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Court of Appeal:
Law Allowing Victim’s Use of Support Dog Is Constitutional
Opinion Says Fact That Presence of Animal During Testimony by Sexual Assault Victims May Reduce Anxiety, Does Not Improperly Boost Credibility of Testimony by Giving ‘False Aura of Veracity’
By Kimber Cooley, associate editor
Div. Five of this district’s Court of Appeal has held that a childhood sexual abuse victim’s use of a therapy dog while testifying, as permitted by statute, does not violate the constitutional rights of the defendant by improperly boosting credibility by helping to reduce the witness’s anxiety.
The fact that the statute, found at Penal Code §868.4, expressly preserves the court’s ability to “remov[e] or exclude[e] a therapy or facility dog from the courtroom to maintain order or to ensure the fair presentation of evidence” precludes a facial challenge to the law based on the constitutional rights to the confrontation of witnesses, cross-examination, jury trial, and due process, the court declared Wednesday. The opinion was not certified for publication.
Appealing his conviction based on the presence of the animal, among other assertions of error, was Jermaine Dawson, who was convicted by a jury in the courtroom of Los Angeles Superior Court Judge Deborah Brazil of two counts of continuous sexual abuse of a child under the age of 14 relating to the molestation of his stepson J.S. and stepdaughter K.B.
The victims, who were adults at the time of trial, each requested the presence of the dog pursuant to §868.4, which provides that victims of continuing sexual abuse of a child “shall be afforded the opportunity to have a therapy or facility dog accompany him or her while testifying in court, subject to the approval of the court.”
Providing the dog for this purpose was Stewart House, a creation of the Rape Treatment Center at UCLA Medical Center, which hosts a multi-agency team of police, prosecutors, expert child forensic interviewers, and child-protection personnel who are dedicated to dealing with child sexual abuse holistically.
Dawson did not object to the dog during the trial.
Justice Carl H. Moor authored the opinion affirming the judgment of conviction. Acting Presiding Justice Lamar Baker and Justice Dorothy Kim joined in the opinion.
False Aura Alleged
Unpersuaded by Dawson’s assertion that the presence of the animal gives the witness a “false aura of veracity” by helping to calm the victim, Moor said:
“Both the Legislature and courts recognize that children and victims of sexual offenses are likely to be nervous or frightened when facing an attacker in court, and can be aided in giving ‘complete and truthful testimony’ through the use of a facility dog to control their anxiety.”
Pointing to the 2021 California Supreme Court case of People v. Chhoun, he wrote that “[a]lthough it has not yet had occasion to evaluate section 868.4…, our Supreme Court recently held that California’s similar procedure for providing support persons under section 868.5 ‘does not require the same constitutional scrutiny’ as procedures that hamper face-to-face confrontation or limit defense counsel’s cross-examination of witnesses.”
Finding this reasoning persuasive, he concluded that “[i]f the presence of a human to ease a witness’s anxiety does not require constitutional scrutiny, the presence of a dog creates even less cause for concern.”
Statutory Protections
The jurist turned to protections built into the statute, such as subdivision (f) which provides that “[t]his section does not prevent the court from removing or excluding a therapy or facility dog from the courtroom to maintain order or to ensure the fair presentation of evidence.”
Based on this section, he opined that “[t]his…provision…would provide for removal of a facility dog if the court found there was a significant risk that the presence of a facility dog would falsely bolster the witness’s credibility. In light of the interests implicated and the statute’s many protections, we conclude that section 868.4 is not unconstitutional on its face.”
As to Dawson’s argument that the statute infringed on his constitutional rights as applied to his trial, Moor said:
“Dawson makes no arguments that are specific to J.S. and K.B., and because he consented to use of a facility dog the record is sparse….Here, we presume that the trial court made the appropriate findings to support its ruling, and there is nothing in the record that suggests the facility dog impacted the fairness of the proceedings. We find no constitutional violation or error.”
Jury Instructions
The defendant also contends that Brazil erred in instructing the jury about the presence of the animal because the instruction referred to it as an “emotional support dog” rather than a “facility” or “therapy” dog as described in the statute.
Rejecting the argument, Moor wrote:
“Section 868.4 defines a ‘facility dog’ as a dog trained to provide ‘emotional comfort’ and a ‘therapy dog’ as a dog trained to provide ‘emotional support therapy.’ These statutory definitions make clear that any dog that accompanies a witness pursuant to section 868.4 accompanies the witness for the purpose of emotional support. The instruction is correct in law and relates to the circumstances of the dog’s presence. Dawson’s substantial rights were not implicated.”
The case is People v. Dawson, B322254.
Sec. 868.4 was enacted in 2016 through passage of Assembly Bill 411 authored by then-Assembly member (now Los Angeles Superior Court Judge) Richard Bloom, D-Los Angeles. The bill was based on proposed legislation drafted by attorney Kathleen Cady, one of six persons today named as METNEWS 2024 “persons of the year.”
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