Legislature(2001 - 2002)
02/25/2002 01:10 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 348 - VIOLATION OF A DOMESTIC VIOLENCE ORDER Number 1601 VICE CHAIR OGAN announced that the next order of business would be HOUSE BILL NO. 348, "An Act relating to violations of domestic violence protective orders." Number 1589 REPRESENTATIVE ERIC CROFT, Alaska State Legislature, testifying as the sponsor of HB 348, informed the committee that HB 348 reacts to the [Alaska Court Of Appeals] decision in the Strane v. State case. This legislation addresses the standard for a violation of a domestic violence restraining order. [In the Strane case] the prosecution and the defense argue two extreme positions. He referred the committee to page 2 of the Strane case, which is included in the committee packet, and paraphrased from the following: Strane and the State approach this statute from radically different perspectives. Strane argues that the legislature used the word "knowingly" to convey the notion that the crime is committed only if the defendant understood the provision(s) of the protective order and was aware that, by their conduct, they were violating the protective order. The State argues the polar opposite. The State contends that, just as ignorance of the law does not excuse a person's violation of a criminal statute, so too ignorance or misunderstanding of the provisions of a protective order does not excuse a person's violation of that order. The State argues that a person who violates the provisions of a protective order is guilty of a crime under AS 11.56.740(a) even if they acted with no culpable mental state -- i.e., acted with absolutely no awareness that their conduct might violate the provisions of the order. The rule at common law -- that is, the rule that would prevail in the absence of a statute -- lies in between the positions staked out by Strane and the State. Violation of a domestic violence protective order is but one specific, codified instance of the more general crime of contempt of court. In previous cases dealing with contempt of court, this court has held (1) that the applicable culpable mental state is "recklessness" (i.e., the government must prove that the defendant recklessly disregarded the possibility that their conduct violated an order of the court), and (2) that a person charged with contempt can defend by asserting that they made a reasonable mistake concerning the terms or the effect of the court order. REPRESENTATIVE CROFT related his interpretation that in this case, the court mentions that there is a middle ground that allows a defense. However, [the defense] must be reasonable and the jury would decide what is reasonable. In Strane, the court ultimately sided with the defendant's extreme position due to the inexact nature of the language of the statute. This legislation, HB 348, establishes this middle ground position as the [appropriate] standard. He noted that the committee packet includes a jury instruction that he assumes will have to be provided if the Strane case is upheld. REPRESENTATIVE CROFT related his understanding that the Strane case is now before the Alaska Supreme Court. The last sentence of the jury instruction reads "His [The defendant's] belief that his conduct did not violate the order need not be objectively reasonable." That language is "the rub," he noted; "That is, under the Strane decision, it doesn't matter how 'out to lunch' you were with interpretation." "If you honestly believed it, you will get off," he said, adding that the judge no longer has the ability to disallow it as a defense. Number 1367 REPRESENTATIVE CROFT related that the main objection he has heard to HB 348 isn't the proposed standard, but rather that the court should be allowed reach a final decision; in other words, there is some resistance to establishing a standard in the middle of a court preceding. Representative Croft announced his belief that it's [the legislature's] job to establish the appropriate standard. Regardless of the determination of the Supreme Court in this individual case, the correct standard should be established for future cases, he said. VICE CHAIR OGAN posed a hypothetical situation in which a person with a restraining order against him/her is in a grocery store and comes around the aisle and finds the person that he/she is not supposed to within 250 feet of. Would the person be in violation of the restraining order, he asked. REPRESENTATIVE CROFT related his understanding that due to that potential problem, these orders list the locations where the person is prohibited. Rarely do these orders specify the proximity. Representative Croft explained that under one extreme, such as in Vice Chair Ogan's example, if the person knowingly "walked," then the person knowingly committed an act that violated the order. Therefore, the person is guilty without any culpable mental state, which concerns Representative Croft. He indicated that the opposite case is of concern as well. Representative Croft indicated that it seems appropriate to get to some middle ground that asks how reasonable was the action taken, so that if the act was reasonable, the person wouldn't be prosecuted. VICE CHAIR OGAN asked if HB 348 strikes a balance between a strict liability and a culpable mental state. REPRESENTATIVE CROFT replied yes. Number 1146 REPRESENTATIVE BERKOWITZ said that notwithstanding his philosophical objection to moving bills that the court is hearing, HB 348 is an accurate standard of where the law should be. Furthermore, it is a standard that is easy for the prosecution and defense to understand and, thus, leads to greater security for all parties. VICE CHAIR OGAN asked if HB 348 would impact the current case. REPRESENTATIVE CROFT related his belief that HB 348 can't be retroactive, mentioning the possibility of constitutional problems. VICE CHAIR OGAN related his concern that restraining orders are given out almost too freely. He expressed concern that there isn't always probable cause other than a person's perception of being in danger. He mentioned that the Division of Family & Youth Services (DFYS) and restraining orders are [misused] to build evidence in custody disputes. REPRESENTATIVE CROFT agreed that [child custody cases] are volatile and emotionally taxing. Representative Croft explained that HB 348 is an attempt to fix an ambiguity in a narrow area of the law. Although he acknowledged that there are many things that could be addressed in this area, he expressed his hope that the committee wouldn't try to solve all [the other problems] via HB 348. Number 0900 REPRESENTATIVE COGHILL said: So, certainly somebody is ordered to do something, and under this standard would have to do a reckless- disregard violation. How about the other side? Is the standard, then, going to [apply] if somebody ... who has a protective order to protect themselves and they, with reckless disregard, push somebody into that [violation]? ... Is this standard going both ways? REPRESENTATIVE CROFT answered that when the orders are reciprocal, then [HB 348] would be the standard for both parties. REPRESENTATIVE COGHILL clarified that he isn't referring to reciprocal orders. He informed the committee that it has been brought to his attention that when someone is under a restraining order, the person to be protected violated the space with recklessly disregard in order to place the other person in trouble. Such a situation seems grossly unfair. Therefore, he reiterated his question as to whether [HB 348] "cuts both ways." REPRESENTATIVE CROFT said that when one is under an order, [HB 348] would be the standard. However, he wasn't sure of the standard when a person isn't under an order. REPRESENTATIVE JAMES asked whether the person under the restraining order is always served and will know what is included in the order. REPRESENTATIVE CROFT related his understanding that an order can be obtained for a very short period of time without any notice to the parties. However, it will dissolve fairly quickly [and will remain] dissolved until the other party has a chance to tell his/her side. Representative Croft said he thinks such would be an ex parte order. Number 0723 LAUREE HUGONIN, Executive Director, Alaska Network on Domestic Violence & Sexual Assault (ANDVSA), in an effort to alleviate some concern, provided the committee with a copy of a court order for a regular protective order. Although she recognized that anything can be misused, she said that wouldn't be the case with the majority of circumstances. Ms. Hugonin reviewed the various aspects of the order. She pointed out that there are 16 different provisions for which one can request protection, seven of which would fall under the scope of class A misdemeanor convictions. The seven provisions that fall under the scope of class A misdemeanor convictions per the protective order are on page 2, items a-e, and page 3, items i and j. MS. HUGONIN pointed out that the language in the protective order is fairly clear and there is space for the judge to include comments to provide further clarification. For example, in item c there is space for the judge to specify the distance the respondent has to be away from the petitioner's residence. Moreover, item d lists the prohibited locations, and there could be exceptions. Therefore, the order is fairly detailed and clear. Ms. Hugonin noted that the orders cannot be enforced until the person has received the order, and that ex parte orders [are in effect] for 20 days. The order has to be served and the person has to know [the details of the order] before that person can be convicted of violating the order. Ms. Hugonin informed the committee that as of today, there are 692 regular protective orders, 281 ex parte orders, and only 2 emergency orders. She noted, however, that those numbers fluctuate daily. MS. HUGONIN suggested that in looking at the order, the committee could see that it isn't that easy to obtain. She further explained that a six-page petition has to be completed and forwarded to the judge who has to find by a preponderance of evidence that the crime has been committed, and that the judge then has a great deal of discretion and authority in crafting the order. Ms. Hugonin expressed her hope that the committee would support HB 348. Number 0369 ANNE CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), announced that she would explain some of the court procedure that led to this decision. She noted that she worked on the original 1996 Domestic Violence Protection Act, and indicated that during that time, the dynamics of domestic violence were reviewed and it was decided that a person ordered to not have contact with another should follow that order. MS. CARPENETI said that in order to accomplish this, the legislature adopted AS 18.66.130(a) that in part specifies: "an invitation by the petitioner to communicate, enter the residence or vehicle, or have other prohibited contact with the petitioner does not waive or nullify any provision in a protective order." Furthermore, the statute required that each protective order specify [the above] in bold face. The [Act] also enacted [AS] 11.57.740, which changed the law to say that it's a misdemeanor to knowingly commit an act that violates a protective order. She added that, apparently, that wasn't clear enough, at least, as Ms. Hugonin said, as it pertained to AS 18.66.100(c)(1)-(7). Number 0238 MS. CARPENETI turned to the Strane case. She explained that in this case, Patrick Strane was served with a protective order by a law enforcement officer who read the order to him. The order forbade Mr. Strane from contacting the victim. She interrupted her explanation of the Strane case to mention that in the aforementioned hypothetical situation of encountering [the petitioner/victim] in the grocery store, the respondent would have to take steps to leave. In the Strane case, she continued, the petitioner telephoned the respondent - Mr. Strane - for a ride, and the respondent obliged. She recounted that Mr. Strane said he didn't realize his actions in picking up the victim violated the protective order. Mr. Strane was convicted on stipulated facts in Superior Court. However, the court of appeal reversed the conviction based on its interpretation that the state is required to prove, beyond a reasonable doubt, that the defendant knew his/her action was violating the protective order. MS. CARPENETI said, "As a result of this decision, we are really unable to prosecute the majority of violation/cases under this statute because we have been unable to prove that knowledge, that the act violated the protective order." She agreed with Representative Croft that HB 348 is a good compromise. She pointed out that AS 11.81.610 provides that if criminal statutes don't state a culpable mental state for circumstances, then the court should read in a reckless standard. She stated that HB 348 specifically provides for a reckless culpable mental state for the circumstances, that the conduct was prohibited by the protective order. She indicated that [under HB 348], the state [might have] been able to successfully prosecute the Strane case. TAPE 02-24, SIDE A Number 0039 REPRESENTATIVE JAMES remarked that the circumstances in the Strane case bother her. Moreover, she indicated the unfairness in that the petitioner should've known that she was requesting the respondent to violate the order. MS. CARPENETI commented, "That's the dynamics of domestic violence." She explained that the court orders the respondent to not contact the petitioner and thus the respondent has to abide by the order. In the Strane case, the petitioner wasn't under any order of the court. REPRESENTATIVE JAMES reiterated that it doesn't meet her fairness test. She posited that such situations happen a lot. Number 0236 MARLA NELSON, Program Director, Abused Women's Aid in Crisis (AWAIC), testified via teleconference in support of HB 348, which [AWAIC] believes would strengthen the justice system's ability to enforce protective orders and prosecute violations. More importantly, [HB 348] would ensure the safety of the women and children who are victims of - or who are at risk of being victims of - domestic violence. Ms. Nelson said, "Successful prosecution of protective orders would further hold perpetrators accountable and send a message that protective orders must be taken seriously." She informed the committee that [AWAIC] works with victims that don't believe a protective order will further ensure their safety, and this belief keeps people from applying for the order. There is the fear that applying for an order would actually escalate the perpetrator's abusive behavior. Ms. Nelson commented on the difficulty in understanding the psyche of a victim of a domestic abuse. Number 0452 REPRESENTATIVE MEYER moved to report HB 348 out of committee with individual recommendations and the accompanying zero fiscal notes. There being no objection, HB 348 was reported from the House Judiciary Standing Committee.
| Document Name | Date/Time | Subjects |
|---|