Protections for Survivors of Domestic Violence Falls Short in New Legislation

Jan 23, 2022

Katie Licari | Black Voice News

On July 4, 2010 Corene De La Cruz, 33, rang the doorbell of the home she once shared with her ex-boyfriend, James Calderon. She carried a comforter, which belonged to his godmother, and a gun.

They had broken up in June, ending an 11-year on-again, off-again abusive relationship. De La Cruz’s mother, Beatrice Bayardo, said, “I would notice a mark on her neck or a black eye, or I would just see markings, and she would always deny it…I think Corene loved him more than she loved herself.”

Bayardo also said Calderon used racial slurs against her daughter during his attacks. Calderon’s family is from Guatemala, but he is U.S.-born. De La Cruz told a court psychologist that his family “looked down on Mexicans” and that he “should’ve never gotten together with a Mexican girl.” 

De La Cruz told her mother that Calderon twice pulled a gun on her and threatened to kill her if she ever left him. During their first breakup in 2002, Calderon waited in front of her parents’ house (where she was living at the time). When De La Cruz arrived home, he beat her in front of the friend she was with and damaged the friend’s car. De La Cruz said she didn’t file charges because she didn’t want him to get in trouble

Corene De La Cruz (left) pictured with her mother, Beatrice Bayardo in 2019 at the California Institute for Women in Corona. This Halloween event, which family members could attend, was one of the last times De La Cruz and Bayardo visited in person. (Courtesy Beatrice Bayardo)

Between five and six in the morning, before going to Calderon’s house on July 4, 2010, De La Cruz wrote a suicide note and multiple goodbye letters to family members. In court, she said that she brought the gun to commit suicide in front of her ex so he could feel the pain she felt at the time. 

What happened after De La Cruz rang the bell was presented in court as a case of he said, she said. Calderon claimed his ex rushed toward him, locked the door and then shot him. De La Cruz said that he knocked her down as he pulled her into the house and the gun went off when she fell. De La Cruz’s defense attorney never introduced evidence which corroborated her version of events, including audio and video of the incident which was recorded by a home security system Calderon had installed after their final breakup. 

De La Cruz waited in county jail for three years before she stood trial for burglary, pre-meditated attempted murder and gun charges. De La Cruz was found guilty of everything except attempted murder. She was sentenced to six years for those crimes. If that was her full sentence, De La Cruz would be free today. Instead, she’s still in prison. Her sentence was extended 15 years by mandatory sentence enhancements.

De La Cruz’s experience is emblematic of how survivors of intimate partner violence who commit trauma-related crimes experience the criminal justice system. 

2010, the year De La Cruz was arrested, was an especially violent year for intimate partner homicides in California. 157 people – 130 women and 27 men – were killed. According to 2010-20 data collected by the California Department of Justice, women were far more likely to be murdered by an intimate partner than men were, even though men accounted for 80% of homicides statewide. 

High Murder Rate in San Bernardino County

Locally, San Bernardino County has seen an uptick in intimate partner violence-related homicides most years since 2010. Fourteen people were killed in 2020, up 75% from the previous year. San Bernardino County’s population is nearly a quarter million lower than neighboring Riverside County, but the intimate partner violence-related murder rate in San Bernardino County was seven times higher in 2020.

People who experience intimate partner violence are far more likely to be murdered by their mate than to pull the trigger themselves. However, these victims face a criminal justice system where an affirmative defense, when a defendant claims they committed a crime due to a mitigating circumstance, isn’t an option. Affirmative defenses, for example, allow human trafficking victims to defend themselves against prostitution charges. 

“There are only two options for survivors in the worst conditions of violence: die or defend yourself and face prison for the rest of your life.” 

Sentence enhancements for violent crimes against intimate partners can mean more time incarcerated. Sentence enhancements add time or conditions to a sentence based on how a crime was committed – like use of a firearm – or the defendant’s criminal history  – like gang affiliation or past felonies. 

New Bill Aims to Help Survivors

California Assembly Bill 124, which went into effect Jan. 1, overhauls the state penal code to address disparities faced by some of the most vulnerable defendants. AB 124, written by Sen. Sydney Kamlager, calls for several reforms.

  • Defendants who have experienced intimate partner violence, sexual violence or human trafficking can use an affirmative defense for all crimes except violent felonies, like assault with a deadly weapon or murder.
  • Prosecutors are required to consider the impact trauma, exploitation and youthfulness (under age 26 at the time the crime was committed) had in the commission of a crime during plea bargaining. 
  • Judges should start at the lower prison term when sentencing a survivor if trauma, age or victimization contributed to the commission of the crime. Judges can still use their discretion to sentence a survivor to the middle or high prison term if the aggravating factors (such as lack of remorse, amount of harm caused to the victim) outweigh the mitigating factors (factors that support leniency, such as youth, ability for criminal reform and mental impairment).
  • Judges are encouraged to consider whether having seen or experienced abuse, trauma, intimate partner violence or human trafficking was a contributing factor in the evaluation of resentencing petitions.
  • Allow survivor to petition the court to vacate convictions and expunge arrests for nonviolent offenses that stemmed from being a victim of intimate partner or sexual violence.

Sen. Kamlager wrote in the bill’s legislative analysis, “AB 124 is an opportunity to correct unjust outcomes of the past and provide full context of the experiences that might impact a person’s actions and use a more humanizing and trauma informed response to criminal adjudication.” 

Kamlager said in an interview that the bill was written with a particular, Sacramento-based survivor in mind. Keiana Aldrich experienced human trafficking and sexual assault as a minor before she was charged for the  robbery of a man who was trying to buy her. Even though she was 17, she was charged as an adult and sentenced to 10 years in prison. 

Protections for violent felonies created by AB 124’s original text – which could have helped Aldrich and De La Cruz –  were scaled back in the Senate. Before her trial, a forensic psychologist examined De La Cruz and concluded she was exhibiting symptoms of a depressive episode. Dr. Nancy Kaser-Boyd said that she displayed “the effects of intimate partner violence and that her plan to commit suicide in front of Calderon was not unusual.” But, Dr. Kaser-Boyd wasn’t called to testify at trial, and her report was only brought into consideration during De La Cruz’s sentencing. 

Under the version of AB 124 that passed, De La Cruz wouldn’t have been able to use the affirmative defense for the attempted murder or first-degree burglary charges, but she could have used it to defend herself against the other charges against her. That may have resulted in a shorter sentence, or even an acquittal, on those charges.

The omission of violent felonies, including murder and attempted murder, from the new law disproportionately impacts women, especially Black women. According to the Family Violence Law Center, an Alameda County-based nonprofit which provides legal assistance for domestic violence survivors, about two-thirds of women who are convicted of killing a romantic partner did so in self defense. In addition, Black women are inordinately represented in California prisons compared to their overall population in the state. And, in San Bernardino County, Black women are the most likely to be murdered by an intimate partner. 

“We see this pattern of survivors of violence, particularly Black women and other women of color, being charged with murder and given the most severe sentences in context of that violence,” said Colby Lenz, a co-founder of Survived and Punished, a national coalition of survivors, advocates, attorneys and scholars who organize to decriminalize efforts to survive domestic violence.

When asked about the senate amendments which made violent felons ineligible for the new reforms, Kamlager said, “It is time to address the sections of our penal code that do focus on violent and serious felony offenses, and work to rectify these sections as well that have become overly used and leveraged by DA’s offices across the state to over incarcerate.”

Lenz said the amendments were “unfortunate” and that the modified AB 124 bill  “excludes survivors who are facing the most severe consequences of violence.  [It] reinforces the idea that there are only two options for survivors in the worst conditions of violence: die or defend yourself and face prison for the rest of your life.” 

Sentence Enhancements Make Justice One-size-fits-all

If AB 124 had existed when De La Cruz was sentenced, she could’ve been released in 2017. But, her sentence enhancement means she can’t be released for at least several more years. (De La Cruz’s petition to remove her violent offender status, which would make her eligible for release as soon as 2025, is currently under review.)

Sentence enhancements remove a judge’s discretion to dismiss charges or reduce sentences which can lead to inequitable outcomes. Lenz said that the state’s 150 sentence enhancements are unevenly applied by race. 

“Corene gets multiple enhancements, including an enhancement tagged as domestic violence,” said Lenz. “They’re able to turn these enhancements around and target the very victims of domestic violence that we’re supposed to be protecting.”

De La Cruz, who has served her entire base sentence, is now in prison entirely on enhancements. Lenz said that she is not alone. “Many survivors, particularly Black survivors that we’re working with in California, are sitting in prison on enhancements alone, based on defending themselves from violence,” said Lenz.

“Many survivors, in particular, Black survivors that we’re working with in California, are sitting in prison on enhancements alone, based on defending themselves from violence.”

A 2011 study published in a criminology journal examined sentence enhancements and mandatory minimums in five states, including California. The research found that both policies increased the number of Black and White men in the prison system. But, Black men were disproportionately impacted by sentence enhancements, particularly drug offenses. Sentencing enhancements enacted between 1982 and 2000 in every state studied are associated with 26 more Black men and 3 additional White men incarcerated per 100,000 people. 

Another 2011 analysis, on sentencing patterns of intimate partner violence-related homicides in California, found that women were less likely to be convicted of killing an intimate partner. However, they face a legal framework inherently stacked against them. Women in heterosexual relationships are more likely to kill their male partner with a gun or knife, a crime which carries weapons-related sentence enhancements. Heterosexual men are more likely to use their physical strength as a weapon. Men usually strangle or beat their partner to death, neither of which carry sentence enhancements.

The disparities in sentencing highlighted by the analysis are clear, but the data studied had major limitations. First, the data was drawn from appellate court system records, a smaller pool of records than trial courts. And, those records don’t include any demographic information beyond gender, like race or sexual orientation. These holes in the data could mask even more inequities.

Black women are disproportionately represented in the state’s prisons and are more likely to be murdered by their partner. And, there are already significant barriers to Black survivors seeking help from the legal system overall. 

Jane Stoever, director of the Domestic Violence Clinic at UC Irvine’s School of Law and the university’s Initiative to End Family Violence, studies the criminalization of survivors in the justice system. According to Stoever, domestic violence homicides and survivor incarceration have increased through prosecutors’ contempt filings and bench warrants since the 1990s. This is when national mandatory arrest policies, which require police to make an arrest if they believe domestic violence is involved, were enacted. This led to abuse victims often serving longer sentences than their abusers. 

“We still see this pattern in survivors of violence – particularly Black women and other women of color being charged with murder – being given the most severe sentences for self-defense in the context of that violence,” said Lenz. 

Lenz explained that, despite reform attempts, she still sees survivors “intensely persecuted when they act in self-defense.” Survivors in Riverside and San Bernardino counties tend to be sentenced severely, she said.

An “Extension” of Violence

In prison, De La Cruz tried to heal from her abuse. She’s participated in vocational programs, helps her fellow inmates with writing assignments and statements for court and she’s currently attending Chaffey College, a San Bernardino-based community college which provides courses for inmates at her prison. 

De La Cruz’s mother describes her prison’s conditions as “inhumane.” She said there’s mold in the showers, infestations of pests and the prison limits the amount of times an inmate can flush the toilet. 

Aminah Elster, a policy coordinator for the California Coalition of Women’s Prisoners, is a previously incarcerated survivor. She said the conditions in De La Cruz’s prison are similar to those she experienced and those in other women’s prisons around the state.

“It is important to note that prisons are an extension of the violent conditions survivors encounter on the outside,” said Elster. In 2018, the most recent year data is available, California reported 940 alleged non-consensual sexual events to the U.S. Department of Justice. These included sexual harassment and misconduct by prison staff, and non-consensual sex acts and abuse by other inmates. 

De La Cruz, writing from prison lockdown, said she is doing everything possible to obtain credits and milestones to decrease her sentence. But, it’s been difficult because of her status as a violent offender. This status, carried by many victims of intimate partner violence, impacts aspects of De La Cruz’s prison experience, including when she is eligible for parole and what career opportunities she is allowed to train for in prison. For example, De La Cruz wants to train to be an inmate firefighter, but she can’t because she’s considered a violent offender.

Bayardo keeps a binder of all her daughter’s accomplishments and certificates in prison. She feels that the prison isn’t taking into account the classes and efforts De La Cruz is making to rehabilitate herself. 

A Fight for Reform…and Freedom

Both Sen. Kamlager, Lenz and Elster agree that AB 124 is a good step toward reform but that there is still work that needs to be done. 

“AB 124 was a good start,” said Elster. “But it needs to be expanded.”

Survived and Punished and the California Coalition for Women Prisoners have petitioned Gov. Newsom to pardon Corene De La Cruz and commute her sentence. Newsom recently granted 24 pardons and 18 commutations but De La Cruz wasn’t among them.  

Editor’s note: The terms “intimate partner violence” and “domestic violence” have purposefully not been used interchangeably in this story, as there are nuanced differences between the two. Although not universally recognized as separate by law enforcement and other entities, intimate partner violence is committed within the confines of a romantic relationship. Domestic violence, however, includes abuse against both adults – significant others or other family members – and children.