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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 86711
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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My sons fiances 17 year old daughter attended a party abou

Customer Question

My son's fiance's 17 year old daughter attended a party about a month ago and was raped. She was taken to ER where samples were taken as well as pictures of the bruises she sustained during the assault. Our local Sheriff's department was notified and a report was taken, however their process has been lagging for one reason or another and this "boy" was just questioned for the first time this past week. Our "granddaughter" was summoned to the Sheriff's department today. When her name was called, the mother stood up to accompany her daughter to the room, and was informed that she could not be present. Apparently as soon as our granddaughter sat down, she was told that there would be no charges pressed against this young man because of a lack of evidence. The deputy said that the young man cried during his interview and said that it "was consensual". At that time the meeting was adjourned and both mother and daughter left the building together. Our granddaughter was afforded no opportunity to say anything, nor was she asked further questions. This past month has been difficult for this young woman. She has been treated for depression this past year because of bullying at school and ultimately dropped out in lieu of home schooling. She has made one attempt at suicide in the past 3 months. Following the rape, she was harassed by this boy's friends and threats were made should she accuse him of rape. My son and his fiance are not wealthy people and the injustice here reeks to high heaven. Our small town is loaded with "spoiled rich kids" who get away with their misdeeds. My question to you is was it appropriate for her to be interviewed today without her mother? My son is understandably upset with this whole process and what it's doing to his small family. I want to be able to guide him, but we are not in a position to hire an attorney either. Thank you.
Submitted: 1 year ago.
Category: Legal
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for this individual's situation. Can you please tell me what state this happened in?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 1 year ago.

We are in Hemet, California

Expert:  Ely replied 1 year ago.
Thank you.

My question to you is was it appropriate for her to be interviewed today without her mother?

Yes, I am afraid. Allow me to explain why.

A minor has the right to see his parent or guardian and the police cannot interview the minor or use anything they state only if (1) the minor is under arrest, or (2) they are not under arrest, but in a position where they do not feel free to leave. People v. Burton, 491 P. 2d 793 - Cal: Supreme Court 1971. In other words, if she was in trouble, then the parent/guardian must be present.

However, this is not the case if she was being interviewed voluntarily, and not under scrutiny. As such, the police could indeed ask the parent to wait outside, and in fact it is standard procedure to do so.

Know that she may still attempt to sue him for battery and intentional infliction of emotional distress, if she wishes to. The standard of proof in a civil case is by a preponderance of the evidence, which makes it easier to prove, as opposed to a criminal case, where it is beyond a reasonable doubt. Of course, she may not wish to associate with the matter anymore, but she does have that choice.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

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Ely, Counselor at Law
Category: Legal
Satisfied Customers: 86711
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and 13 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

I appreciate your reply and I am trying to remain objective myself so that I can help my son get through this. I guess that it's difficult for me to digest that a young man can literally cry and profess innocence, while he is sending his friends out to level threats. . .you're right. It is very hard to accept. My son says that he has reason to believe that this young man may be 18, so I guess that will be the next step in this scenario.

Expert:  Ely replied 1 year ago.
I understand completely. Let me know if you need anything else.
Customer: replied 1 year ago.

Hello Ely, I just received information re: the legality of the situation I questioned you about. According to CA penal code 679.04, Sexual Assault victim Advocates section a and b and section 1035.2 of the evidence code, our granddaughter should have been accompanied by her mother when she was called into her Sheriff's interview. The goal of this interview was intimidation from the beginning that she arrived. Based on this fact we are pressing ahead to find a personal injury attorney to file charges not only against the young man, but also against the Sheriff's Department for failure to make a felony arrest. I wish that I had waited for this information rather than to invest the $80 here on this site as it has been a very costly weekend for us for many reasons.

Expert:  Ely replied 1 year ago.
Hello,

I am sorry you feel this way. However, please note that this right is not absolute. The victim has the right to request a support person, but the interviewer has the right to exclude this support person if the interviewer feels the support person may be "detrimental" to the interview (this is specifically not defined, and leaves a broad interpretation).

While the victim should be notified in writing or verbally about this right, if she had not been, this in itself does not change the outcome, I am afraid.

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