Woman Accuses California Man of Rape and Other Misconduct But Loses Bid for Domestic Violence Restraining Order
Although, as I said several blogs ago, there seems to be a trend in California towards affirming judges who grant restraining orders and reversing those who deny them, the California Court of Appeal just affirmed a trial judge who denied a restraining order request of a woman who complained “of a rape perpetrated on me” that she said took place a week after she stopped dating the accused in 2009.
To be candid, the case, Jennifer K. v. Shane K., is more complicated than that. Though the parties were never married, they had a daughter, born in 2009. According to the mom (“Jennifer”), the conception was the result of the rape. Although the rape happened a long time ago, Jennifer accused the dad (“Shane”) of other misconduct, including punching a refrigerator door near her head in 2011 and slamming her into a door frame on November 10, 2017. The matter proceeded to a six-day trial that finally ended on May 23, 2018.
Part of the problem was that Shane denied just about everything Jennifer said about the rape. And even Jennifer admitted going out to drink beer with Shane 17 days after the alleged rape; inviting Shane and his dog to take a walk with her six days after the beer drinking; commenting favorably on his Facebook postings throughout the year; and allowing him to move into her building without paying rent and later to move into her own apartment. Shane admitted that the parties had sex back on the night in question but said the first time he heard of the rape allegations was when the parties met with a family law mediator in October 2017, nearly nine years later.
With respect to the punching of the refrigerator, Jenifer said the parties were arguing when Shane lunged at her and then blocked her pathway as she tried to escape. She claimed that Shane had a familiar and menacing look on his face and then “withdrew” and punched the refrigerator, in a place that matched the height of Jennifer. But Shane had a different version, saying, in fact, that Jennifer hit him in the chest with both of her fists, but that he then stepped away from her and hit the refrigerator “in one of the lowest moments of my life” and then walked out of the apartment.
With respect to the 2017 slamming accusation, Shane, who by this time was no longer living with Jennifer, claimed that Jennifer arrived at his house and an argument ensued over custodial arrangements with the parties’ daughter. According to Shane, Jennifer started screaming obscenities at him. Accorddng to his testimony, he then closed the door (or started to do so), but then Jennifer apparently “’leapt forward and was throwing herself against the door and trying to push the door open’”.
The judge, the Hon. Richard Darwin, noted that “’I think it’s much more likely that she tried to enter the house after being told not to do so. I don’t think that the father tried to slam her and [injure] her’”. As for the refrigerator, Judge Darwin said, “’I do not believe he tried to hit the mother. Based on the evidence that was presented at trial, I think he vented his frustration in a physical way, and he regretted it but did not try to injure the mother’”.
Finally, as to the rape allegation, the judge noted the parties testified completely differently about what happened but said that for the next seven years the evidence was “’more consistent with two parents co-parenting in the best interests of the child. I did not see evidence that was consistent with what I would expect following a forcible rape’”.
Concluding, the judge said, “’I also have to look at whether on balance that one event from seven years ago followed by conduct that I saw following that event and over the last seven years warrants the issuance of a DVRO (domestic violence restraining order). I don’t conclude that it does’”.
The issue on appeal that was highlighted by Jennifer was whether punching the refrigerator constituted “domestic violence”, given California’s broad definition of the term in its Family Code. The Court of Appeal held that Jennifer would have been entitled to a restraining order only if she had shown that “either that respondent’s punching of the refrigerator door was ‘an intentional or reckless act that causes or attempts to cause bodily injury’ or ‘an act that places a person in reasonable apprehension of imminent serious bodily injury’”. Under this standard, there was enough evidence to support the decision of the judge no matter which way he ruled.
Jennifer separately argued for reversal on the ground that the judge –a male—exhibited gender bias. She specifically said the decision should be reversed because –in her words—“the judge ‘appears to have believed that only forcible rape counts as “real” rape, and that women who have really been raped will report it contemporaneously’”. The justices acknowledged that before the hearing, the judge said “’[p]art of the conduct you would expect of someone who was sexually assaulted is to tell someone’ and ‘the absence of statements like that tend to prove against the existence of that event’”. As stated above, the judge said after the hearing “’I did not see evidence that was consistent with what I would expect following a forcible rape’”. Wrapping up her bias argument, Jennifer argued that Judge Darwin had concluded that because there was no police report made and because Jennifer attempted to stay on friendly terms with Shane, the judge was assuming all rapes involve violence.
But the appeals court said that that’s not what the judge said. And the justices acknowledged that “physical force and violence are not necessary for nonconsensual intercourse to constitute rape”. But the panel said that the judge had just considered his overall view of the parties’ credibility and the timing of the rape allegation. And the judge’s comments about expecting the victim of a sexual assault to tell someone about it were made before the trial began in a conversation with the lawyers regarding who was going to testify. Furthermore, nobody at the time of trial objected to the judge’s comments, anyway. In addition, said the Hon. J. Anthony Kline, writing for his two colleagues, rape trauma syndrome, which apparently nobody brought up at trial, is still admissible in California “to rebut the inference that an alleged rape did not take place due to conduct portrayed as inconsistent with the victim having been raped”. As Justice Kline said, “‘[c]redibility determinations were unavoidable in this trial. Witness conflicts made it essential for the court to decide which side had better historians'”.
The opinion, which was 41 pages long, concluded “[a]n objective assessment of Judge Darwin’s conduct reveals it to be exemplary in every respect”. Justice Kline, who has been a member of the judiciary since 1980, was joined by the Hon. Therese M. Stewart and the Hon. Marla Miller.
Had the restraining order been granted, it could have been in effect for up to five years under California law.
Even during the Covid-19 crisis, California courts remain open to impose temporary restraining orders based on a sworn written statement of past incidents of abuse.
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