of the relative petition (the first step in seeking permanent residence). Spouses and children of US citizens or permanent residents, and parents of US citizens who are abused by the citizen or permanent resident, may be eligible to file a VAWA self-petition instead of depending on the citizen or permanent resident to file a relative petition.

The requirements for VAWA self-petitions generally are as follows: Applicants must establish that they are the spouse, child, or parent of a United States citizen, or the spouse or child of a US permanent resident.

Applicants must show that they lived with the abusive US citizen or permanent resident in the United States.

Applicants must establish that they suffered battery or extreme mental cruelty at the hands of the abuser.

Applicants must establish good moral character.

An applicant who is divorced from the abuser or whose abuser has lost their immigration status must file within two years of the divorce or loss of the abuser’s immigration status and show that the divorce or loss of immigration status is tied to the abuse.

There are some benefits for clients who are able to file VAWA selfpetitions. These benefits include: Derivatives: A client’s children (if the children are under age 21 and not Quick Facts: married) may be included in the spouse’s self-petition.

Non-confidential advocates, or Workthat authorization: advocates do not fall under theOnce the VAWA self-petition has been approved, the Evidence Code a confidential can get work authorization. client andasderivatives intimate partner abuse Adjustment to counselor, permanent resident: When the VAWA self-petition is advocate/domestic violence must disclose their confidentiality approved, the client may be eligible to adjust to permanent residence - either limitations to survivors as soon as immediately if they are spouses, children, or parents of US citizens, or when possible.

Disclosing confidentiality limitations allows survivors make a visa becomes toavailable if they are spouses or children of permanent informed decisions about what they residents. want to share.

Public Benefits: Once immigration decides that the applicant has shown an initial eligibility for the VAWA self-petition, USCIS will issue a Prima Facie Notice. This notice allows the client to get public benefits similar to refugees.

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Asylum for Refugees Refugees are defined as persons outside of their country of nationality or last habitual residence, who are unable or unwilling to return to or unable or unwilling to avail themselves of the protection of their country, on account of [past] persecution or a well-founded fear of [future] persecution on account of race, religion, nationality, political opinion, or membership in a particular social group. Refugees who seek safe haven in the United States and who are processed outside of the United States are commonly referred to as refugees or overseas refugees.

Refugees who seek safe haven once in the United States or at a port of entry are referred to as asylum seekers.

The requirements for political asylum generally are as follows: Applicants must meet the definition of refugee (as stated above).

Applicants must show that they filed for political asylum within one year of arrival in the United States. [There are a few exceptions but not many.]

Applicants must establish that they were not firmly resettled in another country.

Applicants must establish they did not pass through a “Safe Third Country” e.g., Canada on the way to the United States.

Note/warning: There are more bars and exceptions to eligibility for asylum. In addition, a denial of an asylum application will likely result in the case being referred to Immigration Court for removal proceedings, if the case is not already in Immigration Court, so the assistance of an immigration attorney is important.

There are some benefits for clients who are eligible to file political asylum applications. These benefits include: Derivatives: A client’s children (if the children are under age 21 and not married) and spouse may be included in the asylum application.

Work authorization: Generally, an asylum applicant can apply for work authorization, 150 days after filing the asylum application.

Adjustment to permanent resident: One year after political asylum is granted, the client may file for adjustment of status.

Public Benefits: Refugees (overseas refugees) and asylees (granted asylum) are eligible for certain public benefits

125

SECTION FIVE

CASE STUDY ANSWERS

126

A few weeks ago, Viviana left Jorge and went into a shelter with their son Camilo. Viviana is very afraid that Jorge will follow through on his threats to call immigration and report her. She cannot imagine what will happen to Camilo if she is detained or deported. Viviana’s advocate schedules an immigration consultation for Viviana. Viviana explains her situation to the immigration attorney and asks if immigration remedies are available.

WHAT IMMIGRATION REMEDIES MAY BE AVAILABLE TO VIVIANA? CHECK ALL THAT APPLY.

VAWA Self-Petition Since Jorge and Viviana were not legally married, even if Jorge is a legal permanent resident (LPR) or US citizen (USC), Viviana cannot file a VAWA self-petition. Viviana would have to be legally married to a USC or LPR in order to file a VAWA self-petition.

U Visa Petition Viviana can submit a U visa application because: (1) she was a victim of crimes listed in the statute (intimate partner abuse, sexual assault, and labor trafficking); (2) the crimes took place in the US; (3) she has information about the criminal activity; (4) presumably law enforcement or the District Attorney can certify Viviana’s cooperation with the investigation and/or prosecution; and (5) Viviana can attest to having suffered “substantial physical or mental abuse” as the result of this criminal activity.

T Visa Petition

Asylum Viviana does not qualify for Asylum because she does not meet the definition of a refugee, and the crime occurred in the US, not another country.

Viviana can submit a T visa application if she can show: (1) she meets the definition of severe form of trafficking in person; (2) she is physically present in the US on account of the trafficking; (3) she has complied with any reasonable request for assistance in investigating or prosecuting the trafficking; and (4) she would suffer extreme hardship involving unusual and severe harm upon removal.

127

Remember that Wafaa came into the US on a tourist visa that is long expired, and has entered a confidential shelter for human trafficking survivors.

What immigration remedies may be available for Wafaa?

Asylum Wafaa may be able to apply for asylum because she has been in the US less than a year, she is afraid to return to her home country, and she fled her country due to persecution. However, she would have to prove that she was persecuted due to her membership in a protected class.

U Visa Wafaa can submit a U visa application because: (1) she was a victim of crimes listed in the statute (labor trafficking); (2) the crime took place in the US; (3) she has information about the criminal activity; (4) The Department of Labor certifies law enforcement affidavits for U and T visas; and (5) Wafaa can attest to having suffered “substantial physical or mental abuse” as the result of this criminal activity.

T Visa Wafaa can submit a T visa application because she can most likely show: (1) she meets the definition of severe form of trafficking in person; (2) she is physically present in the US on account of the trafficking; (3) she has complied with any reasonable request for assistance in investigating or prosecuting the trafficking; and (4) she would suffer extreme hardship involving unusual and severe harm upon removal. The Department of Labor certifies law enforcement affidavits for U and T visas.

Continued Presence If Wafaa is recognized as a survivor of severe human trafficking by law enforcement officials, her attorney can ask law enforcement to request continued presence for Wafaa.

Continued presence is granted by USCIS for survivors to allow them to stay in the US for a short period of time to assist law enforcement in their investigation or prosecution of the trafficking.

128

Remenber that Savita's husband, Ram, texted Savita threatening to cancel her conditional green card. Savita shared her concerns with her advocate, who then connected Savita to an immigration attorney.

What are Savita’s options? Check all that apply:

T Visa

U Visa Savita can submit a U visa application because: (1) She was a victim of crimes listed in the statute (labor trafficking); (2) The crime took place in the US; (3) She has information about the criminal activity; (4) The Department of Labor Certifies law enforcement affidavits for U and T visas; and (5) Savita can attest to having suffered “substantial physical or mental abuse” as the result of this criminal activity.

Savita can submit a T visa application because she can most likely show: (1) She meets the definition of severe form of trafficking in person; (2) She is physically present in the US on account of the trafficking; (3) She has complied with any reasonable request for assistance in investigating or prosecuting the trafficking; and (4) She would suffer extreme hardship involving unusual and severe harm upon removal. The Department of Labor certifies law enforcement affidavits for U and T visas.

Advocacy Tip:

Since Savita has permanent residence with a condition, there is another type of application that would make more sense for Savita - a waiver of the requirement to jointly petition to remove the condition on Savita’s residence (this waiver provision also falls under VAWA). If Savita is able to establish good faith marriage and physical abuse or extreme mental cruelty in her marriage, she can petition to remove the condition on her residence by herself/without her husband. If this petition is approved, she would have permanent residence without a condition and could then apply for naturalization. If this petition is denied, then she might want to consider a petition for U or T nonimmigrant status or a VAWA self-petition.

VAWA Self-Petition Savita can possibly seek a VAWA Self-Petition because Rav is a US citizen and he was abusive.

Asylum

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SECTION SIX

SECTION SUMMARY

130

What is VAWA? The Violence Against Women Act is the first piece of federal legislation acknowledging domestic violence and sexual assault as crimes and providing federal resources to encourage community-coordinated responses to combating violence against women.

VAWA is up for renewal every five years, and each VAWA reauthorization has built on existing protections and programs to better meet the needs of survivors.

What is a VAWA Self-Petition?

The self-petition takes the place of the relative petition (the first step in seeking permanent residence). Spouses and children of U.S. citizens or permanent residents, and parents of US citizens who are abused by the citizen or permanent resident, may be eligible to file a VAWA self-petition instead of depending on the citizen or permanent resident to file a relative petition.

What is the TVPA? The Trafficking Victims Protection Act (TVPA) is the federal response to human trafficking. It established methods of prosecuting traffickers, preventing human trafficking, and protecting victims and survivors of trafficking. It provides for restitution for victims and immigration relief through the T visa.

What is Continued Presence?

Continued presence is granted by USCIS for survivors of severe forms of human trafficking to allow them to stay in the US for a short period of time to assist law enforcement in their investigation or prosecution of the trafficking. Work authorization can be granted to survivors who are approved for Continued Presence, and Continued Presence triggers eligibility for federal public benefits.

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What is a T Visa?

T nonimmigrant status was created from the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA). T nonimmigrant status is a temporary status (four years) for survivors of severe forms of trafficking in persons: a. Sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or b. The recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.

What is a U Visa?

U nonimmigrant status was created from the Victims of Trafficking and Violence Protection Act (VTVPA) of 2000. U Visas are temporary and last only up to four years.

However, those who receive U nonimmigrant status are able to apply for permanent residence between the third and fourth year of the status. U Visas are for victims of certain crimes such as rape, torture, trafficking, incest, domestic violence, sexual assault, or abusive sexual contact. Application for a U nonimmigrant visa can make the client eligible for certain benefits and for employment authorization.

What is a Refugee/Asylee?

A person who cannot return to their home country due to past persecution or a wellfounded fear of future persecution based on race, religion, nationality, political opinion, or membership in a particular social group. They are in the US legally and can apply for permanent residence and naturalization/citizenship.

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SECTION SEVEN

CITATIONS 1. United States Census Bureau: Quick Facts, United States https://www.census.gov/quickfacts/fact/table/US/PST045221 2. Annual Flow Report July 2020: U.S. Nonimmigrant Admissions 2019 https://www.dhs.gov/sites/default/files/publications/immigrationstatistics/yearbook/2019/nonimmigrant_2019.pdf ; see also 8 U.S.C. 1101(a)(15) 3. 8 U.S.C. 1182; INA Sec. 212 4. 8 U.S.C. 1101(a)(15)(T); INA Sec. 101(a)(15)(T) 5. 8 U.S.C. 1101(a)(15)(U); INA Sec. 101(a)(15)(U) 6. 8 U.S.C. 1154; INA Sec. 204 7. 8 U.S.C. 1101(a)(42); INA Sec. 101(a)(42); 8 U.S.C. 1158; INA Sec. 208 8. 8 CFR 214.11(a)

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CHAPTER 6

FAMILY LAW

Section One

LEARNING OBJECTIVES

1

2

WHAT SHOULD A SURVIVOR DO IF THEY HAVE TO LEAVE THE HOME AND TAKE THEIR CHILDREN DUE TO INTIMATE PARTNER ABUSE?

3

WHAT FAMILY LAW LEGAL RESOURCES ARE AVAILABLE TO LOWINCOME SURVIVORS?

WHAT DOES THE COURT CONSIDER IN MAKING CUSTODY DETERMINATIONS?

4

WHAT IS THE ORDER PREFERENCE FOR AWARDING CUSTODY?

5

WHAT FACTORS DOES THE COURT CONSIDER IN CALCULATING CHILD SUPPORT?

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Survivors

of

gender-based

violence

frequently

encounter legal issues related to family law; primarily in the areas of divorce, child custody, and child support. Some survivors of intimate partner abuse are also sexually assaulted or exploited by their partner. Many survivors of intimate partner abuse face additional safety risks and barriers to leaving an abusive or exploitative relationship because they have children with their partner. Often, individuals that harm their partners also harm their children; or utilize the children to manipulate and control their partner. Fortunately, several family laws have been put in place to increase survivor safety and increase the possibility that children can remain with nonoffending parents.

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SECTION TWO

SURVIVOR VOICES & CASE STUDIES

VIVIANA Viviana is a survivor of intimate partner violence, sexual assault, and labor trafficking by her former partner Jorge. Please review her story on page S3, for context and in order to answer the questions following this section.

SAVITA Twenty-eight-year-old Savita is a survivor of domestic and family violence. She relocated from India to the United States on a Conditional Green Card after her marriage to Ram. Please review her story on page S6, for context and in order to answer the questions following this section.

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VIVIANA'S FAMILY LAW RIGHTS

A few days ago, Viviana left Jorge and went into a shelter with their son Camilo. Viviana is very afraid that Jorge will follow through on his threats to call immigration and have her deported so that he can take full custody of Camilo. During the two days Viviana has been at the shelter, Jorge has texted her close to 50 times. His texts are threatening and demanding. He has threatened with calling the police and reporting that she kidnapped Camilo if Viviana does not return home. He’s also assured Viviana that he does not plan to pay a cent in child support and she will have no means to support Camilo.

138

What immediate options are available to Viviana to prevent a kidnapping allegation, and establish temporary custody over Camilo?

Good Cause Report

All of the above

Domestic Violence Restraining Order/ Temporary Restraining Order

What will the court take into account when determining custody of Camilo? Check all that apply:

Health, safety, and welfare of the child

History of abuse by parent seeking custody (Viviana)

Abuse of drugs and/or alcohol by either Viviana or Jorge

Correct answers on page 153 & 154

Camilo’s wishes

139

What will the court NOT take into account when determining custody of Camilo? Check all that apply:

Immigration status of a parent, legal guardian, or relative seeking custody

Sex, gender identity, gender expression, or sexual orientation

The type and amount of contact with both parents

Correct answer on page 154

140

SAVITA'S FAMILY LAW RIGHTS

Upon arriving in the U.S., Savita moved in with her husband Ram, his parents, and younger sibling. Ram and his family became very abusive to Savita and controlled everything she did. Savita’s parents gave her $10,000 when she left India. They told her to open a separate bank account in case of an emergency. When Ram found the money, he took it and said he was going to put it away. He also threatened Savita that if she left him, he would keep the money. Savita desperately needs the money to cover expenses while she figures out her next move.

141

What can Savita do to ensure Ram does not spend or give away her money?

She can request a temporary restraining order to prevent Rab from spending the money while the divorce or separation are pending.

She can file a police report based on robbery to get her money back.

She can’t do anything because Ram is her husband and has full access to any of her funds.

What does Savita need to prove to prevail in a civil tort claim for domestic abuse? Check all that apply.

She suffered injury as a result of abuse

She was in a relationship with Ram

Said abuse was intentionally inflicted by Ram

Her injuries were proximately caused by the abuse inflicted by Ram

Correct answers on page 155 & 156

142 168

SECTION THREE

FAMILY LAW

143

Divorce and Legal Separation

144

Access to Legal Representation; Payment for Legal Representation In a proceeding for divorce or legal separation, the court shall ensure that each party has access to legal representation, including access early in the proceedings.

This will include ordering, if necessary based on the income and needs assessments, one party to pay the other party, or that person’s attorney, an amount reasonably necessary for attorney’s fees and costs while the case is being decided by the court. When a request for attorney’s fees and costs is made, the court shall determine the following: a) if such an award is appropriate, b) if there is a disparity in access to funds to retain counsel, and c) if one party is able to pay for both parties’ legal representation. (Family Code, §2030). The court must issue a ruling on motions made under §2030 within 15 days. (Family Code, §2031).

Advocacy tip: While the code ensures access to representation, it is not always easy to access because of the lack of low or no cost family law attorneys.

Further, the court may decline to award attorney fees if there is already a support order.

Protective Orders During Court Proceedings and Judgment The summons for legal separation or divorce will include a temporary restraining order that prohibits both parties from removing the parties’ minor child(ren) from the state, or from applying for a new or replacement passport for the minor children, without the other person’s prior written consent or a court order. The temporary restraining order also prohibits both parties from transferring, concealing, or disposing of any property without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life. The temporary restraining order also prohibits both parties from cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of insurance or other coverage held for the benefit of the parties and their child(ren). (Family Code, §2040.)

145

Judgment for Civil Damages for IPV Incident If there is a judgment for civil damages for an act of IPV perpetrated by one spouse against the other spouse, the court may enforce that judgment against the abusive spouse’s share of community property, if a proceeding for divorce or legal separation is pending before the entry of final judgment. (Family Code, §2603.5.)

Advocacy tip: While there is the option of a civil claim, these are rarely pursued in part because there are not many attorneys who focus on this and it is worthwhile only if the perpetrator has wealth.

If interested, a client would have to find a private attorney or law firm.

Civil Claims for IPV In California, domestic violence can be addressed in three ways: (1) as a crime under California Penal Code section 273.5; (2) by requesting a civil restraining order pursuant to the Domestic Violence Prevention Act, beginning with California Family Code section 6200; and (3) as a civil tort for which a lawsuit can be filed The governing statute for the tort of domestic violence is California Civil Code section 1708.6.

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CIVIL CODE - CIV 1708.6. (a) A person is liable for the tort of domestic violence if the plaintiff proves both of the following elements: (1) The infliction of injury upon the plaintiff resulting from abuse, as defined in subdivision (a) of Section 13700 of the Penal Code.

(2) The abuse was committed by the defendant, a person having a relationship with the plaintiff as defined in subdivision (b) of Section 13700 of the Penal Code. (b) A person who commits an act of domestic violence upon another is liable to that person for damages, including, but not limited to, general damages, special damages, and punitive damages pursuant to Section 3294. (c) The court, in an action pursuant to this section, may grant to a prevailing plaintiff equitable relief, an injunction, costs, and any other relief that the court deems proper, including reasonable attorney’s fees. (d) The rights and remedies provided in this section are in addition to any other rights and remedies provided by law. (e) The time for commencement of an action under this section is governed by Section 340.15 of the Code of Civil Procedure.

Case Study Quick Facts: Savita can file a civil claim of battery against her mother-in-law if Savita can prove the four elements to battery: 1) a harmful or offensive touching; 2) to the victim's person; 3) intent; and 4) causation.

Under section 13700(b), the allowed relationships are: spouse, former spouse, cohabitant, former cohabitant, person with whom the defendant has a child, person with whom defendant is having or has had a dating or engagement relationship.

The statute of limitations on a Civil code 1708.6 Domestic Violence suit is three years from the date of the last abusive act. (California Civil Code section 1708.6(e)). This statute of limitations doesn’t begin until the abuse stops, but the plaintiff can recover for all domestic violence-related injuries during the entirety of the relationship.

147

CHILD CUSTODY The court will consider the health, safety, and welfare of children when making orders regarding child custody or visitation. IPV is detrimental to a child’s health, safety, and welfare. (Family Code, §3020) When making a child custody determination, the court will consider multiple factors including the health, safety and welfare of the child, a history of abuse by the parent seeking custody, the type and amount of contact with both parents, the abuse of drugs and/or alcohol by either parent, and the wishes of the child if the child is old enough and has the capacity to express an intelligent preference (applies to children age 14 and above; younger children may also provide their preference if the court determines it is in the child’s best interest). (Family Code §3011, Family Code §3042).

CHILD ABUSE ALLEGATIONS If allegations of child abuse, including child sexual abuse, are made during a child custody proceeding and the court has concerns regarding the child’s safety, the court may take any reasonable, temporary steps it deems appropriate to protect the child’s safety until an investigation can be completed. This may include requesting the local child welfare services agency to investigate the allegations and report its findings to the court. (Family Code §3027).

A parent shall not be placed on supervised visitation, or be denied custody of or visitation with the parent’s child, and custody or visitation rights shall not be limited, solely because the parent: lawfully reported suspected sexual abuse of the child; otherwise acted lawfully, based on a reasonable belief, to determine if the child was the victim of sexual abuse; and/or sought mental health treatment for the child for suspected sexual abuse. The court may order supervised visitation or limit a parent’s custody or visitation if the court finds substantial evidence that the parent, with the intent to interfere with the other parent’s lawful contact with the child, made a report of child sexual abuse, during a child custody proceeding or at any other time, that the reporting parent knew was false when it was made. (Family Code, §3027.5)

Advocacy Tip:

If the allegations turn out to be false, there may be monetary sanctions against the accuser.

148

How the Court determines custody based on preference factors: In making a custody order granting custody to both parents jointly OR either parent, the court shall consider the best interest of the child, and which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent. If custody is not awarded to either parent, it will be awarded to the person(s) in whose home the child has been living in a wholesome and stable environment, or to any other person(s) the court considers suitable and able to provide adequate and proper care and guidance for the child. The immigration status of a parent, legal guardian, or relative shall not disqualify them from receiving custody. The court shall not consider the sex, gender identity, gender expression, or sexual orientation (SOGIE) of a parent, legal guardian, or relative in determining the best interest of the child. (Family Code §3040).

Advocacy Tip: When determining preference in custody: immigration status and/or SOGIE (sexual orientation, gender identity, and gender expression) are not factors.

Advocacy Tip: There is a strong court preference for joint custody. However, the presumption is that granting joint or sole (legal and/or physical) custody to a person who has perpetrated domestic violence is detrimental to the best interest of the child.

149

Child Support Guidelines Family Code 4050 through 4076 set forth California's uniform guideline laws for child support. Section 4053 establishes the principles that courts shall adhere to in implementing statewide uniform child support guidelines.

(a) A parent’s first and principal obligation is to support his or her minor children according to the parent’s circumstances and station in life. (b) Both parents are mutually responsible for the support of their children. (c) The guideline takes into account each parent’s actual income and level of responsibility for the children. (d) Each parent should pay for the support of the children according to his or her ability. (e) The guideline seeks to place the interests of children as the state’s top priority. (f) Children should share in the standard of living of both parents. Child support may therefore appropriately improve the standard of living of the custodial household to improve the lives of the children. (g) Child support orders in cases in which both parents have high levels of responsibility for the children should reflect the increased costs of raising the children in two homes and should minimize significant disparities in the children’s living standards in the two homes. (h) The financial needs of the children should be met through private financial resources as much as possible.

Advocacy Tip: If a parent seeks public benefits to support the child, the child welfare agency may open a child support case.

Furthermore, if the parents gets child support, the state may seek reimbursement for benefits paid out.

(i) It is presumed that a parent having primary physical responsibility for the children contributes a significant portion of available resources for the support of the children. (j) The guideline seeks to encourage fair and efficient settlements of conflicts between parents and seeks to minimize the need for litigation. (k) The guideline is presumed correct in all cases, and only under special circumstances should child support orders fall below the child support mandated by the guideline formula. (l) Child support orders should ensure that children actually receive fair, timely, and sufficient support reflecting the state’s high standard of living and high costs of raising children compared to other states.”

150

Child Support Guidelines Continued The following are not the only factors, but they are the most common factors that courts consider in child support cases: The number of children.

Each parent's parenting time percentage.

The tax filing status for each parent such as married filing jointly with the other parent, married filing jointly with your spouse, married filing separate, head a household, married living apart, etc.

Gross income (before tax) from all income sources, for each parent.

Health insurance deductions for each parent.

Applicable mortgage interest and property tax reductions for each parent. These are relevant because they lower a parent's taxable income and therefore arguably provide that parent with a greater disposable income.

Certain hardship deductions that may be applicable.

Mandatory retirement deductions from gross income.

Union dues and other relevant dues that may be deducted.

151

SECTION FOUR

CASE STUDY ANSWERS

Remember, Viviana left Jorge and went into a shelter with their son Camilo.

What immediate options are available to Viviana to prevent a kidnapping allegation, and establish temporary custody over Camilo?

Domestic Violence Restraining Order/TRO

Good Cause Report By filing a Good Cause Report with the DAO’s Child Abduction Unit, Viviana protects herself from allegations of kidnapping.

Viviana can request a DVRO, and include child custody, visitations, and child support in the DVRO request.

All ofof the above All the above

153

What will the court take into account when determining custody of Camilo? Check all that apply:

Health, safety, and welfare of the child

Abuse of drugs and/or alcohol by either Viviana or Jorge

History of abuse by parent seeking custody (Viviana)

Camilo’s wishes Because Camilo is an infant, the court will not consider his wishes in custody determination. Typically, the court takes into account the wishes of children over 14 in custody determinations.

What will the court NOT take into account when determining custody of Camilo? Check all that apply:

Immigration status of a parent, legal guardian, or relative seeking custody

Sex, gender identity, gender expression, or sexual orientation

The type and amount of contact with both parents

154

What can Savita do to ensure Ram does not spend or give away her money?

She can request a temporary restraining order The summons for legal separation or divorce will include a temporary restraining order that prohibits both parties from transferring, concealing, or disposing of any property without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life.

Quick Fact: If she files for divorce these orders are automatic. They are contained in the summons for dissolution and are effective when served on the other party. If she's not ready to file for divorce, she can check the box on the DV-100. So she can request these orders, or she can file for divorce and obtain the same protective orders.

She can’t do anything because Ram is her husband and has full access to any of her funds.

California is a community property state. This means that only property/funds acquired during the marriage are considered community property. Whatever property a spouse acquires before marriage, during marriage as a gift, inheritance, bequeathal, or after separation is that person’s separate property. In this case, Savita received the money from her parents as a gift. Therefore, she can most likely claim it as separate property. Savita should consult with a family law attorney about this.

She can file a police report based on robbery to get her money back.

The crime of robbery involves (1) the taking of the property of another (2) from his or her person or in their presence (3) by violence, intimidation or threat (4) with the intent to deprive them of it permanently.

It may be difficult to prove robbery because Ram did not use violence or threats to take the money from Savita. She can argue that she was intimidated into turning the money over to Ram. However, it would be difficult to prove that Ram had the intent to keep Savita’s money permanently.

155

What does Savita need to prove to prevail in a civil tort claim for domestic abuse? Check all that apply.

Said abuse was intentionally inflicted

by Ram

She suffered injury as a result of abuse Savita must show she suffered an actual injury

The injury could not have been caused accidentally

Her injuries were proximately caused by the abuse inflicted by Ram

She was in a relationship with Ram The relationship had to be as a: spouse, former spouse, cohabitant, former cohabitant, person with whom the defendant has a child, person with whom defendant is having or has had a dating or engagement relationship.

Whatever injuries Savita is including in her claim have to have been caused by Ram. For example, if Ram slapped her and as a result Savita fell down the stairs, Ram was the proximate cause of her fall and resulting injuries.

Advocacy Tip: If she divorces Ram, Savita will have no legal status. Review the Immigration Section to identify what immigration relief Savita could pursue.

156

SECTION FIVE

SECTION SUMMARY

157

What should a survivor do if they have to leave the home and take their children due to intimate partner abuse?

In addition to safety planning, survivors should call the District Attorney’s Office Child Abduction Unit to file a Good Cause Report. A Good Cause Report is filed when an IPA victim has to leave the home and take the children due to intimate partner abuse. The Report protects survivors against kidnapping/child abduction allegations.

What family law legal resources are available to low-income survivors?

In a proceeding for divorce or legal separation, the court may help ensure that each party has access to legal representation, including access early in the proceedings. This will include ordering, if necessary based on the income and needs assessments, one party to pay the other party, or that person’s attorney, an amount reasonably necessary for attorney’s fees and costs while the case is being decided by the court. Additionally, there are several nonprofit legal service providers in Santa Clara County that can provide free family law consultation and representation services for lowincome survivors of intimate partner abuse.

Advocacy Tip: While the court should ensure access to representation, this does not always happen because of the lack of low or no cost family law attorneys available. If a client is having difficult finding an attorney, they may find a private attorney who may seek fees on their behalf.

What does the court consider in making custody determinations?

When making a child custody determination, the court will consider multiple factors including the health, safety and welfare of the child, a history of abuse by the parent seeking custody, the type and amount of contact with both parents, the abuse of drugs and/or alcohol by either parent, and the wishes of the child if the child is old enough and has the capacity to express an intelligent preference (applies to children age 14 and above; younger children may also provide their preference if the court determines it is in the child’s best interest).

158

What preferences awarding custody?

exist

for

If there is a DVRO, there is a presumption that the abuser should not have custody.

In making a custody order, the court considers different factors, including which parent is more likely to allow the child(ren) frequent and continuing contact with the noncustodial parent.

If custody is not awarded to either parent, it will be awarded to the person(s) in whose home the child has been living in a wholesome and stable environment; or To any other person(s) the court considers suitable and able to provide adequate and proper care and guidance for the child(ren).

Advocacy Tip: In order for the presumption to apply, the court has to find that one parent committed domestic violence, against the other parent, or their current spouse or dating partner, or against the child(ren) in the custody case or any of the child(ren)’s siblings, or against their own parent in the past five years.

What factors does the court consider in calculating child support?

The number of children, Each parent's parenting time percentage, The tax filing status for each parent such as married filing jointly with the other parent, married filing jointly with your spouse, married filing separate, head a household, married living apart, etc.

Gross (before tax) income for each parent, Health insurance deductions for each parent, Applicable mortgage interest and property tax reductions for each parent.

These are relevant because they lower a parent's taxable income and therefore arguably provide that parent with a greater disposable income, Any hardship deductions that may be applicable, Mandatory retirement deductions from gross income, and Union dues and other relevant dues that may be deducted.

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CHAPTER 7

EMPLOYMENT RIGHTS

Section One

LEARNING OBJECTIVES

1

3

WHAT BENEFITS DOES AN IPV SURVIVOR HAVE WHEN THEY TAKE TIME OFF FROM WORK TO SEEK SUPPORT?

WHAT WORKPLACE PROTECTIONS ARE AVAILABLE TO IPV SURVIVORS?

2

CAN AN IPV SURVIVOR TAKE TIME OFF FROM WORK TO SEEK SUPPORT?

4

WHAT IS THE DIFFERENCE BETWEEN WAGE THEFT AND HUMAN TRAFFICKING?

5

WHAT PROTECTIONS ARE IN PLACE FOR WORKERS?

161

Everyone deserves to feel safe, supported, and valued in their place of employment.

Unfortunately, some survivors of gender-based violence are exploited, harassed, assaulted, or trafficked by their employers or supervisors.

Others may feel unsafe at work because their current or former intimate partner is stalking, threatening, or abusing them at their place of employment. Survivors of gender-based violence may need advocacy or legal support related to their current or previous employment.

Fortunately, there are legal protections in place to increase survivors' safety at work, ensure they are paid what they are owed, and hold employers or supervisors liable for any type of abuse or exploitation.

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SECTION TWO

SURVIVOR VOICES & CASE STUDIES

DANIEL Daniel is a survivor of intimate partner violence.

He left Jacob, his long-term partner, after years of enduring emotional and physical abuse, isolation, and manipulation. Please review his story on page S8, for context and in order to answer the questions following this section.

MARIA Maria is a survivor of labor trafficking. She was tricked into relocating from the Philippines to California to work for Tala and Danilo. Please review her story on page S11, for context and in order to answer the questions following this section.

163

DANIEL'S EMPL0YMENT RIGHTS

Daniel’s friend Tina allowed him to stay at her house while he got back on his feet.

Jacob showed up at Tina’s house one day and attacked Daniel in the parking lot. The police responded and Jacob was arrested. Daniel recently secured a new job as an engineer in a large tech company. Unfortunately, Jacob discovered where Daniel works and has been harassing him at work. He shows up unannounced and demands to speak with Daniel. Daniel is afraid that he will lose his job. He is also afraid that Jacob will wait for him outside of his workplace and hurt him. As you read through this section, think about what protections and options you could explore with Daniel.

How can Daniel’s employer help Daniel increase his safety at work?

Provide Daniel with disability leave, so he can attend to mental health issues related to the abuse.

All of the above

They can help Daniel obtain a restraining order to prevent Jacob from harassing Daniel at work and ensure the order is enforced.

They can support Daniel to take the time off he needs to address issues related to the abuse – such as obtaining a restraining order, meeting with an advocate or therapist, or going to court.

164 Correct answer on page 180

MARIA'S EMPL0YMENT RIGHTS

Tala and Danilo own and operate a nursing facility. The couple promised to pay Maria $25 an hour to start, and not charge her rent, but they actually only paid her $15 an hour.

The couple also deducted $500 monthly from Maria’s check - $200 to cover airfare expenses and $300 for room and board. Maria worked six days a week, from 7am to 10pm. She did not get paid overtime. Tala and Danilo were arrested after a concerned family member of one of the facility’s residents alerted the police. Ten potential victims were identified through the investigation. Some reportedly had been beaten and threatened by Tala and Danilo. A couple were locked in the basement for a week because they threatened to go back to the Philippines.

What technique did Tala use to ensure Maria relocated from the Philippines to San Francisco to take a job In Tala’s nursing care facility?

Force

Fraud

Coercion

All of the above

How did Tala violate employment laws?

Choose all that apply.

By physically beating workers and threatening them.

By being mean to Maria

Correct answer on page 180

By deducting rent and travel fees from Maria’s paycheck and failing to pay minimum wage and overtime

165

SECTION THREE

EMPLOYMENT RIGHTS & THE LAW

166

Your Right to Sick Leave After you have worked 90 days you can begin to accrue up to 3 days paid sick leave a year. You earn one hour for every 30 hours worked or your employer can give all 3 days to you at once. You can accrue 3 more days, but you can’t use them until the next year. The number of days left must be on my pay stub. You can now take the 3 days for a family member or a designated person.

Advocacy Tip: Here is a side by side chart of various sick pay options and benefits if you have COVID: https://www.dir.ca.gov/dlse/L eave-Rights-English-12-31-22Extension.pdf

If you are not paid the sick leave you accrued or the days you have left are not on your paystub, you can file a claim with the Labor Commission at https://www.dir.ca.gov/dlse/howtofilewageclaim.htm You have 3 years to file a claim.

Wage Discrimination & Equal Pay Equal Pay Act prohibits an employer from paying any of its employees wage rates that are less than what it pays employees of the opposite sex, or of another race, or of another ethnicity for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.

“Substantially similar work” refers to work that is mostly similar in skill, effort, responsibility, and performed under similar working conditions. Skill refers to the experience, ability, education, and training required to perform the job. Effort refers to the amount of physical or mental exertion needed to perform the job. Responsibility refers to the degree of accountability or duties required in performing the job. Working conditions has been interpreted to mean the physical surroundings (temperature, fumes, ventilation) and hazards.

Quick Fact: You have 2 years to file a complaint. If you believe that you are paid less than a worker of a different gender, race, or ethnicity, you can file a claim at https://www.dir.ca.gov/dl se/howtofileretaliationco mplaint.htm

Advocacy Tip: At the same time you should file a claim with the California Department of Civil Rights (formerly the Department of Fair Employment and Housing). https://calcivilrights.ca.go v/complaintprocess/

Advocacy Tip: Here is a list of the specific anti-retaliation laws that the Labor Commission enforces. https://www.dir.ca.gov/dls e/HowToFileLinkCodeSecti ons.htm

167

Your Rights if You are Pregnant If your employer has five or more employees, you are entitled to rights and protections under California state law in the event of pregnancy, childbirth, loss of pregnancy, and related physical or mental conditions. These rights and protections include the right to reasonable accommodations and the right to time off from work.

It is illegal for employers to fire, refuse to hire, bar, harass, discharge, or otherwise discriminate against someone because of pregnancy, childbirth, or a related condition.

Employers of 5 or more employees must provide up to four months of disability leave for an employee who is disabled due to pregnancy, childbirth, or a related medical condition. In a normal pregnancy you are entitled to 4 weeks before and 6 weeks after the pregnancy. If you have a Caesarean, you are entitled to 4 weeks before and 8 weeks after a pregnancy.

If you have at least 12 months of service with your employer (and your employer has 5 or more employees and you have worked at least 1,250 hours during the previous 12-month period), you are entitled to take up to 12 weeks of parental leave to bond with a new child within one year of the child’s birth, adoption, or foster care placement. . An eligible employee may also take job-protected leave to bond with a new child by birth, adoption, or foster care placement, within one year of the child’s birth, adoption, or foster placement. “Child” means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of an employee or the employee’s domestic partner, or a person to whom the employee stands in loco parentis. “Parent” includes a biological, foster, or adoptive parent, a parent-in-law, a stepparent, a legal guardian, or other person who stood in loco parentis to the employee when the employee was a child.

If you are denied pregnancy leave, if the employer fails to accommodate you, or if you are discriminated against or harassed because you are pregnant, you can file a claim with the California Civil Rights Department (formerly the Department of Fair Employment and Housing) at: https://calcivilrights.ca.gov/complaintprocess/ You have 3 years to file a claim.

Advocacy Tip: To find out if you qualify for job-protected leave due to pregnancy disability or bonding with a new child, see our Interactive App on JobProtected Leave

168

YOUR RIGHTS WHEN CARING FOR A FAMILY MEMBER, OR SOMEONE YOU DESIGNATE AS FAMILY, WHO HAS A SERIOUS HEALTH CONDITION The California Family Rights Act (CFRA) requires employers of 5 or more employees, who have worked at least one year, and 1250 hours in that year, to 12 weeks of job-protected unpaid leave to care for a child, spouse, registered domestic partner, parent, grandparent, grandchild, or sibling with a serious health condition, for the employee’s own serious health condition, or to bond with a new baby.

As of January 1, 2023, workers can use the 12 weeks of family leave to care for a “designated person” who has a serious health condition and the employee considers like family.

If don’t receive the leave or are retaliated against for taking the leave, you can file a claim with the California Department of Civil Rights at https://calcivilrights.ca.gov/complaintprocess/ The statute of limitations is 3 years.

DEATH OF A FAMILY MEMBER

Employees are entitled to up to five days of bereavement leave upon the death of a qualifying family member. The five days of bereavement separate and distinct from the 12 weeks of leave permitted under the California Family Rights Act. An employee is eligible for bereavement leave once they have been employed for at least 30 days prior to the commencement of leave. A qualifying family member includes a spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law as defined in CFRA. The employee can use bereavement leave for each qualifying occurrence, meaning each death of a qualifying member.

The five days of bereavement leave do not need to be taken consecutively; they can be intermittent.

The employee must complete the bereavement leave within three months of the family member’s date of death; however, the employer may require that the employee provide documentation of the death of the family member including a death certificate, published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or governmental agency. The documentation, if requested by the employer, must be provided within 30 days of the first day of bereavement leave.

QUICK FACT: If the employee is denied bereavement leave, you can file a claim with the California Department of Civil Rights (formerly DFEH) at https://calcivilrights.ca.gov/complaintprocess/ You have 3 years to file a claim 169

DISCRIMINATION/HARASSMENT RIGHTS FOR EMPLOYEES IN COMPANIES WITH 5 OR MORE WORKERS.

It is illegal for employers of 5 or more employees to discriminate against job applicants and employees because of their race, religion, national origin, disability, age (over 40) and gender (pregnancy, gender identity, and sexual orientation) or retaliate against them because they have asserted their rights under the law. You are protected from discrimination regardless of immigration status.

The Fair Employment and Housing Act prohibits harassment based on a protected class against an employee, an applicant, an unpaid intern or volunteer, or a contractor. Harassment is prohibited in all workplaces with one or more employees.

Employers of 5 or more employees are required to provide sexual harassment training to supervisory and nonsupervisory employees, and the California Civil Rights Department (formerly the Department of Fair Employment and Housing) accepts complaints when a person believes that an employer has not complied with these training and education requirements.

You can file a claim at https://calcivilrights.ca.gov/complaintprocess/ The statute of limitations is 3 years.

FILING A WORKPLACE DISCRIMINATION/HARASSMENT CLAIM

If there are 5 or more employees (for discrimination or retaliation) or 1 or more employees (for harassment) file a claim with the California Civil Rights Department (formerly the Department of Fair Employment and Housing): https://calcivilrights.ca.gov/complaintprocess/ You have 3 years to file a claim.

You can file a claim with the Equal Employment Opportunity Commission if you are discriminated against, harassed or retaliated against because of your race, religion, national origin, disability, or gender if there are 15 or more employees or because of age (over 40) if there are 20 or more employees at https://publicportal.eeoc.gov/Portal/Login.aspx You have 300 days to file a claim.

170

SEXUAL HARASSMENT IN THE WORKPLACE Sexual harassment is defined as unwanted sexual advances or visual, verbal or physical conduct of a sexual nature. This definition includes many forms of offensive behavior and includes gender-based harassment of a person of the same sex as the harasser. The following is a partial list of prohibited behavior: Visual conduct: leering, making sexual gestures, displaying of sexually suggestive objects or pictures, cartoons or posters.

Verbal conduct: making or using derogatory comments, epithets, slurs and jokes. Verbal abuse of a sexual nature, graphic verbal commentaries about an individual’s body, sexually degrading words used to describe an individual.

Physical conduct: touching, assault, impeding or blocking movements.

Offering employment benefits in exchange for sexual favors.

Making or threatening retaliatory action after receiving a negative response to sexual advances.

PROTECTIONS AGAINST RETALIATION You have the right to act with co-workers to address work-related issues in many ways. Examples include: talking with one or more co-workers about your wages, hours, and working conditions, circulating a petition asking for better hours, participating in a concerted refusal to work in unsafe conditions, openly talking about your pay and benefits, and joining with co-workers to talk directly to your employer, to a government agency, or to the media about problems in your workplace.

Quick Fact: If you are retaliated against for "protected concerted activity" you can file a claim with the National Labor Relations Board at Your employer cannot discharge, discipline, or threaten you for, or https://www.nlrb.gov/resources/f aq/nlrb coercively question you about, this "protected concerted" activity. A You have 6 months to file a single employee may also engage in protected concerted activity if he or claim. she is acting on the authority of other employees, bringing group complaints to the employer's attention, trying to induce group action, or seeking to prepare for group action.

You can lose protection by saying or doing something egregiously offensive or knowingly and maliciously false, or by publicly disparaging your employer's products or services without relating your complaints to any labor controversy. The workers may file a claim with the National Labor Relations Board (NLRB).

Quick Fact: If you are retaliated against for any violation of state or federal law you can file a claim with the Labor Commissioner’s Office at https://www.dir.ca.gov/dlse/howt ofileretaliationcomplaint.htm You have 1 year to file a claim.

A single employee, who is discharged, threatened with discharge, demoted, suspended, or retaliated for complaining to their supervisor or a government agency about a violation of state or federal law can file a retaliation complaint with the Labor Commission. Examples of some protected activities include filing or threatening to file a wage claim with the Labor Commissioner's office, requesting your overtime pay, taking time off to serve on a jury, complaining about a safety or health hazard and/or refusing to perform work that may be hazardous.

171

EMPLOYMENT RIGHTS & DV/IPV SURVIVORS

SECTION FOUR

There are several laws that protect intimate partner violence survivors in the workplace – from ensuring a safe environment to allowing survivors the time off they need to participate in the legal process. These laws are very important because they protect survivors from being hurt at work, and they safeguard survivors from disciplinary measures due to issues derived from the abuse.

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Temporary Restraining Order and Injunction in the Workplace For a survivor who experienced violence (such as assault, battery, or stalking) at their workplace, or who believes they may experience such violence in the workplace, their employer can seek a temporary restraining order and longerterm order on the survivor’s behalf. (Code of Civil Procedure, §527.8)

Time Off from Work to Seek Assistance ALL EMPLOYERS Must allow an employee who is a victim of IPV, sexual assault, or stalking to take time off from work to seek relief/assistance from a court - such as for a temporary restraining order, restraining order, child support, child custody, or divorce court hearings - to ensure the health, safety, or welfare of the victim or their child. (Labor Code, §230) In addition to the above, employers with 25 or more employees: Must allow an employee who is a victim of IPV, sexual assault, or stalking to take time off from work to: go to the doctor for injuries caused by IPV, sexual assault, or stalking; obtain services from an IPV shelter, program, or rape crisis center; go to counseling; participate in safety planning. (Labor Code, §230.1) For all activities of the type described here: The employer must allow the employee to do these activities or seek these services without being fired/let go, demoted, or discriminated against or retaliated against. When possible, the employee will give reasonable advance notice of their intent to take time off for these activities/services, unless advance notice is not possible. The employer may request documentation that verifies the employee is a survivor of violence. To the extent allowed by the law, the employer will maintain the confidentiality of the employee requesting time off. (Labor Code, §230, 230(c), and §230.1) Employers shall provide DV victims with their accrued paid sick leave upon written request to achieve purposes described in §§230 & 230.1 (Labor Code, §246 & 246.5).

174

Employers must provide reasonable accommodation to the employee An employer shall provide reasonable accommodations for a victim of domestic violence, sexual assault, or stalking, who requests an accommodation for the safety of the survivor while at work.

Reasonable accommodations may include the implementation of safety measures, including a transfer, reassignment, modified schedule, changed work telephone, changed work station, installed lock, assistance in documenting domestic violence, sexual assault, stalking, or other crime that occurs in the workplace, an implemented safety procedure, or another adjustment to a job structure, workplace facility, or work requirement in response to domestic violence, sexual assault, stalking, or other crime, or referral to a victim assistance organization. (Labor Code, §230) The Labor Commission enforces the Labor Code provisions, and the employee can file a claim with the Labor Commission if there is a violation. The statute of limitations is one year.

Visit https://www.dir.ca.gov/dlse/howtofileretaliationcomplaint.htm for more information.

Filing for Unemployment The state Unemployment Insurance program, administered by the California Employment Development Department (EDD), pays benefits to people with work permits who have lost their job and meet eligibility requirements. Workers who quit their jobs usually do not qualify for unemployment insurance benefits; however, a survivor of IPV may be eligible if they had a compelling reason for leaving or quitting their job (known as a “good cause Tip: insurance benefits if they quit their quit”). IPV survivors may be eligibleAdvocacy for unemployment job to protect themselves and/or their family from IPV abuse. EDD will assess if the survivor worked with their employer prior to quitting to address this problem, such as requesting a leave of absence or safety-related accommodation, to show evidence for a “good cause quit.” To establish “good cause,” a DV survivor must show that 1) the survivor and/or survivor’s children experienced an act or threat of domestic violence abuse; 2) the survivor has a restraining order, police report, or other information that identifies the batterer and/or verifies the abuse; and 3) a leave of absence or transfer was not available or would not have resolved the problem. An employer’s reserve account will not be affected if the employer notifies the EDD within 10 days of the filing of the claim that there was no accommodation the employer could make to keep the DV victim and/or other workers safe. (Unemployment Insurance Code, §1256).

For more information: Services for Victims of IPV, EDD Information Sheet, https://www.edd.ca.gov/pdf_pub_ctr/de8323.pdf 175

Leave of Absence IPV survivors who suffer from anxiety or depression or who have suffered an injury may apply for California Family Rights Act Leave (CFRA) (California’s Family and Medical Leave Act, or FMLA) if there are five or more employees in the company, the survivors has worked a year, and the survivor has worked at least 25 hours per week. They will receive up to 12 weeks of unpaid leave. If, like Daniel, employees do not meet these requirements, they can request leave as a reasonable accommodation under the Americans with Disabilities Act (ADA) (if there are 15 or more employees in the company) or the California Fair Employment and Housing Act (FEHA) (if there are five or more employees) no matter how long they have worked. They must have a date specified that they will return to work; this date may be extended. Both the FMLA/CFRA and the ADA/FEHA leave are unpaid, but the employee can receive State Disability benefits from the EDD. If the leave is denied, the employee may file a claim with the Equal Employment Opportunity Commission (EEOC) for ADA claims (https://www.eeoc.gov/how-file-chargeemployment-discrimination) of failure to provide leave as a reasonable accommodation (disability discrimination) or the employee can file a claim with the California Civil Rights Department for CFRA claims or failure to provide leave as a reasonable accommodation (disability discrimination). The statute of limitations is 300 days for the EEOC and three years for California Civil Rights Department. https://calcivilrights.ca.gov/

Quick Facts IPV survivors can avail themselves of workplace protections including temporary restraining orders, injunctions, time off to seek support, and reasonable accommodations.

IPV survivors may be eligible for EDD benefits if the loss of their employment is related to the abuse.

IPV survivors who suffer from anxiety or depression or an injury as a result of the abuse may seek FMLA/CFRA leave or leave as a reasonable accommodation under the disability laws and apply for State Disability Insurance (SDI) benefits from the EDD.

Pay During Medical Leave of Absence The employee can obtain pay during the FMLA/CFRA or leave as reasonable accommodation under the ADA or FEHA by applying for State Disability Insurance (SDI) through the EDD at edd.ca.gov.

Employees may apply online or by mail.

Immigration status is irrelevant.

Employees may be eligible for SDI benefits for up to 52 weeks. The employee’s doctor must also complete a form.

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WAGE THEFT

Wage theft is the failing to pay wages or provide employee benefits rightfully owed to an employee by contract or law. While all labor trafficking includes some type of wage theft, not all types of wage theft rise to the level of labor trafficking. Some examples of wage theft include:

Being paid less than minimum wage per hour Not receiving agreed upon wages including overtime and regular wages Not being paid promised vacations or bonuses Not receiving final wages in a timely manner Late paychecks Not being allowed to take meal breaks or rest periods Owners or managers taking tips Failure to be reimbursed for business expenses Having unauthorized deductions taken from paycheck Bounced checks Not receiving reporting time pay of half of the scheduled day’s pay, but no less than two hours or more than four hours, at the regular rate of pay for each workday an employee is required to report to work but is not put to work or furnished with less than half the usual work.

The Trafficking Victims Protection Act of 2000 (TVPA) defines labor trafficking as: “The recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage or slavery.” The State of California's civil human trafficking law is at Civil Code 52.5. It incorporates the definition of Penal Code 236.1. It requires a substantial and sustained deprivation of liberty. “Forced labor or services” means labor or services that are performed or provided by a person and are obtained or maintained through force, fraud, duress, or coercion, or equivalent conduct that would reasonably overbear the will of the person.

177

CALCULATING OVERTIME PAY Monday

Tuesday

Wednesday

Thursday

Friday

Saturday

Sunday

TOTAL HOURS

14

13

12

10

9

13

12

REGULAR

8

8

8

8

8

1.5X

4

4

4

2

1

12

8

2X

2

1

1

4

Here is the link for filing a wage claim https://www.dir.ca.gov/dlse/howtofilewageclaim.htm

online:

If a worker complains to the supervisor about failure to receive wages or about a violation of state or federal law and is disciplined, terminated, or threatened with deportation, the worker can file a claim with the retaliation unit of the Labor Commission.

Here is the link: https://www.dir.ca.gov/dlse/howtofileretaliationcomplaint.htm

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SECTION FIVE

CASE STUDY ANSWERS

179

How can Daniel’s employer help Daniel increase his safety at work?

They can support Daniel to take the time off he needs to address issues related to the abuse – such as obtaining a restraining order, meeting with an advocate or therapist, or going to court.

They can help Daniel obtain a restraining order to prevent Jacob from harassing Daniel at work and ensure the order is enforced.

Provide Daniel with disability leave, so he can attend to mental health issues related to the abuse.

All of the above

What technique did Tala use to ensure Maria relocated from the Philippines to San Francisco to take a job In Tala’s nursing care facility?

Force

Fraud

Coercion

All of the above

How did Tala violate employment laws?

Choose all that apply.

By physically beating workers and threatening them.

By being mean to Maria

By deducting rent and travel fees from Maria’s paycheck and failing to pay minimum wage and overtime 180

SECTION SIX

SECTION SUMMARY

181

What workplace protections are available to IPV survivors?

Temporary restraining orders, accommodations, and injunctions in the workplace.

Can an IPV survivor take time off from work to seek support?

Yes, IPV survivors can take time off from work to seek assistance – such as restraining orders, child support, child custody, divorce hearings, and appointments necessary to ensure the survivor’s health and safety and obtain reasonable accommodations to keep them safe.

What benefits does an IPV survivor have when they have to take a leave from work?

IPV survivors with work permits may be eligible for unemployment insurance benefits if they quit their job to protect themselves and/or their family from IPV abuse but must establish that a leave of absence or transfer was not available or would not have resolved the problem.

IPV survivors who suffer anxiety, depression, or physical injury or disability can apply for State Disability Insurance (SDI) from the EDD. Immigration status is irrelevant.

What is the difference between wage theft and human trafficking?

Labor trafficking involves using force, fraud, or coercion for the purpose of subjecting someone to involuntary servitude, peonage, debt bondage, or slavery. Wage theft, on the other hand, is failing to pay wages or provide employee benefits rightfully owed to an employee by contract or law. Wage theft can include: Being paid less than minimum wage per hour Not receiving agreed upon wages including overtime and regular wages Not being paid promised vacations or bonuses Not receiving final wages in a timely manner Late paychecks

Quick Fact: If you are fired, you must receive your pay on the day you are fired. If you quit, you must receive your pay within 72 hours. You must receive any vacation you have accrued. You will not receive your sick pay. If you do not receive your final pay on the day you are fired and within 72 hours if you quit, you can file a claim for waiting time penalties at the Labor Commission. The penalty is one days pay for up to 30 days.

182

What protections are in place for workers?

There are several workplace protections in place to support survivors. Survivors of sexual assault, battery, or stalking can apply for a temporary restraining order or injunction. IPV, sexual assault, or stalking can also take time off from work to seek assistance from court or to ensure the health, safety, or welfare of the victim or their child. In addition to the above, employers with 25 or more employees must allow an employee who is a victim of IPV, sexual assault, or stalking to take time off from work to: go to the doctor for injuries caused by IPV, sexual assault, or stalking; obtain services from an IPV shelter, program, or rape crisis center; go to counseling; participate in safety planning.

Quick Fact: All workers regardless of immigration status are covered by all employment laws and entitled to all benefits from the state except unemployment. You must have a work permit in order to receive unemployment.

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CHAPTER 8

HOUSING

Section One

LEARNING OBJECTIVES

1 2

WHAT RIGHTS DO IPV, SA, AND HT SURVIVORS HAVE REGARDING CHANGING THE LOCKS IN HER RENTED HOME?

WHEN CAN SURVIVORS END A LEASE EARLY WITHOUT BEING PENALIZED?

3 4

WHAT PROTECTIONS DO SURVIVORS HAVE FROM EVICTION?

WHAT FEDERAL HOUSING PROTECTIONS DO SURVIVORS HAVE UNDER HUD AND VAWA?

185

Housing Protections and Remedies Access to safe housing can provide a pathway to independence and healing for survivors and their children. Recognizing the importance of secure and stable homes, federal, state, and local legislators enacted several laws to ensure survivors’ physical and emotional wellbeing in their homes. These laws afford survivors several tenant protections and rights to increase their safety in their homes or pursue other housing options if remaining in the home is unsafe.

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SECTION TWO

SURVIVOR VOICES & CASE STUDIES

DANIEL Daniel is a survivor of intimate partner violence.

He left his long-term partner Jacob after years of enduring emotional and physical abuse, isolation, and manipulation. Please review his story on page S8, for context and in order to answer the questions following this section.

Daniel and Jacob met in junior high school and, after being friends for several months, began a dating relationship. When they moved in together, Jacob’s jealously and controlling nature caused Daniel to lose friendships, and a couple of jobs. When the abuse escalated into violence, Daniel left Jacob.

187

DANIEL'S HOUSING RIGHTS

Daniel’s parents helped him put down a security deposit for a small apartment. Jacob found out through mutual friends where Daniel was living. Jacob began harassing Daniel at his apartment – going as far as breaking in one day while Daniel was at work.

If Daniel wants to change the locks, or end the lease early, what documentation will he need?

Choose all that could apply.

A written request certifying that he meets the criteria for an emergency transfer under VAWA.

Fill out a form to certify that he meets the criteria for an emergency transfer under VAWA.

A verbal notice that he wants to move is sufficient.

Correct answer on page 208

188

If Daniel’s landlord tries to evict him because of Jacob’s actions, what documentation can Daniel give his landlord to demonstrate that he is a survivor?

Check all that apply.

Emergency Protective Order, Temporary Restraining order, Court Protective Order

Documentation from qualified third party (SA, IPV, or HT caseworker or medical or mental health professional)

Police Report

Can Daniel ask to be transferred to another unit?

Yes, depending on if another unit is available

Only if he has a restraining order

Correct answer on page 208

No

189

SECTION THREE

HOUSING & THE LAW

190

HOUSING REMEDIES AND PROTECTIONS: INTIMATE PARTNER VIOLENCE SURVIVORS

SECTION FOUR

Ending a Lease Early An IPV survivor, or a member of the same household who is a survivor of intimate partner abuse, sexual assault, or human trafficking, may move out before the lease ends. The survivor must provide written notice to their landlord that they plan to end their lease early along with documentation such as one of the following: a copy of a temporary restraining order, emergency protective order, protective order from the court, written police report, or documentation from a qualified third party such as a sexual assault counselor, intimate partner abuse counselor, human trafficking caseworker, or medical or mental health professional. All documentation must be dated within 180 days of the survivor’s notice to end their lease. The landlord is required to keep this information confidential. (Civil Code, §1946.7)

Note: See sample form “Tenant Statement and Qualified Third Party Statement under Civil Code Section 1946.7,” located at https://leginfo.legislature.c a.gov/faces/codes_displayS ection.xhtml? sectionNum=1946.7.&lawC ode=CIV

Once the survivor provides their landlord with written notification for ending the lease and the required documentation, the survivor is responsible for paying rent during the next 14 calendar days after the date the survivor gave notice to move out. The survivor’s intent to move out early should not impact whether the landlord returns their security deposit. (Civil Code, §1946.7)

192

Protection from Eviction As a survivor of intimate partner abuse, sexual assault, stalking, or human trafficking, or a member of their household/family who is a survivor, this violence cannot be a reason for a landlord to break the lease or not renew the lease. To meet this law’s guidelines, the person who committed this violence cannot live with the survivor. If the landlord tries to evict the survivor or not renew their lease for this reason, the survivor will need to provide the landlord with documentation such as one of the following: a copy of a temporary restraining order, emergency protective order, protective order from the court, written police report, or documentation from a qualified third party such as a sexual assault counselor, intimate partner abuse counselor, human trafficking caseworker, or medical or mental health professional. Documentation must be dated within 180 days. The landlord can still end the lease if the survivor allows the person named in the documentation to visit the property or if this person is a physical threat to other tenants; in this case, the landlord must alert the survivor of this issue and provide three days to correct it. (Code of Civil Procedure, §1161.3)

Moving to Another Unit including Emergency Transfers If the survivor requests, the housing provider may allow the survivor to move to another unit, subject to availability, and keep their housing assistance. In order to approve a request, the housing provider may ask the survivor to provide documentation that they are requesting to move due to intimate partner abuse, dating violence, sexual assault, or stalking.

If the survivor is requesting an emergency transfer, the housing provider may ask the survivor to submit a written request or fill out a form to certify that the survivor meets the criteria for an emergency transfer under VAWA. The criteria are: (1) The survivor is a victim of intimate partner abuse, dating violence, sexual assault, or stalking and is able to provide documentation of this; (2) The survivor specifically requests the emergency transfer; (3) The survivor reasonably believes they are threatened with imminent harm from further violence if they remain in their current unit OR they are a victim of sexual assault and the assault occurred on the premises during the 90-calendar-day period before they request a transfer. The housing provider will keep requests for emergency transfers confidential. (81 FR 80724 - Violence Against Women Reauthorization Act of 2013: Implementation in HUD Housing Programs) 193

Changing the Locks An IPV survivor renting a property (home, apartment, etc.), whose abuser does not live in the home, can request that their landlord change the locks on the property as a protection from their abuser.

The abuser must be named in a court order or police report. The survivor must provide the lock change request to the landlord in writing and with a copy of the court order or police report. The landlord is obligated to change the locks within 24 hours of the survivor’s written request. If the locks are not changed within 24 hours of the written request, the survivor may change the locks without the landlord’s permission (unless the survivor’s lease prevents doing so).

(Civil Code, §1941.5)

An IPV survivor renting a property (home, apartment, etc.), whose abuser does live with them can request that their landlord change the locks on the property as protection from their abuser. The abuser must be named in a court order. The survivor must provide the lock change request to the landlord in writing and with a copy of the court order.

The landlord is obligated to change the locks within 24 hours of the survivor’s written request. If the locks are not changed within 24 hours of the survivor’s written request, the survivor may change the locks without the landlord’s permission (unless the survivor’s lease prevents doing so). The excluded person is still responsible under the lease based on the original lease terms. (Civil Code, §1941.6)

194

PROTECTION FROM ABUSE IN THE HOME To protect an IPV survivor and/or their children from IPV, the survivor can request the court to issue an order that will exclude another person from their home. The survivor can request this order if they own or rent the home, or if the excluded person owns or rents it. (Family Code, §6321)

CALLS FOR EMERGENCY ASSISTANCE WILL NOT END THE LEASE A city agency/local agency cannot require a survivor’s landlord to end the lease based on how often the survivor calls to request emergency assistance -- for example, by calling 911 or the police -- due to IPV. (Government Code, §53165) A landlord will not penalize tenants for calls for law enforcement or emergency assistance because the tenant or another believes a victim of abuse, a victim of crime, or an individual in an emergency, needs help from law enforcement or emergency assistance. (§1946.8)

HUD’S HOUSING CHOICE VOUCHER PROGRAM The Housing Choice Voucher Program is administered by the federal government (Office of Housing and Urban Development, or HUD) to assist very low-income families. Housing assistance is provided on behalf of the family or individual, meaning that participants may find their own housing, including single-family homes, townhouses, and apartments. The participant may choose any housing that meets program requirements and is not limited to units located in subsidized housing projects. The California Victim Compensation Board may reimburse a crime victim for expenses related to a deposit for voucher housing.

195

Protections for HUD Housing Programs Residents (Under VAWA)

196

PROTECTIONS FOR TENANTS A tenant who is receiving housing assistance through a HUD provider may not be denied assistance, terminated from participation, or evicted from their rental housing because they are or have been a victim of intimate partner abuse, dating violence, sexual assault, or stalking. Also, if an individual or a person affiliated with the individual (including a spouse, parent, sibling, child, or other lawful occupant in the household) is or has been the victim of intimate partner abuse, dating violence, sexual assault, or stalking by a member of their household or any guest, the survivor may not be denied rental assistance or occupancy rights under this housing program solely due to criminal activity directly relating to that intimate partner abuse, dating violence, sexual assault, or stalking. (81 FR 80724 - Violence Against Women Reauthorization Act of 2013: Implementation in HUD Housing Programs)

REMOVING THE ABUSER OR PERPETRATOR FROM THE HOUSEHOLD The housing provider may divide (or bifurcate) a survivor’s lease in order to evict the abuser or terminate assistance to the abuser. If the housing provider chooses to remove the abuser, the rights of eligible tenants to the unit must not be removed and the remaining tenants must not be punished. If the evicted abuser was the sole tenant to have established eligibility for housing assistance, the tenant who is or has been a victim and other household members have the right to remain in the unit for a period of time, in order to establish eligibility under the program or under another HUD housing program covered by VAWA, or find alternative housing. If the lease is being divided, the housing provider may ask the survivor for documentation or certification of intimate partner abuse, dating violence, sexual assault, or stalking. (81 FR 80724 - Violence Against Women Reauthorization Act of 2013: Implementation in HUD Housing Programs)

For more information: https://www.hud.gov/program_offices/housing/mfh/violence_against_women_act https://www.hud.gov/sites/dfiles/OCHCO/documents/52641A.pdf

197

HOUSING REMEDIES AND PROTECTIONS: HUMAN TRAFFICKING SURVIVORS

SECTION FIVE

Ending a Lease Early A human trafficking survivor, or a member of the same household who is a survivor of human trafficking, intimate partner violence, or sexual assault, may move out before the lease ends. The survivor must provide written notice to their landlord that they plan to end their lease early along with documentation such as one of the following: a copy of a temporary restraining order, emergency protective order, protective order from the court, written police report, or documentation from a qualified third party such as a sexual assault counselor, intimate partner abuse counselor, human trafficking caseworker, or medical or mental health professional.

All documentation must be dated within 180 days of the survivor’s notice to end their lease. The landlord is required to keep this information confidential.

(Civil Code, §1946.7)

Note: See sample form “Tenant Statement and Qualified Third Party Statement under Civil Code Section 1946.7,” located at https://leginfo.legislature.c a.gov/faces/codes_displayS ection.xhtml? sectionNum=1946.7.&lawC ode=CIV

Once the survivor provides their landlord with written notification for ending the lease and the required documentation, the survivor is responsible for paying rent during the next 14 calendar days after the date the survivor gave notice to move out. The survivor’s intent to move out early should not impact whether the landlord returns their security deposit. (Civil Code, §1946.7)

199

Protection from Eviction As a survivor of human trafficking, IPV, sexual assault, or stalking, or a member of their household/family who is a survivor, this violence cannot be a reason for a landlord to break the lease or not renew the lease. To meet this law’s guidelines, the person who committed this violence cannot live with the survivor. If the landlord tries to evict the survivor or not renew their lease for this reason, the survivor will need to provide the landlord with documentation such as one of the following: a copy of a temporary restraining order, emergency protective order, protective order from the court, written police report, or documentation from a qualified third party such as a sexual assault counselor, IPV counselor, human trafficking caseworker, or medical or mental health professional. Documentation must be dated within 180 days. The landlord can still end the lease if the survivor allows the person named in the documentation to visit the property or if this person is a physical threat to other tenants; in this case, the landlord must alert the survivor of this issue and provide three days to correct it. (Code of Civil Procedure, §1161.3)

HUD’s Housing Choice Voucher Program The Housing Choice Voucher Program is administered by the federal government (Office of Housing and Urban Development, or HUD) to assist very low-income families. Housing assistance is provided on behalf of the Quick Facts: family or individual, meaning that participants may find their own housing, Non-confidential advocates, or advocates that do not fall under the including homes, townhouses, and apartments. The participant Evidence Code single-family as a confidential partner abuse mayintimate choose any housing that meets program requirements and is not advocate/domestic violence counselor, must disclose their confidentiality limited units in subsidized housing projects. The California limitations toto survivors as soon located as possible. Disclosing confidentiality Victim Compensation Board may reimburse a crime victim for expenses limitations allows survivors to make informed decisions about what they relatedwant totoashare. deposit for voucher housing.

200

HOUSING REMEDIES AND PROTECTIONS: SEXUAL ASSAULT SURVIVORS

SECTION SIX

Ending a Lease Early A sexual assault survivor, or a member of the same household who is a survivor of sexual assault, intimate partner abuse, or human trafficking, may move out before the lease ends.

The survivor must provide written notice to their landlord that they plan to end their lease early along with documentation such as one of the following: a copy of a temporary restraining order, emergency protective order, protective order from the court, written police report, or documentation from a qualified third party such as a sexual assault counselor, intimate partner abuse counselor, human trafficking caseworker, or medical or mental health professional.

All documentation must be dated within 180 days of the survivor’s notice to end their lease. The landlord is required to keep this information confidential.

(Civil Code, §1946.7)

Note: See sample form “Tenant Statement and Qualified Third Party Statement under Civil Code Section 1946.7,” located at https://leginfo.legislature.c a.gov/faces/codes_displayS ection.xhtml? sectionNum=1946.7.&lawC ode=CIV

Once the survivor provides their landlord with written notification for ending the lease and the required documentation, the survivor is responsible for paying rent during the next 14 calendar days after the date the survivor gave notice to move out. The survivor’s intent to move out early should not impact whether the landlord returns their security deposit. (Civil Code, §1946.7)

202

Protection from Eviction As a survivor of sexual assault, stalking, IPV, or human trafficking, or a member of their household/family who is a survivor, this violence cannot be a reason for a landlord to break the lease or not renew the lease. To meet this law’s guidelines, the person who committed this violence cannot live with the survivor. If the landlord tries to evict the survivor or not renew their lease for this reason, the survivor will need to provide the landlord with documentation such as one of the following: a copy of a temporary restraining order, emergency protective order, protective order from the court, written police report, or documentation from a qualified third party such as a sexual assault counselor, intimate partner abuse counselor, human trafficking caseworker, or medical or mental health professional. Documentation must be dated within 180 days. The landlord can still end the lease if the survivor allows the person named in the documentation to visit the property or if this person is a physical threat to other tenants; in this case, the landlord must alert the survivor of this issue and provide three days to correct it. (Code of Civil Procedure, §1161.3)

HUD’s Housing Choice Voucher Program The Housing Choice Voucher Program is administered by the federal government (Office of Housing and Urban Development, or HUD) to assist very low-income families. Housing assistance is provided on behalf of the family or individual, meaning that participants may find their own housing, including single-family homes, townhouses, and apartments. The participant may choose any housing that meets program requirements and is not limited to units located in subsidized housing projects. The California Victim Compensation Board may reimburse a crime victim for expenses related to a deposit for voucher housing.

203

Protections for HUD Housing Programs Residents (Under VAWA)

204

PROTECTIONS FOR TENANTS A tenant who is receiving housing assistance through a HUD provider may not be denied assistance, terminated from participation, or evicted from their rental housing because they are or have been a victim of sexual assault, intimate partner abuse, dating violence, or stalking. Also, if an individual or a person affiliated with the individual (including a spouse, parent, sibling, child, or other lawful occupant in the household) is or has been the victim of sexual assault, intimate partner abuse, dating violence, or stalking by a member of their household or any guest, the survivor may not be denied rental assistance or occupancy rights under this housing program solely due to criminal activity directly relating to that sexual assault, intimate partner abuse, dating violence, or stalking. (81 FR 80724 - Violence Against Women Reauthorization Act of 2013: Implementation in HUD Housing Programs)

REMOVING THE ABUSER OR PERPETRATOR FROM THE HOUSEHOLD The housing provider may divide (or bifurcate) a survivor’s lease in order to evict the abuser or terminate assistance to the abuser. If the housing provider chooses to remove the abuser, the rights of eligible tenants to the unit must not be removed and the remaining tenants must not be punished. If the evicted abuser was the sole tenant to have established eligibility for housing assistance, the tenant who is or has been a victim and other household members have the right to remain in the unit for a period of time, in order to establish eligibility under the program or under another HUD housing program covered by VAWA, or find alternative housing. If the lease is being divided, the housing provider may ask the victim for documentation or certification of sexual assault, intimate partner abuse, dating violence, or stalking. (81 FR 80724 - Violence Against Women Reauthorization Act of 2013: Implementation in HUD Housing Programs)

MOVING TO ANOTHER UNIT INCLUDING EMERGENCY TRANSFERS If the survivor requests, the housing provider may allow the survivor to move to another unit, subject to availability, and keep their housing assistance. In order to approve a request, the housing provider may ask the survivor to provide documentation that they are requesting to move due to sexual assault, intimate partner abuse, dating violence, or stalking.

If the survivor is requesting an emergency transfer, the housing provider may ask the survivor to submit a written request or fill out a form to certify that the survivor meets the criteria for an emergency transfer under VAWA. The criteria are: (1) The survivor is a victim of sexual assault, intimate partner abuse, dating violence, or stalking and are able to provide documentation of this; (2) The survivor specifically requests the emergency transfer; (3) The survivor reasonably believes they are threatened with imminent harm from further violence if they remain in their current unit OR they are a victim of sexual assault and the assault occurred on the premises during the 90-calendar-day period before they request a transfer.

The housing provider will keep requests for emergency transfers confidential. (81 FR 80724 Violence Against Women Reauthorization Act of 2013: Implementation in HUD Housing Programs) 205

Resources

For more information: https://www.hud.gov/program_offices/housing/mfh/violence_against_wom en_act https://www.hud.gov/sites/dfiles/OCHCO/documents/52641A.pdf

Your Rights as A Sexual Assault Survivor in Santa Clara County: https://www.sccgov.org/sites/da/prosecution/DistrictAttorneyDe partments/Documents/SCCSARTOnlineCard0818.pdf

206

SECTION SEVEN

CASE STUDY ANSWERS

207

If Daniel’s landlord tries to evict him because of Jacob’s actions, what documentation can Daniel give his landlord to demonstrate that he is a survivor? Check all that apply.

Emergency Protective Order, Temporary Restraining order, Court Protective Order

Documentation from qualified third party (SA, IPV, or HT caseworker or medical or mental health professional)

Police Report

Can Daniel ask to be transferred to another unit?

Yes, depending on if another unit is available

Only if he has a restraining order

No

If Daniel wants to change the locks, or end the lease early, what documentation will he need? Choose all that apply

A written request certifying that he meets the criteria for an emergency transfer under VAWA.

Fill out a form to certify that he meets the criteria for an emergency transfer under VAWA.

A verbal notice that he wants to move is sufficient.

208

SECTION EIGHT

SECTION SUMMARY

What rights do IPV survivors have regarding changing the locks in her rented home?

IPV survivors renting a property have the right to request a change of locks from their landlord under certain conditions. If the landlord does not change the locks in 24 hours, the survivor can change them – unless the lease prohibits it.

When can survivors end a lease early without being penalized?

Survivors can end a lease early without being penalized by providing written notice to their landlord along with documentation corroborating their victimization.

What protections do survivors have from eviction?

Landlords cannot evict survivors or not renew their lease based on the survivor’s victimization. To assert this right, the survivor must provide documentation supporting their victimization.

What federal housing protections do survivors have under HUD and VAWA? A tenant who is receiving housing assistance through a HUD provider may not be denied assistance, terminated from participation, or evicted from their rental housing because they are or have been a victim of intimate partner abuse, dating violence, sexual assault, or stalking If the survivor is requesting an emergency transfer, the housing provider may ask the survivor to submit a written request or fill out a form to certify that the survivor meets the criteria for an emergency transfer under VAWA. 210

CHAPTER 9

VICTIM RIGHTS

Section One

LEARNING OBJECTIVES

1 2

DOES A PERSON HAVE TO BE A VICTIM OF A SPECIFIC TYPE OF CRIME TO HAVE RIGHTS UNDER MARSY’S LAW?

WHO CAN ENFORCE A CRIME VICTIM’S RIGHTS?

3 4

WHAT RIGHTS DO ALL CRIME VICTIMS HAVE IN CALIFORNIA?

HOW CAN A CRIME VICTIM RECEIVE COMPENSATION FOR LOSSES RESULTING FROM THE CRIME?

212

California Victim Rights

[1]

In 2008, California voters passed Marsy’s Law, an amendment to the California Constitution intended “to provide victims of crime with rights to justice and due process." At the time, Marsy’s Law became the [2]

strongest

and

most

comprehensive

Constitutional

victims’ rights laws in the United States. Now all [3]

victims of crime in California have crime victim [4]

rights in all courts, including criminal, juvenile, and civil courts. Regardless of the type of victimization, each person who qualifies as a “victim” is entitled to [5]

receive the full protection of Marsy’s Law. These rights are codified in the California Constitution and throughout other California legislation.

-213-

SURVIVOR VOICES & CASE STUDIES

SECTION TWO

NOELLE Noelle is a survivor of intimate partner abuse and sex trafficking.

She moved across the country to escape her violent sex trafficker.

Please review her story on page S4, for context and in order to answer the questions following this section.

MARIA Maria is a survivor of labor trafficking. She was tricked into relocating from the Philippines to California to work for Tala and Danilo. Please review her story on page S11, for context and in order to answer the questions following this section.

VIVIANA Viviana is a survivor of intimate partner violence, sexual assault, and labor trafficking by her former partner Jorge. Please review her story on page S3, in order to answer the questions to come.

214

NOELLE'S VICTIM RIGHTS Noelle is a survivor of intimate partner violence and sex trafficking. She moved across the country to escape her violent sex trafficker. Once in CA, Noelle was again sex trafficked by Eddie, a man she met in a homeless shelter, and sexually assaulted by a sex purchaser. She was linked to confidential advocacy services and, once she felt physically and emotionally safe, Noelle spoke with a human trafficking detective about Eddie. Eddie was known to law enforcement. The detective took a report and submitted it to the District Attorney’s Office.

What rights does Noelle have related to the investigation?

Check all that apply.

As a victim of interpersonal violence, human Noelle has the right to be informed of trafficking, and sexual assault, Noelle her California Constitutional rights is entitled to receive a free copy of the under Marsy’s Law. initial crime report related to the crime.

As a sexual assault survivor, Noelle specifically also has some additional statutory rights falling under this umbrella, including the right to be notified about DNA results obtained from rape kit evidence.

When does Noelle have the right to be heard? Check all that apply.

At any post-arrest release decision, plea, and sentencing hearing through a victim impact statement or oral statements made to the prosecuting court during a defendant’s sentencing hearing.

In pre-sentence investigations and providing the probation department with information on the impact of the offense and sentencing recommendations before the sentencing hearing.

At any post-conviction release decision like parole or probation hearings where a defendant’s release or removal of conditions of release may be decided.

Correct answer on page 230

215

MARIA'S VICTIM RIGHTS

Maria is a survivor of labor trafficking. She was tricked into relocating from the Philippines to California to work for Tala and Danilo, the couple that owns and operates a nursing facility. The couple promised to pay her $25 an hour to start, and not charge her rent, but they actually only paid her $15 an hour. The couple also deducted $500 monthly from Maria’s check - $200 to cover airfare expenses and $300 for room and board. Maria worked six days a week, from 7am to 10pm. She did not get paid overtime. Tala and Danilo were arrested after a concerned family member of one of the facility’s residents alerted the police. Ten potential victims were identified through the investigation. Some reportedly had been beaten and threatened by Tala and Danilo. A couple were locked in the basement for a week because they threatened to go back to the Philippines.

The District Attorney filed several criminal charges against Tala and Danilo including labor trafficking, wage theft, battery, assault, false imprisonment, fraud, etc.

True or False?

Restitution is mandatory in every case where there is TRUE a loss, regardless of the sentence or disposition.

TRUE

Restitution can coverTRUE pain and suffering.

FALSE

TRUE

Correct answer on page 231

FALSE

216

VIVIANA'S VICTIM RIGHTS

Viviana is a survivor of intimate partner violence, sexual assault, and labor trafficking by her former partner Jorge. After enduring over a year of severe abuse, she left him and went into a shelter with their son Camilo. Viviana is very afraid that Jorge will follow through on his threats to kill her, or to call immigration and have her deported so that he can take full custody of Camilo. During the two days Viviana has been at the shelter, Jorge has texted her close to 50 times. Viviana needs support and protection from the criminal justice system.

What does Viviana have to do to qualify as a “victim” of crime and have crime victim rights in California?

Viviana has to report the crime and obtain a police report

Vivana has to do nothing as these rights automatically attach once a crime was perpetrated against Viviana

Viviana has to wait to see if the District Attorney will prosecute the perpetrator

None of the above

217 Correct answer on page 231

How could Viviana try to recover losses suffered because of Jorge’s actions?

Vivana could participate in the criminal investigation and prosecution of Jorge and try to seek restitution if Jorge is found guilty

Viviana could speak to an attorney to see if there are other legal remedies to recover losses

Viviana could file a California Victim Compensation Board (CalVCB) application

All of the above

If the prosecution decides to pursue a criminal action against Jorge for his crimes against Viviana, who could enforce Viviana’s crime victim rights in the criminal case?

Viviana

A retained victim rights attorney

The prosecutor

All of the above

Correct answer on page 232

218

SECTION THREE

VICTIM RIGHTS & THE LAW

219

Who is Considered a Crime “Victim” in California?

A “victim” is defined in the California Constitution as “a person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act.” This person can include a spouse, parent, child, sibling, guardian, or the lawful representative of a crime victim who is deceased, a minor, or incapacitated. A person is considered a “victim” the moment the crime occurs, which means a person is protected by all the crime victim rights discussed below without a police report, conviction, or other court order. Because a person is considered a victim when the crime occurs, the victim rights discussed in this chapter importantly apply during the law enforcement reporting process as well—if the victim decides to report the crime.

[6]

[7]

220

Who Can Enforce a Victim’s Rights?

221

Right to Standing Victims of crime have the right to retain an attorney to enforce their crime victim rights in any court at any point after the crime occurs. Attorneys can represent victims, for example, in law enforcement interviews and reporting, applications for crime victim benefits, throughout criminal cases, and more.

This representation is crucial in ensuring that victims are afforded the opportunity to meaningfully participate in court proceedings and law enforcement interactions while ensuring their rights are protected. If the crime victim is participating in a criminal case, the prosecuting attorney can also enforce the crime victim’s rights upon the victim’s request.

[8]

[9]

ADVOCATE TIP If your jurisdiction does not have victim rights attorneys to represent victims, advocates and other social service providers can assist in providing information about Marsy’s Law and advocate with the local prosecutor to enforce victim rights. However, prosecutors do not have a duty to enforce all victim rights and instead have a duty to the State of California or the US to ensure that perpetrators are prosecuted and held accountable to the full extent of the law.

At times, a prosecutor may be faced with situations where they must do what is best for the criminal prosecution, but not in the best interest of the victim. To ensure all victim rights are being enforced, a victim rights attorney will be required to file a motion in court to enforce and assert these rights. Build relationships with your local legal aid attorneys to explore what attorneys may be available to represent and enforce victims’ rights if they are violated or need to be enforced.

222

What Are a Victim’s Rights in California?

223

Right to Due Process, Fairness, Dignity, Respect, and Privacy Crime victims in California have the broad constitutional right “[t]o be treated with fairness and respect for his or her privacy and dignity, and to be free from intimidation, harassment, and abuse, throughout the criminal or juvenile justice process.” Essentially, this constitutional right to due process, fairness, dignity, respect, and privacy means that crime victims have a broad right to have their rights considered within the criminal justice system.

[10]

IN PRACTICE Victims have the right to prevent the disclosure of private, confidential information to the defendants in a criminal case, or to those acting on the defendants’ behalf.

A victim rights attorney may need to file a motion to assert and enforce these rights in any legal proceedings. For example, in some instances, victims in a criminal case can file a motion in court to use a pseudonym rather than their true name in order to protect their privacy and right to protection.

[11]

[12]

Victims have the right to refuse interviews, depositions, or discovery requests by the defendant, or those acting on the defendant’s behalf—if the victim does consent to these interviews, then they have the right to set reasonable conditions for these interactions.

If the victim is a sexual assault survivor, they may also have additional rights, including the right to refuse to participate in the criminal justice system altogether, to take a lie detector test, or to submit to a psychiatric or psychological exam.

[13]

[14]

[15]

[16]

Right to Notice, Information, and to Confer Crime victims in California have the constitutional right to receive important information about the criminal case as well as be offered a chance to provide information to the legal system as a part of their opportunity to meaningfully participate in the legal system and heal. Victims have the right to be notified of events in the criminal justice system, kept informed of their rights and criminal case developments, and confer with the prosecutor to receive this information, communicate concerns, and advocate for the protection of their rights.

[17]

[18]

[19]

IN PRACTICE Victims have the important right to be informed of their California Constitutional rights under Marsy’s Law. Victims have the right to be kept informed of the criminal case developments, including the conviction, sentence, place and time of incarceration, or other disposition of the defendant, the scheduled release date of the defendant, and the release of or the escape by the defendant from custody.

Victims of interpersonal violence, human trafficking, sexual assault, and elder abuse are entitled to receive a free copy of the initial crime report related to the crime.

Sexual assault survivors specifically also have some additional statutory rights falling under this umbrella, including the right to be notified about DNA results obtained from 264 rape kit evidence.

224 [20]

[21]

[22]

Right to be Present Crime victims in California have the constitutional and statutory right to be present at any public court proceedings where the defendant and prosecutor are entitled to be present. This right to be present is also crucial in ensuring that victims are afforded the opportunity to meaningfully participate in the court proceedings by physically being at the very proceedings, either personally or through counsel, where their rights are implicated.

[23]

IN PRACTICE Victims have the right to reasonable notice of delinquency proceedings, all parole or other post-conviction release proceedings, and any other proceedings where the defendant and prosecutor are present.

Right to Be Heard Crime victims in California have the constitutional right to be heard in any proceeding where their rights are implicated throughout the course of a criminal case in order to meaningfully contribute.

IN PRACTICE Victims’ safety must be considered at any bail or release hearings.

Victims have the right to be heard in pre-sentence investigations and to provide the probation department with information on the impact of the offense and sentencing recommendations before the sentencing hearing.

Victims have a right to be heard at any post-arrest release decision, plea, and sentencing hearing through a victim impact statement or oral statements made to the prosecuting court during a defendant’s sentencing hearing.

Victims have a right to be heard at any post-conviction release decision like parole or probation hearings where a defendant’s release or removal of conditions of release may be decided.

[24]

[25]

[26]

Right to Reasonable Protection Safety can often be a crucial concern for many survivors and is integral in the healing process to reclaim their sense of control, self-autonomy, and voices. In California, victims have the constitutional right to be reasonably protected from the defendant and persons acting on the defendant’s behalf.

[27]

Safety can often be a crucial concern for survivors and is integral in the healing process for INmany PRACTICE survivors to reclaim their sense of control and self-autonomy as well as their voices. In California, If a victim reports the crime to a law enforcement agency, a Criminal Protective Order may be issued victims have the constitutional right to be reasonably protected from the defendant and persons prohibiting the offender, or those acting on the offender’s behalf, from contacting the victim. acting on the defendant’s behalf.[27] Victims must have their safety and their family’s safety considered, particularly where threats of bodily harm may exist and a there is substantial likelihood that the threat may be carried out to harm the victim or victim’s family. This includes the following: At arraignment hearings where bail and release conditions are decided.

At any parole or other post-judgment hearing where a defendant’s release from custody will be decided.

Victims have the right to prevent the disclosure of confidential information to defendants or those acting on behalf of defendants that could be used to locate or harass the victim.

[28]

[29]

[30]

225

Right to Restitution All victims in California that suffer losses as the result of criminal activity have the right to seek and secure restitution from the person convicted of the crime.

Restitution is a court order for a defendant that accepts a plea bargain or is found guilty of a crime in order to pay monetary compensation for losses to the victims.

Restitution is mandatory in every case where there is a loss, regardless of the sentence or disposition.

[31]

[32]

[33]

ADVOCATE TIP It is very important for advocates to help survivors have realistic expectations of accessing restitution. Although restitution is mandatory, a judge may not order the entire amount that the survivor feels they are entitled to and the amount of restitution ordered is entirely at the discretion of the judge. Further, even if a restitution order is granted, enforcing the judgment to collect restitution from the defendant is not guaranteed especially if the defendant does not have any assets or has a job where wages can be garnished.

Right to Proceedings Free from Unreasonable Delay Crime victims in California have a constitutional right to a speedy trial and a prompt conclusion of the case and any related post-judgment proceedings. This means that the criminal justice system must consider the crime victim when there are continuances or other delays in a criminal case.

[34]

ADVOCATE TIP A victim rights attorney or prosecutor may be able to file motions to assert these rights in court.

226

Property Rights Crime victims often have property taken during a criminal investigation when the property may contain evidence. A common example is a victim’s phone may be seized by a law enforcement agency if it may contain evidence of the defendant’s criminal activity. Crime victims in California have the constitutional right to the prompt return of property when it is no longer needed as evidence.

[35]

IN PRACTICE Crime victims and advocates who are present when a victim’s phone is seized can also advocate for the prompt return of the phone. Likewise, they can advocate for the phone to remain in the victim’s possession, particularly when the cell phone is the victim’s only source of communicating with the victim’s service providers, family, friends, and other resources.

Right to Apply for Victim Compensation Crime victims have the statutory right to apply for victim compensation through the California Victim Compensation Board (CalVCB). This is a civil law process entirely separate from the criminal justice system. CalVCB can provide financial reimbursement assistance to victims and family members of qualifying crimes, including domestic violence, sexual assault, human trafficking, and more, who suffered financial losses resulting from the crime. Applicants must meet other guidelines such as being a California resident at the time the crime occurred, or the crime must have occurred in California; cooperating with law enforcement and court officials to arrest and prosecute the offender (however, some exceptions may be considered); and not being involved in events leading to the crime or having committed a crime that could be charged as a felony (with some exceptions). Victims must also apply within seven years of the crime, seven years after the victim turns 21 years of age, or seven years from when the crime could have been discovered, whichever is later.

Types of expenses that may be reimbursed include income loss, healthcare treatment, mental health services, relocation costs, etc.

[36]

[37]

[38]

[39]

[40]

Loss of Income for Human Trafficking Survivors

ADVOCATE TIP

[41]

Human trafficking victims can apply for specific compensation through the California Victim Compensation Board (CalVCB) for the loss of income incurred as a direct result of their deprivation of liberty. In other words, CalVCB can compensate human trafficking survivors for the unpaid labor they performed for their trafficker, including commercial sex. Survivors of human trafficking who apply may be eligible for up to $10,000 per year of labor for a two-year period totaling up to $20,000 of compensation.

If there is an ongoing law enforcement investigation or prosecution of the trafficker, it is important that the human trafficking victim consult with a victim rights attorney before applying for this special loss of income compensation to ensure privacy rights are considered as the CalVCB application is discoverable to the defendant.

[42]

227

Vacatur for Human Trafficking Survivors Victims of human trafficking are often forced to commit crimes while being trafficked, and their criminal records serve as a harmful barrier to employment, housing, parenting rights, healing, and more. California has a law that victims of human trafficking can petition a court to vacate qualifying nonviolent arrests and convictions that were committed in California as the direct result of being trafficked. The victim must show the court that they were a victim of human trafficking when the crimes occurred, the crimes occurred as a direct result of the trafficking, and they have distanced themselves from the trafficking scheme since the crimes occurred.

If the court approves the petition, all evidence of the arrests and convictions will be destroyed.

[43]

[44]

[45]

ADVOCATE TIP Vacatur relief is very different than expungement. Vacatur is a more comprehensive and traumainformed form of relief for victims of human trafficking, and it is important that the attorney handling the record clearance understands the different forms of relief available.

Protection from Being Convicted Human trafficking survivors are protected from being convicted of crimes that their trafficker forced them to commit. This is known as an “affirmative defense.” This type of defense does not apply to serious or violent felony offenses. (Penal Code, §236.23) ADVOCATE TIP Additional remedies for expunging records may be available for survivors of any form of gender based violence. Consult with a criminal defense attorney or public defender to learn more.

Sealing Conviction Records from Time of Trafficking A human trafficking survivor can confidentially erase nonviolent arrests and convictions that are a direct result of being trafficked. (Penal Code, §236.14)

228

SECTION FOUR

CASE STUDY ANSWERS

229

NOELLE'S VICTIM RIGHTS

Noelle is a survivor of intimate partner abuse and sex trafficking. She moved across the country to escape her violent sex trafficker. Once in CA, Noelle was again sex trafficked by Eddie, a man she met in a homeless shelter, and sexually assaulted by a sex purchaser. She was linked to confidential advocacy services and, once she felt physically and emotionally safe, Noelle spoke with a human trafficking detective about Eddie. Eddie was known to law enforcement. The detective took a report and submitted it to the District Attorney’s Office.

What rights does Noelle have related to the investigation?

Check all that apply.

As a victim of interpersonal violence, human Noelle has the right to be informed trafficking, and sexual assault, Noelle of her California Constitutional is entitled to receive a free copy of the rights under Marsy’s Law. initial crime report related to the crime.

As a sexual assault survivor, Noelle specifically also has some additional statutory rights falling under this umbrella, including the right to be notified about DNA results obtained from rape kit evidence.

When does Noelle have the right to be heard? Check all that apply.

At any post-arrest release decision, plea, and sentencing hearing through a victim impact statement or oral statements made to the prosecuting court during a defendant’s sentencing hearing.

In pre-sentence investigations and providing the probation department with information on the impact of the offense and sentencing recommendations before the sentencing hearing.

At any post-conviction release decision like parole or probation hearings where a defendant’s release or removal of conditions of release may be decided.

230

The District Attorney filed several criminal charges against Tala and Danilo including labor trafficking, wage theft, battery, assault, false imprisonment, fraud, etc.

Restitution is mandatory in every case where there is TRUE a loss, regardless of the sentence or disposition.

TRUE

True or False?

Restitution can coverTRUE pain and suffering.

FALSE

TRUE

FALSE

What does Viviana have to do to qualify as a “victim” of crime and have crime victim rights in California?

Viviana has to report the crime and obtain a police report

Vivana has to do nothing as these rights automatically attach once a crime was perpetrated against Viviana

Viviana has to wait to see if the District Attorney will prosecute the perpetrator

None of the above

231

How could Viviana try to recover losses suffered because of Jorge’s actions?

Vivana could participate in the criminal investigation and prosecution of Jorge and try to seek restitution if Jorge is found guilty

Viviana could speak to an attorney to see if there are other legal remedies to recover losses

Viviana could file a California Victim Compensation Board (CalVCB) application

All of the above

If the prosecution decides to pursue a criminal action against Jorge for his crimes against Viviana, who could enforce Viviana’s crime victim rights in the criminal case?

Viviana

A retained victim rights attorney

The prosecutor

All of the above

232

SECTION FIVE

SECTION SUMMARY

233

Does a person have to be a victim of a specific type of crime to have rights under Marsy’s Law? All victims of crime in California have crime victim rights in all courts, including criminal, juvenile, and civil courts. Regardless of the type of victimization, each person who qualifies as a “victim” is entitled to receive the full protection of Marsy’s Law.

What rights do all crime victims have in California?

Crime victims in California have the broad constitutional right “[t]o be treated with fairness and respect for his or her privacy and dignity, and to be free from intimidation, harassment, and abuse, throughout the criminal or juvenile justice process.” Essentially, this constitutional right to due process, fairness, dignity, respect, and privacy means that crime victims have a broad right to have their rights considered within the criminal justice system.

[46]

Who can enforce a crime victim’s rights?

The victim, prosecutor, and retained victim rights attorney can enforce a crime victim’s rights.

How can a crime victim receive compensation for losses resulting from the crime?

All victims in California that suffer losses as the result of criminal activity have the right to seek and secure restitution from the person convicted of the crime.

Restitution is a court order for a defendant that accepts a plea bargain or is found guilty of a crime in order to pay monetary compensation for losses to the victims.

Restitution is mandatory in every case where there is a loss, regardless of the sentence or disposition.

234

SECTION SIX

CITATIONS 1. The term “victim” is used in the legal definitions cited throughout this section— though some crime victims may prefer the term “survivor” or other descriptors.

2. Cal. Const. Art. 1 § 28(b).

3. Marsy’s Law, About Marsy’s Law, https://www.marsyslaw.us/about_marsys_law.

4. While there are certain laws that apply to victims of specific crimes, such as sexual assault, all victims of any crime in California have constitutional crime victim rights under Marsy’s Law. Some sections throughout will discuss a few of the rights specific to sexual assault and human trafficking survivors.

5. Throughout this section, “Victim” may be used instead of “overcomer”, “thriver”, “individuals with lived experience”, or any other term that describes a “survivor”. We are intentionally using the word “victim” to refer to the legal definition of individuals who are entitled to legal rights and protections in California. We recognize the importance of language and do not intent to use "victim” to reflect any specific individual or describe an individual’s stage of healing.

6. Cal. Const. Art. 1 § 28(e).

7. Cal. Const. Art. 1 § 28(e).

8. Attorneys may enforce crime victim rights “in any trial or appellate court with jurisdiction over the case as a matter of right,” which is interpreted here to mean that victim rights can be enforced in all courts with jurisdiction, including criminal, juvenile, and civil courts. Cal. Const. Art. 1 § 28(c)(1).

9. Cal. Const. Art. 1 § 28(c)(1).

10. Cal. Const. Art. 1 § 28(b)(1).

11. Cal. Const. Art. 1 § 28(b)(4).

12. See Cal. Const. Art. 1 §§ 1, 28(b)(1), 28(b)(2); see Cal. Penal Code § 293.5 (specific to sexual assault survivors).

13. Cal. Const. Art. 1 § 28(b)(5).

14. Cal. Penal Code § 13823.95.

15. Cal. Penal Code § 637.4.

16. Cal. Penal Code§ 1112.

17. Cal. Const. Art. 1 §§ 28(b)(6), (b)(7).

18. Cal. Const. Art. 1 §§ 28(b)(12), (b)(17).

19. Cal. Const. Art. 1 § 28(b)(6).

235

Citations 20. Cal. Const. Art. 1 § 28(b)(17).

21. Cal. Penal Code §§ §680.2, 6228.

22. Cal. Penal Code § 680.

23. Cal. Const. Art. 1 § 28(b)(7); Cal. Penal Code §§ 1102.6(a)-(b), (d).

24. Cal. Const. Art. 1 §§ 12 (forbidding the release of defendants charged with capital offenses or serious violent and sexual offenses when accompanied by specific judicial findings), 28(b)(3), 28(f)(3); Cal. Penal Code § 1270(a).

25. Cal. Const. Art. 1 § 28(b)(10).

26. Cal. Const. Art. 1 § 28(b)(8).

27. Cal. Const. Art. 1 § 28(b)(2).

28. Cal. Const. Art. 1 § 28(b)(3).

29. Cal. Const. Art. 1 § 28(b)(16).

30. Cal. Const. Art. 1 § 28(b)(4).

31. Cal. Const. Art. 1 § 28(b)(13).

32. Cal. Const. Art. 1 § 28(b)(13).

33. Cal. Const. Art. 1 § 28(b)(13).

34. Cal. Const. Art. 1 § 28(b)(9).

35. Cal. Const. Art. 1 § 28(b)(14).

36. California Victim Compensation Board, https://victims.ca.gov/; Cal. Gov. Code §§ 13900–13974.5.

37. Cal. Gov. Code §§ 13955–13956.

38. Cal. Gov. Code §§ 13955–13956.

39. Cal. Gov. Code §§ 13953–13954.

40. Cal. Gov. Code §§ 13957-13958.

41. California Victim Compensation Board, Victims of Human Trafficking, https://victims.ca.gov/for-victims/victims-of-human-trafficking/.

42. Cal. Gov. Code § 13957.7.

43. Cal. Penal Code § 236.14.

44. Cal. Penal Code § 236.14.

45. Cal. Penal Code § 236.14.

46. Cal. Const. Art. 1 § 28(b)(1).

236

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