The Repercussions of Criminal Pleas on the Rights of Victims in Civil Court

As a firm that focuses on victims' rights, we often see the impact of a criminal plea on a victim’s rights in family court and civil litigation. While the two systems function as separate silos, each with unique rules, procedures, protections, and challenges, it is imperative that practitioners in both arenas recognize the ripple effect of the decisions made in each court if we are to best serve victims of domestic violence and sexual assault.

As a fundamental matter, in enacting Evidence Code Section 1300 in 1982, the California Legislature found and declared as follows:

[W]hen possible the criminal justice system should be designed so as to assist the efforts of victims of crime to obtain compensation for their injuries from the criminals who inflicted those injuries. The Legislature further finds and declares that the practice of permitting defendants in criminal cases to enter pleas of nolo contendere and thus avoid the use of the criminal conviction in a civil suit wherein the victim of the crime seeks to recover damages for injuries sustained by the criminal act runs counter to the interest of victims of crime.

(Stats. 1982, ch. 390, § 1.) Following the above policy, the legislature enacted Evidence Code Section 1300, which provides that felony convictions are generally admissible in civil court. However, misdemeanor convictions are generally not.

A “no contest” plea as opposed to a “guilty” plea in criminal cases will have the following effects in civil and family court:

  1. Civil tort suits for victims to recover for injuries. A misdemeanor plea of no contest “may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.” (Pen. Code § 1016(3).) A felony conviction can be considered . (Evid. Code § 1300.)

The bar on use of a “no contest” plea in misdemeanor cases can have far-reaching impacts for survivors. Survivors of domestic violence    and sexual assault have causes of action to file civil tort suits for sexual battery, gender violence, domestic violence, intentional            infliction of emotional distress, false imprisonment, and more. To begin a civil case after a criminal plea of no contest is as if the criminal case never happened.

  1. Domestic violence restraining orders. As above, a Pen. Code § 1016(3), misdemeanor “no contest” plea is not dispositive in a request for a domestic violence restraining order heard in family court. Victims must still litigate the issues that have already been decided in criminal court in order to obtain a domestic violence restraining order.

Even if a criminal protective order was issued in the criminal case, a domestic violence restraining order provides far more protections, including prompt child custody orders which clarify the extent of contact between the violent perpetrator and the minor children; child support orders; spousal support orders; property restraint and property control orders; orders prohibiting cancellation of insurance covering the victim and children; orders regarding what should happen with joint cell phone accounts; and more. To the extent that the criminal matter clearly resolves the question of whether the perpetrator committed the crime, a victim has the ability to obtain essential protections far more easily in family court.

  1. Custody by a parent who committed rape. Family Code § 3030(b) prohibits custody to a person who has been convicted of Penal Code § 261 and the child was conceived of that rape. Though necessarily a felony, and otherwise admissible in civil court, this specific legislation highlights the importance of the actual crime to which a defendant may plea. i.e. a plea to a lesser charge would not trigger this bar to custody by a rapist.

Fortunately, the family code does have some areas in which an actual plea of guilty is not required in order to consider a history of domestic violence, to wit:

  1. Spousal support/Attorney’s fees. Documented evidence, including a plea of nolo contendere of any history of domestic violence may be considered. (Fam. Code §4320.) Further, a conviction for an act of domestic violence perpetrated by one spouse against the other, within the last five years, provides a rebuttable presumption against awarding the batterer spouse spousal support. (Fam. Code § 4325.) A plea of nolo contendere as opposed to a plea of guilty does not appear to bar consideration of the conviction. (See, Marriage of Kelkar (2014) 229 Cal.App.4th 833; see also Fam. Code § 4320(i).)
  2. Child custody. Pursuant to Family Code § 3044, there is a rebuttable presumption that where there is a “finding” that one parent has committed domestic violence against the other parent or child within the previous five years, the violent parent should not have either sole or joint legal or physical custody. A criminal conviction is a “finding” when it is obtained after trial or by a plea of guilty or no contest. (Fam. Code § 3044(d)(1).)

Lastly, and for some most importantly, from an emotional perspective, a “no contest” plea may seem to our victim clients as if “nothing happened” to the defendant. Quite often, for victims, an admission of wrongdoing or apology is more meaningful than any other possible remedy, civil or criminal. When a “no contest” plea is accompanied by any sentence that does not require any further jail-time (credit for time served, for example), it is only more disheartening for the victim of the crime, who may wonder whether the criminal prosecution had any impact at all on the perpetrator.

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