Domestic violence victims are often criminalized. A California bill wants to change that

In 1995, on the day before Kelly Savage-Rodriguez planned to flee her abusive husband, she ran some final errands while her children, ages three and one, napped. She hoped to take them on the early morning Amtrak from Porterville, California, to Los Angeles and stay with her brother, but when she returned, she said, she found that her husband had beaten and killed her three-year-old son, Justin. She called 911. The police arrested her along with her husband.

Savage-Rodriguez was jailed as she awaited trial, and said her lawyer did not have training in advocating for clients who suffered domestic violence. The judge used her history of abuse against her, she said, and said she was equally at fault for her son’s death under California’s “failure to protect” charges that can criminalize the non-abusive parent in a domestic violence case because she had not fled. She was later convicted and sentenced to life without parole, same as her abuser.

In the United States, survivors who are criminally charged often do not have their history of abuse taken into account during court to help judges and juries understand the circumstances, and they can face scrutiny or disbelief when they do share their stories.

“It didn’t matter what I did or didn’t do, it didn’t matter how much I was trying,” said Savage-Rodriguez, who was released in 2018 following a pardon and is now a coordinator for California Coalition for WomenPrisoners. “None of it mattered. They wanted a conviction and that’s all that they were concerned with.”

Across the country, advocates are pushing for sentencing reforms that would provide a more trauma-informed approach to survivors of domestic violence and human trafficking. In the past five years, lawmakers in New York, Louisiana, Georgia, Virginia and Wyoming have passed legislation to vacate the sentences of survivors.

Now, organizers in California, where Savage-Rodriguez is from and where many other survivors are still incarcerated, are mobilizing for sentencing reform. Since 2021, the state already mandates courts to consider the experiences of survivors who have been convicted of non-violent crime. But a new bill championed by assembly member Mia Bonta – AB2354, the Justice for Survivors act – would go much further, allowing all abuse survivors to petition the court to vacate their arrests, convictions or adjudications, and also order law enforcement and courts to seal records related to the arrest and offense.

Domestic violence is estimated to impact up to 10 million peoplein the US, and as many as one in four women and one in nine men. Among the prison population, the rate is even higher. According to the Felony Murder Elimination Project, up to 90% of people incarcerated in US women’s prisons report having experienced emotional, physical, and/or sexual abuse. This doesn’t just pertain to adult women – 84% of girls in juvenile detention have experienced family violence.

Domestic abuse and human trafficking survivors are particularly vulnerable to falling into the criminal justice system. They might face various hurdlesto leave the violent situation, such as risks of losing financial or housing security, or experience victim-blaming. Additionally, law enforcement and courts are often ill-equipped to meet survivors’ victimization and may not perceive that their actions might be based on a history of abuse rather than an immediate physical altercation.

“Nobody wins because we want justice for the victim and at the same time, the survivor [of abuse] is also a victim,” said Ny Nourn. Nourn was sentenced to life without parole when she was 21, for her witness of a murder committed by her abusive boyfriend. “The focus should be about healing by ways of holding people who have done harm accountable, and criminalization or incarceration is not the answer.”

Growing up in San Diego, California, seeking love and validation after witnessing her mother abused by her stepfather, Nourn got into a relationship with a man twice her age, she said. She had a one-night stand with the supervisor at her job while she was a high school senior, and when her boyfriend found out, he beat and raped her, she recalled. He then killed her supervisor, in front of her, and threatened to kill her family if she told anyone, she said.

Nourn kept the secret to herself. But two years later, she confided in two co-workers, telling them about her rape and the murder of her supervisor, she said. They encouraged her to talk to the police.

Nourn was arrested and charged with first-degree murder of the supervisor following a 10-hour interrogation, she said. She went to trial with her abuser as her co-defendant. Her defense attorney knew about the history of abuse, but told her it didn’t matter, she recalled.

“A judge said I was responsible for my abuser’s behavior,” Nourn said. “I couldn’t control him. Yet I was responsible for his actions.”

Nourn and her abuser were both sentenced to life. She was sent to the Central California Women’s Facility – the largest women’s prison in the world. There she started attending a support group for intimate partner violence, where she met many other women who shared similar experiences.

Nearly four years into her sentence, Nourn filed a habeas writ that resulted in her life sentence being vacated and was granted a second trial, during which the court decided her defense attorney was ineffective counsel because he failed to present evidence of intimate partner violence. Nourn’s sentence was commuted to 15 years, and she was released in 2017. Three years later, she was pardoned by the California governor, and she now serves as co-executive director of the Asian Prisoner Support Committee, an organization that provides support for Asians and Pacific Islanders who are incarcerated, and a volunteer member of Survived and Punished, which supports criminalized survivors.

“It’s important to give survivors a voice,” Nourn said. “I think it starts with individuals, a community of people that have power to really broaden or expand this bill. That’s my hope.”

California’s new bill will broaden the range of domestic violence survivors able to petition to see their sentence reviewed, said Darya Larizadeh, a senior policy attorney at the National Center for Youth Law who has been working on the bill with the Justice for Survivors Coalition.

“We really want to bring California to be in line with other states that are already seeing this as a priority and doing much better to support survivors,” said Larizadeh.

It also The bill helps survivors to clear their record, which might otherwise cause adverse consequences, such as trouble finding employment or housing.

With no federal pathway providing relief to survivors, they are left to work with the laws in place in their individual states. While there were only five states that did not offer some kind of relief to survivors as of spring 2023, most of the legislation only applied to prostitution and human traffickingvictims, did not apply to domestic violence survivors and had narrow scope of eligibility such as only applying to minors or not including retroactivity.

Larizadeh also said that she had heard from public defenders across California that the original Justice for Survivors Act passed in 2020 had had an impact providing relief to some survivors, and she hoped that this bill would expand the relief to all incarcerated survivors of violence.

“Survivors need some kind of relief, some kind of acknowledgment to what they’ve also gone through,” said Susan Bustamante, a volunteer with Survived and Punished and member of the California Coalition for Women Prisoners. “People’s voices need to be heard.”

Bustamante is a re-entry coach at Home Free, a transitional housing program that helps domestic violence survivors and other women who have experienced trauma reenter communities after being released from prison. She is a survivor herself.

Her husband abused her for six years until she confided in her brother, who promised to take care of it, she said. In 1987, on the day before she turned 25, Bustamante’s brother killed her husband. Her brother died before the trial, and Bustamante was blamed for her husband’s death, she said. She was sentenced to life.

“It was really, really heartbreaking. You have no hope,” Bustamante, 68, said.

As a re-entry coach, Bustamante helps incarcerated survivors prepare for their parole board hearings, hosts domestic violence events at the prisons and supports them on their needs following release. She hoped the bill would help survivors be seen and acknowledged.

“It’s such an important cause,” Bustamante said. “They just are so busy trying to lock people up, they’re not hearing them, because if they heard them, they wouldn’t get these harsh sentences.”

Editor’s note: This story is a part of the Justice Reporting Project, an initiative of the University of Southern California’s Annenberg Media Center. It was co-published with The Guardian.